EN BANC

[ G.R. No. 131652, March 09, 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.

DECISION

VITUG, J.:

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.
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 certiorari and 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).
“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 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).
“The respondent Judge committed grave abuse of discretion 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 were neither 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).
“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 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 -
"x x x 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.
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 of People
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 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.
"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 coprincipals, 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 if 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 offended 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 the Revised 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. The Revised 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.

EN BANC
[ G.R. Nos. 151249-50, February 26, 2004 ]
PEOPLE OF THE PHILIPPINES, APPELLEE, VS. ARIEL MACARANG,
APPELLANT.

DECISION

AUSTRIA-MARTINEZ, J.:

Before us on automatic review is a Decision[1] of the Regional Trial Court of Pasig City
(Branch 163) in Criminal Cases Nos. 116969-H and 117275-H, sentencing appellant
Ariel Macarang to suffer the penalty of death in each of said criminal cases for qualified
rape.  The dispositive portion of said Decision reads as follows:
WHEREFORE, in Criminal Case No. 116969-H, the accused is convicted of the crime of
rape and is sentenced to suffer the penalty of death by lethal injection and the accessory
penalty provided by law and to pay the costs.

In Criminal Case No. 117275-H, the accused is also convicted of the crime of rape and is
sentenced to suffer the penalty of death by lethal injection and the accessory penalties
provided by law and to pay the costs.

On the civil aspects of the two cases the accused is ordered to pay the victim, Armie
Christine Macarang, Php75,000.00 as civil indemnity and Php50,000.00 as moral
damages.

SO ORDERED.
Appellant claims that the trial court erred in giving weight and credence to the testimony
of private complainant and that appellant’s guilt was not proven beyond reasonable
doubt.

Appellee, represented by the Office of the Solicitor General, filed its brief, entitled “Brief
For The Appellee With Recommendation To Remand The Cases To The Court A Quo
For Further Proceedings”, calling our attention to the fact that the trial court had
considered appellant to have waived his right to present his evidence without any
showing that the latter was fully aware of the consequences of such waiver.
As borne out by the records of the case, the following proceedings took place in the trial
court:

Two separate Infomations[2] were filed charging appellant with the crime of qualified
rape, to wit:
Criminal Case No. 116969-H

On or about November 8, 1999, in San Juan, Metro Manila and within the jurisdiction of
this Honorable Court, the accused, being the father of Armie Christine Macarang y
Amboy, with lewd designs, by means of force and intimidation, did then and there
willfully, unlawfully and feloniously have sexual intercourse with said Armie Christine
Macarang y Amboy, 13 years old, against her will and consent.

Contrary to law.

Criminal Case No. 117275-H

On or about June 12, 1998, in San Juan, Metro Manila and within the jurisdiction of this
Honorable Court, the accused, being the father of Armie Christine Macarang y Amboy,
with lewd designs, by means of force and intimidation, did then and there willfully,
unlawfully and feloniously have sexual intercourse with said Armie Christine Macarang
y Amboy, 12 years old, against her will and consent.

Contrary to law.
Upon arraignment on December 14, 1999 in Criminal Case No. 116969-H and on April
11, 2000 in Criminal Case No. 117275-H, appellant, with assistance of counsel, pleaded
NOT GUILTY to each Information.  The cases were then consolidated and jointly heard
before Branch 163 of the Regional Trial Court of Pasig City.

After pre-trial, the prosecution proceeded to present evidence and thereafter, rested its
case.

The initial hearing for the reception of defense evidence was scheduled on March 13,
2001.  Presiding Judge Leili Suarez Acebo cancelled the setting as she had to attend a
seminar given by the Supreme Court[3] and scheduled anew the hearing on April 24, 2001
and May 8 and 22, 2001.  The April 24 hearing was cancelled upon motion of public
prosecutor who had to attend a seminar at the COMELEC. [4] The May 8 hearing was also
cancelled as appellant informed the court that his de parte counsel, Atty. Arnoldo
Pabelonio, was indisposed.[5] The trial court reset the hearing to May 22 as previously
scheduled, and set additional hearings on July 3, 17 & 24, 2001.  The May 22 hearing
was cancelled for failure of counsel for appellant to appear in court for the hearing.
[6]
 Again, defense counsel was absent for the July 3 hearing and the same was reset to the
next scheduled hearing dates.[7] On July 17, 2001, defense counsel manifested in court
that appellant was contemplating on changing his plea from “not guilty” to “guilty” and
requested for more time for the appellant to come to a decision.  The trial court then
cancelled the July 17 and 24, 2001 hearings and re- scheduled the same on August 14 and
28, 2001.[8] On August 14, the trial court, apparently irked by the numerous
postponements of the cases, issued the following:
ORDER

When this case was called supposedly for the initial presentation of defense evidence, the
defense counsel manifested that the accused had intimated to him that he was not
prepared to testify, the reason being that he was just recuperating from an illness. 
However, when asked by the Court, accused stated that it was up to his lawyer, inspite of
which, the Defense Counsel begged the indulgence of the Court as he did not bring the
record of the case and was not prepared to call the accused to the witness stand.

WHEREFORE, considering that the trial of this case had been repeatedly postponed and
that Defense Counsel had been the subject at least two (2) show cause orders, reset for
the last time to August 28 and September 18, 2001 at 8:30 o’clock in the morning,
with a warning that if on the next scheduled hearing accused would not still be
ready to present evidence, he would be deemed to have waived his right to do so.

SO ORDERED.[9] (Emphasis supplied).
On August 28, 2001, defense counsel filed an Urgent Motion to be Allowed to Withdraw
as Counsel,[10] stating therein that the delay in the hearing of the case was due to the
insistence of appellant that he moved for postponements, in the hope that appellant’s
daughter would eventually cause the dismissal of the case.  At the hearing set on the same
date, the trial court issued the following
ORDER

When these cases were called for trial, accused begged the Court for one last resetting on
the ground that he is not prepared.  The Public Prosecutor did not object to the request for
postponement on the condition that if on the next scheduled hearing, accused would still
not be able to present evidence, he would rest his cases and the cases would be deemed
submitted for decision on the basis of the prosecution evidence.

WHEREFORE, as prayed for, reset to September 18, 2001, as previously scheduled and
additional settings on September 25, 2001, October 2 & 9, 2001, all at 8:30 o’clock in the
morning.  The pending motion to withdraw as counsel filed by Atty. Arnoldo C.
Pabelonio is denied for lack of merit.

SO ORDERED.[11]
Finally, at the hearing held on September 18, 2001, the trial court issued the following:
ORDER
When this case was called supposedly for the presentation of defense evidence, accused
manifested that he was still not ready to do so.  Record shows that such presentation
had been repeatedly postponed mostly at the instance of the accused and/or his lawyer.

Thus, as prayed for by the Public Prosecutor and pursuant to the order of August 28,
2001, accused is now deemed to have waived his right to present evidence.  As
further prayed for, this case is now deemed submitted for decision.

Moreover, the “Urgent Motion to be Allowed to Withdraw as Counsel” filed by Atty.

Arnoldo Pabelonio, is granted with the consent of the accused.

SO ORDERED.[12] (Emphasis supplied).
Based on the prosecution evidence, the trial court, on November 13, 2001 promulgated its
Decision dated October 17, 2001, convicting appellant of the crime of qualified rape and
sentencing him to suffer the ultimate penalty of death in each of the criminal cases.

We are aware of the usual practice of presiding judges in warning a party in a case that he
will be considered to have waived his right to adduce evidence if he fails to present it at
the next hearing, after prior unwarranted postponements, despite previous agreement of
the parties.  Its objective is to instill discipline on the litigants and their counsel so that
the proceedings of the court would not be unduly delayed.

However, in criminal cases where the imposable penalty may be death, as in the present
cases, the presiding judge is called upon to see to it that the accused is made aware of the
consequences of not heeding the warning given by the trial court.  It must be noted that
the waiver of the right to present defense evidence in the present cases was not even
voluntary nor upon the instance of the appellant but imposed by the trial court, apparently
to penalize appellant, after he and his counsel repeatedly moved for the postponements of
the scheduled hearings.

As stated by the trial court in its Order dated September 18, 2001, appellant manifested in
open court that “he was still not ready to do so”, that is, that he was not ready to present
his evidence.  Appellant never said that he did not wish to present evidence.  It should
have been clear to the trial court that appellant never intended to waive his right to
present his evidence.  Thus, a simple forewarning to the appellant that the next time that
he would not be ready with his defense evidence, he would be deemed to have waived his
right to present it, did not satisfy appellant’s constitutional right to due process.  The trial
court should have first apprised appellant or explained to him in clear terms the exact
nature and consequences of a waiver.  The trial court should have satisfied itself that
appellant understood the real import of the court’s action if it would consider him as
having waived his right to present his evidence if he would not be ready to do so the next
time the case would be called for trial.
Moreover, in the same Order declaring appellant to have waived his right to present
evidence, the trial court granted the motion of appellant’s counsel to withdraw his
appearance.  Appellant, therefore, had no more counsel.  The trial court did not ask him if
he would wish to solicit the services of another counsel de parte or want the court to
designate a de oficio counsel for him.  Consequently, appellant’s inaction, after the
declaration by the trial court that he was deemed to have waived his right to present
evidence in spite of the fact that there were other dates previously scheduled by the trial
court for reception of his evidence, should not be taken against appellant.  It did not
justify the trial court to render judgment against him on the basis of the prosecution
evidence and sentence him to suffer the penalty of death in both cases, without first
ensuring that appellant was aware of the consequences of the waiver of his right to
present his evidence, and without exerting any effort to ask him if he would like to be
represented by another lawyer of his own choice or through the assistance of the Public
Attorney’s Office (PAO) or through a counsel de oficio appointed by the court.

It is obvious then that the appellant was deprived of his right to due process.

We apply by analogy our ruling in People vs. Bodoso,[13] to wit:

This Court notes with deep regret the failure of the trial court to inquire from accused-
appellant himself whether he wanted to present evidence; or submit his memorandum
elucidating on the contradictions and insufficiency of the prosecution evidence, if any; or
in default thereof, file a demurrer to evidence with prior leave of court, if he so believes
that the prosecution evidence is so weak that it need not even be rebutted.  The inquiry is
simply part and parcel of the determination of the validity of the waiver, i.e., “not only
must be voluntary, but must be knowing, intelligent, and done with sufficient awareness
of the relevant circumstances and likely consequences,” which ought to have been done
by the trial court not only because this was supposed to be an uncomplicated and routine
task on its part, but more importantly since accused-appellant himself did not personally,
on a person-to-person basis, manifest to the trial court the waiver of his own right.
In the light of the foregoing, we have no other recourse but to set aside the judgment of
the trial court convicting appellant and order the remand of the records of the case to the
trial court to conduct further proceedings.

WHEREFORE, the Decision of the Regional Trial Court of Pasig City, Branch 163, in
Criminal Cases Nos. 116969-H and 117275-H dated October 17, 2001 is SET ASIDE.

Let the records of Criminal Cases Nos. 116969-H and 117275-H be REMANDED to
Branch 163 of the Regional Trial Court of Pasig City for further appropriate proceedings
to give appellant the opportunity to present his evidence, if he so desires, through a
counsel of his choice or through the Public Attorney’s Office or any competent de
oficio counsel to be appointed by said court.
For this purpose, the proper law enforcement officers are directed to TRANSFER
appellant Ariel Macarang from the New Bilibid Prison, where he is presently
incarcerated, to San Juan Municipal Jail, San Juan, Metro Manila, with adequate security
escort, where he shall be DETAINED for the duration of the proceedings in the trial
court.

The Regional Trial Court of Pasig City (Branch 163) is directed to dispose of said
criminal cases without further delay.

Costs de oficio

SO ORDERED.

THIRD DIVISION
[ G.R. No. 183879, April 14, 2010 ]
ROSITA SY, PETITIONER, VS. PEOPLE OF THE PHILIPPINES,
RESPONDENT.

RESOLUTION

NACHURA, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of
Court, assailing the Decision [1] dated July 22, 2008 of the Court of Appeals (CA) in CA-
G.R. CR No. 30628.

Rosita Sy (Sy) was charged with one count of illegal recruitment in Criminal Case No.
02-0537 and one count of estafa in Criminal Case No. 02-0536. In a joint decision of the
Regional Trial Court (RTC), Sy was exonerated of the illegal recruitment charge.
However, she was convicted of the crime of estafa. Thus, the instant appeal involves only
Criminal Case No. 02-0536 for the crime of estafa.

The Information[2] for estafa reads:

That sometime in the month of March 1997, in the City of Las Piñas, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, did, then and
there willfully, unlawfully and feloniously defraud Felicidad Mendoza-Navarro y
Landicho in the following manner, to wit: the said accused by means of false pretenses
and fraudulent representation which she made to the said complainant that she can deploy
her for employment in Taiwan, and complainant convinced by said representations, gave
the amount of P120,000.00 to the said accused for processing of her papers, the latter
well knowing that all her representations and manifestations were false and were only
made for the purpose of obtaining the said amount, but once in her possession[,] she
misappropriated, misapplied and converted the same to her own personal use and benefit,
to the damage and prejudice of Felicidad Mendoza-Navarro y Landicho in the
aforementioned amount of P120,000.00.

CONTRARY TO LAW.[3]

On May 27, 2007, Sy was arraigned and pleaded not guilty to the crimes charged. Joint
trial ensued thereafter.

As summarized by the CA, the facts of the case are as follows:

Version of the Prosecution

Sometime in March 1997, appellant, accompanied by Corazon Miranda (or "Corazon"),

went to the house of Corazon's sister, Felicidad Navarro (or "Felicidad"), in Talisay,
Batangas to convince her (Felicidad) to work abroad. Appellant assured Felicidad of a
good salary and entitlement to a yearly vacation if she decides to take a job in Taiwan.
On top of these perks, she shall receive compensation in the amount of Php120,000.00.
Appellant promised Felicidad that she will take care of the processing of the necessary
documents, including her passport and visa. Felicidad told appellant that she will think
about the job offer.

Two days later, Felicidad succumbed to appellant's overseas job solicitation. With
Corazon in tow, the sisters proceeded to appellant's residence in Better Homes,
Moonwalk, Las Piñas City. Thereat, Felicidad handed to appellant the amount of
Php60,000.00. In the third week of March 1997, Felicidad returned to appellant's abode
and paid to the latter another Php60,000.00. The latter told her to come back the
following day. In both instances, no receipt was issued by appellant to acknowledge
receipt of the total amount of Php120,000.00 paid by Felicidad.

On Felicidad's third trip to appellant's house, the latter brought her to Uniwide in Sta.
Cruz, Manila, where a male person showed to them the birth certificate that Felicidad
would use in applying for a Taiwanese passport. The birth certificate was that of a certain
Armida Lim, born to Margarita Galvez and Lim Leng on 02 June 1952. Felicidad was
instructed on how to write Armida Lim's Chinese name.

Subsequently, appellant contacted Felicidad and thereafter met her at the Bureau of
Immigration office. Thereat, Felicidad, posing and affixing her signature as Armida G.
Lim, filled out the application forms for the issuance of Alien Certificate of Registration
(ACR) and Immigrant Certificate of Registration (ICR). She attached to the application
forms her own photo. Felicidad agreed to use the name of Armida Lim as her own
because she already paid to appellant the amount of Php120,000.00.

In December 1999, appellant sent to Felicidad the birth certificate of Armida Lim, the
Marriage Contract of Armida Lim's parents, ACR No. E128390, and ICR No. 317614.
These documents were submitted to and eventually rejected by the Taiwanese authorities,
triggering the filing of illegal recruitment and estafa cases against appellant.

Version of the Defense

Appellant denied offering a job to Felicidad or receiving any money from her. She
asserted that when she first spoke to Felicidad at the latter's house, she mentioned that her
husband and children freely entered Taiwan because she was a holder of a Chinese
passport. Felicidad commented that many Filipino workers in Taiwan were holding
Chinese passports.

Three weeks later, Felicidad and Corazon came to her house in Las Piñas and asked her if
she knew somebody who could help Felicidad get a Chinese ACR and ICR for a fee.

Appellant introduced a certain Amelia Lim, who, in consideration of the amount of

Php120,000.00, offered to Felicidad the use of the name of her mentally deficient sister,
Armida Lim. Felicidad agreed. On their second meeting at appellant's house, Felicidad
paid Php60,000.00 to Amelia Lim and they agreed to see each other at Uniwide the
following day. That was the last time appellant saw Felicidad and Amelia Lim. [4]

On January 8, 2007, the RTC rendered a decision,[5] the dispositive portion of which

reads:

WHEREFORE, premises considered the court finds the accused Rosita Sy NOT
GUILTY of the crime of Illegal Recruitment and she is hereby ACQUITTED of the said
offense. As regards the charge of Estafa, the court finds the accused GUILTY thereof and
hereby sentences her to an indeterminate penalty of four (4) years of prision correctional
as minimum to 11 years of prision mayor, as maximum. The accused is ordered to
reimburse the amount of sixty-thousand (Php60,000.00) to the private complainant.

SO ORDERED.[6]

Aggrieved, Sy filed an appeal for her conviction of estafa. On July 22, 2008, the CA
rendered a Decision,[7] affirming with modification the conviction of Sy, viz.:

WHEREFORE, with the MODIFICATION sentencing accused-appellant to suffer the

indeterminate penalty of four (4) years and two (2) months of prision correccional, as
minimum, to seventeen (17) years of reclusion temporal, as maximum, the appealed
decision is AFFIRMED in all other respects.

SO ORDERED.[8]

Hence, this petition.

The sole issue for resolution is whether Sy should be held liable for estafa, penalized
under Article 315, paragraph 2(a) of the Revised Penal Code (RPC).[9]

Swindling or estafa is punishable under Article 315 of the RPC. There are three ways of
committing estafa, viz.: (1) with unfaithfulness or abuse of confidence; (2) by means of
false pretenses or fraudulent acts; or (3) through fraudulent means. The three ways of
committing estafa may be reduced to two, i.e., (1) by means of abuse of confidence; or
(2) by means of deceit.

The elements of estafa in general are the following: (a) that an accused defrauded another
by abuse of confidence, or by means of deceit; and (b) that damage and prejudice capable
of pecuniary estimation is caused the offended party or third person.

The act complained of in the instant case is penalized under Article 315, paragraph 2(a)
of the RPC, wherein estafa is committed by any person who shall defraud another by
false pretenses or fraudulent acts executed prior to or simultaneously with the
commission of the fraud. It is committed by using fictitious name, or by pretending to
possess power, influence, qualifications, property, credit, agency, business or imaginary
transactions, or by means of other similar deceits.

The elements of estafa by means of deceit are the following, viz.: (a) that there must be a
false pretense or fraudulent representation as to his power, influence, qualifications,
property, credit, agency, business or imaginary transactions; (b) that such false pretense
or fraudulent representation was made or executed prior to or simultaneously with the
commission of the fraud; (c) that the offended party relied on the false pretense,
fraudulent act, or fraudulent means and was induced to part with his money or property;
and (d) that, as a result thereof, the offended party suffered damage. [10]

In the instant case, all the foregoing elements are present. It was proven beyond
reasonable doubt, as found by the RTC and affirmed by the CA, that Sy misrepresented
and falsely pretended that she had the capacity to deploy Felicidad Navarro (Felicidad)
for employment in Taiwan. The misrepresentation was made prior to Felicidad's payment
to Sy of One Hundred Twenty Thousand Pesos (P120,000.00). It was Sy's
misrepresentation and false pretenses that induced Felicidad to part with her money. As a
result of Sy's false pretenses and misrepresentations, Felicidad suffered damages as the
promised employment abroad never materialized and the money she paid was never
recovered.

The fact that Felicidad actively participated in the processing of the illegal travel
documents will not exculpate Sy from liability. Felicidad was a hapless victim of
circumstances and of fraud committed by Sy. She was forced to take part in the
processing of the falsified travel documents because she had already paid P120,000.00.
Sy committed deceit by representing that she could secure Felicidad with employment in
Taiwan, the primary consideration that induced the latter to part with her money.
Felicidad was led to believe by Sy that she possessed the power and qualifications to
provide Felicidad with employment abroad, when, in fact, she was not licensed or
authorized to do so. Deceived, Felicidad parted with her money and delivered the same to
petitioner. Plainly, Sy is guilty of estafa.

Illegal recruitment and estafa cases may be filed simultaneously or separately. The filing

of charges for illegal recruitment does not bar the filing of estafa, and vice versa. Sy's
acquittal in the illegal recruitment case does not prove that she is not guilty of estafa.
Illegal recruitment and estafa are entirely different offenses and neither one necessarily
includes or is necessarily included in the other. A person who is convicted of illegal
recruitment may, in addition, be convicted of estafa under Article 315, paragraph 2(a) of
the RPC.[11] In the same manner, a person acquitted of illegal recruitment may be held
liable for estafa. Double jeopardy will not set in because illegal recruitment is malum
prohibitum, in which there is no necessity to prove criminal intent,
whereas estafa is malum in se, in the prosecution of which, proof of criminal intent is
necessary.[12]

The penalty prescribed for estafa under Article 315 of the RPC is prision correccional in
its maximum period to prision mayor in its minimum period, if the amount defrauded is
over Twelve Thousand Pesos (P12,000.00) but does not exceed Twenty-two Thousand
Pesos (P22,000.00), and if such amount exceeds the latter sum, the penalty shall be
imposed in its maximum period, adding one year for each additional Ten Thousand Pesos
(P10,000.00); but the total penalty that may be imposed shall not exceed twenty years. In
such cases, and in connection with the accessory penalties that may be imposed under the
provisions of this Code, the penalty shall be termed prision mayor or reclusion temporal,
as the case may be.

The addition of one year imprisonment for each additional P10,000.00, in excess of
P22,000.00, is the incremental penalty. The incremental penalty rule is a mathematical
formula for computing the penalty to be actually imposed using the prescribed penalty as
the starting point. This special rule is applicable in estafa and in theft.[13]

In estafa, the incremental penalty is added to the maximum period of the penalty
prescribed, at the discretion of the court, in order to arrive at the penalty to be actually
imposed, which is the maximum term within the context of the Indeterminate Sentence
Law (ISL).[14] Under the ISL, attending circumstances in a case are applied in conjunction
with certain rules of the Code in order to determine the penalty to be actually imposed
based on the penalty prescribed by the Code for the offense. The circumstance is that the
amount defrauded exceeds P22,000.00, and the incremental penalty rule is utilized to fix
the penalty actually imposed.[15]

To compute the incremental penalty, the amount defrauded shall be subtracted by

P22,000.00, and the difference shall be divided by P10,000.00, and any fraction of
P10,000.00 shall be discarded.[16]

In the instant case, prision correccional in its maximum period to prision mayor in its
minimum period is the imposable penalty. The duration of prision correccional in its
maximum period is from four (4) years, two (2) months and one (1) day to six (6) years;
while prision mayor in its minimum period is from six (6) years and one (1) day to eight
(8) years. The incremental penalty for the amount defrauded would be an additional nine
years imprisonment, to be added to the maximum imposable penalty of eight years. Thus,
the CA committed no reversible error in sentencing Sy to an indeterminate penalty of
four (4) years and two (2) months of prision correccional, as minimum, to seventeen (17)
years of reclusion temporal, as maximum.

As to the amount that should be returned or restituted by Sy, the sum that Felicidad gave
to Sy, i.e., P120,000.00, should be returned in full. The fact that Felicidad was not able to
produce receipts is not fatal to the case of the prosecution since she was able to prove by
her positive testimony that Sy was the one who received the money ostensibly in
consideration of an overseas employment in Taiwan.[17]

WHEREFORE, in view of the foregoing, the Decision of the Court of Appeals dated
July 22, 2008 in CA-G.R. CR No. 30628, sentencing petitioner Rosita Sy to an
indeterminate penalty of four (4) years and two (2) months of prision correccional, as
minimum, to seventeen (17) years of reclusion temporal, as maximum, is
hereby AFFIRMED. We, however, MODIFY the CA Decision as to the amount of civil
indemnity, in that Sy is ordered to reimburse the amount of One Hundred Twenty
Thousand Pesos (P120,000.00) to private complainant Felicidad Navarro.

SO ORDERED.

FIRST DIVISION
[ G.R. No. 175999, July 01, 2015 ]
 NELSON LAI Y BILBAO, PETITIONER, VS. PEOPLE OF THE
PHILIPPINES, RESPONDENT.

DECISION

BERSAMIN, J.:

The accused assails the affirmance of his conviction for homicide through the
assailed decision promulgated on May 27, 2005 by the Court of Appeals (CA). [1] The
conviction had been handed down by Judge Fernando R. Elumba of the Regional Trial
Court, Branch 42, in Bacolod City (RTC) in Criminal Case No. 17446 entitled People of the
Philippines v. Nelson Lai y Bilbao.[2]

Antecedents

The Prosecution's version was summarized by the RTC as follows:

On December 16, 1995, at around 9 o'clock in the evening, the victim Enrico
Villanueva, Jr. together with his friends Burnie Fuentebella (a prosecution witness),
Butsoy Arenas, Raffy Gustilo, Nonoy Martinez, and Mark Anthony Merre, were seated
inside the passenger jeepney owned by the accused, Nelson Lai y Bilbao, which was
parked at the back of Pala-pala, Brgy. 6, corner North Capitol Road - San Juan Streets,
Bacolod City, where they were waiting for a female friend of theirs who was supposed
to arrive at 9:30 o'clock of the same evening per their agreement. While they were
waiting for their friend to arrive, the accused Nelson Lai y Bilbao suddenly approached
the vehicle and ordered all the persons who were seated inside (including the deceased
Enrico Villanueva, Jr.) to alight therefrom. After all of them have alighted from the
jeepney, the accused instantaneously grabbed the victim by the latter's left arm and
accused him (the deceased) of having stolen the antenna of his (Lai's) vehicle. Denying
that he was responsible for the theft of the antenna, the victim was able to free himself
from the hold of the accused and ran away towards the direction of the house of
Christopher Padigos located at Purok Narra Bukid North, Brgy. 8, Bacolod City, across
the Pala-pala. Upon arriving at the house of Christopher Padigos, the victim ran all the
way to the second floor room he shared with Jemuel V. Gepaya (a prosecution witness).
Finding his roommate inside the room, the victim confided to the former that Nelson Lai
had just accused him of stealing his (Lai's) car antenna and that he (the deceased) was
grabbed and hit by the accused at the neck but that he (the victim) was able to retaliate
by kicking the accused. There the victim remained until about 11:00 o'clock of the same
evening when he left the house of Christopher Padigos to go to the dancehall located at
nearby Purok Azucena, Barangay 6, Bacolod City where a benefit dance was being held.

At around 11:00 o'clock of the same evening, both the accused and the victim were
inside the dancehall, the latter being seated on a bench together with his friends while
the former was dancing to the tune of the cha-cha. After dancing the accused stood
immediately in front at about one and a half arms length (sic.) from where the victim
was seated. Thereafter, the accused stepped towards where the victim was seated. As
the accused was about to approach the victim, a brownout suddenly occurred.
Immediately after the lights went out, a spark was seen and a gunshot rang out right in
front where the victim was seated. Suddenly, the victim fell down bloodied.
Immediately thereafter, the victim was rushed to the provincial hospital by his friends
led by Burnie Fuentebella, a prosecution witness, for treatment. Similarly, Jemuel V.
Gepaya, a cousin of the victim, also followed to the hospital after hearing the news that
the victim was shot.

Inside the Emergency Room of the Provincial Hospital, while the victim lay (sic) bleeding
from a gunshot wound in the neck and awaiting medical attention, he was able to tell
Burnie Fuentebella and Jemuel Gepaya, both prosecution witnesses, that the accused
Nelson Lai was the one who shot him. Moreover, the victim likewise shouted the name
"Nelson Lai" when he was asked by PO3 Homer Vargas who shot him. Likewise, when
Enrico Villanueva, Sr., the father of the victim, arrived at the Emergency Room and
asked the victim who shot him, the latter replied that it was "Nelson Lai", (parenthetical
citations omitted)[3]
In contrast, the CA summed up the Defense's own version in its assailed decision,
to wit:
Appellant Nelson Lai drives his own passenger jeep plying the Banago-Libertad
route. At around 8:30 o'clock in the evening of December 16, 1995, appellant parked his
jeepney at the back of his house located at Purok Azucena, Barangay 6, Bacolod City.
After resting for a while, he went to the house of their Purok President, Ramero
Jarabelo, where he drank three bottles of beer. Thereafter, he went home at around
9:00 o'clock, passing by the dancehall were (sic.) a benefit dance was being held as a
thanksgiving party for the Sangguniang Kabataan. There, he was invited by Merlyn Rojo,
who acted as emcee of the program, to open the first dance. Appellant acceded and
danced the first dance with Merlyn Rojo. After their dance, appellant went home as he
still had to work early the next morning.

When appellant arrived home, he noticed that eight (8) persons, including the victim,
were seated inside his jeepney. He approached them and requested them not to stay
inside his jeepney. Thereafter, all of them went away without any untoward incident.
When the accused and his wife were about to have their late dinner at around 11:00
o'clock, a brownout occurred. About two seconds after the lights went out; he heard a
gunshot which he initially thought was merely a firecracker. Later, when he overheard
that someone was shot at the dancehall which was only 40 meters away from his house,
he went out to look for his two sons. Along the way, he met Daisy Panes, who, together
with her husband, were also on their way to the dancehall.

At the dancehall, someone told appellant that his son, Windel, was the one who carried
the victim to the hospital. So appellant went home and proceeded to eat his dinner. At
around 11:45 o'clock of the same evening, while appellant was already resting, three
policemen came to his house and told him that the victim mentioned his name as the
one who shot him. Believing that he has done nothing wrong, appellant volunteered to
go with the policemen. Appellant claims that when they arrived at the police station, he
even asked that a paraffin test be conducted on him, the result of which was negative. [4]
Judgment of the RTC

In its judgment dated August 22, 2001,[5] the RTC, through Judge Elumba, disposed as
follows:
WHEREFORE, premises considered, this Court finds the accused NELSON LAI y
BILBAO guilty beyond reasonable doubt of the crime of Homicide defined and penalized
under Article 249 of the Revised Peñal Code of the Philippines, as amended, and, in the
absence of neither mitigating nor aggravating circumstances which may be considered
in the imposition of the penalty thereof, this Court hereby sentences the said accused to
suffer the indeterminate penalty of imprisonment of eight (8) years and one (1) day of
prision mayor as minimum to fourteen (14) years, 8 months and one (1) day of reclusion
temporal as maximum and orders the accused to indemnify the heirs of the victim
Enrico Villanueva, Jr. in the amount of Fifty thousand (P50,000.00) Pesos only without
subsidiary imprisonment in case of insolvency as well as to suffer the accessory penalty
provided for by law and to pay the costs.
SO ORDERED.[6]
Decision of the CA

On appeal, the petitioner raised the following errors, to wit:

[T]hat the lower court:

1. ERRED in giving full credence to the alleged dying declaration of Enrico

Villanueva. Jr.;

2. ERRED in considering the alleged earlier untoward incident between accused and
the group of Enrico Villanueva, Jr. as sufficient to motivate the former to kill the
latter;

3. ERRED in discarding en (sic) toto the defense of alibi and the negative result of
the paraffin test conducted on the accused;

4. ERRED in failing to see that the entire evidence presented by both the
prosecution and defense engender a reasonable doubt which should be resolved
in favor of the accused;

5. ERRED as accused was deprived of due process when this case was decided by
the honorable presiding judge who acted as the public prosecutor in this case
before he was appointed to the bench;

6. ERRED when it completely disregarded appellant's motion for reconsideration

below with nary a look into any issue raised therein; and

7. ERRED when it denied appellant's motion for new trial.[7]

On May 27, 2005, the CA promulgated its decision,[8] disposing:

WHEREFORE, the assailed Decision of the Regional Trial Court of Bacolod City,
Branch 42, in Criminal Case No. 17446 is hereby AFFIRMED in toto.

SO ORDERED.[9]
Ruling of the Court

In this appeal, the petitioner continues to assail the conviction, but the Court has
immediately noted that the right to due process of the petitioner had been denied to
him by Judge Elumba, the trial judge, by not disqualifying himself from sitting on and
trying Criminal Case No. 17446 despite having participated in the trial as the public
prosecutor. Thus, it is necessary for the Court to first determine if the non-
disqualification of Judge Elumba prejudiced the petitioner's right to a fair and impartial
trial.

As the records indicate, Judge Elumba had been assigned on March 23, 1998 as the
public prosecutor in Branch 42 of the RTC in Negros Occidental to replace the previous
public prosecutor,[10] but became the Presiding Judge of Branch 42 on April 27, 2000.
[11]
 Branch 42 was the trial court hearing and ultimately deciding Criminal Case No.
17446 against the petitioner. As such, Judge Elumba should have disqualified himself
from having anything to do with the case once he became the trial judge because he
was compulsorily disqualified. The petitioner pointed to the need for Judge Elumba's
disqualification in his Motion for Reconsideration,[12] but the latter ignored his concerns
upon the excuse that he had appeared in Criminal Case No. 17446 only after the
Prosecution had rested its case. Judge Elumba argued that he did not personally
prosecute the case, and that, at any rate, the petitioner should have sought his
disqualification prior to the rendition of the judgment of conviction. [13]

On appeal, the petitioner focused the CA's attention to the denial of due process to him
by the non-disqualification of Judge Elumba, but the CA upheld Judge Elumba's
justifications, stating:
As to the fifth assigned error, appellant claims that he was denied due process
because the judge who rendered the assailed decision was also, at one time, the public
prosecutor of the instant case. First, the record of this case shows that when the judge,
who was then a public prosecutor, entered his appearance, the prosecution had already
long rested its case, more specifically, he appeared therein only when the last witness
for the defense was presented, not to mention the fact that it was a private prosecutor
who cross-examined the last witness, Merlyn Rojo. Thus, it cannot be said that the
presiding judge personally prosecuted the instant case, nor supervised the prosecution
thereof when the same was still pending. Second, settled is the rule that a petition to
disqualify a judge must be filed before rendition of judgment by the judge. Having failed
to move for the disqualification of the judge, appellant cannot thereafter, upon a
judgment unfavorable to his cause, take a total turn about (sic.) and say that he was
denied due process. 'One surely cannot have his cake and eat it too.' [14]
It is not disputed that the constitutional right to due process of law cannot be
denied to any accused. The Constitution has expressly ordained that "no person shall be
deprived of life, liberty or property without due process of law." [15] An essential part of
the right is to be afforded a just and fair trial before his conviction for any crime. Any
violation of the right cannot be condoned, for the impartiality of the judge who sits on
and hears a case, and decides it is an indispensable requisite of procedural due process.
[16]
 The Court has said:
This Court has repeatedly and consistently demanded 'the cold neutrality of an
impartial judge' as the indispensable imperative of due process. To bolster that
requirement, we have held that the judge must not only be impartial but must also
appear to be impartial as an added assurance to the parties that his decision will be just.
The litigants are entitled to no less than that. They should be sure that when their rights
are violated they can go to a judge who shall give them justice. They must trust the
judge, otherwise they will not go to him at all. They must believe in his sense of fairness,
otherwise they will not seek his judgment. Without such confidence, there would be no
point in invoking his action for the justice they expect.

Due process is intended to insure that confidence by requiring compliance with what
Justice Frankfurter calls the rudiments of fair play. Fair play cans for equal justice. There
cannot be equal justice where a suitor approaches a court already committed to the
other party and with a judgment already made and waiting only to be formalized after
the litigants shall have undergone the charade of a formal hearing. Judicial (and also
extra-judicial) proceedings are not orchestrated plays in which the parties are supposed
to make the motions and reach the denouement according to a prepared script. There is
no writer to foreordain the ending. The judge will reach his conclusions only after all the
evidence is in and all the arguments are filed, on the basis of the established facts and
the pertinent law.[17]
The adoption of rules governing the disqualification of the judges from hearing
and deciding cases should there be any cause that diminishes or negates their
impartiality is a firm means of ensuring their impartiality as judges. In particular, Section
1, Rule 137 of the Rules of Court embodies the rule on self-disqualification by a sitting
judge, viz.:
 Section 1. Disqualification of judges. - No judge or judicial officer shall sit in any
case in which he, or his wife or child, is pecuniarily interested as heir, legatee, creditor
or otherwise, or in which he is related to either party within the sixth degree of
consanguinity or affinity, or to counsel within the fourth degree, computed according to
the rules of the civil law, or in which he has been executor, administrator, guardian,
trustee or counsel, or in which he has presided in any inferior court when his ruling or
decision is the subject of review, without the written consent of all parties in interest,
signed by them and entered upon the record.

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.
Section 1 of Rule 137, supra, contemplates two kinds of self-disqualification. The
first paragraph enumerates the instances when the judge is prohibited and disqualified
from sitting on and deciding a case. [18] The prohibition is compulsory simply because the
judge is conclusively presumed to be incapable of impartiality. [19] The second paragraph
speaks of voluntary inhibition; whether or not the judge can sit in and try the case is left
to his discretion, depending on the existence of just and valid reasons not included in
the first paragraph, but in exercising the discretion, he must rely only on his conscience.
[20]

Reprising Section 1 of Rule 137 is Section 5, Canon 3 of the New Code of Judicial Conduct
for the Philippine Judiciary,[21] which pertinently demands the disqualification of a judge
who has previously served as a lawyer of any of the parties, to wit:
Section 5. Judges shall disqualify themselves from participating in any
proceedings in which they are unable to decide the matter impartially or in which it may
appear to a reasonable observer that they are unable to decide the matter impartially.
Such proceedings include, but are not limited to instances where:

x x x x

(d) The judge served as executor, administrator, guardian, trustee or lawyer in the case
or matter in controversy, or a former associate of the judge served as counsel during
their association, or the judge or lawyer was a material witness therein; x x x.
Given the foregoing, the CA's justifications directly contravened the letter and
spirit of Section 1 of Rule 137, supra, and Section 5 of Canon 3 of the New Code of
Judicial Conduct for the Philippine Judiciary, supra. The words counsel in the first
paragraph of Section 1 of Rule 137, supra, and lawyer in Section 5 of Canon 3, supra, are
understood in their general acceptation because their usage by the rules has not been
made subject of any qualifications or distinctions. As such, the mere appearance of his
name as the public prosecutor in the records of Criminal Case No. 17446 sufficed to
disqualify Judge Elumba from sitting on and deciding the case. Having represented the
State in the prosecution of the petitioner, he could not sincerely claim neutrality or
impartiality as the trial judge who would continue to hear the case. Hence, he should
have removed himself from being the trial judge in Criminal Case No. 17446.

To be clear, that Judge Elumba's prior participation as the public prosecutor was passive,
or that he entered his appearance as the public prosecutor long after the Prosecution
had rested its case against the petitioner did not really matter. The evil sought to be
prevented by the rules on disqualification had no relation whatsoever with the judge's
degree of participation in the case before becoming the judge. He must be reminded
that the same compulsory disqualification that applied to him could similarly be
demanded of the private prosecutor or the defense lawyer, if either of them should be
appointed as the trial judge hearing the case. The purpose of this stricture is to ensure
that the proceedings in court that would affect the life, liberty and property of the
petitioner as the accused should be conducted and determined by a judge who was
wholly free, disinterested, impartial and independent. As the Court has amplified
in Garcia v. De la Peña:[22]
The rule on compulsory disqualification of a judge to hear a case where, as in the
instant case, the respondent judge is related to either party within the sixth degree of
consanguinity or affinity rests on the salutary principle that no judge should preside in a
case in which he is not wholly free, disinterested, impartial and independent. 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. The law
conclusively presumes that a judge cannot objectively or impartially sit in such a case
and, for that reason, prohibits him and strikes at his authority to hear and decide it, in
the absence of written consent of all parties concerned. The purpose is to preserve the
people's faith and confidence in the courts of justice. [23] (Emphasis supplied)
Moreover, to say that Judge Elumba did not personally prosecute or supervise
the prosecution of Criminal Case No. 17446 is to ignore that all criminal actions were
prosecuted under the direction and control of the public prosecutor. That a private
prosecutor had appeared in the case was of no consequence, for such private
prosecutor still came under the direct control and supervision of the public prosecutor.
In this connection, we note that it was only on May 1, 2002, or two years after Judge
Elumba's appointment in the Judiciary, when Section 5, [24] Rule 110 of the Rules of Court,
was amended by A.M. No. 02-2-07-SC in order to expressly authorize the intervention of
the private prosecutor to prosecute a criminal case in case of heavy work load or lack of
the public prosecutor, provided that the private prosecutor was authorized in writing for
the purpose by the Chief of the Prosecution Office or the Regional State Prosecutor.
Even so, the records do not indicate that the private prosecutor who appeared in
Criminal Case No. 17446 had been duly authorized in writing by the Chief of the
Prosecution Office or the Regional State Prosecutor to prosecute the case by himself.

We have also observed that the CA appeared too eager to sustain the refusal of Judge
Elumba to disqualify himself as the trial judge. Such overeagerness was uncharacteristic
of the CA as an appellate court in a criminal case whose unmistakable duty was to
thoroughly sift and scrutinize the records of the trial court to search for errors that
would reverse or modify the judgment in favor of the accused. Had it done its duty, it
would have quickly noticed a hard indication existing in the trial records of Criminal Case
No. 17446 exposing Judge Elumba to have actually taken an active participation in the
trial. The indication was in the form of the Motion to Present Rebuttal Evidence that
then Public Prosecutor Elumba had filed on January 25, 2000, the text of which is
reproduced herein:
MOTION TO PRESENT REBUTTAL EVIDENCE

xxxx

That the records of the above-entitled case would show that the accused rested his case
on October 29, 1999;

That, however, after going over the records of the case, the prosecution feels that
there is a need to present rebuttal evidence. (Emphasis supplied)

WHEREFORE, PREMISES CONSIDERED, it is most respectfully prayed of this Honorable

Court that the prosecution be allowed to present rebuttal evidence to refute the
evidence presented by the accused.
 (Sgd.)
FERNANDO R. ELUMBA
Trial Prosecutor[25]
The text of the motion disclosed that then Public Prosecutor Elumba had come to
the conclusion that "there is a need to present rebuttal evidence" after his having gone
over the records of the case. Clearly, he had formed an opinion that was absolutely
adverse to the interest of the petitioner.

The CA's reliance on Lao v. Court of Appeals[26] was inappropriate. In Lao, the Court
opined and declared that the petition to disqualify the trial judge must be filed prior to
the rendition of judgment.[27] But the supposed disqualification of the judge in Lao was
premised on bias as perceived by a party.[28] We should point out that perceived bias was
a ground covered by the second paragraph of Section 1 of Rule 37, supra, and would
justify only the voluntary inhibition of the judge. In contrast, Judge Elumba's situation
rested on a ground for mandatory disqualification because it emanated from the
conclusive presumption of his bias.[29] Such a ground should have been forthwith
acknowledged upon Judge Elumba's assumption of the judgeship in Branch 42, or, at the
latest, upon the ground being raised to his attention, regardless of the stage of the case.

Under the circumstances, Judge Elumba, despite his protestations to the contrary, could
not be expected to render impartial, independent and objective judgment on the
criminal case of the petitioner. His non-disqualification resulted in the denial of the
petitioner's right to due process as the accused. To restore the right to the petitioner,
the proceedings held against him before Judge Elumba and his ensuing conviction have
to be nullified and set aside, and Criminal Case No. 17446 should be remanded to the
RTC for a partial new trial to remove any of the prejudicial consequences of the violation
of the right to due process. The case shall be raffled to a Judge who is not otherwise
disqualified like Judge Elumba under Section 1, Rule 137 of the Rules of Court. For, as we
said in Pimentel v. Salanga:[30]
This is not to say that all avenues of relief are closed to a party properly
aggrieved. If a litigant is denied a fair and impartial trial, induced by the judge's bias or
prejudice, we will not hesitate to order a new trial, if necessary, in the interest of justice.
Such was the view taken by this Court in Dais vs. Torres, 57 Phil. 897, 902-904. In that
case, we found that the filing of charges by a party against a judge generated
'resentment' or the judge's part that led to his "bias or prejudice, which is reflected in
the decision." We there discoursed on the 'principle of impartiality, disinterestedness,
and fairness on the part of the judge' which 'is as old as the history of courts.' We
followed this with the pronouncement that, upon the circumstances obtaining, we did
not feel assured that the trial judge's finding were not influenced by bias or prejudice.
Accordingly, we set aside the judgment and directed a new trial. [31]
WHEREFORE, the Court ANNULS and SETS ASIDE the decision promulgated on
May 27, 2005 by the Court of Appeals and the judgment rendered on August 22, 2001
by the Regional Trial Court; REMANDS Criminal Case No. 17446 entitled People of
the Philippines v. Nelson Lai y Bilbao to the Regional Trial Court in Bacolod City with
instructions to the Executive Judge of the Regional Trial Court to assign it to any
Regional Trial Judge not disqualified under Section 1 of Rule 137 of the Rules of Court;
and INSTRUCTS the new trial judge to resume the trial in Criminal Case No. 17446
starting from the stage just prior to the assumption of Judge Fernando R. Elumba as the
trial judge, and to hear and decide Criminal Case No. 17446 with reasonable dispatch.

No pronouncement on costs of suit.

SO ORDERED.

THIRD DIVISION
[ G.R. No. 176033, March 11, 2015 ]
FELILIBETH AGUINALDO AND BENJAMIN PEREZ, PETITIONERS, VS.
REYNALDO P. VENTUS AND JOJO B. JOSON, RESPONDENTS.

DECISION

PERALTA, J.:

Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of
Court, seeking to nullify and set aside the Decision[1] dated August 11, 2006 of the Court
of Appeals (CA) and its December 4, 2006 Resolution[2] in CA-G.R. SP No. 92094. The
CA dismissed for lack of merit the Petition for Certiorari under Rule 65 filed by
petitioners Felilibeth Aguinaldo and Benjamin Perez, praying for the following reliefs:
(1) the issuance of a Writ of Preliminary Injunction and/or Temporary Restraining Order
to enjoin the public respondent Judge Felixberto T. Olalia from implementing the Orders
dated May 16, 2005 and August 23, 2005; (2) the issuance of a Writ of Certiorari to
annul the said Orders, and (3) the dismissal of the estafa case against them for having
been prematurely filed and for lack of cause of action.

The procedural antecedents are as follows:

On December 2, 2002, private respondents Reynaldo P. Ventus and Jojo B. Joson filed a
Complaint-Affidavit[3] for estafa against petitioners Aguinaldo and Perez before the
Office of the City Prosecutor (OCP) of Manila. Claiming to be business partners in
financing casino players, private respondents alleged that sometime in March and April
2002, petitioners connived in convincing them to part with their Two Hundred Sixty
Thousand (P260,000.00) Pesos in consideration of a pledge of two motor vehicles which
the latter had misrepresented to be owned by Aguinaldo, but turned out to be owned by
one Levita De Castro, manager/operator of LEDC Rent-A-Car.

On January 15, 2003, Perez filed his Counter-Affidavit,[4] denying the accusation against
him, and claiming that his only participation in the transaction between private
respondents and Aguinaldo was limited to having initially introduced them to each other.

On January 22, 2003, private respondents filed their Reply-Affidavit,[5] asserting that

Perez was the one who showed them photocopies of the registration paper of the motor
vehicles in the name of Aguinaldo, as well as the one who personally took them out from
the rent-a-car company.

On January 29, 2003, Perez filed his Rejoinder-Affidavit,[6] stating that neither original
nor photocopies of the registration was required by private respondents to be submitted to
them because from the very start, they were informed by Aguinaldo that she merely
leased the vehicles from LEDC Rent-a-Car.

On February 25, 2003, Assistant City Prosecutor (ACP) Renato F. Gonzaga issued a
Resolution[7] recommending both petitioners to be indicted in court for estafa under
Article 315, paragraph (2) of the Revised Penal Code (RPC). He also noted that
Aguinaldo failed to appear and to submit any controverting evidence despite the
subpoena.

On July 16, 2003, an Information[8] (I.S. No. 02L-51569) charging petitioners with the
crime of estafa under Article 315, paragraph 2 (a) of the RPC was filed with the Regional
Trial Court of Manila. Docketed as Criminal Case No. 03-216182, entitled “People of the
Philippines v. Felilibeth Aguinaldo and Benjamin Perez,” the case was raffled to the
public respondent.

On July 31, 2003, Perez was arrested, so he filed an Urgent Motion for Reduction of Bail
to be Posted in Cash, which the public respondent granted in an Order of even date. [9]
On the same day, petitioners filed through counsel a Very Urgent Motion to Recall or
Quash Warrants of Arrest,[10] alleging that the Resolution dated February 25, 2003 has not
yet attained finality, and that they intended to file a motion for reconsideration.

On August 4, 2003, petitioners jointly filed with the OCP of Manila their “Motion for
Reconsideration and Motion for the Withdrawal of the Information Prematurely Filed
With the Regional Trial Court, Branch 8, City of Manila.”[11] Citing the Counter-Affidavit
and Rejoinder-Affidavit of Perez, Aguinaldo asserted, among others, that no deceit or
false pretenses was committed because private respondents were fully aware that she
does not own the pledged motor vehicles.

On August 6, 2003, the public respondent issued an Order[12] granting the motion for
withdrawal of information, and directing the recall of the arrest warrant only insofar as
Aguinaldo was concerned, pending resolution of her motion for reconsideration with the
OCP.

On August 9, 2003, petitioners filed an Urgent Motion for Cancellation of Arraignment,

pending resolution of their motion for reconsideration filed with the OCP of Manila.
Upon the prosecution's motion,[13] the public respondent ordered the proceedings to be
deferred until the resolution of petitioners' motion for reconsideration.[14]

On December 23, 2003, the public respondent ordered the case archived pending
resolution of petitioners' motion for reconsideration with the OCP of Manila.[15]

On January 16, 2004, the OCP of Manila, through ACP Antonio M. Israel, filed a Motion
to Set Case for Trial,[16] considering that petitioners' motions for reconsideration and for
withdrawal of the information have already been denied for lack of merit.

On February 27, 2004, petitioners filed with the Department of Justice (DOJ) a petition
for review[17] in I.S. No. 02L-51569 for estafa, entitled “Benjamin Perez and Felilibeth
Aguinaldo v. Reynaldo P. Ventus and Jojo B. Joson.”

Acting on the prosecution's recommendation for the denial of petitioners' motions for
reconsideration and withdrawal of the information, and its motion to set the case for trial,
the public respondent issued an Order[18] dated March 15, 2004 directing the issuance of a
warrant of arrest against Aguinaldo and the setting of the case for arraignment.

On March 26, 2004, petitioners filed an Urgent Motion to Cancel Arraignment and
Suspend Further Proceedings,[19] until their petition for review before the DOJ is resolved
with finality. Petitioners reiterated the same prayer in their Urgent Motion for
Reconsideration[20] of the Order dated March 15, 2004.
On April 16, 2004, the public respondent granted petitioners' urgent motion to cancel
arraignment and suspend proceedings, and motion for reconsideration.[21]

On June 23, 2004, Levita De Castro, through the Law Firm of Lapeña and Associates,
filed a Motion to Reinstate Case and to Issue Warrant of Arrest.[22] De Castro alleged that
she was the private complainant in the estafa case that had been ordered archived.
Petitioners filed an Opposition with Motion to Expunge,[23] alleging that De Castro is not
a party to the said case, which is in active file, awaiting the resolution of their petition for
review before the DOJ.

On October 15, 2004, De Castro filed a Manifestation[24] informing the public respondent

that the DOJ had already promulgated a Resolution dated September 6, 2004 denying
petitioners' petition for review in I.S. No. 02G-29349 & 02G-28820 for estafa, entitled
“Levita De Castro v. Felilibeth Aguinaldo.”[25]

On May 16, 2005, the public respondent issued an Order granting the Motion to Reinstate
Case and to Issue Warrant of Arrest, thus:

Pending with this Court are (1) Motion to Reinstate Case and to Issue Warrant of Arrest
against accused Aguinaldo filed by private prosecutor with conformity of the public
prosecutor. x x x

It appears from the records that:

(1) the warrant of arrest issued against accused Aguinaldo was recalled pending
resolution of the Petition for Review filed with the DOJ; x x x
(2) the Petition for Review was subsequently dismissed x x x
(3) accused Aguinaldo has not yet posted bail bond.

In view of the foregoing, (the) Motion to Reinstate Case and to Issue Warrant of Arrest is
GRANTED. Let this case be REINSTATED and let warrant of arrest be issued against
accused Aguinaldo.

xxxx

SO ORDERED.[26]

On May 30, 2005, petitioners filed a Motion for Reconsideration with Motion to Quash
Warrant of Arrest.[27]

On August 23, 2005, the public respondent issued an Order denying petitioners' Motion
for Reconsideration with Motion to Quash Warrant of Arrest, and setting petitioners'
arraignment, as the Revised Rules on Criminal Procedure (or Rules of Court) allows only
a 60-day period of suspension of arraignment. Citing Crespo v. Mogul,[28] he also ruled
that the issuance of the warrant of arrest is best left to the discretion of the trial court. He
also noted that records do not show that the DOJ has resolved the petition for review,
although photocopies were presented by De Castro.

Aggrieved, petitioners filed with the CA a Petition for Certiorari under Rule 65 of the

Rules of Court, attributing grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the public respondent in issuing the Orders dated May 16, 2005
and August 23, 2005. On August 11, 2006, the CA dismissed the petition for lack of
merit. Petitioners filed a motion for reconsideration, but the CA denied it in a
Resolution[29] dated December 4, 2006. Hence, this instant petition for review
on certiorari.

Petitioners raise the following issues:

I.

THE HONORABLE COURT OF APPEALS FAILED TO APPRECIATE THAT THE

MOTION TO REINSTATE THE CASE AND ISSUE A WARRANT OF ARREST
WAS FILED BY ONE LEVITA DE CASTRO WHO IS NOT A PARTY TO
CRIMINAL CASE NO. 03-21[6]182.

II.

A PROCEDURAL TECHINICALITY THAT THE SUSPENSION ALLOWED FOR

ARRAIGNMENT IS ALREADY BEYOND THE 60-DAY PERIOD MAY BE
RELAXED IN THE INTEREST OF AN ORDERLY AND SPEEDY
ADMINISTRATION OF JUSTICE.

III.

THE PRELIMINARY INVESTIGATION ON THE I.S. NO. 02L-51569 (CRIMINAL

CASE NO. 03-21[6]182) BY THE OFFICE OF THE CITY PROSECUTOR OF
MANILA HAS NOT YET BEEN COMPLETED.[30]

On the first issue, petitioners argue that the public respondent erred in issuing the Order
dated May 16, 2005 reinstating the case and issuing an arrest warrant against Aguinaldo.
They point out that the Motion to Reinstate the Case and to Issue a Warrant of Arrest
against Aguinaldo was filed by De Castro who is not a party in Criminal Case No. 03-
216182, entitled “People of the Philippines v. Felilibeth Aguinaldo and Benjamin Perez,”
instead of private complainants Reynaldo P. Ventus and Jojo B. Joson. They also assert
that said motion was erroneously granted based on the purported denial of their petition
for review by the DOJ, despite a Certification showing that their actual petition in I.S.
Number 02L-51569, entitled “Reynaldo Ventus, et al. v. Felilibeth Aguinaldo,” has not
yet been resolved and is still pending with the DOJ.

On the second issue, petitioners argue that the provision of Section 11, Rule 116 of the
Rules of Court limiting the suspension for arraignment to only sixty (60) days is merely
directory; thus, it cannot deprive petitioners of their procedural right to due process, as
their petition for review has not yet been resolved by the DOJ.

On the third issue, petitioners take exception that even before they could receive a copy
of the DOJ resolution denying their petition for review, and thus move for its
reconsideration, the Information in Criminal Case No. 03-216182 had already been filed
with the RTC on July 16, 2003. They contend that such precipitate filing of the
Information and issuance of a warrant of arrest put petitioners at the risk of incarceration
without the preliminary investigation having been completed because they were not
afforded their right to file a motion for reconsideration of the DOJ resolution. In support
of their contention, they raise the following arguments: that the right to preliminary
investigation is a substantive, not merely a procedural right; that an Information filed
without affording the respondent his right to file a motion for reconsideration of an
adverse resolution, is fatally premature; and, that a denial of a complete preliminary
investigation deprives the accused of the full measure of his right to due process and
infringes on his constitutional right to liberty.

The petition is denied for lack of merit.

On the first issue, petitioners are correct in pointing out that the Motion to Reinstate the
Case and Issue a Warrant of Arrest[31] was filed by one Levita De Castro who is not a
party to Criminal Case No. 03-216182. Records show that De Castro is not even a private
complainant, but a mere witness for being the owner of the vehicles allegedly used by
petitioners in defrauding and convincing private respondents to part with their
P260,000.00. Thus, the public respondent should have granted petitioners' motion to
expunge, and treated De Castro's motion as a mere scrap of paper with no legal effect, as
it was filed by one who is not a party to that case.

Petitioners are also correct in noting that De Castro's motion was granted based on the
purported dismissal of their petition for review with the DOJ. In reinstating the case and
issuing the arrest warrant against Aguinaldo, the public respondent erroneously relied on
the DOJ Resolution dated September 6, 2004 dismissing the petition for review in a
different case, i.e., I.S. No. 02G-29349 & 02G-28820, entitled “Levita De Castro v.
Felilibeth Aguinaldo, for two (2) counts of estafa.” As correctly noted by petitioners,
however, their petition for review with the DOJ is still pending resolution. In particular,
Assistant Chief State Prosecutor Miguel F. Guido, Jr. certified that based on available
records of the Office of the Chief State Prosecutor, their petition for review filed in I.S.
Number 02L-51569, entitled “Reynaldo Ventus, et al. v. Felilibeth Aguinaldo” for estafa,
is still pending resolution as of May 27, 2005.[32] It bears stressing that their petition
stemmed from Criminal Case No. 03-216812, entitled “People of the Philippines v.
Felilibeth Aguinaldo and Benjamin Perez” wherein the public respondent issued the
interlocutory orders assailed before the CA, and now before the Court.

On the second issue, the Court disagrees with petitioners' contention that the provision of
Section 11 (c),[33] Rule 116 of the Rules of Court limiting the suspension for arraignment
to only sixty (60) days is merely directory; thus, the estafa case against them cannot
proceed until the DOJ resolves their petition for review with finality.

In Samson v. Judge Daway,[34] the Court explained that while the pendency of a petition
for review is a ground for suspension of the arraignment, the aforecited provision limits
the deferment of the arraignment to a period of 60 days reckoned from the filing of the
petition with the reviewing office. It follows, therefore, that after the expiration of said
period, the trial court is bound to arraign the accused or to deny the motion to defer
arraignment.[35]

In Diño v. Olivarez,[36] the Court held that it did not sanction an indefinite suspension of
the proceedings in the trial court. Its reliance on the reviewing authority, the Justice
Secretary, to decide the appeal at the soonest possible time was anchored on the rule
provided under Department Memorandum Order No. 12, dated 3 July 2000, which
mandates that the period for the disposition of appeals or petitions for review shall be
seventy- five (75) days.[37]

In Heirs of Feraren v. Court of Appeals,[38] the Court ruled that in a long line of decisions,
it has repeatedly held that while rules of procedure are liberally construed, the provisions
on reglementary periods are strictly applied, indispensable as they are to the prevention of
needless delays, and are necessary to the orderly and speedy discharge of judicial
business. After all, rules of procedure do not exist for the convenience of the litigants,
and they are not to be trifled with lightly or overlooked by the mere expedience of
invoking “substantial justice.” Relaxation or suspension of procedural rules, or the
exemption of a case from their operation, is warranted only by compelling reasons or
when the purpose of justice requires it.[39]

Consistent with the foregoing jurisprudence, and there being no such reasons shown to
warrant relaxation of procedural rules in this case, the CA correctly ruled, thus:

In the case at bar, the petitioners' petition for review was filed with the Secretary of
Justice on February 27, 2004. As early as April 16, 2004, upon the petitioners' motion,
the arraignment of the petitioners herein was ordered deferred by the public respondent.
We believe that the period of one year and one month from April 16, 2004 to May 16,
2005 when the public respondent ordered the issuance of a warrant for the arrest of
petitioner Aguinaldo, was more than ample time to give the petitioners the opportunity to
obtain a resolution of their petition for review from the DOJ. The petitioners though
submitted a Certification from the DOJ dated May 30, 2005 stating that their petition for
review is pending resolution by the Department as of May 27, 2005. However, such delay
in the resolution does not extend the period of 60 days prescribed under the afore-quoted
Section 11(c), Rule 116 of the Revised Rules on Criminal Procedure. Besides, the
petitioners may be faulted for the delay in the resolution of their petition. According to
their counsel, she received the letter dated April 15, 2004 from the DOJ requiring her to
submit the pertinent pleadings relative to petitioners' petition for review; admittedly,
however, the same was complied with only on October 15, 2004. We therefore find that
the trial court did not commit grave abuse of discretion in issuing the assailed orders.[40]

On the third issue, the Court is likewise unconvinced by petitioners' argument that the
precipitate filing of the Information and the issuance of a warrant of arrest put petitioners
at the risk of incarceration without the preliminary investigation having been completed
because they were not afforded their right to file a motion for reconsideration of the DOJ
resolution.

While they are correct in stating that the right to preliminary investigation is a
substantive, not merely a procedural right, petitioners are wrong in arguing that the
Information filed, without affording the respondent his right to file a motion for
reconsideration of an adverse DOJ resolution, is fatally premature. In support of their
argument, petitioners cite Sales v. Sandiganbayan[41] wherein it was held that since filing
of a motion for reconsideration is an integral part of the preliminary investigation proper,
an Information filed without first affording the accused his right to a motion for
reconsideration, is tantamount to a denial of the right itself to a preliminary investigation.

The Court finds petitioners' reliance on Sales[42] as misplaced. A closer look into said case
would reveal that the accused therein was denied his right to move for a reconsideration
or a reinvestigation of an adverse resolution in a preliminary investigation under the
Rules of Procedure of the Ombudsman before the filing of an Information. In contrast,
petitioners in this case were afforded their right to move for reconsideration of the
adverse resolution in a preliminary investigation when they filed their “Motion for
Reconsideration and Motion for the Withdrawal of Information Prematurely Filed with
the Regional Trial Court, Branch 8, City of Manila,”[43] pursuant to Section 3 of the 2000
National Prosecution Service (NPS Rule on Appeal)[44] and Section 56 of the Manual for
Prosecutors[45].

With the Information for estafa against petitioners having been filed on July 16, 2003, the
public respondent cannot be faulted with grave abuse of discretion in issuing the August
23, 2005 Order denying their motion to quash warrant of arrest, and setting their
arraignment, pending the final resolution of their petition for review by the DOJ. The
Court believes that the period of almost one (1) year and seven (7) months from the time
petitioners filed their petition for review with the DOJ on February 27, 2004 to
September 14, 2005[46] when the trial court finally set their arraignment, was more than
ample time to give petitioners the opportunity to obtain a resolution of their petition. In
fact, the public respondent had been very liberal with petitioners in applying Section 11
(c), Rule 116 of the Rules of Court which limits the suspension of arraignment to a 60-
day period from the filing of such petition. Indeed, with more than eleven (11) years
having elapsed from the filing of the petition for review and petitioners have yet to be
arraigned, it is now high time for the continuation of the trial on the merits in the criminal
case below, as the 60-day period counted from the filing of the petition for review with
the DOJ had long lapsed.

On whether petitioners were accorded their right to a complete preliminary investigation

as part of their right to due process, the Court rules in the affirmative. Having submitted
his Counter-Affidavit and Rejoinder-Affidavit to the OCP of Manila before the filing of
Information for estafa, Perez cannot be heard to decry that his right to preliminary
investigation was not completed. For her part, while Aguinaldo was not personally
informed of any notice of preliminary investigation prior to the filing of the Information,
she was nonetheless given opportunity to be heard during such investigation. In
petitioners' motion for reconsideration[47] of the February 25, 2003 Resolution of ACP
Gonzaga, Aguinaldo relied mostly on the Counter-Affidavit and Rejoinder-Affidavit of
Perez to assail the recommendation of the prosecutor to indict her for estafa. Since the
filing of such motion for reconsideration was held to be consistent with the principle of
due process and allowed under Section 56 of the Manual for Prosecutors,[48] she cannot
complain denial of her right to preliminary investigation.

Both petitioners cannot, therefore, claim denial of their right to a complete preliminary
investigation as part of their right to due process. After all, “[d]ue process simply
demands an opportunity to be heard. Due process is satisfied when the parties are
afforded a fair and reasonable opportunity to explain their respective sides of the
controversy. Where an opportunity to be heard either through oral arguments or through
pleadings is accorded, there is no denial of procedural due process.” [49]

In fine, the Court holds that public respondent erred in issuing the May 16, 2005 Order
granting the Motion to Reinstate Case and to Issue Warrant of Arrest, as it was filed by
one who is not a party to the case, and it was based on the DOJ's dismissal of a petition
for review in a different case. Nevertheless, the Court upholds the CA ruling that the
public respondent committed no grave abuse of discretion when he issued the August 23,
2005 Order denying petitioners' motion to quash warrant of arrest, and setting their
arraignment, despite the pendency of their petition for review with the DOJ. For one, the
public respondent had been very liberal in applying Section 11 (c), Rule 116 of the Rules
of Court which allows suspension of arraignment for a period of 60 days only. For
another, records show that petitioners were given opportunity to be heard during the
preliminary investigation of their estafa case.
Considering that this case had been held in abeyance long enough without petitioners
having been arraigned, the Court directs the remand of this case to the trial court for trial
on the merits with strict observance of Circular No. 38-98 dated August 11, 1998, or the
“Implementing the Provisions of Republic Act No. 8493, entitled 'An Act to Ensure a
Speedy Trial of All Criminal Cases Before the Sandiganbayan, Regional Trial Court,
Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court and
Municipal Circuit Trial Court, Appropriating Funds Therefor, and for Other Purposes.'”
In this regard, suffice it to state that petitioners cannot invoke violation of their right to
speedy trial because Section 9 (3) of Circular No. 38-98 excludes in computing the time
within which trial must commence the delay resulting from extraordinary remedies
against interlocutory orders, such as their petitions before the CA and the Court.

Finally, in order to avoid delay in the proceedings, judges are reminded that the pendency
of a motion for reconsideration, motion for reinvestigation, or petition for review is not a
cause for the quashal of a warrant of arrest previously issued because the quashal of a
warrant of arrest may only take place upon the finding that no probable cause exists.
Moreover, judges should take note of the following:

1. If there is a pending motion for reconsideration or motion for reinvestigation of the

resolution of the public prosecutor, the court may suspend the proceedings upon
motion by the parties. However, the court should set the arraignment of the
accused and direct the public prosecutor to submit the resolution disposing of the
motion on or before the period fixed by the court, which in no instance could be
more than the period fixed by the court counted from the granting of the motion to
suspend arraignment, otherwise the court will proceed with the arraignment as
scheduled and without further delay.

2. If there is a pending petition for review before the DOJ, the court may suspend the
proceedings upon motion by the parties. However, the court should set the
arraignment of the accused and direct the DOJ to submit the resolution disposing
of the petition on or before the period fixed by the Rules which, in no instance,
could be more than sixty (60) days from the filing of the Petition for Review
before the DOJ, otherwise, the court will proceed with the arraignment as
scheduled and without further delay.

WHEREFORE, premises considered, the petition is DENIED. The Decision dated

August 11, 2006 of the Court of Appeals and its Resolution dated December 4, 2006 in
CA-G.R. SP No. 92094, are AFFIRMED. Considering that the proceedings in this
criminal case had been held in abeyance long enough, let the records of this case be
remanded to the trial court which is hereby directed to try the case on the merits with
dispatch in accordance with the Court's Circular No. 38-98 dated August 11, 1998.
SO ORDERED.

EN BANC
[ G.R. Nos. 212140-41, January 21, 2015 ]
SENATOR JINGGOY EJERCITO ESTRADA, PETITIONER, VS.
BERSAMIN, OFFICE OF THE OMBUDSMAN, FIELD INVESTIGATION
OFFICE, OFFICE OF THE OMBUDSMAN, NATIONAL BUREAU OF
INVESTIGATION AND ATTY. LEVITO D. BALIGOD, RESPONDENTS.

DECISION

CARPIO, J.:

It is a fundamental principle that the accused in a preliminary investigation has no right to

cross-examine the witnesses which the complainant may present. Section 3, Rule 112 of
the Rules of Court expressly provides that the respondent shall only have the
right to submit a counter-affidavit, to examine all other evidence submitted by the
complainant and, where the fiscal sets a hearing to propound clarificatory questions to
the parties or their witnesses, to be afforded an opportunity to be present but without the
right to examine or cross-examine.

- Paderanga v. Drilon[1]
[2]
This case is a Petition for Certiorari  with prayer for (1) the issuance of a temporary
restraining order and/or Writ of Preliminary Injunction enjoining respondents Office of
the Ombudsman (Ombudsman), Field Investigation Office (FIO) of the Ombudsman,
National Bureau of Investigation (NBI), and Atty. Levito D. Baligod (Atty. Baligod)
(collectively, respondents), from conducting further proceedings in OMB-C-C-13-03013
and OMB-C-C-13-0397 until the present Petition has been resolved with finality; and (2)
this Court’s declaration that petitioner Senator Jinggoy Ejercito Estrada (Sen. Estrada)
was denied due process of law, and that the Order of the Ombudsman dated 27 March
2014 and the proceedings in OMB-C-C-13-03013 and OMB-C-C-13-0397 subsequent to
and affected by the issuance of the challenged 27 March 2014 Order are void.

OMB-C-C-13-0313,[3] entitled National Bureau of Investigation and Atty. Levito D.

Baligod v. Jose “Jinggoy” P. Ejercito Estrada, et al., refers to the complaint for Plunder
as defined under Republic Act (RA) No. 7080, while OMB-C-C-13-0397,[4] entitled Field
Investigation Office, Office of the Ombudsman v. Jose “Jinggoy” P. Ejercito-Estrada, et
al., refers to the complaint for Plunder as defined under RA No. 7080 and for violation of
Section 3(e) of RA No. 3019 (Anti-Graft and Corrupt Practices Act).

The Facts

On 25 November 2013, the Ombudsman served upon Sen. Estrada a copy of the
complaint in OMB-C-C-13-0313, filed by the NBI and Atty. Baligod, which prayed,
among others, that criminal proceedings for Plunder as defined in RA No. 7080 be
conducted against Sen. Estrada. Sen. Estrada filed his counter-affidavit in OMB-C-C-13-
0313 on 9 January 2014.

On 3 December 2013, the Ombudsman served upon Sen. Estrada a copy of the complaint
in OMB-C-C-13-0397, filed by the FIO of the Ombudsman, which prayed, among others,
that criminal proceedings for Plunder, as defined in RA No. 7080, and for violation of
Section 3(e) of RA No. 3019, be conducted against Sen. Estrada. Sen. Estrada filed his
counter-affidavit in OMB-C-C-13-0397 on 16 January 2014.

Eighteen of Sen. Estrada’s co-respondents in the two complaints filed their counter-
affidavits between 9 December 2013 and 14 March 2014.[5]

On 20 March 2014, Sen. Estrada filed his Request to be Furnished with Copies of

Counter-Affidavits of the Other Respondents, Affidavits of New Witnesses and Other
Filings (Request) in OMB-C-C-13-0313. In his Request, Sen. Estrada asked for copies of
the following documents:
(a) Affidavit of [co-respondent] Ruby Tuason (Tuason);
(b) Affidavit of [co-respondent] Dennis L. Cunanan (Cunanan);
(c) Counter-Affidavit of [co-respondent] Gondelina G. Amata (Amata);
(d) Counter-Affidavit of [co-respondent] Mario L. Relampagos (Relampagos);
(e) Consolidated Reply of complainant NBI, if one had been filed; and
(f) Affidavits/Counter-Affidavits/Pleadings/Filings filed by all the other respondents and/or
additional witnesses for the Complainants.[6]
Sen. Estrada’s request was made “[p]ursuant to the right of a respondent ‘to examine the
evidence submitted by the complainant which he may not have been furnished’
(Section 3[b], Rule 112 of the Rules of Court) and to ‘have access to the evidence on
record’ (Section 4[c], Rule II of the Rules of Procedure of the Office of the
Ombudsman).”[7]

On 27 March 2014, the Ombudsman issued the assailed Order in OMB-C-C-13-0313.

The pertinent portions of the assailed Order read:
This Office finds however finds [sic] that the foregoing provisions [pertaining to Section
3[b], Rule 112 of the Rules of Court and Section 4[c], Rule II of the Rules of Procedure
of the Office of the Ombudsman] do not entitle respondent [Sen. Estrada] to be furnished
all the filings of the respondents.
Rule 112 (3) (a) & (c) of the Rules of Court provides [sic]:
(a) The complaint shall state the address of the respondent and shall be accompanied by
the affidavits of the complainant and his witnesses, as well as other supporting
documents to establish probable cause …

xxx xxx xxx

(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting
affidavits and documents, the respondent shall submit his counter-affidavit and that of
his witnesses and other supporting documents relied upon for his defense. The counter-
affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of
this section, with copies thereof furnished by him to the complainant.
Further to quote the rule in furnishing copies of affidavits to parties under the Rules of
Procedure of the Office of the Ombudsman [Section 4 of Rule II of Administrative Order
No. 07 issued on April 10, 1990]:
a) If the complaint is not under oath or is based only on official reports, the investigating
officer shall require the complainant or supporting witnesses to execute affidavits to
substantiate the complaints.

b) After such affidavits have been secured, the investigating officer shall issue an order,
attaching thereto a copy of the affidavits and other supporting documents, directing
the respondents to submit, within ten (10) days from receipt thereof, his counter-
affidavits and controverting evidence with proof of service thereof on the complainant.
The complainant may file reply affidavits within ten (10) days after service of the
counter-affidavits.
It can be gleaned from these aforecited provisions that this Office is required to furnish
[Sen. Estrada] a copy of the Complaint and its supporting affidavits and documents; and
this Office complied with this requirement when it furnished [Sen. Estrada] with the
foregoing documents attached to the Orders to File Counter-Affidavit dated 19 November
2013 and 25 November 2013.

It is to be noted that there is no provision under this Office’s Rules of Procedure which
entitles respondent to be furnished all the filings by the other parties, e.g. the
respondents. Ruby Tuason, Dennis Cunanan, Gondelina G. Amata and Mario L.
Relampagos themselves are all respondents in these cases. Under the Rules of Court as
well as the Rules of Procedure of the Office of the Ombudsman, the respondents
are only required to furnish their counter-affidavits and controverting evidence to
the complainant, and not to the other respondents.

To reiterate, the rights of respondent [Sen.] Estrada in the conduct of the preliminary
investigation depend on the rights granted to him by law and these cannot be based on
whatever rights he believes [that] he is entitled to or those that may be derived from the
phrase “due process of law.”

Thus, this Office cannot grant his motion to be furnished with copies of all the filings by
the other parties. Nevertheless, he should be furnished a copy of the Reply of
complainant NBI as he is entitled thereto under the rules; however, as of this date, no
Reply has been filed by complainant NBI.

WHEREFORE, respondent [Sen.] Estrada’s Request to be Furnished with Copies of

Counter-Affidavits of the Other Respondents, Affidavits of New Witnesses and Other
Filings is DENIED. He is nevertheless entitled to be furnished a copy of the Reply if
complainant opts to file such pleading.[8] (Emphases in the original)
On 28 March 2014, the Ombudsman issued in OMB-C-C-13-0313 and OMB-C-C-13-
0397 a Joint Resolution[9] which found probable cause to indict Sen. Estrada and his co-
respondents with one count of plunder and 11 counts of violation of Section 3(e) of RA
No. 3019. Sen. Estrada filed a Motion for Reconsideration (of the Joint Resolution dated
28 March 2014) dated 7 April 2014. Sen. Estrada prayed for the issuance of a new
resolution dismissing the charges against him.

Without filing a Motion for Reconsideration of the Ombudsman’s 27 March 2014

Order denying his Request, Sen. Estrada filed the present Petition for Certiorari under
Rule 65 and sought to annul and set aside the 27 March 2014 Order.

THE ARGUMENTS

Sen. Estrada raised the following grounds in his Petition:

THE OFFICE OF THE OMBUDSMAN, IN ISSUING THE
CHALLENGED ORDER DATED 27 MARCH 2014, ACTED WITHOUT OR IN
EXCESS OF ITS JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION AND VIOLATED SEN.
ESTRADA'S CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW. [10]
Sen. Estrada also claimed that under the circumstances, he has “no appeal or any other
plain, speedy, and adequate remedy in the ordinary course of law, except through this
Petition.”[11] Sen. Estrada applied for the issuance of a temporary restraining order and/or
writ of preliminary injunction to restrain public respondents from conducting further
proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397. Finally, Sen. Estrada asked
for a judgment declaring that (a) he has been denied due process of law, and as a
consequence thereof, (b) the Order dated 27 March 2014, as well as the proceedings in
OMB-C-C-13-0313 and OMB-C-C-13-0397 subsequent to and affected by the issuance
of the 27 March 2014 Order, are void.[12]

On the same date, 7 May 2014, the Ombudsman issued in OMB-C-C-13-0313 and
OMB-C-C-13-0397 a Joint Order furnishing Sen. Estrada with the counter-
affidavits of Tuason, Cunanan, Amata, Relampagos, Francisco Figura, Gregoria
Buenaventura, and Alexis Sevidal, and directing him to comment thereon within a
non-extendible period of five days from receipt of the order.

On 12 May 2014, Sen. Estrada filed before the Ombudsman a motion to suspend
proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397 because the denial of his
Request to be furnished copies of counter-affidavits of his co-respondents deprived him
of his right to procedural due process, and he has filed the present Petition before this
Court. The Ombudsman denied Sen. Estrada’s motion to suspend in an Order dated 15
May 2014. Sen. Estrada filed a motion for reconsideration of the Order dated 15 May
2014 but his motion was denied in an Order dated 3 June 2014.

As of 2 June 2014, the date of filing of the Ombudsman’s Comment to the present
Petition, Sen. Estrada had not filed a comment on the counter-affidavits furnished
to him. On 4 June 2014, the Ombudsman issued a Joint Order in OMB-C-C-13-0313 and
OMB-C-C-13-0397 denying, among other motions filed by the other respondents, Sen.
Estrada’s motion for reconsideration dated 7 April 2014. The pertinent portion of the 4
June 2014 Joint Order stated:
While it is true that Senator Estrada’s request for copies of Tuason, Cunanan, Amata,
Relampagos, Figura, Buenaventura and Sevidal’s affidavits was denied by Order dated
27 March 2014 and before the promulgation of the assailed Joint Resolution, this Office
thereafter re-evaluated the request and granted it by Order dated 7 May 2014 granting his
request. Copies of the requested counter-affidavits were appended to the copy of the
Order dated 7 May 2014 transmitted to Senator Estrada through counsel.

This Office, in fact, held in abeyance the disposition of the motions for
reconsideration in this proceeding in light of its grant to Senator Estrada a period of
five days from receipt of the 7 May 2014 Order to formally respond to the above-
named co-respondents’ claims.

In view of the foregoing, this Office fails to see how Senator Estrada was deprived of his
right to procedural due process.[13] (Emphasis supplied)
On 2 June 2014, the Ombudsman, the FIO, and the NBI (collectively, public
respondents), through the Office of the Solicitor General, filed their Comment to the
present Petition. The public respondents argued that:
I. PETITIONER [SEN. ESTRADA] WAS NOT DENIED DUE PROCESS OF LAW.

II. THE PETITION FOR CERTIORARI IS PROCEDURALLY INFIRM.

A. LITIS PENDENTIA EXISTS IN THIS CASE.

B. PETITIONER HAS A PLAIN, SPEEDY AND ADEQUATE REMEDY IN THE

ORDINARY COURSE OF LAW.
III. PETITIONER IS NOT ENTITLED TO A WRIT OF PRELIMINARY INJUNCTION
AND/OR TEMPORARY RESTRAINING ORDER.[14]
On 6 June 2014, Atty. Baligod filed his Comment to the present Petition. Atty. Baligod
stated that Sen. Estrada’s resort to a Petition for Certiorari under Rule 65 is improper.
Sen. Estrada should have either filed a motion for reconsideration of the 27 March 2014
Order or incorporated the alleged irregularity in his motion for reconsideration of the 28
March 2014 Joint Resolution. There was also no violation of Sen. Estrada’s right to due
process because there is no rule which mandates that a respondent such as Sen. Estrada
be furnished with copies of the submissions of his co-respondents.

On 16 June 2014, Sen. Estrada filed his Reply to the public respondents’ Comment. Sen.
Estrada insisted that he was denied due process. Although Sen. Estrada received copies of
the counter-affidavits of Cunanan, Amata, Relampagos, Buenaventura, Figura, Sevidal,
as well as one of Tuason’s counter-affidavits, he claimed that he was not given the
following documents:
a) One other Counter-Affidavit of Ruby Tuason dated 21 February 2014;

b) Counter-Affidavit of Sofia D. Cruz dated 31 January 2014;

c) Counter-Affidavit of Evelyn Sugcang dated 11 February 2014;

d) Two (2) Counter-Affidavits of Alan A. Javellana dated 06 February 2014;

e) Counter-Affidavit of Victor Roman Cojamco Cacal dated 11 December 2013 (to the
FIO Complaint);

f) Counter-Affidavit of Victor Roman Cojamco Cacal dated 22 January 2014 (to the NBI
Complaint);

g) Two (2) counter-affidavits of Ma. Julie A. Villaralvo-Johnson both dated 14 March

2014;

h) Counter-affidavit of Rhodora Bulatad Mendoza dated 06 March 2014;

i) Counter-affidavit of Maria Ninez P. Guañizo dated 28 January 2014;

j) Two (2) counter-affidavits of Marivic V. Jover both dated 09 December 2013; and

k) Counter-affidavit of Francisco B. Figura dated 08 January 2014.

Sen. Estrada argues that the Petition is not rendered moot by the subsequent issuance of
the 7 May 2014 Joint Order because there is a recurring violation of his right to due
process. Sen. Estrada also insists that there is no forum shopping as the present Petition
arose from an incident in the main proceeding, and that he has no other plain, speedy, and
adequate remedy in the ordinary course of law. Finally, Sen. Estrada reiterates his
application for the issuance of a temporary restraining order and/or writ of preliminary
injunction to restrain public respondents from conducting further proceedings in OMB-C-
C-13-0313 and OMB-C-C-13-0397.

This Court’s Ruling

Considering the facts narrated above, the Ombudsman’s denial in its 27 March 2014
Order of Sen. Estrada’s Request did not constitute grave abuse of discretion. Indeed, the
denial did not violate Sen. Estrada’s constitutional right to due process.

First. There is no law or rule which requires the Ombudsman to furnish a respondent

with copies of the counter-affidavits of his co-respondents.

We reproduce below Sections 3 and 4, Rule 112 of the Revised Rules of Criminal
Procedure, as well as Rule II of Administrative Order No. 7, Rules of Procedure of the
Office of the Ombudsman, for ready reference.
From the Revised Rules of Criminal Procedure, Rule 112: Preliminary Investigation

Section 3. Procedure. — The preliminary investigation shall be conducted in the

following manner:

(a) The complaint shall state the address of the respondent and shall be accompanied by
the affidavits of the complainant and his witnesses, as well as other supporting
documents to establish probable cause. They shall be in such number of copies as there
are respondents, plus two (2) copies for the official file. The affidavits shall be subscribed
and sworn to before any prosecutor or government official authorized to administer oath,
or, in their absence or unavailability, before a notary public, each of who must certify that
he personally examined the affiants and that he is satisfied that they voluntarily executed
and understood their affidavits.

(b) Within ten (10) days after the filing of the complaint, the investigating officer shall
either dismiss it if he finds no ground to continue with the investigation, or issue a
subpoena to the respondent attaching to it a copy of the complaint and its supporting
affidavits and documents.

The respondent shall have the right to examine the evidence submitted by the
complainant which he may not have been furnished and to copy them at his
expense. If the evidence is voluminous, the complainant may be required to specify those
which he intends to present against the respondent, and these shall be made available for
examination or copying by the respondent at his expense.

Objects as evidence need not be furnished a party but shall be made available for
examination, copying, or photographing at the expense of the requesting party.
(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting
affidavits and documents, the respondent shall submit his counter-affidavit and that of his
witnesses and other supporting documents relied upon for his defense. The counter-
affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of
this section, with copies thereof furnished by him to the complainant. The respondent
shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit.

(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-
affidavits within the ten (10) day period, the investigating officer shall resolve the
complaint based on the evidence presented by the complainant.

(e) The investigating officer may set a hearing if there are facts and issues to be clarified
from a party or a witness. The parties can be present at the hearing but without the right
to examine or cross-examine. They may, however, submit to the investigating officer
questions which may be asked to the party or witness concerned.

The hearing shall be held within ten (10) days from submission of the counter-affidavits
and other documents or from the expiration of the period for their submission. It shall be
terminated within five (5) days.

(f) Within ten (10) days after the investigation, the investigating officer shall determine
whether or not there is sufficient ground to hold the respondent for trial.

Section 4. Resolution of investigating prosecutor and its review. — If the investigating

prosecutor finds cause to hold the respondent for trial, he shall prepare the resolution and
information. He shall certify under oath in the information that he, or as shown by the
record, an authorized officer, has personally examined the complainant and his witnesses;
that there is reasonable ground to believe that a crime has been committed and that the
accused is probably guilty thereof; that the accused was informed of the complaint
and of the evidence submitted against him; and that he was given an opportunity to
submit controverting evidence. Otherwise, he shall recommend the dismissal of the
complaint.

Within five (5) days from his resolution, he shall forward the record of the case to the
provincial or city prosecutor or chief state prosecutor, or to the Ombudsman or his deputy
in cases of offenses cognizable by the Sandiganbayan in the exercise of its original
jurisdiction. They shall act on the resolution within ten (10) days from their receipt
thereof and shall immediately inform the parties of such action.

No complaint or information may be filed or dismissed by an investigating prosecutor

without the prior written authority or approval of the provincial or city prosecutor or chief
state prosecutor or the Ombudsman or his deputy.
Where the investigating prosecutor recommends the dismissal of the complaint but his
recommendation is disapproved by the provincial or city prosecutor or chief state
prosecutor or the Ombudsman or his deputy on the ground that a probable cause exists,
the latter may, by himself, file the information against the respondent, or direct any other
assistant prosecutor or state prosecutor to do so without conducting another preliminary
investigation.

If upon petition by a proper party under such rules as the Department of Justice may
prescribe or motu proprio, the Secretary of Justice reverses or modifies the resolution of
the provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor
concerned either to file the corresponding information without conducting another
preliminary investigation, or to dismiss or move for dismissal of the complaint or
information with notice to the parties. The same rule shall apply in preliminary
investigations conducted by the officers of the Office of the Ombudsman.

From the Rules of Procedure of the Office of the Ombudsman, Administrative Order No.
7, Rule II: Procedure in Criminal Cases

Section 1. Grounds. — A criminal complaint may be brought for an offense in violation

of R.A. 3019, as amended, R.A. 1379, as amended, R.A. 6713, Title VII, Chapter II,
Section 2 of the Revised Penal Code, and for such other offenses committed by public
officers and employees in relation to office.

Sec. 2. Evaluation. — Upon evaluating the complaint, the investigating officer shall
recommend whether it may be:

a) dismissed outright for want of palpable merit;

b) referred to respondent for comment;

c) indorsed to the proper government office or agency which has jurisdiction over the
case;

d) forwarded to the appropriate office or official for fact-finding investigation;

e) referred for administrative adjudication; or

f) subjected to a preliminary investigation.

Sec. 3. Preliminary investigation; who may conduct. — Preliminary investigation may be

conducted by any of the following:

1) Ombudsman Investigators;
2) Special Prosecuting Officers;

3) Deputized Prosecutors;

4) Investigating Officials authorized by law to conduct preliminary investigations; or

5) Lawyers in the government service, so designated by the Ombudsman.

Sec. 4. Procedure. — The preliminary investigation of cases falling under the jurisdiction
of the Sandiganbayan and Regional Trial Courts shall be conducted in the manner
prescribed in Section 3, Rule 112 of the Rules of Court, subject to the following
provisions:

a) If the complaint is not under oath or is based only on official reports, the investigating
officer shall require the complainant or supporting witnesses to execute affidavits to
substantiate the complaints.

b) After such affidavits have been secured, the investigating officer shall issue an
order, attaching thereto a copy of the affidavits and other supporting documents,
directing the respondent to submit, within ten (10) days from receipt thereof, his
counter-affidavits and controverting evidence with proof of service thereof on the
complainant. The complainant may file reply affidavits within ten (10) days after service
of the counter-affidavits.

c) If the respondent does not file a counter-affidavit, the investigating officer may
consider the comment filed by him, if any, as his answer to the complaint. In any
event, the respondent shall have access to the evidence on record.

d) No motion to dismiss shall be allowed except for lack of jurisdiction. Neither may a
motion for a bill of particulars be entertained. If respondent desires any matter in the
complainant’s affidavit to be clarified, the particularization thereof may be done at the
time of clarificatory questioning in the manner provided in paragraph (f) of this section.

e) If the respondent cannot be served with the order mentioned in paragraph 6 hereof, or
having been served, does not comply therewith, the complaint shall be deemed submitted
for resolution on the basis of the evidence on record.

f) If, after the filing of the requisite affidavits and their supporting evidences, there are
facts material to the case which the investigating officer may need to be clarified on, he
may conduct a clarificatory hearing during which the parties shall be afforded the
opportunity to be present but without the right to examine or cross-examine the witness
being questioned. Where the appearance of the parties or witnesses is impracticable, the
clarificatory questioning may be conducted in writing, whereby the questions desired to
be asked by the investigating officer or a party shall be reduced into writing and served
on the witness concerned who shall be required to answer the same in writing and under
oath.

g) Upon the termination of the preliminary investigation, the investigating officer shall
forward the records of the case together with his resolution to the designated authorities
for their appropriate action thereon.

No information may be filed and no complaint may be dismissed without the written
authority or approval of the Ombudsman in cases falling within the jurisdiction of the
Sandiganbayan, or of the proper Deputy Ombudsman in all other cases.

xxxx

Sec. 6. Notice to parties. — The parties shall be served with a copy of the resolution as
finally approved by the Ombudsman or by the proper Deputy Ombudsman.

Sec. 7. Motion for reconsideration. — a) Only one (1) motion for reconsideration or
reinvestigation of an approved order or resolution shall be allowed, the same to be filed
within fifteen (15) days from notice thereof with the Office of the Ombudsman, or the
proper deputy ombudsman as the case may be.

xxxx

b) The filing of a motion for reconsideration/reinvestigation shall not bar the filing of the
corresponding Information in court on the basis of the finding of probable cause in the
resolution subject of the motion. (Emphasis supplied)
Sen. Estrada claims that the denial of his Request for the counter-affidavits of his co-
respondents violates his constitutional right to due process. Sen. Estrada, however, fails
to specify a law or rule which states that it is a compulsory requirement of due
process in a preliminary investigation that the Ombudsman furnish a respondent
with the counter-affidavits of his co-respondents. Neither Section 3(b), Rule 112 of the
Revised Rules of Criminal Procedure nor Section 4(c), Rule II of the Rules of Procedure
of the Office of the Ombudsman supports Sen. Estrada’s claim.

What the Rules of Procedure of the Office of the Ombudsman require is for the
Ombudsman to furnish the respondent with a copy of the complaint and the supporting
affidavits and documents at the time the order to submit the counter-affidavit is
issued to the respondent. This is clear from Section 4(b), Rule II of the Rules of
Procedure of the Office of the Ombudsman when it states, “[a]fter such affidavits [of the
complainant and his witnesses] have been secured, the investigating officer shall issue an
order, attaching thereto a copy of the affidavits and other supporting documents, directing
the respondent to submit, within ten (10) days from receipt thereof, his counter-affidavits
x x x.” At this point, there is still no counter-affidavit submitted by any
respondent. Clearly, what Section 4(b) refers to are affidavits of the complainant and
his witnesses, not the affidavits of the co-respondents. Obviously, the counter-
affidavits of the co-respondents are not part of the supporting affidavits of the
complainant. No grave abuse of discretion can thus be attributed to the Ombudsman for
the issuance of the 27 March 2014 Order which denied Sen. Estrada’s Request.

Although Section 4(c), Rule II of the Rules of Procedure of the Office of the Ombudsman
provides that a respondent “shall have access to the evidence on record,” this provision
should be construed in relation to Section 4(a) and (b) of the same Rule, as well as to the
Rules of Criminal Procedure. First, Section 4(a) states that “the investigating officer shall
require the complainant or supporting witnesses to execute affidavits to substantiate the
complaint.” The “supporting witnesses” are the witnesses of the complainant, and do not
refer to the co-respondents.

Second, Section 4(b) states that “the investigating officer shall issue an order attaching
thereto a copy of the affidavits and all other supporting documents, directing the
respondent” to submit his counter-affidavit. The affidavits referred to in Section 4(b) are
the affidavits mentioned in Section 4(a). Clearly, the affidavits to be furnished to the
respondent are the affidavits of the complainant and his supporting witnesses. The
provision in the immediately succeeding Section 4(c) of the same Rule II that a
respondent shall have “access to the evidence on record” does not stand alone, but should
be read in relation to the provisions of Section 4(a and b) of the same Rule II requiring
the investigating officer to furnish the respondent with the “affidavits and other
supporting documents” submitted by “the complainant or supporting witnesses.” Thus, a
respondent’s “access to evidence on record” in Section 4(c), Rule II of the Ombudsman’s
Rules of Procedure refers to the affidavits and supporting documents of “the complainant
or supporting witnesses” in Section 4(a) of the same Rule II.

Third, Section 3(b), Rule 112 of the Revised Rules of Criminal Procedure provides that
“[t]he respondent shall have the right to examine the evidence submitted by the
complainant which he may not have been furnished and to copy them at his expense.” A
respondent’s right to examine refers only to “the evidence submitted by the
complainant.”

Thus, whether under Rule 112 of the Revised Rules of Criminal Procedure or under Rule
II of the Ombudsman’s Rules of Procedure, there is no requirement whatsoever that the
affidavits executed by the co-respondents should be furnished to a respondent.

Justice Velasco’s dissent relies on the ruling in Office of the Ombudsman v.

Reyes (Reyes case),[15] an administrative case, in which a different set of rules of
procedure and standards apply. Sen. Estrada’s Petition, in contrast, involves the
preliminary investigation stage in a criminal case. Rule III on the Procedure
in Administrative Cases of the Rules of Procedure of the Office of the Ombudsman
applies in the Reyes case, while Rule II on the Procedure in Criminal Cases of the Rules
of Procedure of the Office of the Ombudsman applies in Sen. Estrada’s Petition. In both
cases, the Rules of Court apply in a suppletory character or by analogy. [16]

In the Reyes case, the complainant Acero executed an affidavit against Reyes and

Peñaloza, who were both employees of the Land Transportation Office. Peñaloza
submitted his counter-affidavit, as well as those of his two witnesses. Reyes adopted his
counter-affidavit in another case before the Ombudsman as it involved the same parties
and the same incident. None of the parties appeared during the preliminary conference.
Peñaloza waived his right to a formal investigation and was willing to submit the case for
resolution based on the evidence on record. Peñaloza also submitted a counter-affidavit
of his third witness. The Ombudsman found Reyes guilty of grave misconduct and
dismissed him from the service. On the other hand, Peñaloza was found guilty of simple
misconduct and penalized with suspension from office without pay for six months. This
Court agreed with the Court of Appeals’ finding that Reyes’ right to due process was
indeed violated. This Court remanded the records of the case to the Ombudsman, for two
reasons: (1) Reyes should not have been meted the penalty of dismissal from the service
when the evidence was not substantial, an d (2) there was disregard of Reyes’ right to due
process because he was not furnished a copy of the counter-affidavits of Peñaloza and of
Peñaloza’s three witnesses. In the Reyes case, failure to furnish a copy of the counter-
affidavits happened in the administrative proceedings on the merits, which resulted
in Reyes’ dismissal from the service. In Sen. Estrada’s Petition, the denial of his
Request happened during the preliminary investigation where the only issue is the
existence of probable cause for the purpose of determining whether an information
should be filed, and does not prevent Sen. Estrada from requesting a copy of the counter-
affidavits of his co-respondents during the pre-trial or even during the trial.

We should remember to consider the differences in adjudicating cases, particularly an

administrative case and a criminal case:
Any lawyer worth his salt knows that quanta of proof and adjective rules vary depending
on whether the cases to which they are meant to apply are criminal, civil or
administrative in character. In criminal actions, proof beyond reasonable doubt is
required for conviction; in civil actions and proceedings, preponderance of evidence, as
support for a judgment; and in administrative cases, substantial evidence, as basis for
adjudication. In criminal and civil actions, application of the Rules of Court is called for,
with more or less strictness. In administrative proceedings, however, the technical rules
of pleading and procedure, and of evidence, are not strictly adhered to; they generally
apply only suppletorily; indeed, in agrarian disputes application of the Rules of Court is
actually prohibited.[17]
It should be underscored that the conduct of a preliminary investigation is only for the
determination of probable cause, and “probable cause merely implies probability of guilt
and should be determined in a summary manner. A preliminary investigation is not a part
of the trial and it is only in a trial where an accused can demand the full exercise of his
rights, such as the right to confront and cross-examine his accusers to establish his
innocence.”[18] Thus, the rights of a respondent in a preliminary investigation are limited
to those granted by procedural law.
A preliminary investigation is defined as an inquiry or proceeding for the purpose of
determining whether there is sufficient ground to engender a well founded belief that a
crime cognizable by the Regional Trial Court has been committed and that the respondent
is probably guilty thereof, and should be held for trial. The quantum of evidence now
required in preliminary investigation is such evidence sufficient to “engender a well
founded belief” as to the fact of the commission of a crime and the respondent's
probable guilt thereof. A preliminary investigation is not the occasion for the full
and exhaustive display of the parties’ evidence; it is for the presentation of such
evidence only as may engender a well-grounded belief that an offense has been
committed and that the accused is probably guilty thereof. We are in accord with the
state prosecutor’s findings in the case at bar that there exists prima facie evidence of
petitioner’s involvement in the commission of the crime, it being sufficiently supported
by the evidence presented and the facts obtaining therein.

Likewise devoid of cogency is petitioner’s argument that the testimonies of Galarion and
Hanopol are inadmissible as to him since he was not granted the opportunity of cross-
examination.

It is a fundamental principle that the accused in a preliminary investigation has no

right to cross-examine the witnesses which the complainant may present. Section 3,
Rule 112 of the Rules of Court expressly provides that the respondent shall only
have the right to submit a counter-affidavit, to examine all other evidence submitted
by the complainant and, where the fiscal sets a hearing to propound clarificatory
questions to the parties or their witnesses, to be afforded an opportunity to be
present but without the right to examine or cross-examine. Thus, even if petitioner
was not given the opportunity to cross-examine Galarion and Hanopol at the time they
were presented to testify during the separate trial of the case against Galarion and Roxas,
he cannot assert any legal right to cross-examine them at the preliminary investigation
precisely because such right was never available to him. The admissibility or
inadmissibility of said testimonies should be ventilated before the trial court during the
trial proper and not in the preliminary investigation.

Furthermore, the technical rules on evidence are not binding on the fiscal who has
jurisdiction and control over the conduct of a preliminary investigation. If by its very
nature a preliminary investigation could be waived by the accused, we find no
compelling justification for a strict application of the evidentiary rules. In addition,
considering that under Section 8, Rule 112 of the Rules of Court, the record of the
preliminary investigation does not form part of the record of the case in the Regional
Trial Court, then the testimonies of Galarion and Hanopol may not be admitted by the
trial court if not presented in evidence by the prosecuting fiscal. And, even if the
prosecution does present such testimonies, petitioner can always object thereto and the
trial court can rule on the admissibility thereof; or the petitioner can, during the trial,
petition said court to compel the presentation of Galarion and Hanopol for purposes of
cross-examination.[19] (Emphasis supplied)
Furthermore, in citing the Reyes case, Justice Velasco’s dissent overlooked a vital portion
of the Court of Appeals’ reasoning. This Court quoted from the Court of Appeals’
decision: “x x x [A]dmissions made by Peñaloza in his sworn statement are binding only
on him. Res inter alios acta alteri nocere non debet. The rights of a party cannot be
prejudiced by an act, declaration or omission of another.” In OMB-C-C-13-0313 and
OMB-C-C-13-0397, the admissions of Sen. Estrada’s co-respondents can in no way
prejudice Sen. Estrada. Even granting Justice Velasco’s argument that the 28 March
2014 Joint Resolution in OMB-C-C-13-0313 and OMB-C-C-13-0397[20] mentioned the
testimonies of Sen. Estrada’s co-respondents like Tuason and Cunanan, their testimonies
were merely corroborative of the testimonies of complainants’ witnesses Benhur Luy,
Marina Sula, and Merlina Suñas and were not mentioned in isolation from the testimonies
of complainants’ witnesses.

Moreover, the sufficiency of the evidence put forward by the Ombudsman against Sen.
Estrada to establish its finding of probable cause in the 28 March 2014 Joint Resolution
in OMB-C-C-13-0313 and OMB-C-C-13-0397 was judicially confirmed by the
Sandiganbayan, when it examined the evidence, found probable cause, and issued a
warrant of arrest against Sen. Estrada on 23 June 2014.

We likewise take exception to Justice Brion’s assertion that “the due process standards
that at the very least should be considered in the conduct of a preliminary
investigation are those that this Court first articulated in Ang Tibay v. Court of
Industrial Relations [Ang Tibay].”[21] Simply put, the Ang Tibay guidelines for
administrative cases do not apply to preliminary investigations in criminal cases. An
application of the Ang Tibay guidelines to preliminary investigations will have absurd
and disastrous consequences.

Ang Tibay enumerated the constitutional requirements of due process, which Ang

Tibay described as the “fundamental and essential requirements of due process in
trials and investigations of an administrative character.”[22] These requirements are
“fundamental and essential” because without these, there is no due process as mandated
by the Constitution. These “fundamental and essential requirements” cannot be taken
away by legislation because they are part of constitutional due process. These
“fundamental and essential requirements” are:
(1) The first of these rights is the right to a hearing, which includes the right of the party
interested or affected to present his own case and submit evidence in support thereof. x x
x.
(2) Not only must the party be given an opportunity to present his case and adduce
evidence tending to establish the rights which he asserts but the tribunal must
consider the evidence presented. x x x.

(3) “While the duty to deliberate does not impose the obligation to decide right, it does
imply a necessity which cannot be disregarded, namely, that of having something to
support its decision. A decision with absolutely nothing to support it is a nullity, x x x.”

(4) Not only must there be some evidence to support a finding or conclusion, but the
evidence must be “substantial.” “Substantial evidence is more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” x x x.

(5) The decision must be rendered on the evidence presented at the hearing, or at least
contained in the record and disclosed to the parties affected. x x x.

(6) The Court of Industrial Relations or any of its judges, therefore, must act on its or his
own independent consideration of the law and facts of the controversy, and not simply
accept the views of a subordinate in arriving at a decision. x x x.

(7) The Court of Industrial Relations should, in all controversial questions, render its
decision in such a manner that the parties to the proceeding can know the various issues
involved, and the reasons for the decisions rendered. The performance of this duty is
inseparable from the authority conferred upon it.[23]
The guidelines set forth in Ang Tibay are further clarified in GSIS v. CA[24] (GSIS):
“what Ang Tibay failed to explicitly state was, prescinding from the general principles
governing due process, the requirement of an impartial tribunal which, needless to
say, dictates that one called upon to resolve a dispute may not sit as judge and jury
simultaneously, neither may he review his decision on appeal.”[25] The GSIS clarification
affirms the non-applicability of the Ang Tibay guidelines to preliminary investigations in
criminal cases: The investigating officer, which is the role that the Office of the
Ombudsman plays in the investigation and prosecution of government personnel, will
never be the impartial tribunal required in Ang Tibay, as amplified in GSIS. The purpose
of the Office of the Ombudsman in conducting a preliminary investigation, after
conducting its own fact-finding investigation, is to determine probable cause for filing
an information, and not to make a final adjudication of the rights and obligations of the
parties under the law, which is the purpose of the guidelines in Ang Tibay. The
investigating officer investigates, determines probable cause, and prosecutes the
criminal case after filing the corresponding information.

The purpose in determining probable cause is to make sure that the courts are not clogged
with weak cases that will only be dismissed, as well as to spare a person from the travails
of a needless prosecution.[26] The Ombudsman and the prosecution service under
the control and supervision of the Secretary of the Department of Justice are inherently
the fact-finder, investigator, hearing officer, judge and jury of the respondent in
preliminary investigations. Obviously, this procedure cannot comply with Ang Tibay, as
amplified in GSIS. However, there is nothing unconstitutional with this procedure
because this is merely an Executive function, a part of the law enforcement process
leading to trial in court where the requirements mandated in Ang Tibay, as amplified
in GSIS, will apply. This has been the procedure under the 1935, 1973 and 1987
Constitutions. To now rule that Ang Tibay, as amplified in GSIS, should apply to
preliminary investigations will mean that all past and present preliminary investigations
are in gross violation of constitutional due process.

Moreover, a person under preliminary investigation, as Sen. Estrada is in the present case
when he filed his Request, is not yet an accused person, and hence cannot demand the full
exercise of the rights of an accused person:
A finding of probable cause needs only to rest on evidence showing that more likely than
not a crime has been committed and was committed by the suspects. Probable cause need
not be based on clear and convincing evidence of guilt, neither on evidence establishing
guilt beyond reasonable doubt and definitely, not on evidence establishing absolute
certainty of guilt. As well put in Brinegar v. United States, while probable cause demands
more than “bare suspicion,” it requires “less than evidence which would justify . . .
conviction.” A finding of probable cause merely binds over the suspect to stand trial. It is
not a pronouncement of guilt.

Considering the low quantum and quality of evidence needed to support a finding of
probable cause, we also hold that the DOJ Panel did not gravely abuse its discretion in
refusing to call the NBI witnesses for clarificatory questions. The decision to call
witnesses for clarificatory questions is addressed to the sound discretion of the
investigator and the investigator alone. If the evidence on hand already yields a probable
cause, the investigator need not hold a clarificatory hearing. To repeat, probable cause
merely implies probability of guilt and should be determined in a summary manner.
Preliminary investigation is not a part of trial and it is only in a trial where an
accused can demand the full exercise of his rights, such as the right to confront and
cross-examine his accusers to establish his innocence. In the case at bar, the DOJ Panel
correctly adjudged that enough evidence had been adduced to establish probable cause
and clarificatory hearing was unnecessary.[27]
Justice J.B.L. Reyes, writing for the Court, emphatically declared in Lozada v.
Hernandez,[28] that the “rights conferred upon accused persons to participate in
preliminary investigations concerning themselves depend upon the provisions of law
by which such rights are specifically secured, rather than upon the phrase ‘due process
of law’.” This reiterates Justice Jose P. Laurel’s oft-quoted pronouncement in Hashim v.
Boncan[29] that “the right to a preliminary investigation is statutory, not
constitutional.” In short, the rights of a respondent in a preliminary investigation are
merely statutory rights, not constitutional due process rights. An investigation to
determine probable cause for the filing of an information does not initiate a criminal
action so as to trigger into operation Section 14(2), Article III of the Constitution.[30] It is
the filing of a complaint or information in court that initiates a criminal action.[31]

The rights to due process in administrative cases as prescribed in Ang Tibay, as amplified
in GSIS, are granted by the Constitution; hence, these rights cannot be taken away by
mere legislation. On the other hand, as repeatedly reiterated by this Court, the right to a
preliminary investigation is merely a statutory right,[32] not part of the “fundamental and
essential requirements” of due process as prescribed in Ang Tibay and amplified in GSIS.
Thus, a preliminary investigation can be taken away by legislation. The constitutional
right of an accused to confront the witnesses against him does not apply in preliminary
investigations; nor will the absence of a preliminary investigation be an infringement of
his right to confront the witnesses against him.[33] A preliminary investigation may be
done away with entirely without infringing the constitutional right of an accused under
the due process clause to a fair trial.[34]

The quantum of evidence needed in Ang Tibay, as amplified in GSIS, is greater than the
evidence needed in a preliminary investigation to establish probable cause, or to establish
the existence of a prima facie case that would warrant the prosecution of a case. Ang
Tibay refers to “substantial evidence,” while the establishment of probable cause needs
“only more than ‘bare suspicion,’ or ‘less than evidence which would justify . . .
conviction’.” In the United States, from where we borrowed the concept of probable
cause,[35] the prevailing definition of probable cause is this:
In dealing with probable cause, however, as the very name implies, we deal with
probabilities. These are not technical; they are the factual and practical considerations of
everyday life on which reasonable and prudent men, not legal technicians, act. The
standard of proof is accordingly correlative to what must be proved.

“The substance of all the definitions” of probable cause “is a reasonable ground for belief
of guilt.” McCarthy v. De Armit, 99 Pa. St. 63, 69, quoted with approval in
the Carroll opinion. 267 U. S. at 161. And this “means less than evidence which would
justify condemnation” or conviction, as Marshall, C. J., said for the Court more than a
century ago in Locke v. United States, 7 Cranch 339, 348. Since Marshall’s time, at any
rate, it has come to mean more than bare suspicion: Probable cause exists where “the
facts and circumstances within their [the officers’] knowledge and of which they had
reasonably trustworthy information [are] sufficient in themselves to warrant a man of
reasonable caution in the belief that” an offense has been or is being committed. Carroll
v. United States, 267 U. S. 132, 162.

These long-prevailing standards seek to safeguard citizens from rash and unreasonable
interferences with privacy and from unfounded charges of crime. They also seek to give
fair leeway for enforcing the law in the community’s protection. Because many situations
which confront officers in the course of executing their duties are more or less
ambiguous, room must be allowed for some mistakes on their part. But the mistakes must
be those of reasonable men, acting on facts leading sensibly to their conclusions of
probability. The rule of probable cause is a practical, nontechnical conception affording
the best compromise that has been found for accommodating these often opposing
interests. Requiring more would unduly hamper law enforcement. To allow less would be
to leave law-abiding citizens at the mercy of the officers’ whim or caprice. [36]
In the Philippines, there are four instances in the Revised Rules of Criminal Procedure
where probable cause is needed to be established:

(1) In Sections 1 and 3 of Rule 112: By the investigating officer, to determine whether
there is sufficient ground to engender a well-founded belief that a crime has been
committed and the respondent is probably guilty thereof, and should be held for trial. A
preliminary investigation is required before the filing of a complaint or information for an
offense where the penalty prescribed by law is at least four years, two months and one
day without regard to the fine;

(2) In Sections 6 and 9 of Rule 112: By the judge, to determine whether a warrant of
arrest or a commitment order, if the accused has already been arrested, shall be issued and
that there is a necessity of placing the respondent under immediate custody in order not to
frustrate the ends of justice;

(3) In Section 5(b) of Rule 113: By a peace officer or a private person making a
warrantless arrest when an offense has just been committed, and he has probable cause to
believe based on personal knowledge of facts or circumstances that the person to be
arrested has committed it; and

(4) In Section 4 of Rule 126: By the judge, to determine whether a search warrant shall be
issued, and only upon probable cause in connection with one specific offense to be
determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to
be searched and the things to be seized which may be anywhere in the Philippines.

In all these instances, the evidence necessary to establish probable cause is based only on
the likelihood, or probability, of guilt. Justice Brion, in the recent case of Unilever
Philippines, Inc. v. Tan[37] (Unilever), stated:
The determination of probable cause needs only to rest on evidence showing that more
likely than not, a crime has been committed and there is enough reason to believe that it
was committed by the accused. It need not be based on clear and convincing evidence of
guilt, neither on evidence establishing absolute certainty of guilt. What is merely required
is “probability of guilt.” Its determination, too, does not call for the application of rules or
standards of proof that a judgment of conviction requires after trial on the merits. Thus, in
concluding that there is probable cause, it suffices that it is believed that the act or
omission complained of constitutes the very offense charged.

It is also important to stress that the determination of probable cause does not depend
on the validity or merits of a party’s accusation or defense or on the admissibility or
veracity of testimonies presented. As previously discussed, these matters are better
ventilated during the trial proper of the case. As held in Metropolitan Bank & Trust
Company v. Gonzales:
Probable cause has been defined as the existence of such facts and circumstances as
would excite the belief in a reasonable mind, acting on the facts within the knowledge of
the prosecutor, that the person charged was guilty of the crime for which he was
prosecuted. x x x. The term does not mean “actual or positive cause” nor does it import
absolute certainty. It is merely based on opinion and reasonable belief. Thus, a finding of
probable cause does not require an inquiry into whether there is sufficient evidence to
procure a conviction. It is enough that it is believed that the act or omission complained
of constitutes the offense charged. Precisely, there is a trial for the reception of evidence
of the prosecution in support of the charge. (Boldfacing and italicization supplied)
Justice Brion’s pronouncement in Unilever that “the determination of probable cause
does not depend on the validity or merits of a party’s accusation or defense or on
the admissibility or veracity of testimonies presented” correctly recognizes the doctrine
in the United States that the determination of probable cause can rest partially, or even
entirely, on hearsay evidence, as long as the person making the hearsay statement is
credible. In United States v. Ventresca,[38] the United States Supreme Court held:
While a warrant may issue only upon a finding of “probable cause,” this Court has long
held that “the term ‘probable cause’ . . . means less than evidence which would justify
condemnation,” Locke v. United States, 7 Cranch 339, 11 U.S. 348, and that a finding of
“probable cause” may rest upon evidence which is not legally competent in a criminal
trial. Draper v. United States, 358 U.S. 307, 358 U.S. 311. As the Court stated
in Brinegar v. United States, 338 U.S. 160, 173, “There is a large difference between the
two things to be proved (guilt and probable cause), as well as between the tribunals which
determine them, and therefore a like difference in the quanta and modes of proof required
to establish them.” Thus, hearsay may be the basis for issuance of the warrant “so
long as there . . . [is] a substantial basis for crediting the hearsay.” Jones v. United
States, supra, at 362 U.S. 272. And, in Aguilar, we recognized that “an affidavit may
be based on hearsay information and need not reflect the direct personal
observations of the affiant,” so long as the magistrate is “informed of some of the
underlying circumstances” supporting the affiant’s conclusions and his belief that
any informant involved “whose identity need not be disclosed . . .” was “credible” or
his information “reliable.” Aguilar v. Texas, supra, at 378 U.S. 114. (Emphasis
supplied)
Thus, probable cause can be established with hearsay evidence, as long as there
is substantial basis for crediting the hearsay. Hearsay evidence is admissible in
determining probable cause in a preliminary investigation because such investigation is
merely preliminary, and does not finally adjudicate rights and obligations of parties.
However, in administrative cases, where rights and obligations are finally adjudicated,
what is required is “substantial evidence” which cannot rest entirely or even partially on
hearsay evidence. Substantial basis is not the same as substantial evidence because
substantial evidence excludes hearsay evidence while substantial basis can include
hearsay evidence. To require the application of Ang Tibay, as amplified in GSIS, in
preliminary investigations will change the quantum of evidence required in
determining probable cause from evidence of likelihood or probability of guilt to
substantial evidence of guilt.

It is, moreover, necessary to distinguish between the constitutionally guaranteed rights of

an accused and the right to a preliminary investigation. To treat them the same will lead
to absurd and disastrous consequences. All pending criminal cases in all courts
throughout the country will have to be remanded to the preliminary investigation
level because none of these will satisfy Ang Tibay, as amplified in GSIS. Preliminary
investigations are conducted by prosecutors, who are the same officials who will
determine probable cause and prosecute the cases in court. The prosecutor is hardly the
impartial tribunal contemplated in Ang Tibay, as amplified in GSIS. A reinvestigation by
an investigating officer outside of the prosecution service will be necessary if Ang Tibay,
as amplified in GSIS, were to be applied. This will require a new legislation. In the
meantime, all pending criminal cases in all courts will have to be remanded for
reinvestigation, to proceed only when a new law is in place. To require Ang Tibay, as
amplified in GSIS, to apply to preliminary investigation will necessarily change the
concept of preliminary investigation as we know it now. Applying the constitutional due
process in Ang Tibay, as amplified in GSIS, to preliminary investigation will necessarily
require the application of the rights of an accused in Section 14(2), Article III of the 1987
Constitution. This means that the respondent can demand an actual hearing and the right
to cross-examine the witnesses against him, rights which are not afforded at present to a
respondent in a preliminary investigation.

The application of Ang Tibay, as amplified in GSIS, is not limited to those with pending
preliminary investigations but even to those convicted by final judgment and already
serving their sentences. The rule is well-settled that a judicial decision applies
retroactively if it has a beneficial effect on a person convicted by final judgment even if
he is already serving his sentence, provided that he is not a habitual criminal. [39] This
Court retains its control over a case “until the full satisfaction of the final judgment
conformably with established legal processes.”[40] Applying Ang Tibay, as amplified
in GSIS, to preliminary investigations will result in thousands of prisoners, convicted by
final judgment, being set free from prison.

Second. Sen. Estrada’s present Petition for Certiorari is premature.

Justice Velasco’s dissent prefers that Sen. Estrada not “be subjected to the rigors of a
criminal prosecution in court” because there is “a pending question regarding the
Ombudsman’s grave abuse of its discretion preceding the finding of a probable cause to
indict him.” Restated bluntly, Justice Velasco’s dissent would like this Court to conclude
that the mere filing of the present Petition for Certiorari questioning the Ombudsman’s
denial of Sen. Estrada’s Request should have, by itself, voided all proceedings related to
the present case.

Although it is true that, in its 27 March 2014 Order, the Ombudsman denied Sen.
Estrada’s Request, the Ombudsman subsequently reconsidered its Order. On 7 May 2014,
the same date that Sen. Estrada filed the present Petition, the Ombudsman issued a Joint
Order in OMB-C-C-13-0313 and OMB-C-C-13-0397 that furnished Sen. Estrada with
the counter-affidavits of Ruby Tuason, Dennis Cunanan, Gondelina Amata, Mario
Relampagos, Francisco Figura, Gregoria Buenaventura, and Alexis Sevidal, and directed
him to comment within a non-extendible period of five days from receipt of said
Order. Sen. Estrada did not file any comment, as noted in the 4 June 2014 Joint Order
of the Ombudsman.

On 4 June 2014, the Ombudsman issued another Joint Order and denied Sen. Estrada’s
Motion for Reconsideration of its 28 March 2014 Joint Resolution which found probable
cause to indict Sen. Estrada and his co-respondents with one count of plunder and 11
counts of violation of Section 3(e), Republic Act No. 3019. In this 4 June 2014 Joint
Order, the Ombudsman stated that “[t]his Office, in fact, held in abeyance the
disposition of motions for reconsideration in this proceeding in light of its grant to
Senator Estrada a period of five days from receipt of the 7 May 2014 Order to formally
respond to the above-named respondents’ claims.”

We underscore Sen. Estrada’s procedural omission. Sen. Estrada did not file any
pleading, much less a motion for reconsideration, to the 27 March 2014 Order in
OMB-C-C-13-0313. Sen. Estrada immediately proceeded to file this Petition for
Certiorari before this Court. Sen. Estrada’s resort to a petition for certiorari before this
Court stands in stark contrast to his filing of his 7 April 2014 Motion for Reconsideration
of the 28 March 2014 Joint Resolution finding probable cause. The present Petition for
Certiorari is premature.

A motion for reconsideration allows the public respondent an opportunity to correct its
factual and legal errors. Sen. Estrada, however, failed to present a compelling reason that
the present Petition falls under the exceptions[41] to the general rule that the filing of a
motion for reconsideration is required prior to the filing of a petition for certiorari. This
Court has reiterated in numerous decisions that a motion for reconsideration
is mandatory before the filing of a petition for certiorari.[42]

Justice Velasco’s dissent faults the majority for their refusal to apply the Reyes case to
the present Petition. Justice Velasco’s dissent insists that “this Court cannot neglect to
emphasize that, despite the variance in the quanta of evidence required, a uniform
observance of the singular concept of due process is indispensable in all proceedings.”

As we try to follow Justice Velasco’s insistence, we direct Justice Velasco and those who
join him in his dissent to this Court’s ruling in Ruivivar v. Office of the
Ombudsman (Ruivivar),[43] wherein we stated that “[t]he law can no longer help one who
had been given ample opportunity to be heard but who did not take full advantage of the
proffered chance.”

The Ruivivar case, like the Reyes[44] case, was also an administrative case before the

Ombudsman. The Ombudsman found petitioner Rachel Beatriz Ruivivar administratively
liable for discourtesy in the course of her official functions and imposed on her the
penalty of reprimand. Petitioner filed a motion for reconsideration of the decision on the
ground that she was not furnished copies of the affidavits of the private respondent’s
witnesses. The Ombudsman subsequently ordered that petitioner be furnished with copies
of the counter-affidavits of private respondent’s witnesses, and that petitioner should
“file, within ten (10) days from receipt of this Order, such pleading which she may deem
fit under the circumstances.” Petitioner received copies of the affidavits, and simply filed
a manifestation where she maintained that her receipt of the affidavits did not alter the
deprivation of her right to due process or cure the irregularity in the Ombudsman’s
decision to penalize her.

In Ruivivar, petitioner received the affidavits of the private respondent’s

witnesses after the Ombudsman rendered a decision against her. We disposed of
petitioner’s deprivation of due process claim in this manner:
The CA Decision dismissed the petition for certiorari on the ground that the petitioner
failed to exhaust all the administrative remedies available to her before the Ombudsman.
This ruling is legally correct as exhaustion of administrative remedies is a requisite for
the filing of a petition for certiorari. Other than this legal significance, however, the
ruling necessarily carries the direct and immediate implication that the petitioner has
been granted the opportunity to be heard and has refused to avail of this opportunity;
hence, she cannot claim denial of due process. In the words of the CA ruling itself:
“Petitioner was given the opportunity by public respondent to rebut the affidavits
submitted by private respondent. . . and had a speedy and adequate administrative
remedy but she failed to avail thereof for reasons only known to her.”

For a fuller appreciation of our above conclusion, we clarify that although they are
separate and distinct concepts, exhaustion of administrative remedies and due process
embody linked and related principles. The “exhaustion” principle applies when the ruling
court or tribunal is not given the opportunity to re-examine its findings and conclusions
because of an available opportunity that a party seeking recourse against the court or the
tribunal’s ruling omitted to take. Under the concept of “due process,” on the other hand, a
violation occurs when a court or tribunal rules against a party without giving him or her
the opportunity to be heard. Thus, the exhaustion principle is based on the perspective of
the ruling court or tribunal, while due process is considered from the point of view of the
litigating party against whom a ruling was made. The commonality they share is in the
same “opportunity” that underlies both. In the context of the present case, the available
opportunity to consider and appreciate the petitioner’s counter-statement of facts was
denied the Ombudsman; hence, the petitioner is barred from seeking recourse at the CA
because the ground she would invoke was not considered at all at the Ombudsman level.
At the same time, the petitioner – who had the same opportunity to rebut the belatedly-
furnished affidavits of the private respondent’s witnesses – was not denied and cannot
now claim denial of due process because she did not take advantage of the opportunity
opened to her at the Ombudsman level.

The records show that the petitioner duly filed a motion for reconsideration on due
process grounds (i.e., for the private respondent’s failure to furnish her copies of the
affidavits of witnesses) and on questions relating to the appreciation of the evidence on
record. The Ombudsman acted on this motion by issuing its Order of January 17, 2003
belatedly furnishing her with copies of the private respondent’s witnesses, together with
the “directive to file, within ten (10) days from receipt of this Order, such pleading which
she may deem fit under the circumstances.”

Given this opportunity to act on the belatedly-furnished affidavits, the petitioner simply
chose to file a “Manifestation” where she took the position that “The order of the
Ombudsman dated 17 January 2003 supplying her with the affidavits of the complainant
does not cure the 04 November 2002 order,” and on this basis prayed that the
Ombudsman’s decision “be reconsidered and the complaint dismissed for lack of merit.”

For her part, the private respondent filed a Comment/Opposition to Motion for
Reconsideration dated 27 January 2003 and prayed for the denial of the petitioner’s
motion.

In the February 12, 2003 Order, the Ombudsman denied the petitioner’s motion for
reconsideration after finding no basis to alter or modify its ruling. Significantly, the
Ombudsman fully discussed in this Order the due process significance of the petitioner’s
failure to adequately respond to the belatedly-furnished affidavits. The Ombudsman said:
“Undoubtedly, the respondent herein has been furnished by this Office with copies of the
affidavits, which she claims she has not received. Furthermore, the respondent has been
given the opportunity to present her side relative thereto, however, she chose not to
submit countervailing evidence or argument. The respondent, therefore (sic), cannot
claim denial of due process for purposes of assailing the Decision issued in the present
case. On this score, the Supreme Court held in the case of People v. Acot, 232 SCRA 406,
that “a party cannot feign denial of due process where he had the opportunity to
present his side”. This becomes all the more important since, as correctly pointed out by
the complainant, the decision issued in the present case is deemed final and unappealable
pursuant to Section 27 of Republic Act 6770, and Section 7, Rule III of Administrative
Order No. 07. Despite the clear provisions of the law and the rules, the respondent
herein was given the opportunity not normally accorded, to present her side, but she
opted not to do so which is evidently fatal to her cause.” [emphasis supplied].
Under these circumstances, we cannot help but recognize that the petitioner’s cause is a
lost one, not only for her failure to exhaust her available administrative remedy, but also
on due process grounds. The law can no longer help one who had been given ample
opportunity to be heard but who did not take full advantage of the proffered chance.[45]
Ruivivar applies with even greater force to the present Petition because here the affidavits
of Sen. Estrada’s co-respondents were furnished to him before the Ombudsman rendered
her 4 June 2014 Joint Order. In Ruivivar, the affidavits were furnished after the
Ombudsman issued a decision.

Justice Velasco’s dissent cites the cases of Tatad v. Sandiganbayan[46] (Tatad)

and Duterte v. Sandiganbayan[47] (Duterte) in an attempt to prop up its stand. A careful
reading of these cases, however, would show that they do not stand on all fours with the
present case. In Tatad, this Court ruled that “the inordinate delay in terminating the
preliminary investigation and filing the information [by the Tanodbayan] in the present
case is violative of the constitutionally guaranteed right of the petitioner to due process
and to a speedy disposition of the cases against him.”[48] The Tanodbayan took almost
three years to terminate the preliminary investigation, despite Presidential Decree No.
911’s prescription of a ten-day period for the prosecutor to resolve a case under
preliminary investigation. We ruled similarly in Duterte, where the petitioners were
merely asked to comment and were not asked to file counter-affidavits as is the proper
procedure in a preliminary investigation. Moreover, in Duterte, the Ombudsman took
four years to terminate its preliminary investigation.

As we follow the reasoning in Justice Velasco’s dissent, it becomes more apparent that
Sen. Estrada’s present Petition for Certiorari is premature for lack of filing of a motion
for reconsideration before the Ombudsman. When the Ombudsman gave Sen. Estrada
copies of the counter-affidavits and even waited for the lapse of the given period for the
filing of his comment, Sen. Estrada failed to avail of the opportunity to be heard due to
his own fault. Thus, Sen. Estrada’s failure cannot in any way be construed as violation of
due process by the Ombudsman, much less of grave abuse of discretion. Sen. Estrada has
not filed any comment, and still chooses not to.

Third. Sen. Estrada’s present Petition for Certiorari constitutes forum shopping and
should be summarily dismissed.

In his verification and certification of non-forum shopping in the present petition filed on
7 May 2014, Sen. Estrada stated:
3.1 I, however, disclose that I have filed a Motion for Reconsideration dated 07 April
2014 in OMB-C-C-13-0313 and OMB-C-C-13-0397, raising as sole issue the finding of
probable cause in the Joint Resolution dated 28 March 2014.
Such Motion for Reconsideration has yet to be resolved by the Office of the Ombudsman.
[49]
 (Emphasis supplied)
Sen. Estrada’s Motion for Reconsideration of the 28 March 2014 Joint Resolution prayed
that the Ombudsman reconsider and issue a new resolution dismissing the charges against
him. However, in this Motion for Reconsideration, Sen. Estrada assailed the
Ombudsman’s 27 March 2014 Joint Order denying his Request, and that such denial is
a violation of his right to due process.
8. It is respectfully submitted that the Ombudsman violated the foregoing rule [Rule 112,
Section 4 of the Rules of Court] and principles. A reading of the Joint Resolution will
reveal that various pieces of evidence which Senator Estrada was not furnished with
– hence, depriving him of the opportunity to controvert the same – were heavily
considered by the Ombudsman in finding probable cause to charge him with
Plunder and with violations of Section 3(e) of R.A. No. 3019.

xxxx

11. Notably, under dated 20 March 2014, Senator Estrada filed a “Request to be
Furnished with Copies of Counter-Affidavits of the Other Respondents, Affidavits of
New Witnesses and Other Filings,” pursuant to the right of a respondent “to examine the
evidence submitted by the complainant which he may not have been furnished” (Section
3[b], Rule 112 of the Rules of Court), and to “have access to the evidence on record”
(Section 4[c], Rule II of the Rules of Procedure of the Office of the Ombudsman).

However, notwithstanding the gravity of the offenses leveled against Senator Estrada and
the law’s vigilance in protecting the rights of an accused, the Special Panel of
Investigators, in an Order dated 27 March 2014, unceremoniously denied the
request on the ground that “there is no provision under this Office’s Rules of
Procedure which entitles respondent to be furnished all the filings by the other
parties x x x x.” (Order dated 27 March 2013, p. 3)

As such, Senator Estrada was not properly apprised of the evidence offered against
him, which were eventually made the bases of the Ombudsman’s finding of
probable cause.[50]
The Ombudsman denied Sen. Estrada’s Motion for Reconsideration in its 4 June 2014
Joint Order. Clearly, Sen. Estrada expressly raised in his Motion for Reconsideration with
the Ombudsman the violation of his right to due process, the same issue he is raising in
this petition.

In the verification and certification of non-forum shopping attached to his petition

docketed as G.R. Nos. 212761-62 filed on 23 June 2014, Sen. Estrada disclosed the
pendency of the present petition, as well as those before the Sandiganbayan for the
determination of the existence of probable cause. In his petition in G.R. Nos. 212761-62,
Sen. Estrada again mentioned the Ombudsman’s 27 March 2014 Joint Order denying his
Request.
17. Sen. Estrada was shocked not only at the Office of the Ombudsman’s finding of
probable cause, which he maintains is without legal or factual basis, but also that such
finding of probable cause was premised on evidence not disclosed to him, including those
subject of his Request to be Furnished with Copies of Counter-Affidavits of the Other
Respondents, Affidavits of New Witnesses and Other Filings dated 20 March 2014.

In particular, the Office of the Ombudsman used as basis for the Joint Resolution the
following documents -

i. Alexis G. Sevidal’s Counter-Affidavits dated 15 January and 24 February 2014;

ii. Dennis L. Cunanan’s Counter-Affidavits both dated 20 February 2014;

iii. Francisco B. Figura’s Counter-Affidavit dated 08 January 2014;

iv. Ruby Tuason’s Counter-Affidavits both dated 21 February 2014;

v. Gregoria G. Buenaventura’s Counter-Affidavit dated 06 March 2014; and

vi. Philippine Daily Inquirer Online Edition news article entitled “Benhur Luy
upstages Napoles in Senate Hearing” by Norman Bordadora and TJ Borgonio,
published on 06 March 2014,

none of which were ever furnished Sen. Estrada prior to the issuance of the
challenged Joint Resolution, despite written request.

xxxx

II

THE OFFICE OF THE OMBUDSMAN, IN ISSUING THE CHALLENGED JOINT

RESOLUTION DATED 28 MARCH 2014 AND CHALLENGED JOINT
ORDER DATED 04 JUNE 2014, NOT ONLY ACTED WITHOUT OR IN EXCESS OF
ITS JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION, BUT ALSO VIOLATED SEN. ESTRADA’S
CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW AND TO EQUAL
PROTECTION OF THE LAWS.

xxxx

2.17 x x x x
Notably, in its Joint Order dated 07 May 2014, the Office of the Ombudsman even
arbitrarily limited the filing of Sen. Estrada’s comment to the voluminous documents
comprising the documents it furnished Sen. Estrada to a “non-extendible” period of five
(5) days, making it virtually impossible for Sen. Estrada to adequately study the charges
leveled against him and intelligently respond to them. The Joint Order also failed to
disclose the existence of other counter-affidavits and failed to furnish Sen. Estrada copies
of such counter-affidavits.[51]
Sen. Estrada has not been candid with this Court. His claim that the finding of probable
cause was the “sole issue” he raised before the Ombudsman in his Motion for
Reconsideration dated 7 April 2014 is obviously false.

Moreover, even though Sen. Estrada acknowledged his receipt of the Ombudsman’s 4
June 2014 Joint Order which denied his motion for reconsideration of the 28 March 2014
Joint Resolution, Sen. Estrada did not mention that the 4 June 2014 Joint Order stated
that the Ombudsman “held in abeyance the disposition of the motions for reconsideration
in this proceeding in light of its grant to [Sen. Estrada] a period of five days from receipt
of the 7 May 2014 [Joint] Order to formally respond to the above-named co-respondent’s
claims.”

Sen. Estrada claims that his rights were violated but he flouts the rules himself.

The rule against forum shopping is not limited to the fulfillment of the requisites of litis
pendentia.[52] To determine whether a party violated the rule against forum shopping, the
most important factor to ask is whether the elements of litis pendentia are present, or
whether a final judgment in one case will amount to res judicata in another.
[53]
 Undergirding the principle of litis pendentia is the theory that a party is not allowed to
vex another more than once regarding the same subject matter and for the same cause of
action. This theory is founded on the public policy that the same matter should not be the
subject of controversy in court more than once in order that possible conflicting
judgments may be avoided, for the sake of the stability in the rights and status of persons.
[54]

x x x [D]espite the fact that what the petitioners filed was a petition for certiorari, a
recourse that – in the usual course and because of its nature and purpose – is not
covered by the rule on forum shopping. The exception from the forum shopping
rule, however, is true only where a petition for certiorari is properly or regularly
invoked in the usual course; the exception does not apply when the relief sought,
through a petition for certiorari, is still pending with or has as yet to be decided by
the respondent court, tribunal or body exercising judicial or quasi-judicial
body, e.g., a motion for reconsideration of the order assailed via a petition
for certiorari under Rule 65, as in the present case. This conclusion is supported and
strengthened by
Section 1, Rule 65 of the Revised Rules of Court which provides that the availability of a
remedy in the ordinary course of law precludes the filing of a petition for certiorari;
under this rule, the petition’s dismissal is the necessary consequence if recourse to Rule
65 is prematurely taken.
To be sure, the simultaneous remedies the petitioners sought could result in possible
conflicting rulings, or at the very least, to complicated situations, between the RTC
and the Court of Appeals. An extreme possible result is for the appellate court to confirm
that the RTC decision is meritorious, yet the RTC may at the same time reconsider its
ruling and recall its order of dismissal. In this eventuality, the result is the affirmation of
the decision that the court a quo has backtracked on. Other permutations depending on
the rulings of the two courts and the timing of these rulings are possible. In every case,
our justice system suffers as this kind of sharp practice opens the system to the
possibility of manipulation; to uncertainties when conflict of rulings arise; and at
least to vexation for complications other than conflict of rulings. Thus, it matters not
that ultimately the Court of Appeals may completely agree with the RTC; what the rule
on forum shopping addresses are the possibility and the actuality of its harmful
effects on our judicial system.[55]
Sen. Estrada resorted to simultaneous remedies by filing this Petition alleging violation
of due process by the Ombudsman even as his Motion for Reconsideration raising the
very same issue remained pending with the Ombudsman. This is plain and simple forum
shopping, warranting outright dismissal of this Petition.

SUMMARY

The Ombudsman, in furnishing Sen. Estrada a copy of the complaint and its supporting
affidavits and documents, fully complied with Sections 3 and 4 of Rule 112 of the
Revised Rules of Criminal Procedure, and Section 4, Rule II of the Rules of Procedure of
the Office of the Ombudsman, Administrative Order No. 7. Both the Revised Rules of
Criminal Procedure and the Rules of Procedure of the Office of the Ombudsman require
the investigating officer to furnish the respondent with copies of the affidavits of the
complainant and affidavits of his supporting witnesses. Neither of these Rules require the
investigating officer to furnish the respondent with copies of the affidavits of his co-
respondents. The right of the respondent is only “to examine the evidence submitted
by the complainant,” as expressly stated in Section 3(b), Rule 112 of the Revised Rules
of Criminal Procedure. This Court has unequivocally ruled in Paderanga that “Section 3,
Rule 112 of the Revised Rules of Criminal Procedure expressly provides that the
respondent shall only have the right to submit a counter-affidavit, to examine all other
evidence submitted by the complainant and, where the fiscal sets a hearing to propound
clarificatory questions to the parties or their witnesses, to be afforded an opportunity to
be present but without the right to examine or cross-examine.” Moreover, Section 4 (a, b
and c) of Rule II of the Ombudsman’s Rule of Procedure, read together, only require
the investigating officer to furnish the respondent with copies of the affidavits of the
complainant and his supporting witnesses. There is no law or rule requiring the
investigating officer to furnish the respondent with copies of the affidavits of his co-
respondents.
In the 7 May 2014 Joint Order, the Ombudsman went beyond legal duty and even
furnished Sen. Estrada with copies of the counter-affidavits of his co-respondents whom
he specifically named, as well as the counter-affidavits of some of other co-respondents.
In the 4 June 2014 Joint Order, the Ombudsman even held in abeyance the disposition of
the motions for reconsideration because the Ombudsman granted Sen. Estrada five days
from receipt of the 7 May 2014 Joint Order to formally respond to the claims made by his
co-respondents. The Ombudsman faithfully complied with the existing Rules on
preliminary investigation and even accommodated Sen. Estrada beyond what the Rules
required. Thus, the Ombudsman could not be faulted with grave abuse of
discretion. Since this is a Petition for Certiorari under Rule 65, the Petition fails in
the absence of grave abuse of discretion on the part of the Ombudsman.

The constitutional due process requirements mandated in Ang Tibay, as amplified

in GSIS, are not applicable to preliminary investigations which are creations of statutory
law giving rise to mere statutory rights. A law can abolish preliminary investigations
without running afoul with the constitutional requirements of due process as prescribed
in Ang Tibay, as amplified in GSIS. The present procedures for preliminary investigations
do not comply, and were never intended to comply, with Ang Tibay, as amplified
in GSIS. Preliminary investigations do not adjudicate with finality rights and obligations
of parties, while administrative investigations governed by Ang Tibay, as amplified
in GSIS, so adjudicate. Ang Tibay, as amplified in GSIS, requires substantial
evidence for a decision against the respondent in the administrative case. In preliminary
investigations, only likelihood or probability of guilt is required. To apply Ang Tibay,
as amplified in GSIS, to preliminary investigations will change the quantum of evidence
required to establish probable cause. The respondent in an administrative case governed
by Ang Tibay, as amplified in GSIS, has the right to an actual hearing and to cross-
examine the witnesses against him. In preliminary investigations, the respondent has no
such rights.

Also, in an administrative case governed by Ang Tibay, as amplified in GSIS, the hearing
officer must be impartial and cannot be the fact-finder, investigator, and hearing officer
at the same time. In preliminary investigations, the same public officer may be the
investigator and hearing officer at the same time, or the fact-finder, investigator and
hearing officer may be under the control and supervision of the same public officer, like
the Ombudsman or Secretary of Justice. This explains why Ang Tibay, as amplified
in GSIS, does not apply to preliminary investigations. To now declare that the guidelines
in Ang Tibay, as amplified in GSIS, are fundamental and essential requirements in
preliminary investigations will render all past and present preliminary investigations
invalid for violation of constitutional due process. This will mean remanding for
reinvestigation all criminal cases now pending in all courts throughout the
country. No preliminary investigation can proceed until a new law designates a public
officer, outside of the prosecution service, to determine probable cause. Moreover, those
serving sentences by final judgment would have to be released from prison because their
conviction violated constitutional due process.

Sen. Estrada did not file a Motion for Reconsideration of the 27 March 2014 Order in
OMB-C-C-13-0313 denying his Request, which is the subject of the present Petition. He
should have filed a Motion for Reconsideration, in the same manner that he filed a
Motion for Reconsideration of the 15 May 2014 Order denying his motion to suspend
proceedings. The unquestioned rule in this jurisdiction is that certiorari will lie only if
there is no appeal or any other plain, speedy and adequate remedy in the ordinary course
of law against the acts of the public respondent.[56] The plain, speedy and adequate
remedy expressly provided by law is a Motion for Reconsideration of the 27 March 2014
Order of the Ombudsman. Sen. Estrada’s failure to file a Motion for Reconsideration
renders this Petition premature.

Sen. Estrada also raised in this Petition the same issue he raised in his Motion for
Reconsideration of the 28 March 2014 Joint Resolution of the Ombudsman finding
probable cause. While his Motion for Reconsideration of the 28 March 2014 Joint
Resolution was pending, Sen. Estrada did not wait for the resolution of the Ombudsman
and instead proceeded to file the present Petition for Certiorari. The Ombudsman issued a
Joint Order on 4 June 2014 and specifically addressed the issue that Sen. Estrada is
raising in this Petition. Thus, Sen. Estrada’s present Petition for Certiorari is not only
premature, it also constitutes forum shopping.

WHEREFORE, we DISMISS the Petition for Certiorari in G.R. Nos. 212140-41.

SO ORDERED.

EN BANC
[ G.R. No. 176389, December 14, 2010 ]
ANTONIO LEJANO, PETITIONER, VS. PEOPLE OF THE PHILIPPINES,
RESPONDENT.

[G.R. NO. 176864]

PEOPLE OF THE PHILIPPINES, APPELLEE, VS. HUBERT JEFFREY P.

WEBB, ANTONIO LEJANO, MICHAEL A. GATCHALIAN, HOSPICIO
FERNANDEZ, MIGUEL RODRIGUEZ, PETER ESTRADA AND GERARDO
BIONG, APPELLANTS.
 DECISION

ABAD, J.:

Brief Background

On June 30, 1991 Estrellita Vizconde and her daughters Carmela, nineteen years old,
and Jennifer, seven, were brutally slain at their home in Parañaque City.  Following an
intense investigation, the police arrested a group of suspects, some of whom gave
detailed confessions.  But the trial court smelled a frame-up and eventually ordered
them discharged.  Thus, the identities of the real perpetrators remained a mystery
especially to the public whose interests were aroused by the gripping details of what
everybody referred to as the Vizconde massacre.

Four years later in 1995, the National Bureau of Investigation or NBI announced that it
had solved the crime.  It presented star-witness Jessica M. Alfaro, one of its informers,
who claimed that she witnessed the crime.  She pointed to accused Hubert Jeffrey P.
Webb, Antonio "Tony Boy" Lejano, Artemio "Dong" Ventura, Michael A. Gatchalian,
Hospicio "Pyke" Fernandez, Peter Estrada, Miguel "Ging" Rodriguez, and Joey Filart as
the culprits.  She also tagged accused police officer, Gerardo Biong, as an accessory after
the fact.  Relying primarily on Alfaro's testimony, on August 10, 1995 the public
prosecutors filed an information for rape with homicide against Webb, et al.[1]

The Regional Trial Court of Parañaque City, Branch 274, presided over by Judge Amelita
G. Tolentino, tried only seven of the accused since Artemio Ventura and Joey Filart
remained at large.[2]  The prosecution presented Alfaro as its main witness with the
others corroborating her testimony.  These included the medico-legal officer who
autopsied the bodies of the victims, the security guards of Pitong Daan Subdivision, the
former laundrywoman of the Webb's household, police officer Biong's former girlfriend,
and Lauro G. Vizconde, Estrellita's husband.

For their part, some of the accused testified, denying any part in the crime and saying
they were elsewhere when it took place.  Webb's alibi appeared the strongest since he
claimed that he was then across the ocean in the United States of America.  He
presented the testimonies of witnesses as well as documentary and object evidence to
prove this.  In addition, the defense presented witnesses to show Alfaro's bad
reputation for truth and the incredible nature of her testimony.

But impressed by Alfaro's detailed narration of the crime and the events surrounding it,
the trial court found a credible witness in her.  It noted her categorical, straightforward,
spontaneous, and frank testimony, undamaged by grueling cross-examinations.  The
trial court remained unfazed by significant discrepancies between Alfaro's April 28 and
May 22, 1995 affidavits, accepting her explanation that she at first wanted to protect
her former boyfriend, accused Estrada, and a relative, accused Gatchalian; that no
lawyer assisted her; that she did not trust the investigators who helped her prepare her
first affidavit; and that she felt unsure if she would get the support and security she
needed once she disclosed all about the Vizconde killings.

In contrast, the trial court thought little of the denials and alibis that Webb, Lejano,
Rodriguez, and Gatchalian set up for their defense.  They paled, according to the court,
compared to Alfaro's testimony that other witnesses and the physical evidence
corroborated. Thus, on January 4, 2000, after four years of arduous hearings, the trial
court rendered judgment, finding all the accused guilty as charged and imposing on
Webb, Lejano, Gatchalian, Fernandez, Estrada, and Rodriguez the penalty of reclusion
perpetua and on Biong, an indeterminate prison term of eleven years, four months, and
one day to twelve years.  The trial court also awarded damages to Lauro Vizconde.[3]

On appeal, the Court of Appeals affirmed the trial court's decision, modifying the
penalty imposed on Biong to six years minimum and twelve years maximum and
increasing the award of damages to Lauro Vizconde.[4]  The appellate court did not agree
that the accused were tried by publicity or that the trial judge was biased.  It found
sufficient evidence of conspiracy that rendered Rodriguez, Gatchalian, Fernandez, and
Estrada equally guilty with those who had a part in raping and killing Carmela and in
executing her mother and sister.

On motion for reconsideration by the accused, the Court of Appeals' Special Division of
five members voted three against two to deny the motion, [5] hence, the present appeal.

On April 20, 2010, as a result of its initial deliberation in this case, the Court issued a
Resolution granting the request of Webb to submit for DNA analysis the semen
specimen taken from Carmela's cadaver, which specimen was then believed still under
the safekeeping of the NBI.  The Court granted the request pursuant to section 4 of the
Rule on DNA Evidence[6] to give the accused and the prosecution access to scientific
evidence that they might want to avail themselves of, leading to a correct decision in
the case.

Unfortunately, on April 27, 2010 the NBI informed the Court that it no longer has
custody of the specimen, the same having been turned over to the trial court. The trial
record shows, however, that the specimen was not among the object evidence that the
prosecution offered in evidence in the case.

This outcome prompted accused Webb to file an urgent motion to acquit on the ground
that the government's failure to preserve such vital evidence has resulted in the denial
of his right to due process.

Issues Presented

Accused Webb's motion to acquit presents a threshold issue: whether or not the Court
should acquit him outright, given the government's failure to produce the semen
specimen that the NBI found on Carmela's cadaver, thus depriving him of evidence that
would prove his innocence.

In the main, all the accused raise the central issue of whether or not Webb, acting in
conspiracy with Lejano, Gatchalian, Fernandez, Estrada, Rodriguez, Ventura, and Filart,
raped and killed Carmela and put to death her mother and sister.  But, ultimately, the
controlling issues are:

1.   Whether or not Alfaro's testimony as eyewitness, describing the crime and
identifying Webb, Lejano, Gatchalian, Fernandez, Estrada, Rodriguez, and two others as
the persons who committed it, is entitled to belief; and

2.   Whether or not Webb presented sufficient evidence to prove his alibi and rebut
Alfaro's testimony that he led the others in committing the crime.
The issue respecting accused Biong is whether or not he acted to cover up the crime
after its commission.

The Right to Acquittal

Due to Loss of DNA Evidence

Webb claims, citing Brady v. Maryland,[7] that he is entitled to outright acquittal on the

ground of violation of his right to due process given the State's failure to produce on
order of the Court either by negligence or willful suppression the semen specimen taken
from Carmela.

The medical evidence clearly established that Carmela was raped and, consistent with
this, semen specimen was found in her.  It is true that Alfaro identified Webb in her
testimony as Carmela's rapist and killer but serious questions had been raised about her
credibility.  At the very least, there exists a possibility that Alfaro had lied.  On the other
hand, the semen specimen taken from Carmela cannot possibly lie.  It cannot be
coached or allured by a promise of reward or financial support.  No two persons have
the same DNA fingerprint, with the exception of identical twins. [8]  If, on examination,
the DNA of the subject specimen does not belong to Webb, then he did not rape
Carmela.  It is that simple.  Thus, the Court would have been able to determine that
Alfaro committed perjury in saying that he did.

Still, Webb is not entitled to acquittal for the failure of the State to produce the semen
specimen at this late stage.  For one thing, the ruling in Brady v. Maryland[9] that he cites
has long be overtaken by the decision in Arizona v. Youngblood,[10]  where the U.S.
Supreme Court held that due process does not require the State to preserve the semen
specimen although it might be useful to the accused unless the latter is able to show
bad faith on the part of the prosecution or the police. Here, the State presented a
medical expert who testified on the existence of the specimen and Webb in fact sought
to have the same subjected to DNA test.

For, another, when Webb raised the DNA issue, the rule governing DNA evidence did
not yet exist, the country did not yet have the technology for conducting the test, and
no Philippine precedent had as yet recognized its admissibility as evidence. 
Consequently, the idea of keeping the specimen secure even after the trial court
rejected the motion for DNA testing did not come up.  Indeed, neither Webb nor his co-
accused brought up the matter of preserving the specimen in the meantime.

Parenthetically, after the trial court denied Webb's application for DNA testing, he
allowed the proceeding to move on when he had on at least two occasions gone up to
the Court of Appeals or the Supreme Court to challenge alleged arbitrary actions taken
against him and the other accused. [Carmela] at ako ang mauuna." Lejano said, "Ako
ang susunod" and the others responded "Okay, okay."  They all left the parking lot in a
convoy of three vehicles and drove into Pitong Daan Subdivision for the third time.  They
arrived at Carmela's house shortly before midnight.

Alfaro parked her car between Vizconde's house and the next.  While waiting for the
others to alight from their cars, Fernandez approached Alfaro with a suggestion that
they blow up the transformer near the Vizconde's residence to cause a brownout
("Pasabugin kaya natin ang transformer na ito").   But Alfaro shrugged off the idea,
telling Fernandez, "Malakas lang ang tama mo."  When Webb, Lejano, and Ventura
were already before the house, Webb told the others again that they would line up for
Carmela but he would be the first.  The others replied, "O sige, dito lang kami,
magbabantay lang kami."

 
Alfaro was the first to pass through the pedestrian gate that had been left open. Webb,
Lejano, and Ventura followed her.  On entering the garage, Ventura using a chair
mounted the hood of the Vizcondes' Nissan Sentra and loosened the electric bulb over it
("para daw walang ilaw").   The small group went through the open iron grill gate and
passed the dirty kitchen. Carmela opened the aluminum screen door of the kitchen for
them.  She and Webb looked each other in the eyes for a moment and, together,
headed for the dining area.

As she lost sight of Carmela and Webb, Alfaro decided to go out.  Lejano asked her
where she was going and she replied that she was going out to smoke.  As she eased her
way out through the kitchen door, she saw Ventura pulling out a kitchen drawer.  Alfaro
smoked a cigarette at the garden.  After about twenty minutes, she was surprised to
hear a woman's voice ask, "Sino yan?"  Alfaro immediately walked out of the garden to
her car.  She found her other companions milling around it.  Estrada who sat in the car
asked her, "Okay ba?"
After sitting in the car for about ten minutes, Alfaro returned to the Vizconde house,
using the same route.  The interior of the house was dark but some light filtered in from
outside.  In the kitchen, Alfaro saw Ventura searching a lady's bag that lay on the dining
table.  When she asked him what he was looking for, he said: "Ikaw na nga dito,
maghanap ka ng susi."   She asked him what key he wanted and he replied: "Basta
maghanap ka ng susi ng main door pati na rin ng susi ng kotse."   When she found a
bunch of keys in the bag, she tried them on the main door but none fitted the lock.  She
also did not find the car key.

Unable to open the main door, Alfaro returned to the kitchen.  While she was at a spot
leading to the dining area, she heard a static noise (like a television that remained on
after the station had signed off).  Out of curiosity, she approached the master's
bedroom from where the noise came, opened the door a little, and peeked inside.  The
unusual sound grew even louder.  As she walked in, she saw Webb on top of Carmela
while she lay with her back on the floor.  Two bloodied bodies lay on the bed.  Lejano
was at the foot of the bed about to wear his jacket.  Carmela was gagged, moaning, and
in tears while Webb raped her, his bare buttocks exposed.

Webb gave Alfaro a meaningful look and she immediately left the room.  She met
Ventura at the dining area.  He told her, "Prepare an escape.  Aalis na tayo."   Shocked
with what she saw, Alfaro rushed out of the house to the others who were either sitting
in her car or milling on the sidewalk.  She entered her car and turned on the engine but
she did not know where to go.  Webb, Lejano, and Ventura came out of the house just
then.  Webb suddenly picked up a stone and threw it at the main door, breaking its glass
frame.

As the three men approached the pedestrian gate, Webb told Ventura that he forgot his
jacket in the house. But Ventura told him that they could not get in anymore as the iron
grills had already locked.  They all rode in their cars and drove away until they reached
Aguirre Avenue.  As they got near an old hotel at the Tropical Palace area, Alfaro noticed
the Nissan Patrol slow down. Someone threw something out of the car into the cogonal
area.

The convoy of cars went to a large house with high walls, concrete fence, steel gate, and
a long driveway at BF Executive Village.  They entered the compound and gathered at
the lawn where the "blaming session" took place.  It was here that Alfaro and those who
remained outside the Vizconde house learned of what happened.  The first to be killed
was Carmela's mother, then Jennifer, and finally, Carmella.  Ventura blamed Webb,
telling him, "Bakit naman pati yung bata?"   Webb replied that the girl woke up and on
seeing him molesting Carmela, she jumped on him, bit his shoulders, and pulled his
hair.  Webb got mad, grabbed the girl, pushed her to the wall, and repeatedly stabbed
her.  Lejano excused himself at this point to use the telephone in the house. 
Meanwhile, Webb called up someone on his cellular phone.

At around 2:00 in the morning, accused Gerardo Biong arrived.  Webb ordered him to go
and clean up the Vizconde house and said to him, "Pera lang ang katapat nyan."   Biong
answered,  "Okay lang."   Webb spoke to his companions and told them, "We don't
know each other.  We haven't seen each other...baka maulit yan."   Alfaro and Estrada
left and they drove to her father's house.[12]

1. The quality of the witness

Was Alfaro an ordinary subdivision girl who showed up at the NBI after four years,
bothered by her conscience or egged on by relatives or friends to come forward and do
what was right?  No. She was, at the time she revealed her story, working for the NBI as
an "asset," a stool pigeon, one who earned her living by fraternizing with criminals so
she could squeal on them to her NBI handlers.  She had to live a life of lies to get
rewards that would pay for her subsistence and vices.

According to Atty. Artemio Sacaguing, former head of the NBI Anti-Kidnapping,

Hijacking, and Armed Robbery Task Force (AKHAR) Section, Alfaro had been hanging
around at the NBI since November or December 1994 as an "asset."  She supplied her
handlers with information against drug pushers and other criminal elements.  Some of
this information led to the capture of notorious drug pushers like Christopher Cruz
Santos and Orlando Bacquir.  Alfaro's tip led to the arrest of the leader of the "Martilyo
gang" that killed a police officer.  Because of her talent, the task force gave her "very
special treatment" and she became its "darling," allowed the privilege of spending
nights in one of the rooms at the NBI offices.
When Alfaro seemed unproductive for sometime, however, they teased her about it and
she was piqued.  One day, she unexpectedly told Sacaguing that she knew someone
who had the real story behind the Vizconde massacre.  Sacaguing showed interest. 
Alfaro promised to bring that someone to the NBI to tell his story.  When this did not
happen and Sacaguing continued to press her, she told him that she might as well
assume the role of her informant. Sacaguing testified thus:

ATTY. ONGKIKO:
Q.  Atty. Sacaguing, how did Jessica Alfaro become a witness in the Vizconde murder
case?  Will you tell the Honorable Court?

xxxx

A.  She told me.  Your Honor, that she knew somebody who related to her the
circumstances, I mean, the details of the massacre of the Vizconde family.  That's what she
told me, Your Honor.

ATTY. ONGKIKO:
Q.  And what did you say?
xxxx
A.  I was quite interested and I tried to persuade her to introduce to me that man and
she promised that in due time, she will bring to me the man, and together with her, we will
try to convince him to act as a state witness and help us in the solution of the case.

xxxx

Q.  Atty. Sacaguing, were you able to interview this alleged witness?

WITNESS SACAGUING:
A.  No, sir.

ATTY. ONGKIKO:
Q.  Why not?

WITNESS SACAGUING:
A.  Because Jessica Alfaro was never able to comply with her promise to bring the man
to me.  She told me later that she could not and the man does not like to testify.

ATTY. ONGKIKO:
Q.  All right, and what happened after that?

WITNESS SACAGUING:
A.  She told me, "easy lang kayo, Sir," if I may quote, "easy lang Sir, huwag kayong..."

COURT:
How was that?
 WITNESS SACAGUING:
A.  "Easy lang, Sir.  Sir, relax lang, Sir, papapelan ko, papapelan ko na lang `yan."

xxxx

ATTY. ONGKIKO:
Q.  All right, and what was your reaction when Ms. Alfaro stated that "papapelan ko na
lang yan?"

WITNESS SACAGUING:
A.  I said, "hindi puwede yan, kasi hindi ka naman eye witness."

ATTY. ONGKIKO:
Q.  And what was the reply of Ms. Alfaro?

WITNESS SACAGUING:
A.  Hindi siya nakakibo, until she went away.

(TSN, May 28, 1996, pp. 49-50, 58, 77-79)

Quite significantly, Alfaro never refuted Sacaguing's above testimony.

2.   The suspicious details

But was it possible for Alfaro to lie with such abundant details some of which even
tallied with the physical evidence at the scene of the crime?  No doubt, yes.

Firstly, the Vizconde massacre had been reported in the media with dizzying details.
Everybody was talking about what the police found at the crime scene and there were
lots of speculations about them.

Secondly, the police had arrested some "akyat-bahay" group in Parañaque and charged
them with the crime.  The police prepared the confessions of the men they
apprehended and filled these up with details that the evidence of the crime scene
provided.  Alfaro's NBI handlers who were doing their own investigation knew of these
details as well.  Since Alfaro hanged out at the NBI offices and practically lived there, it
was not too difficult for her to hear of these evidentiary details and gain access to the
documents.
Not surprisingly, the confessions of some members of the Barroso "akyat bahay" gang,
condemned by the Makati RTC as fabricated by the police to pin the crime on them,
shows how crime investigators could make a confession ring true by matching some of
its details with the physical evidence at the crime scene. Consider the following:

a.   The Barroso gang members said that they got into Carmela's house by breaking the
glass panel of the front door using a stone wrapped in cloth to deaden the noise.   Alfaro
could not use this line since the core of her story was that Webb was Carmela's
boyfriend.  Webb had no reason to smash her front door to get to see her.

Consequently, to explain the smashed door, Alfaro had to settle for claiming that, on the
way out of the house, Webb picked up some stone and, out of the blue, hurled it at the
glass-paneled front door of the Vizconde residence.  His action really made no sense. 
From Alfaro's narration, Webb appeared rational in his decisions.  It was past midnight,
the house was dark, and they wanted to get away quickly to avoid detection.  Hurling a
stone at that glass door and causing a tremendous noise was bizarre, like inviting the
neighbors to come.

b. The crime scene showed that the house had been ransacked. The rejected
confessions of the Barroso "akyat-bahay" gang members said that they tried to rob the
house.  To explain this physical evidence, Alfaro claimed that at one point Ventura was
pulling a kitchen drawer, and at another point, going through a handbag on the dining
table.  He said he was looking for the front-door key and the car key.

Again, this portion of Alfaro's story appears tortured to accommodate the physical
evidence of the ransacked house.  She never mentioned Ventura having taken some
valuables with him when they left Carmela's house.  And why would Ventura rummage a
bag on the table for the front-door key, spilling the contents, when they had already
gotten into the house.  It is a story made to fit in with the crime scene although robbery
was supposedly not the reason Webb and his companions entered that house.

c. It is the same thing with the garage light.  The police investigators found that the bulb
had been loosened to turn off the light.  The confessions of the Barroso gang claimed
that one of them climbed the parked car's hood to reach up and darken that light.  This
made sense since they were going to rob the place and they needed time to work in the
dark trying to open the front door.  Some passersby might look in and see what they
were doing.

Alfaro had to adjust her testimony to take into account that darkened garage light. So
she claimed that Ventura climbed the car's hood, using a chair, to turn the light off.  But,
unlike the Barroso "akyat-bahay" gang, Webb and his friends did not have anything to
do in a darkened garage.  They supposedly knew in advance that Carmela left the doors
to the kitchen open for them. It did not make sense for Ventura to risk standing on the
car's hood and be seen in such an awkward position instead of going straight into the
house.

And, thirdly, Alfaro was the NBI's star witness, their badge of excellent investigative
work.  After claiming that they had solved the crime of the decade, the NBI people had a
stake in making her sound credible and, obviously, they gave her all the preparations
she needed for the job of becoming a fairly good substitute witness. She was their
"darling" of an asset. And this is not pure speculation. As pointed out above, Sacaguing
of the NBI, a lawyer and a ranking official, confirmed this to be a cold fact. Why the trial
court and the Court of Appeals failed to see this is mystifying.

At any rate, did Alfaro at least have a fine memory for faces that had a strong effect on
her, given the circumstances?  Not likely.  She named Miguel "Ging" Rodriguez as one of
the culprits in the Vizconde killings.  But when the NBI found a certain Michael
Rodriguez, a drug dependent from the Bicutan Rehabilitation Center, initially suspected
to be Alfaro's Miguel Rodriguez and showed him to Alfaro at the NBI office, she ran
berserk, slapping and kicking Michael, exclaiming: "How can I forget your face.  We just
saw each other in a disco one month ago and you told me then that you will kill me."  As
it turned out, he was not Miguel Rodriguez, the accused in this case. [13]

Two possibilities exist: Michael was really the one Alfaro wanted to implicate to settle
some score with him but it was too late to change the name she already gave or she had
myopic vision, tagging the wrong people for what they did not do.

3.   The quality of the testimony

There is another thing about a lying witness: her story lacks sense or suffers from
inherent inconsistencies.  An understanding of the nature of things and the common
behavior of people will help expose a lie.  And it has an abundant presence in this case.

One.  In her desire to implicate Gatchalian, Fernandez, Estrada, Rodriguez, and Filart,
who were supposed to be Webb's co-principals in the crime, Alfaro made it a point to
testify that Webb proposed twice to his friends the gang-rape of Carmela who had hurt
him.  And twice, they (including, if one believes Alfaro, her own boyfriend Estrada)
agreed in a chorus to his proposal.  But when they got to Carmela's house, only Webb,
Lejano, Ventura, and Alfaro entered the house.

Gatchalian, Fernandez, Estrada, and Rodriguez supposedly stayed around Alfaro's car,
which was parked on the street between Carmela's house and the next. Some of these
men sat on top of the car's lid while others milled on the sidewalk, visible under the
street light to anyone who cared to watch them, particularly to the people who were
having a drinking party in a nearby house.  Obviously, the behavior of Webb's
companions out on the street did not figure in a planned gang-rape of Carmela.

Two. Ventura, Alfaro's dope supplier, introduced her for the first time in her life to
Webb and his friends in a parking lot by a mall. So why would she agree to act as Webb's
messenger, using her gas, to bring his message to Carmela at her home. More
inexplicably, what motivated Alfaro to stick it out the whole night with Webb and his
friends?

They were practically strangers to her and her boyfriend Estrada.  When it came to a
point that Webb decided with his friends to gang-rape Carmela, clearly, there was
nothing in it for Alfaro. Yet, she stuck it out with them, as a police asset would, hanging
in there until she had a crime to report, only she was not yet an "asset" then.  If, on the
other hand, Alfaro had been too soaked in drugs to think clearly and just followed along
where the group took her, how could she remember so much details that only a drug-
free mind can?

Three. When Alfaro went to see Carmela at her house for the second time, Carmella told
her that she still had to go out and that Webb and his friends should come back around
midnight.  Alfaro returned to her car and waited for Carmela to drive out in her own
car.  And she trailed her up to Aguirre Avenue where she supposedly dropped off a man
whom she thought was Carmela's boyfriend.  Alfaro's trailing Carmela to spy on her
unfaithfulness to Webb did not make sense since she was on limited errand.  But, as a
critical witness, Alfaro had to provide a reason for Webb to freak out and decide to
come with his friends and harm Carmela.

Four. According to Alfaro, when they returned to Carmela's house the third time around
midnight, she led Webb, Lejano, and Ventura through the pedestrian gate that Carmela
had left open.  Now, this is weird.  Webb was the gang leader who decided what they
were going to do.  He decided and his friends agreed with him to go to Carmela's house
and gang-rape her.  Why would Alfaro, a woman, a stranger to Webb before that night,
and obviously with no role to play in the gang-rape of Carmela, lead him and the others
into her house?  It made no sense.  It would only make sense if Alfaro wanted to feign
being a witness to something she did not see.

Five. Alfaro went out of the house to smoke at the garden.  After about twenty minutes,
a woman exclaimed, "Sino yan?"  On hearing this, Alfaro immediately walked out of the
garden and went to her car. Apparently, she did this because she knew they came on a
sly.  Someone other than Carmela became conscious of the presence of Webb and
others in the house.  Alfaro walked away because, obviously, she did not want to get
involved in a potential confrontation.  This was supposedly her frame of mind: fear of
getting involved in what was not her business.

But if that were the case, how could she testify based on personal knowledge of what
went on in the house?  Alfaro had to change that frame of mind to one of boldness and
reckless curiosity.  So that is what she next claimed.  She went back into the house to
watch as Webb raped Carmela on the floor of the master's bedroom.  He had apparently
stabbed to death Carmela's mom and her young sister whose bloodied bodies were
sprawled on the bed.  Now, Alfaro testified that she got scared (another shift to fear) for
she hurriedly got out of the house after Webb supposedly gave her a meaningful look.

Alfaro quickly went to her car, not minding Gatchalian, Fernandez, Estrada, Rodriguez,
and Filart who sat on the car or milled on the sidewalk.  She did not speak to them, even
to Estrada, her boyfriend.  She entered her car and turned on the engine but she
testified that she did not know where to go.  This woman who a few minutes back led
Webb, Lejano, and Ventura into the house, knowing that they were decided to rape and
harm Carmela, was suddenly too shocked to know where to go!  This emotional
pendulum swing indicates a witness who was confused with her own lies.

4. The supposed corroborations

Intending to provide corroboration to Alfaro's testimony, the prosecution presented six

additional witnesses:

Dr. Prospero A. Cabanayan, the NBI Medico-Legal Officer who autopsied the bodies of
the victims, testified on the stab wounds they sustained [14] and the presence of semen in
Carmela's genitalia,[15] indicating that she had been raped.

Normal E. White, Jr., was the security guard on duty at Pitong Daan Subdivision from 7
p.m. of June 29 to 7 a.m. of June 30, 1991.  He got a report on the morning of June 30
that something untoward happened at the Vizconde residence.  He went there and saw
the dead bodies in the master's bedroom, the bag on the dining table, as well as the
loud noise emanating from a television set.[16]

White claimed that he noticed Gatchalian and his companions, none of whom he could
identify, go in and out of Pitong Daan Subdivision.  He also saw them along Vinzons
Street.  Later, they entered Pitong Daan Subdivision in a three-car convoy.  White could
not, however, describe the kind of vehicles they used or recall the time when he saw the
group in those two instances.  And he did not notice anything suspicious about their
coming and going.

But White's testimony cannot be relied on.  His initial claim turned out to be inaccurate. 
He actually saw Gatchalian and his group enter the Pitong Daan Subdivision only once. 
They were not going in and out.  Furthermore, Alfaro testified that when the convoy of
cars went back the second time in the direction of Carmela's house, she alone entered
the subdivision and passed the guardhouse without stopping.  Yet, White who
supposedly manned that guardhouse did not notice her.

Surprisingly, White failed to note Biong, a police officer, entering or exiting the
subdivision on the early morning of June 30 when he supposedly "cleaned up" Vizconde
residence on Webb's orders.  What is more, White did not notice Carmela arrive with
her mom before Alfaro's first visit that night.  Carmela supposedly left with a male
companion in her car at around 10:30 p.m. but White did not notice it.  He also did not
notice Carmela reenter the subdivision.  White actually discredited Alfaro's testimony
about the movements of the persons involved.

Further, while Alfaro testified that it was the Mazda pick-up driven by Filart that led the
three-vehicle convoy,[17] White claimed it was the Nissan Patrol with Gatchalian on it
that led the convoy since he would not have let the convoy in without ascertaining that
Gatchalian, a resident, was in it. Security guard White did not, therefore, provide
corroboration to Alfaro's testimony. 

Justo Cabanacan, the security supervisor at Pitong Daan Subdivision testified that he

saw Webb around the last week of May or the first week of June 1991 to prove his
presence in the Philippines when he claimed to be in the United States.  He was
manning the guard house at the entrance of the subdivision of Pitong Daan when he
flagged down a car driven by Webb. Webb said that he would see Lilet Sy. Cabanacan
asked him for an ID but he pointed to his United BF Homes sticker and said that he
resided there. Cabanacan replied, however, that Pitong Daan had a local sticker.

Cabanacan testified that, at this point, Webb introduced himself as the son of
Congressman Webb.  Still, the supervisor insisted on seeing his ID.  Webb grudgingly
gave it and after seeing the picture and the name on it, Cabanacan returned the same
and allowed Webb to pass without being logged in as their Standard Operating
Procedure required.[18]

But Cabanacan's testimony could not be relied on.  Although it was not common for a
security guard to challenge a Congressman's son with such vehemence, Cabanacan did
not log the incident on the guardhouse book.  Nor did he, contrary to prescribed
procedure, record the visitor's entry into the subdivision.  It did not make sense that
Cabanacan was strict in the matter of seeing Webb's ID but not in recording the visit.

Mila Gaviola used to work as laundry woman for the Webbs at their house at BF Homes
Executive Village.  She testified that she saw Webb at his parents' house on the morning
of June 30, 1991 when she got the dirty clothes from the room that he and two brothers
occupied at about 4.a.m.  She saw him again pacing the floor at 9 a.m.  At about 1 p.m.,
Webb left the house in t-shirt and shorts, passing through a secret door near the maid's
quarters on the way out.  Finally, she saw Webb at 4 p.m. of the same day. [19]

On cross-examination, however, Gaviola could not say what distinguished June 30, 1991
from the other days she was on service at the Webb household as to enable her to
distinctly remember, four years later, what one of the Webb boys did and at what time. 
She could not remember any of the details that happened in the household on the other
days.  She proved to have a selective photographic memory and this only damaged her
testimony.

Gaviola tried to corroborate Alfaro''s testimony by claiming that on June 30, 1991 she
noticed bloodstains on Webb's t-shirt. [20]  She did not call the attention of anybody in the
household about it when it would have been a point of concern that Webb may have
been hurt, hence the blood.

Besides, Victoria Ventoso, the Webbs' housemaid from March 1989 to May 1992, and
Sgt. Miguel Muñoz, the Webbs' security aide in 1991, testified that Gaviola worked for
the Webbs only from January 1991 to April 1991.  Ventoso further testified that it was
not Gaviola's duty to collect the clothes from the 2 nd floor bedrooms, this being the work
of the housemaid charged with cleaning the rooms.

What is more, it was most unlikely for a laundrywoman who had been there for only
four months to collect, as she claimed, the laundry from the rooms of her employers
and their grown up children at four in the morning while they were asleep.

And it did not make sense, if Alfaro's testimony were to be believed that Webb, who
was so careful and clever that he called Biong to go to the Vizconde residence at 2 a.m.
to clean up the evidence against him and his group, would bring his bloodied shirt home
and put it in the hamper for laundrywoman Gaviola to collect and wash at 4 a.m. as was
her supposed habit.

Lolita De Birrer was accused Biong's girlfriend around the time the Vizconde massacre
took place.  Birrer testified that she was with Biong playing mahjong from the evening of
June 29, 1991 to the early morning of June 30, when Biong got a call at around 2 a.m.
This prompted him, according to De Birrer, to leave and go to BF.  Someone sitting at
the backseat of a taxi picked him up.  When Biong returned at 7 a.m. he washed off
what looked like dried blood from his fingernails.  And he threw away a foul-smelling
handkerchief.  She also saw Biong take out a knife with aluminum cover from his drawer
and hid it in his steel cabinet. [21]

The security guard at Pitong Daan did not notice any police investigator flashing a badge
to get into the village although Biong supposedly came in at the unholy hour of two in
the morning.  His departure before 7 a.m. also remained unnoticed by the subdivision
guards.  Besides, if he had cleaned up the crime scene shortly after midnight, what was
the point of his returning there on the following morning to dispose of some of the
evidence in the presence of other police investigators and on-lookers?  In fact, why
would he steal valuable items from the Vizconde residence on his return there hours
later if he had the opportunity to do it earlier?

At most, Birrer's testimony only established Biong's theft of certain items from the
Vizconde residence and gross neglect for failing to maintain the sanctity of the crime
scene by moving around and altering the effects of the crime. Birrer's testimony failed
to connect Biong's acts to Webb and the other accused.

Lauro Vizconde testified about how deeply he was affected by the loss of her wife and
two daughters.  Carmella spoke to him of a rejected suitor she called "Bagyo," because
he was a Parañaque politician's son.  Unfortunately, Lauro did not appear curious
enough to insist on finding out who the rejected fellow was.  Besides, his testimony
contradicts that of Alfaro who testified that Carmela and Webb had an on-going
relation.  Indeed, if Alfaro were to be believed, Carmela wanted Webb to come to her
house around midnight.  She even left the kitchen door open so he could enter the
house.

5. The missing corroboration

There is something truly remarkable about this case: the prosecution's core theory that
Carmela and Webb had been sweethearts, that she had been unfaithful to him, and that
it was for this reason that Webb brought his friends to her house to gang-rape her is
totally uncorroborated!
For instance, normally, if Webb, a Congressman's son, courted the young Carmela, that
would be news among her circle of friends if not around town. But, here, none of her
friends or even those who knew either of them came forward to affirm this.  And if
Webb hanged around with her, trying to win her favors, he would surely be seen with
her.  And this would all the more be so if they had become sweethearts, a relation that
Alfaro tried to project with her testimony.

But, except for Alfaro, the NBI asset, no one among Carmela's friends or her friends'
friends would testify ever hearing of such relationship or ever seeing them together in
some popular hangouts in Parañaque or Makati.  Alfaro's claim of a five-hour drama is
like an alien page, rudely and unconnectedly inserted into Webb and Carmela's life
stories or like a piece of jigsaw puzzle trimmed to fit into the shape on the board but
does not belong because it clashes with the surrounding pieces.  It has neither
antecedent nor concomitant support in the verifiable facts of their personal histories.  It
is quite unreal.

What is more, Alfaro testified that she saw Carmela drive out of her house with a male
passenger, Mr. X, whom Alfaro thought the way it looked was also Carmela's lover.  This
was the all-important reason Webb supposedly had for wanting to harm her. Again,
none of Carmela's relatives, friends, or people who knew her ever testified about the
existence of Mr.X in her life.  Nobody has come forward to testify having ever seen him
with Carmela.  And despite the gruesome news about her death and how Mr. X had
played a role in it, he never presented himself like anyone who had lost a special friend
normally would.  Obviously, Mr. X did not exist, a mere ghost of the imagination of
Alfaro, the woman who made a living informing on criminals.

Webb's U.S. Alibi

Among the accused, Webb presented the strongest alibi.

a. The travel preparations

Webb claims that in 1991 his parents, Senator Freddie Webb and his wife, Elizabeth,
sent their son to the United States (U.S.) to learn the value of independence, hard work,
and money.[22]  Gloria Webb, his aunt, accompanied him.  Rajah Tours booked their flight
to San Francisco via United Airlines.  Josefina Nolasco of Rajah Tours confirmed that
Webb and his aunt used their plane tickets.

Webb told his friends, including his neighbor, Jennifer Claire Cabrera, and his basketball
buddy, Joselito Orendain Escobar, of his travel plans.  He even invited them to
his despedida party on March 8, 1991 at Faces Disco along Makati Ave.[23]   On March
8,1991, the eve of his departure, he took girlfriend Milagros Castillo to a dinner at
Bunchums at the Makati Cinema Square.  His basketball buddy Rafael Jose with Tina
Calma, a blind date arranged by Webb, joined them.  They afterwards went to Faces
Disco for Webb's despedida party.  Among those present were his friends Paulo Santos
and Jay Ortega.[24]

b.   The two immigration checks

The following day, March 9, 1991, Webb left for San Francisco, California, with his Aunt
Gloria on board United Airlines Flight 808.[25]  Before boarding his plane, Webb passed
through the Philippine Immigration booth at the airport to have his passport cleared
and stamped.  Immigration Officer, Ferdinand Sampol checked Webb's visa, stamped,
and initialed his passport, and let him pass through.[26]  He was listed on the United
Airlines Flight's Passenger Manifest.[27]

On arrival at San Francisco, Webb went through the U.S. Immigration where his entry
into that country was recorded.  Thus, the U.S. Immigration Naturalization Service,
checking with its Non-immigrant Information System, confirmed Webb's entry into the
U.S. on March 9, 1991.  Webb presented at the trial the INS Certification issued by the
U.S. Immigration and Naturalization Service,[28] the computer-generated print-out of the
US-INS indicating Webb's entry on March 9, 1991,[29] and the US-INS Certification dated
August 31, 1995, authenticated by the Philippine Department of Foreign Affairs,
correcting an earlier August 10, 1995 Certification. [30]

c. Details of U.S. sojourn

In San Francisco, Webb and his aunt Gloria were met by the latter's daughter, Maria
Teresa Keame, who brought them to Gloria's house in Daly City, California.  During his
stay with his aunt, Webb met Christopher Paul Legaspi Esguerra, Gloria's grandson.  In
April 1991, Webb, Christopher, and a certain Daphne Domingo watched the concert of
Deelite Band in San Francisco.[31]  In the same month, Dorothy Wheelock and her family
invited Webb to Lake Tahoe to return the Webbs' hospitality when she was in the
Philippines.[32]

In May 1991, on invitation of another aunt, Susan Brottman, Webb moved to Anaheim
Hills, California.[33]  During his stay there, he occupied himself with playing basketball
once or twice a week with Steven Keeler[34] and working at his cousin-in-law's pest
control company.[35]  Webb presented the company's logbook showing the tasks he
performed,[36] his paycheck,[37] his ID, and other employment papers.  On June 14, 1991
he applied for a driver's license[38] and wrote three letters to his friend Jennifer Cabrera.
[39]

On June 28, 1991, Webb's parents visited him at Anaheim and stayed with the
Brottmans.  On the same day, his father introduced Honesto Aragon to his son when he
came to visit.[40]  On the following day, June 29, Webb, in the company of his father and
Aragon went to Riverside, California, to look for a car.   They bought an MR2 Toyota car.
[41]
  Later that day, a visitor at the Brottman's, Louis Whittacker, saw Webb looking at the
plates of his new car.[42]  To prove the purchase, Webb presented the Public Records of
California Department of Motor Vehicle[43] and a car plate "LEW WEBB."[44]  In using the
car in the U.S., Webb even received traffic citations. [45]

On June 30, 1991 Webb, again accompanied by his father and Aragon, [46] bought a
bicycle at Orange Cycle Center.[47]  The Center issued Webb a receipt dated June 30,
1991.[48]  On July 4, 1991, Independence Day, the Webbs, the Brottmans, and the Vaca
family had a lakeside picnic.[49]

Webb stayed with the Brottmans until mid July and rented a place for less than a
month.  On August 4, 1991 he left for Longwood, Florida, to stay with the spouses Jack
and Sonja Rodriguez.[50]  There, he met Armando Rodriguez with whom he spent time,
playing basketball on weekends, watching movies, and playing billiards. [51]  In November
1991, Webb met performing artist Gary Valenciano, a friend of Jack Rodriguez, who was
invited for a dinner at the Rodriguez's house.[52]  He left the Rodriguez's home in August
1992, returned to Anaheim and stayed with his aunt Imelda Pagaspas. He stayed there
until he left for the Philippines on October 26, 1992.
d.   The second immigration checks

As with his trip going to the U.S., Webb also went through both the U.S. and Philippine
immigrations on his return trip. Thus, his departure from the U.S. was confirmed by the
same certifications that confirmed his entry.[53]  Furthermore, a Diplomatic Note of the
U.S. Department of State with enclosed letter from Acting Director Debora A. Farmer of
the Records Operations, Office of Records of the US-INS stated that the Certification
dated August 31, 1995 is a true and accurate statement.  And when he boarded his
plane, the Passenger Manifest of Philippine Airlines Flight No. 103, [54] certified by Agnes
Tabuena[55] confirmed his return trip.

When he arrived in Manila, Webb again went through the Philippine Immigration.  In
fact, the arrival stamp and initial on his passport indicated his return to Manila on
October 27, 1992.  This was authenticated by Carmelita Alipio, the immigration officer
who processed Webb's reentry.[56]  Upon his return, in October 1992, Paolo Santos,
Joselito Erondain Escobar, and Rafael Jose once again saw Webb playing basketball at
the BF's Phase III basketball court.

e. Alibi versus positive identification

The trial court and the Court of Appeals are one in rejecting as weak Webb's alibi.  Their
reason is uniform: Webb's alibi cannot stand against Alfaro's positive identification of
him as the rapist and killer of Carmela and, apparently, the killer as well of her mother
and younger sister.  Because of this, to the lower courts, Webb's denial and alibi were
fabricated.

But not all denials and alibis should be regarded as fabricated.  Indeed, if the accused is
truly innocent, he can have no other defense but denial and alibi.  So how can such
accused penetrate a mind that has been made cynical by the rule drilled into his head
that a defense of alibi is a hangman's noose in the face of a witness positively swearing,
"I saw him do it."?  Most judges believe that such assertion automatically dooms an alibi
which is so easy to fabricate.  This quick stereotype thinking, however, is distressing. 
For how else can the truth that the accused is really innocent have any chance of
prevailing over such a stone-cast tenet?
There is only one way.  A judge must keep an open mind.  He must guard against
slipping into hasty conclusion, often arising from a desire to quickly finish the job of
deciding a case.  A positive declaration from a witness that he saw the accused commit
the crime should not automatically cancel out the accused's claim that he did not do it.
A lying witness can make as positive an identification as a truthful witness can.  The lying
witness can also say as forthrightly and unequivocally, "He did it!" without blinking an
eye.

Rather, to be acceptable, the positive identification must meet at least two criteria:

First, the positive identification of the offender must come from a credible witness. She
is credible who can be trusted to tell the truth, usually based on past experiences with
her.  Her word has, to one who knows her, its weight in gold.

And second, the witness' story of what she personally saw must be believable, not
inherently contrived.  A witness who testifies about something she never saw runs into
inconsistencies and makes bewildering claims.

Here, as already fully discussed above, Alfaro and her testimony fail to meet the above
criteria.

She did not show up at the NBI as a spontaneous witness bothered by her conscience.
She had been hanging around that agency for sometime as a stool pigeon, one paid for
mixing up with criminals and squealing on them.  Police assets are often criminals
themselves.  She was the prosecution's worst possible choice for a witness. Indeed, her
superior testified that she volunteered to play the role of a witness in the Vizconde
killings when she could not produce a man she promised to the NBI.

And, although her testimony included details, Alfaro had prior access to the details that
the investigators knew of the case.  She took advantage of her familiarity with these
details to include in her testimony the clearly incompatible act of Webb hurling a stone
at the front door glass frames even when they were trying to slip away quietly--just so
she can accommodate this crime scene feature.  She also had Ventura rummaging a bag
on the dining table for a front door key that nobody needed just to explain the physical
evidence of that bag and its scattered contents.  And she had Ventura climbing the car's
hood, risking being seen in such an awkward position, when they did not need to darken
the garage to force open the front door--just so to explain the darkened light and foot
prints on the car hood.

Further, her testimony was inherently incredible.  Her story that Gatchalian, Fernandez,
Estrada, Rodriguez, and Filart agreed to take their turns raping Carmela is incongruent
with their indifference, exemplified by remaining outside the house, milling under a
street light, visible to neighbors and passersby, and showing no interest in the
developments inside the house, like if it was their turn to rape Carmela. Alfaro's story
that she agreed to serve as Webb's messenger to Carmela, using up her gas, and staying
with him till the bizarre end when they were practically strangers, also taxes incredulity.

To provide basis for Webb's outrage, Alfaro said that she followed Carmela to the main
road to watch her let off a lover on Aguirre Avenue.  And, inexplicably, although Alfaro
had only played the role of messenger, she claimed leading Webb, Lejano, and Ventura
into the house to gang-rape Carmella, as if Alfaro was establishing a reason for later on
testifying on personal knowledge.   Her swing from an emotion of fear when a woman
woke up to their presence in the house and of absolute courage when she nonetheless
returned to become the lone witness to a grim scene is also quite inexplicable.

Ultimately, Alfaro's quality as a witness and her inconsistent, if not inherently

unbelievable, testimony cannot be the positive identification that jurisprudence
acknowledges as sufficient to jettison a denial and an alibi.

f. A documented alibi

To establish alibi, the accused must prove by positive, clear, and satisfactory
evidence[57] that (a) he was present at another place at the time of the perpetration of
the crime, and (b) that it was physically impossible for him to be at the scene of the
crime.[58]

The courts below held that, despite his evidence, Webb was actually in Parañaque when
the Vizconde killings took place; he was not in the U.S. from March 9, 1991 to October
27, 1992; and if he did leave on March 9, 1991, he actually returned before June 29,
1991, committed the crime, erased the fact of his return to the Philippines from the
records of the U.S. and Philippine Immigrations, smuggled himself out of the Philippines
and into the U.S., and returned the normal way on October 27, 1992.  But this ruling
practically makes the death of Webb and his passage into the next life the only
acceptable alibi in the Philippines.  Courts must abandon this unjust and inhuman
paradigm.

If one is cynical about the Philippine system, he could probably claim that Webb, with
his father's connections, can arrange for the local immigration to put a March 9, 1991
departure stamp on his passport and an October 27, 1992 arrival stamp on the same. 
But this is pure speculation since there had been no indication that such arrangement
was made.  Besides, how could Webb fix a foreign airlines' passenger manifest, officially
filed in the Philippines and at the airport in the U.S. that had his name on them?  How
could Webb fix with the U.S. Immigration's record system those two dates in its record
of his travels as well as the dates when he supposedly departed in secret from the U.S.
to commit the crime in the Philippines and then return there?  No one has come up with
a logical and plausible answer to these questions.

The Court of Appeals rejected the evidence of Webb's passport since he did not leave
the original to be attached to the record.  But, while the best evidence of a document is
the original, this means that the same is exhibited in court for the adverse party to
examine and for the judge to see.  As Court of Appeals Justice Tagle said in his dissent,
[59]
 the practice when a party does not want to leave an important document with the
trial court is to have a photocopy of it marked as exhibit and stipulated among the
parties as a faithful reproduction of the original.  Stipulations in the course of trial are
binding on the parties and on the court.

The U.S. Immigration certification and the computer print-out of Webb's arrival in and
departure from that country were authenticated by no less than the Office of the U.S.
Attorney General and the State Department.  Still the Court of Appeals refused to accept
these documents for the reason that Webb failed to present in court the immigration
official who prepared the same.  But this was unnecessary.  Webb's passport is a
document issued by the Philippine government, which under international practice, is
the official record of travels of the citizen to whom it is issued.  The entries in that
passport are presumed true.[60]
The U.S. Immigration certification and computer print-out, the official certifications of
which have been authenticated by the Philippine Department of Foreign Affairs, merely
validated the arrival and departure stamps of the U.S. Immigration office on Webb's
passport.  They have the same evidentiary value.  The officers who issued these
certifications need not be presented in court to testify on them.  Their trustworthiness
arises from the sense of official duty and the penalty attached to a breached duty, in the
routine and disinterested origin of such statement and in the publicity of the record. [61]

The Court of Appeals of course makes capital of the fact that an earlier certification from
the U.S. Immigration office said that it had no record of Webb entering the U.S.  But that
erroneous first certification was amply explained by the U.S. Government and Court of
Appeals Justice Tagle stated it in his dissenting opinion, thus:

While it is true that an earlier Certification was issued by the U.S. INS on August
16, 1995 finding "no evidence of lawful admission of Webb," this was already clarified
and deemed erroneous by no less than the US INS Officials.  As explained by witness
Leo Herrera-Lim, Consul and Second Secretary of the Philippine Embassy in
Washington D.C., said Certification did not pass through proper diplomatic channels
and was obtained in violation of the rules on protocol and standard procedure
governing such request.

The initial request was merely initiated by BID Commissioner Verceles who directly
communicated with the Philippine Consulate in San Francisco, USA, bypassing the
Secretary of Foreign Affairs which is the proper protocol procedure.  Mr. Steven
Bucher, the acting Chief of the Records Services Board of US-INS Washington D.C. in
his letter addressed to Philip Antweiler, Philippine Desk Officer, State Department,
declared the earlier Certification as incorrect and erroneous as it was "not exhaustive
and did not reflect all available information." Also, Richard L. Huff, Co-Director of the
Office of Information and privacy, US Department of Justice, in response to the appeal
raised by Consul General Teresita V. Marzan, explained that "the INS normally does
not maintain records on individuals who are entering the country as visitors rather
than as immigrants: and that a notation concerning the entry of a visitor may be made
at the Nonimmigrant Information system. Since appellant Webb entered the U.S. on a
mere tourist visa, obviously, the initial search could not have produced the desired
result inasmuch as the data base that was looked into contained entries of the names
of IMMIGRANTS and not that of NON-IMMIGRANT visitors of the U.S.. [62]
The trial court and the Court of Appeals expressed marked cynicism over the accuracy of
travel documents like the passport as well as the domestic and foreign records of
departures and arrivals from airports.  They claim that it would not have been
impossible for Webb to secretly return to the Philippines after he supposedly left it on
March 9, 1991, commit the crime, go back to the U.S., and openly return to the
Philippines again on October 26, 1992.  Travel between the U.S. and the Philippines, said
the lower courts took only about twelve to fourteen hours.

If the Court were to subscribe to this extremely skeptical view, it might as well tear the
rules of evidence out of the law books and regard suspicions, surmises, or speculations
as reasons for impeaching evidence.  It is not that official records, which carry the
presumption of truth of what they state, are immune to attack.  They are not.  That
presumption can be overcome by evidence.  Here, however, the prosecution did not
bother to present evidence to impeach the entries in Webb's passport and the
certifications of the Philippine and U.S.' immigration services regarding his travel to the
U.S. and back.  The prosecution's rebuttal evidence is the fear of the unknown that it
planted in the lower court's minds.

7.   Effect of Webb's alibi to others

Webb's documented alibi altogether impeaches Alfaro's testimony, not only with
respect to him, but also with respect to Lejano, Estrada, Fernandez, Gatchalian,
Rodriguez, and Biong.  For, if the Court accepts the proposition that Webb was in the
U.S. when the crime took place, Alfaro's testimony will not hold together.  Webb's
participation is the anchor of Alfaro's story.  Without it, the evidence against the others
must necessarily fall.

CONCLUSION

In our criminal justice system, what is important is, not whether the court
entertains doubts about the innocence of the accused since an open mind is willing to
explore all possibilities, but whether it entertains a reasonable, lingering doubt as to
his guilt.  For, it would be a serious mistake to send an innocent man to jail where
such kind of doubt hangs on to one's inner being, like a piece of meat lodged
immovable between teeth.
 Will the Court send the accused to spend the rest of their lives in prison on the
testimony of an NBI asset who proposed to her handlers that she take the role of the
witness to the Vizconde massacre that she could not produce?

WHEREFORE, the Court REVERSES and SETS ASIDE the Decision dated

December 15, 2005 and Resolution dated January 26, 2007 of the Court of Appeals
in CA-G.R. CR-H.C. 00336 and ACQUITS accused-appellants Hubert Jeffrey P.
Webb, Antonio Lejano, Michael A. Gatchalian, Hospicio Fernandez, Miguel
Rodriguez, Peter Estrada and Gerardo Biong of the crimes of which they were
charged for failure of the prosecution to prove their guilt beyond reasonable doubt.
They are ordered immediately RELEASED from detention unless they are confined
for another lawful cause.

Let a copy of this Decision be furnished the Director, Bureau of Corrections,

Muntinlupa City for immediate implementation.  The Director of the Bureau of
Corrections is DIRECTED to report the action he has taken to this Court within five
days from receipt of this Decision.

SO ORDERED. THIRD DIVISION

[ G.R. No. 185128 [Formerly UDK No. 13980], January 30,
2012 ]
RUBEN DEL CASTILLO @ BOY CASTILLO, PETITIONER, VS. PEOPLE
OF THE PHILIPPINES, RESPONDENT.

DECISION

PERALTA, J.:

For this Court's consideration is the Petition for Review [1] on Certiorari under Rule
45 of Ruben del Castillo assailing the Decision [2] dated July 31, 2006 and
Resolution[3] dated December 13, 2007 of the Court of Appeals (CA) in CA-G.R. CR       
No. 27819, which affirmed the Decision [4] dated March 14, 2003 of the Regional Trial
Court (RTC), Branch 12, Cebu, in Criminal Case No. CBU-46291, finding petitioner guilty
beyond reasonable doubt of violation of Section 16, Article III of Republic Act (R.A.)
6425.
The facts, as culled from the records, are the following:

Pursuant to a confidential information that petitioner was engaged in selling shabu,

police officers headed by SPO3 Bienvenido Masnayon, after conducting surveillance and
test-buy operation at the house of petitioner, secured a search warrant from the RTC
and around 3 o'clock in the afternoon of September 13, 1997, the same police
operatives went to Gil Tudtud St., Mabolo, Cebu City to serve the search warrant to
petitioner.

Upon arrival, somebody shouted "raid," which prompted them to immediately

disembark from the jeep they were riding and went directly to petitioner's house and
cordoned it. The structure of the petitioner's residence is a two-storey house and the
petitioner was staying in the second floor. When they went upstairs, they met
petitioner's wife and informed her that they will implement the search warrant. But
before they can search the area, SPO3 Masnayon claimed that he saw petitioner run
towards a small structure, a nipa hut, in front of his house.  Masnayon chased him but
to no avail, because he and his men were not familiar with the entrances and exits of
the place.

They all went back to the residence of the petitioner and closely guarded the place
where the subject ran for cover.  SPO3 Masnayon requested his men to get a barangay
tanod and a few minutes thereafter, his men returned with two barangay tanods.

In the presence of the barangay tanod, Nelson Gonzalado, and the elder sister of
petitioner named Dolly del Castillo, searched the house of petitioner including the nipa
hut where the petitioner allegedly ran for cover.  His men who searched the residence
of the petitioner found nothing, but one of the barangay tanods was able to confiscate
from the nipa hut several articles, including four (4) plastic packs containing white
crystalline substance.  Consequently, the articles that were confiscated were sent to the
PNP Crime Laboratory for examination.   The contents of the four (4) heat- sealed
transparent plastic packs were subjected to laboratory examination, the result of which
proved positive for the presence of methamphetamine hydrochloride,  or shabu.

Thus, an Information was filed before the RTC against petitioner, charging him with
violation of Section 16, Article III of R.A. 6425, as amended.  The Information[5] reads:
 That on or about the 13th day of September 1997, at about 3:00 p.m. in the City
of Cebu, Philippines and within the jurisdiction of this Honorable Court, the said
accused, with deliberate intent, did then and there have in his possession and control
four (4) packs of white crystalline powder, having a total weight of 0.31 gram, locally
known as "shabu," all containing methamphetamine hydrochloride, a regulated drug,
without license or prescription from any competent authority.

CONTRARY TO LAW.[6]

During arraignment, petitioner, with the assistance of his counsel, pleaded not guilty. [7] 
Subsequently, trial on the merits ensued.

To prove the earlier mentioned incident, the prosecution presented the testimonies of
SPO3 Bienvenido Masnayon, PO2 Milo Arriola, and Forensic Analyst, Police Inspector
Mutchit Salinas.

The defense, on the other hand, presented the testimonies of petitioner, Jesusa del
Castillo, Dalisay del Castillo and Herbert Aclan, which can be summarized as follows:

On September 13, 1997, around 3 o'clock in the afternoon, petitioner was installing the
electrical wirings and airconditioning units of the Four Seasons Canteen and Beauty
Parlor at Wacky Bldg., Cabancalan, Cebu.  He was able to finish his job around 6 o'clock
in the evening, but he was engaged by the owner of the establishment in a
conversation.  He was able to go home around 8:30-9 o'clock in the evening.  It was then
that he learned from his wife that police operatives searched his house and found
nothing.  According to him, the small structure, 20 meters away from his house where
they found the confiscated items, was owned by his older brother and was used as a
storage place by his father.

After trial, the RTC found petitioner guilty beyond reasonable of the charge against him
in the Information.  The dispositive portion of the Decision reads:

WHEREFORE, premises considered, this Court finds the accused Ruben del
Castillo "alyas Boy Castillo," GUILTY of violating Section 16, Article III, Republic Act No.
6425, as amended.  There being no mitigating nor aggravating circumstances proven
before this Court, and applying the Indeterminate Sentence Law, he is sentenced to
suffer the penalty of Six (6) Months and One (1) Day as Minimum and Four (4) Years and
Two (2) Months as Maximum of Prision Correccional.

The four (4) small plastic packets of white crystalline substance having a total weight of
0.31 gram, positive for the presence of methamphetamine hydrochloride, are ordered
confiscated and shall be destroyed in accordance with the law.

SO ORDERED.[8]

Aggrieved, petitioner appealed his case with the CA, but the latter affirmed the decision
of the RTC, thus:

WHEREFORE, the challenged Decision is AFFIRMED in toto and the appeal is

DISMISSED, with costs against accused-appellant.

SO ORDERED.[9]

After the motion for reconsideration of petitioner was denied by the CA, petitioner filed
with this Court the present petition for certiorari under Rule 45 of the Rules of Court
with the following arguments raised:

1. THE COURT OF APPEALS ERRED IN ITS APPLICATION OF THE PROVISIONS OF

THE CONSTITUTION, THE RULES OF COURT AND ESTABLISHED JURISPRUDENCE VIS-A-
VIS VALIDITY OF SEARCH WARRANT NO. 570-9-1197-24;

2. THE COURT OF APPEALS ERRED IN RULING THAT THE FOUR (4) PACKS OF WHITE
CRYSTALLINE POWDER ALLEGEDLY FOUND ON THE FLOOR OF THE NIPA HUT OR
STRUCTURE ARE ADMISSIBLE IN EVIDENCE AGAINST THE PETITIONER, NOT ONLY
BECAUSE THE SAID COURT SIMPLY PRESUMED THAT IT WAS USED BY THE PETITIONER
OR THAT THE PETITIONER RAN TO IT FOR COVER WHEN THE SEARCHING TEAM ARRIVED
AT HIS RESIDENCE, BUT ALSO, PRESUMING THAT THE SAID NIPA HUT OR STRUCTURE
WAS INDEED USED BY THE PETITIONER AND THE FOUR (4) PACKS OF WHITE
CRYSTALLINE POWDER WERE FOUND THEREAT. THE SUBJECT FOUR (4) PACKS OF WHITE
CRYSTALLINE POWDER ARE FRUITS OF THE POISONOUS TREE; and

3. THE COURT OF APPEALS ERRED IN ITS APPLICATION OF THE ELEMENT OF

"POSSESSION" AS AGAINST THE PETITIONER, AS IT WAS IN VIOLATION OF THE
ESTABLISHED JURISPRUDENCE ON THE MATTER.  HAD THE SAID COURT PROPERLY
APPLIED THE ELEMENT IN QUESTION, IT COULD HAVE BEEN ASSAYED THAT THE SAME
HAD NOT BEEN PROVEN.[10]

The Office of the Solicitor General (OSG), in its Comment dated February 10, 2009,
enumerated the following counter-arguments:

SEARCH WARRANT No. 570-9-11-97-24 issued by Executive Judge Priscilla S. Agana of

Branch 24, Regional Trial Court of Cebu City is valid.

II

The four (4) packs of shabu seized inside the shop of petitioner are admissible in
evidence against him.

III

The Court of Appeals did not err in finding him guilty of illegal possession of prohibited
drugs.[11]

Petitioner insists that there was no probable cause to issue the search warrant,
considering that SPO1 Reynaldo Matillano, the police officer who applied for it, had no
personal knowledge of the alleged illegal sale of drugs during a test-buy operation
conducted prior to the application of the same search warrant. The OSG, however,
maintains that the petitioner, aside from failing to file the necessary motion to quash
the search warrant pursuant to Section 14, Rule 127 of the Revised Rules on Criminal
Procedure, did not introduce clear and convincing evidence to show that Masnayon was
conscious of the falsity of his assertion or representation.

Anent the second argument, petitioner asserts that the nipa hut located about 20
meters away from his house is no longer within the "permissible area" that may be
searched by the police officers due to the distance and that the search warrant did not
include the same nipa hut as one of the places to be searched.  The OSG, on the other
hand, argues that the constitutional guaranty against unreasonable searches and seizure
is applicable only against government authorities and not to private individuals such as
the barangay tanod who found the folded paper containing packs of shabu inside the
nipa hut.

As to the third argument raised, petitioner claims that the CA erred in finding him guilty
beyond reasonable doubt of illegal possession of prohibited drugs, because he could not
be presumed to be in possession of the same just because they were found inside the
nipa hut.  Nevertheless, the OSG dismissed the argument of the petitioner, stating that,
when prohibited and regulated drugs are found in a house or other building belonging
to and occupied by a particular person, the presumption arises that such person is in
possession of such drugs in violation of law, and the fact of finding the same is sufficient
to convict.

This Court finds no merit on the first argument of petitioner.

The requisites for the issuance of a search warrant are: (1) probable cause is present; (2)
such probable cause must be determined personally by the judge; (3) the judge must
examine, in writing and under oath or affirmation, the complainant and the witnesses
he or she may produce; (4) the applicant and the witnesses testify on the facts
personally known to them; and (5) the warrant specifically describes the place to be
searched and the things to be seized. [12]  According to petitioner, there was no probable
cause.  Probable cause for a search warrant is defined as such facts and circumstances
which would lead a reasonably discreet and prudent man to believe that an offense has
been committed and that the objects sought in connection with the offense are in the
place sought to be searched. [13]  A finding of probable cause needs only to rest on
evidence showing that, more likely than not, a crime has been committed and that it
was committed by the accused. Probable cause demands more than bare suspicion; it
requires less than evidence which would justify conviction. [14]  The judge, in determining
probable cause, is to consider the totality of the circumstances made known to him and
not by a fixed and rigid formula, [15] and must employ a flexible, totality of the
circumstances standard.[16] The existence depends to a large degree upon the finding or
opinion of the judge conducting the examination. This Court, therefore, is in no position
to disturb the factual findings of the judge which led to the issuance of the search
warrant. 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. [17]  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.[18]  A review of the records shows that in the present case, a substantial basis
exists.

With regard to the second argument of petitioner, it must be remembered that the
warrant issued must particularly describe the place to be searched and persons or things
to be seized in order for it to be valid.  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. [19]  In the
present case, Search Warrant No. 570-9-1197-24 [20] specifically designates or describes
the residence of the petitioner as the place to be searched.  Incidentally, the items were
seized by a barangay tanod in a nipa hut, 20 meters away from the residence of the
petitioner.  The confiscated items, having been found in a place other than the one
described in the search warrant, can be considered as fruits of an invalid warrantless
search, the presentation of which as an evidence is a violation of petitioner's
constitutional guaranty against unreasonable searches and seizure.  The OSG argues
that, assuming that the items seized were found in another place not designated in the
search warrant, the same items should still be admissible as evidence because the one
who discovered them was a barangay tanod who is a private individual, the
constitutional guaranty against unreasonable searches and seizure being applicable only
against government authorities. The contention is devoid of merit.

It was testified to during trial by the police officers who effected the search warrant that
they asked the assistance of the barangay tanods, thus, in the testimony of SPO3
Masnayon:

Fiscal Centino:
   
Q For how long did the chase take place?
A Just a very few moments.
Q After that, what did you [do] when you were not able to reach him?
A I watched his shop and then I requested my men to get a barangay tanod.
Q Were you able to get a barangay tanod?
 A Yes.
Q Can you tell us what is the name of the barangay tanod?
A Nelson Gonzalado.
Q For point of clarification, how many barangay tanod [did] your driver get?
A Two.
Q What happened after that?
A We searched the house, but we found negative.
Q Who proceeded to the second floor of the house?
A SPO1 Cirilo Pogoso and Milo Areola went upstairs and found nothing.
Q What about you, where were you?
A I [was] watching his shop and I was with Matillano.
Q What about the barangay tanod?
A Together with Milo and Pogoso.
Q When the search at the second floor of the house yielded negative what did you do?
A They went downstairs because I was suspicious of his shop because he ran from his
shop, so we searched his shop.
Q Who were with you when you searched the shop?
A The barangay tanod Nilo Gonzalado, the elder sister of Ruben del Castillo named
Dolly del Castillo.
Q You mean to say, that when (sic) SPO1 Reynaldo Matillano, Barangay Tanod Nilo
Gonzalado and the elder sister of Ruben del Castillo were together in the shop?
A Yes.
Q What happened at the shop?
A One of the barangay tanods was able to pick up white folded paper.
Q What [were] the contents of that white folded paper?
A A plastic pack containing white crystalline.
Q Was that the only item?
A There are others like the foil, scissor.
Q Were you present when those persons found those tin foil and others inside the
electric shop?
A Yes.[21]

The fact that no items were seized in the residence of petitioner and that the items that
were actually seized were found in another structure by a barangay tanod, was
corroborated by PO2 Arriola, thus:

FISCAL:
Q So, upon arriving at the house of Ruben del Castillo alias Boy, can you still recall what
took place?
A We cordoned the area.
Q And after you cordoned the area, did anything happen?
A We waited for the barangay tanod.
Q And did the barangay tanod eventually appear?
A Yes. And then we started our search in the presence of Ruben del Castillo's wife.
Q What is the name of the wife of Ruben del Castillo?
A I cannot recall her name, but if I see her I can recall [her] face.
 Q What about Ruben del Castillo, was she around when [you] conducted the search?
A No. Ruben was not in the house. But our team leader, team mate Bienvenido
Masnayon saw that Ruben ran away from his adjacent electronic shop near his house, in front
of his house.
Q Did you find anything during the search in the house of Ruben del Castillo?
A After our search in the house, we did not see anything. The house was clean.
Q What did you do afterwards, if any?
A We left (sic) out of the house and proceeded to his electronic shop.
Q Do you know the reason why you proceeded to his electronic shop?
A Yes. Because our team leader Bienvenido Masnayon saw that (sic) Ruben run from
that store and furthermore the door was open.
Q How far is the electronic shop from the house of Ruben del Castillo?
A More or less, 5 to 6 meters in front of his house.
x
xxx
Q So, who entered inside the electronic shop?
A The one who first entered the electronic shop is our team leader Bienvenido
Masnayon.
Q You mentioned that Masnayon entered first. Do you mean to say that there were
other persons or other person that followed after Masnayon?
A Then we followed suit.
Q All of your police officers and the barangay tanod followed suit?
A I led Otadoy and the barangay tanod.
Q What about you?
A I also followed suit.
Q And did anything happen inside the shop of Ruben del Castillo?
A It was the barangay tanod who saw the folded paper and I saw him open the folded
paper which contained four shabu deck.
Q How far were you when you saw the folded paper and the tanod open the folded
paper?
A We were side by side because the shop was very small. [22]

SPO1 Pogoso also testified on the same matter, thus:

FISCAL CENTINO:
Q And where did you conduct the search, Mr. Witness?
A At his residence, the two-storey house.
Q Among the three policemen, who were with you in conducting the search at the
residence of the accused?
A I, Bienvenido Masnayon.
Q And what transpired after you searched the house of Ruben del Castillo?
A Negative, no shabu.
Q And what happened afterwards, if any?
A We went downstairs and proceeded to the small house.
Q Can you please describe to this Honorable Court, what was that small house which
you proceeded to?
 A It is a nipa hut.
Q And more or less, how far or near was it from the house of Ruben del Castillo?
A 5 to 10 meters.
Q And could you tell Mr. Witness, what was that nipa hut supposed to be?
A That was the electronic shop of Ruben del Castillo.
Q And what happened when your team proceeded to the nipa hut?
A I was just outside the nipa hut.
Q And who among the team went inside?
A PO2 Milo Areola and the Barangay Tanod.[23]

Having been established that the assistance of the barangay tanods was sought by the
police authorities who effected the searched warrant, the same barangay
tanods therefore acted as agents of persons in authority. Article 152 of the Revised
Penal Code defines persons in authority and agents of persons in authority as:

x x x  any person directly vested with jurisdiction, whether as an individual or as a

member of some court or governmental corporation, board or commission, shall be
deemed a person in authority.  A barangay captain and a barangay chairman shall also
be deemed a person in authority.

A person who, by direct provision of law or by election or by appointment by competent

authority, is charged with the maintenance of public order and the protection and
security of life and property, such as barrio councilman, barrio policeman and
barangay leader, and any person who comes to the aid of persons in authority, shall
be deemed an agent of a person in authority.

The Local Government Code also contains a provision which describes the function of
a barangay tanod as an agent of persons in authority.  Section 388 of the Local
Government Code reads:

SEC. 388. Persons in Authority. - For purposes of the Revised Penal Code, the
punong barangay, sangguniang barangay members, and members of the lupong
tagapamayapa in each barangay shall be deemed as persons in authority in their
jurisdictions, while other barangay officials and members who may be designated by
law or ordinance and charged with the maintenance of public order, protection and
security of life and property, or the maintenance of a desirable and balanced
environment, and any barangay member who comes to the aid of persons in
authority, shall be deemed agents of persons in authority.
By virtue of the above provisions, the police officers, as well as the barangay
tanods were acting as agents of a person in authority during the conduct of the search. 
Thus, the search conducted was unreasonable and the confiscated items are
inadmissible in evidence. Assuming ex gratia argumenti that the barangay tanod who
found the confiscated items is considered a private individual, thus, making the same
items admissible in evidence, petitioner's third argument that the prosecution failed to
establish constructive possession of the regulated drugs seized, would still be
meritorious.

Appellate courts will generally not disturb the factual findings of the trial court since the
latter has the unique opportunity to weigh conflicting testimonies, having heard the
witnesses themselves and observed their deportment and manner of testifying,
[24]
 unless attended with arbitrariness or plain disregard of pertinent facts or
circumstances, the factual findings are accorded the highest degree of respect on
appeal[25] as in the present case.

It must be put into emphasis that this present case is about the violation of Section 16 of
R.A. 6425.  In every prosecution for the illegal possession of shabu, the following
essential elements must be established: (a) the accused is found in possession of a
regulated drug; (b) the person is not authorized by law or by duly constituted
authorities; and (c) the accused has knowledge that the said drug is a regulated drug. [26]

In People v. Tira,[27] this Court explained the concept of possession of regulated drugs, to

wit:

This crime is mala prohibita, and, as such, criminal intent is not an essential
element. However, the prosecution must prove that the accused had the intent to
possess (animus posidendi) the drugs. Possession, under the law, includes not only
actual possession, but also constructive possession. Actual possession exists when the
drug is in the immediate physical possession or control of the accused. On the other
hand, constructive possession exists when the drug is under the dominion and control of
the accused or when he has the right to exercise dominion and control over the place
where it is found. Exclusive possession or control is not necessary. The accused cannot
avoid conviction if his right to exercise control and dominion over the place where the
contraband is located, is shared with another.[28]
While it is not necessary that the property to be searched or seized should be owned by
the person against whom the search warrant is issued, there must be sufficient showing
that the property is under appellant's control or possession. [29]  The CA, in its Decision,
referred to the possession of regulated drugs by the petitioner as a constructive one.
Constructive possession exists when the drug is under the dominion and control of the
accused or when he has the right to exercise dominion and control over the place where
it is found.[30]  The records are void of any evidence to show that petitioner owns the
nipa hut in question nor was it established that he used the said structure as a shop. The
RTC, as well as the CA, merely presumed that petitioner used the said structure due to
the presence of electrical materials, the petitioner being an electrician by profession.  
The CA, in its Decision, noted a resolution by the investigating prosecutor, thus:

x x x As admitted by respondent's wife, her husband is an electrician by

occupation.  As such, conclusion could be arrived at that the structure, which housed
the electrical equipments is actually used by the respondent.  Being the case, he has
control of the things found in said structure.[31]

In addition, the testimonies of the witnesses for the prosecution do not also provide
proof as to the ownership of the structure where the seized articles were found.  During
their direct testimonies, they just said, without stating their basis, that the same
structure was the shop of petitioner. [32]  During the direct testimony of SPO1 Pogoso, he
even outrightly concluded that the electrical shop/nipa hut was owned by petitioner,
thus:

FISCAL CENTINO:
Q Can you please describe to this Honorable Court, what was that small house which
you proceeded to?
A  It is a nipa hut.
Q And more or less, how far or near was it from the house of Ruben del Castillo?
A 5 to 10 meters.
Q And could you tell Mr. Witness, what was that nipa hut supposed to be?
A That was the electronic shop of Ruben del Castillo.
Q And what happened when your team proceeded to the nipa hut?
A I was just outside the nipa hut.[33]

However, during cross-examination, SPO3 Masnayon admitted that there was an

electrical shop but denied what he said in his earlier testimony that it was owned by
petitioner, thus:

ATTY. DAYANDAYAN:
Q  You testified that Ruben del Castillo has an electrical shop, is that correct?
A He came out of an electrical shop.  I did not say that he owns the shop.
Q Now, this shop is within a structure?
A Yes.
Q How big is the structure?
A It is quite a big structure, because at the other side is a mahjong den and at the other
side is a structure rented by a couple. [34]

The prosecution must prove that the petitioner had knowledge of the existence and
presence of the drugs in the place under his control and dominion and the character
of the drugs.[35]  With the prosecution's failure to prove that the nipa hut was under
petitioner's control and dominion, there casts a reasonable doubt as to his guilt.  In
considering a criminal case, it is critical to start with the law's own starting
perspective on the status of the accused - in all criminal prosecutions, he is
presumed innocent of the charge laid unless the contrary is proven beyond
reasonable doubt.[36]  Proof beyond reasonable doubt, or that quantum of proof
sufficient to produce a moral certainty that would convince and satisfy the
conscience of those who act in judgment, is indispensable to overcome the
constitutional presumption of innocence.[37]

WHEREFORE, the Decision dated July 31, 2006 of the Court of Appeals in CA-G. R.
No. 27819, which affirmed the Decision dated March 14, 2003 of the Regional Trial
Court, Branch 12, Cebu, in Criminal Case No. CBU-46291 is
hereby REVERSED and SET ASIDE.  Petitioner Ruben del Castillo
is ACQUITTED on reasonable doubt.

SO ORDERED.

FIRST DIVISION
[ G.R. No. 174369, June 20, 2012 ]
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ZAFRA
MARAORAO Y MACABALANG, ACCUSED-APPELLANT.

DECISION
VILLARAMA, JR., J.:

Before us is an appeal from the March 1, 2006 Decision [1] of the Court of Appeals
(CA), which affirmed the Decision [2] of the Regional Trial Court (RTC) of Manila, Branch
35, convicting appellant Zafra Maraorao y Macabalang of violation of Section 16, Article
III of Republic Act (R.A.) No. 6425, otherwise known as The Dangerous Drugs Act of
1972, as amended.

Appellant was charged under an Information [3] dated January 4, 2001 filed before the
RTC of Manila as follows:

That on or about November 30, 2000, in the City of Manila, Philippines, the said
accused, without being authorized by law to possess or use regulated drug, did then and
there willfully, unlawfully and knowingly have in his possession and under his custody
and control one (1) transparent plastic sachet containing ONE THOUSAND TWO
HUNDRED EIGHTY POINT ZERO EIGHT ONE (1,280.081) grams of white crystalline
substance known as “shabu” containing methylamphetamine hydrochloride, a regulated
drug, without the corresponding license or prescription thereof.

Contrary to law.

On March 19, 2001, appellant, assisted by counsel, pleaded not guilty to the offense
charged against him.[4]  Trial on the merits ensued.

For the prosecution, PO3 Manuel Vigilla testified that on November 29, 2000, they
received reliable information at Police Station No. 8 of the Western Police District (WPD)
that an undetermined amount of shabu will be delivered inside the Islamic Center in
Quiapo in the early morning of the following day. On November 30, 2000, at around
7:00 a.m., he and PO2 Mamelito Abella, PO1 Joseph dela Cruz, and SPO1 Norman Gamit
went to the Islamic Center. While walking along Rawatun Street in Quiapo, they saw two
men talking to each other. Upon noticing them, one ran away. PO2 Abella and PO1 Dela
Cruz chased the man but failed to apprehend him. [5]

Meanwhile, the man who was left behind dropped a maroon bag on the pavement. He
was about to run when PO3 Vigilla held him, while SPO1 Gamit picked up the maroon
bag. The man was later identified as appellant Zafra Maraorao y Macabalang. The police
examined the contents of the bag and saw a transparent plastic bag containing white
crystalline substance, which they suspected to be shabu. At the police station, the
investigator marked the plastic sachet “ZM-1” in the presence of the police officers. [6]

The specimen was then forwarded to the PNP Crime Laboratory for laboratory chemical
analysis. When examined by Forensic Chemist P/Insp. Miladenia O. Tapan, the
1,280.081 grams of white crystalline substance gave a positive result to the test for
methylamphetamine hydrochloride, a regulated drug. Her findings are contained in
Chemistry Report No. D-1121-00.[7]

In his defense, appellant testified that on November 30, 2000, at around 7:00 a.m., he
was going to the place of his uncle, Abdul Gani, at the Islamic Center to get a letter from
his mother. He went there early because he had to report for work at the Port Area in
Manila at 8:00 a.m.  On his way, an unidentified man carrying a bag asked him about a
house number which he did not know.  He stopped walking to talk to the man, who
placed his bag down and asked him again. When they turned around, they saw four men
in civilian attire walking briskly. He only found out that they were police officers when
they chased the man he was talking to. As the man ran away, the man dropped his bag. 
Appellant averred that he did not run because he was not aware of what was inside the
bag.[8]

Appellant further narrated that the police arrested him and asked who the owner of the
bag was.  He replied that it did not belong to him but to the man who ran away. They
made him board a bus-type vehicle and brought him to the police station in Sta. Mesa,
Manila where he was referred to a desk sergeant.  The desk sergeant asked him
whether the bag was recovered from him, and he replied that he had no knowledge
about that bag.  He was not assisted by counsel during the investigation. He was also
incarcerated in a small cell for about ten days before he was brought to Manila City Jail. 
At the Office of the City Prosecutor, he met his lawyer for the first time. [9]

On September 25, 2001, the trial court rendered a decision, the fallo of which reads:

WHEREFORE, judgment is rendered pronouncing accused ZAFRA MARAORAO y

MACABALANG guilty beyond reasonable doubt of possession of 1,280.081 grams of
methylamphetamine hydrochloride without license or prescription, penalized under
Section 16 in relation to Section 20 of Republic Act No. 6425, as amended, and
sentencing said accused to reclusion perpetua and to pay a fine of P5,000,000.00, plus
the costs.

In the service of his sentence, the full time during which the accused has been under
preventive imprisonment should be credited in his favor provided that he had agreed
voluntarily in writing to abide with the same disciplinary rules imposed on convicted
prisoner. Otherwise, he should be credited with four-fifths (4/5) only of the time he had
been under preventive imprisonment.

Exhibit B, which consists of 1,280.081 grams of methylamphetamine hydrochloride, is

confiscated and forfeited in favor of the Government. Within ten (10) days following the
promulgation of this judgment, the Branch Clerk of this Court, is ordered to turn over,
under proper receipt, the regulated drug involved in this case to the Dangerous Drugs
Custodian, National Bureau of Investigation, as appointed by the Dangerous Drugs
Board, for appropriate disposition.

SO ORDERED.[10]

Aggrieved, appellant filed a Notice of Appeal. [11]  The entire records of the case were
elevated to this Court.  Pursuant to our Decision in People v. Mateo,[12] however, the
case was transferred to the CA for appropriate action and disposition.

At the CA, appellant raised the following assignment of errors:

THE TRIAL COURT GRAVELY ERRED IN GIVING CREDENCE TO THE FABRICATED AND
COACHED TESTIMONY OF THE STAR PROSECUTION WITNESS.

II

THE TRIAL COURT GRAVELY ERRED IN DISREGARDING THE ACCUSED'S DEFENSE OF

DENIAL.[13]

On March 1, 2006, the CA rendered the assailed Decision, to wit:

 WHEREFORE, premises considered, the appeal is DENIED for lack of merit. The
Decision dated 25 September 2001 of the Regional Trial Court of Manila, Branch 35 in
Crim. Case No. 01-188945 is hereby AFFIRMED. Costs against appellant.

SO ORDERED.[14]

In affirming the RTC Decision, the CA held that there was no showing that the trial court
overlooked, misunderstood or misapplied a fact or circumstance of weight and
substance which would have affected the case. It gave credence to the testimony of PO3
Vigilla and found appellant's defense of denial inherently weak.  Furthermore, the CA
held that appellant was lawfully searched as a consequence of his valid warrantless
arrest.

Hence, this present recourse.

In his Supplemental Brief,[15] appellant stresses that PO3 Vigilla testified that when they
first saw appellant, he was talking with a certain person.  It was appellant’s companion
who scampered away upon seeing the police.  PO3 Vigilla further testified that appellant
tried to flee but they were able to arrest him before he could do so.  Appellant argues
that his alleged attempt to flee does not constitute a crime that should have prompted
the police to arrest him. Since his arrest was illegal, he contends that the subsequent
search made by the police was likewise illegal, and the shabu supposedly recovered
from him is inadmissible in evidence.

The appeal is meritorious.

We have repeatedly held that the trial court’s evaluation of the credibility of witnesses
and their testimonies is entitled to great respect and will not be disturbed on appeal. 
However, this is not a hard and fast rule. We have reviewed such factual findings when
there is a showing that the trial judge overlooked, misunderstood, or misapplied some
fact or circumstance of weight and substance that would have affected the case. [16]

It is well-settled that an appeal in a criminal case opens the whole case for review.  This
Court is clothed with ample authority to review matters, even those not raised on
appeal, if we find them necessary in arriving at a just disposition of the case.  Every
circumstance in favor of the accused shall be considered. This is in keeping with the
constitutional mandate that every accused shall be presumed innocent unless his guilt is
proven beyond reasonable doubt.[17]

Now, in order to convict appellant for illegal possession of a dangerous drug, or the
shabu in this case, the prosecution evidence must prove beyond reasonable doubt the
following elements: (1) the appellant was in possession of an item or object that is
identified to be a prohibited or dangerous drug; (2) such possession was not authorized
by law; and (3) the appellant freely and consciously possessed the drug. [18]  In this case,
the fact of possession by appellant of the bag containing the shabu was not established
in the first place.

A careful perusal of the testimony of PO3 Vigilla reveals a glaring discrepancy which
both the trial and the appellate courts overlooked.  In their Joint Affidavit,[19] arresting
officers PO3 Vigilla, PO2 Abella, PO1 dela Cruz and SPO1 Gamit stated that they spotted
two unidentified persons standing and seemingly conversing a few meters ahead of
them. “However, when one of them noticed our presence, he hastily r[a]n away heading
towards the Muslim Center leaving behind the other person and a maroon colored bag
with ‘Adidas’ marking in the pavement.” In other words, the maroon bag was left behind
by the man who ran away.  But at the trial, PO3 Vigilla testified during direct
examination that they spotted two persons talking to each other, and upon noticing
them, “one of them scampered away and was chased by my companions while the
other one dropped a bag, sir.”[20]  Presumably, under his testimony, the bag was now
held by the one who did not run away.  Later, in another part of his testimony, he again
changed this material fact.  When he was asked by Prosecutor Senados as to who
between the two persons they saw talking to each other ran away, PO3 Vigilla
categorically answered, “[t]he one who is holding a bag, sir.” [21]  Such material
inconsistency leaves much to be desired about the credibility of the prosecution’s
principal witness and casts reasonable doubt as to appellant’s guilt for it renders
questionable whether he in fact held the bag with intention to possess it and its
contents.

In every criminal prosecution, the State must prove beyond reasonable doubt all the
elements of the crime charged and the complicity or participation of the accused. [22] 
While a lone witness’ testimony is sufficient to convict an accused in certain instances,
the testimony must be clear, consistent, and credible—qualities we cannot ascribe to
this case.  Jurisprudence is consistent that for testimonial evidence to be believed, it
must both come from a credible witness and be credible in itself – tested by human
experience, observation, common knowledge and accepted conduct that has evolved
through the years.[23] Clearly from the foregoing, the prosecution failed to establish by
proof beyond reasonable doubt that appellant was indeed in possession of shabu, and
that he freely and consciously possessed the same.

The presumption of innocence of an accused in a criminal case is a basic constitutional

principle, fleshed out by procedural rules which place on the prosecution the burden of
proving that an accused is guilty of the offense charged by proof beyond reasonable
doubt.  Corollary thereto, conviction must rest on the strength of the prosecution’s
evidence and not on the weakness of the defense. [24]  In this case, the prosecution’s
evidence failed to overcome the presumption of innocence, and thus, appellant is
entitled to an acquittal.

Indeed, suspicion no matter how strong must never sway judgment. Where there is
reasonable doubt, the accused must be acquitted even though their innocence may not
have been established.  The Constitution presumes a person innocent until proven guilty
by proof beyond reasonable doubt.  When guilt is not proven with moral certainty, it has
been our policy of long standing that the presumption of innocence must be favored,
and exoneration granted as a matter of right.[25]

WHEREFORE, the Decision dated March 1, 2006 of the Court of Appeals in CA-G.R. CR-
H.C. No. 01600 is REVERSED and SET ASIDE, and appellant Zafra Maraorao y
Macabalang is hereby ACQUITTED of the offense charged.

The Director of the Bureau of Corrections is directed to cause the immediate release of
appellant, unless the latter is being lawfully held for other cause/s; and to inform the
Court of the date of his release, or the reasons for his confinement, within five (5) days
from notice.

With costs de oficio.

SO ORDERED.
 SECOND DIVISION
[ G.R. No. 209464, July 01, 2015 ]
DANDY L. DUNGO AND GREGORIO A. SIBAL, JR., PETITIONERS, VS.
PEOPLE OF THE PHILIPPINES, RESPONDENT.

DECISION

MENDOZA, J.:

The fraternal contract should not be signed in blood, celebrated with pain, marred by
injuries, and perpetrated through suffering. That is the essence of Republic Act (R.A.) No.
8049 or the Anti-Hazing Law of 1995.

This is a petition for review on certiorari seeking to reverse and set aside the April 26,
2013 Decision[1] and the October 8, 2013 Resolution[2] of the Court of Appeals (CA) in
CA-G.R. CR-H.C. No. 05046, which affirmed the February 23, 2011 Decision [3] of the
Regional Trial Court, Branch 36, Calamba City (RTC). The RTC found petitioners Dandy
L. Dungo (Dungo) and Gregorio A. Sibal, Jr. (Sibal), guilty beyond reasonable doubt of
the crime of violation of Section 4 of R.A. No. 8049, and sentenced them to suffer the
penalty of reclusion perpetua.

The Facts

On February 1, 2006, the Office of the City Prosecutor of Calamba, Laguna, filed the
Information[4] against the petitioners before the RTC, the accusatory portion of which
reads:
That on or about 2:30 in the early morning of January 14, 2006, at Villa Novaliches,
Brgy. Pansol, Calamba City, Province of Laguna and within the jurisdiction of the
Honorable Court, the above-named accused, during an initiation rite and being then
members of Alpha Phi Omega fraternity and present thereat, in conspiracy with more or
less twenty other members and officers, whose identity is not yet known, did then and
there willfully, unlawfully and feloniously assault and use personal violence upon one
MARLON VILLANUEVA y MEJILLA, a neophyte thereof and as condition for his
admission to the fraternity, thereby subjecting him to physical harm, resulting to his
death, to the damage and prejudice of the heirs of the victim.

CONTRARY TO LAW.
On February 7, 2006, upon motion, the RTC admitted the Amended Information[5] which
reads:
That on or about 2:30 in the early morning of January 14, 2006, at Villa Novaliches,
Brgy. Pansol, Calamba City, Province of Laguna and within the jurisdiction of the
Honorable Court, the above-name accused, during a planned initiation rite and being then
officers and members of Alpha Phi Omega fraternity and present thereat, in conspiracy
with more or less twenty other members and officers, whose identity is not yet known,
did then and there willfully, unlawfully and feloniously assault and use personal violence
upon one MARLON VILLANUEVA y MEJILLA, a neophyte thereof and as condition
for his admission to the fraternity, thereby subjecting him to physical harm, resulting to
his death, to the damage and prejudice of the heirs of the victim.

CONTRARY TO LAW.
On February 7, 2006, Dungo filed a motion to quash for lack of probable cause,[6] but it
was denied by the trial court because the ground cited therein was not provided by law
and jurisprudence. When arraigned, the petitioners pleaded not guilty to the crime
charged.[7] Thereafter, trial ensued.

Version of the Prosecution

The prosecution presented twenty (20) witnesses to prove the crime charged. Their
testimonies are summarized as follows:

At around 3:20 o'clock in the morning of January 14, 2006, the victim Marlon Villanueva
(Villanueva) was brought to the emergency room of Dr. Jose P. Rizal District Hospital
(JP Rizal Hospital). Dr. Ramon Masilungan (Dr. Masilungan), who was then the
attending physician at the emergency room, observed that Villanueva was motionless, not
breathing and had no heartbeat. Dr. Masilungan tried to revive Villanueva for about 15 to
30 minutes. Villanueva, however, did not respond to the resuscitation and was
pronounced dead. Dr. Masilungan noticed a big contusion hematoma on the left side of
the victim's face and several injuries on his arms and legs. He further attested that
Villanueva's face was cyanotic, meaning that blood was no longer running through his
body due to lack of oxygen; and when he pulled down Villanueva's pants, he saw large
cpntusions on both legs, which extended from the upper portion of the thighs, down to
the couplexial portion, or back of the knees.

Dr. Masilungan disclosed that two (2) men brought Villanueva to the hospital. The two
told him that they found Villanueva lying motionless on the ground at a store in Brgy.
Pansol, Calamba City, and brought him to the hospital. When he asked them where they
came from, one of them answered that they came from Los Baños, Laguna, en route to
San Pablo City. He questioned them on how they found Villanueva, when the latter was
in Brgy. Pansol, Calamba City. One of the men just said that they were headed
somewhere else.

Dr. Masilungan reduced his findings in a medico-legal report.[8] Due to the nature, extent
and location of the injuries, he opined that Villanueva was a victim of hazing. He was
familiar with hazing injuries because he had undergone hazing himself when he was a
student and also because of his experience in treating victims of hazing incidents.

Dr. Roy Camarillo (Dr. Camarillo), Medico-Legal Officer of the Philippine National
Police Crime Laboratory (PNP-CL) in Region IV, Camp Vicente Lim, Canlubang,
Calamba City, testified that he performed an autopsy on the body of Villanueva on
January 14, 2006 and placed down his findings in an autopsy report.[9] Upon examination
of the body, he found various external injuries in the head, trunk and extremities. There
were thirty-three (33) external injuries, with various severity and nature. He concluded
that the cause of death was subdural hemorrhage due to head injury contusion-hematoma.
Based on multiple injuries and contusions on the body, and his previous examinations of
hazing injuries, Dr. Camarillo opined that these injuries were hazing-related. During the
autopsy, he retrieved two (2) matchsticks from the cadaver with the marking of Alpha Phi
Omega (APO) Fratemity.[10]

Susan Ignacio (Ignacio) was the owner of the sari-sari store located at Purok 5, Pansol,
Calamba City, in front of Villa Novaliches Resort, which was barely ten steps away. On
January 13, 2006, at around 8:30 to 9:00 o'clock in the evening, she was tending her store
when she saw a jeepney with more than twenty (20) persons arrive at the resort. Ignacio
identified Dungo as the person seated beside the driver of the jeepney. [11] She estimated
the ages of these persons in the group to be between 20 to 30 years old. They were in
civilian clothes, while the other men wore white long-sleeved shirts. Before entering the
resort, the men and women shook hands and embraced each other. Three (3) persons,
riding on a single motorcycle, also arrived at the resort.

Ignacio saw about fifteen (15) persons gather on top of the terrace of the resort who
looked like they were praying, and then the lights of the resort were turned off. Later that
evening, at least three (3) of these persons went to her store to buy some items. During
her testimony, she was shown photographs and she identified Christopher Braseros and
Sibal as two of those who went to her store.[12] It was only on the morning of January 14,
2006 that she learned from the policemen visiting the resort that the deceased person was
Villanueva.

Donato Magat (Magat), a tricycle driver plying the route of Pansol, Calamba City,
testified that at around 3:00 o'clock in the morning of January 14, 2006, he was waiting
for passengers at the comer of Villa Novaliches Resort. A man approached him and told
him that someone inside the resort needed a ride. Magat went to the resort and asked the
two (2) men at the gate who needed a ride. Afterwards, he saw three (3) men in their 20's
carrying another man, who looked very weak, like a vegetable, towards his tricycle.
Magat touched the body of the man being carried and sensed it was cold.

Magat asked the men what happened to their companion. They replied that he had too
much to drink. Then they instructed Magat to go to the nearest hospital. He drove the
tricycle to JP Rizal Hospital. Upon their arrival, two of his passengers brought their
unconscious companion inside the emergency room, while their other companion paid the
tricycle fare. Magat then left to go home. Several days after, he learned that the person
brought to the hospital had died.

Abelardo Natividad (Natividad) and Seferino Espina y Jabay (Espina) were the security
guards on duty at JP Rizal Hospital, from 11:00 o'clock in the evening of January 13,
2006 until 7:00 o'clock in the morning of January 14, 2006. In the early morning of
January 14, 2006, two men, who signed on the logbook[13] under the names Brandon
Gonzales and Jerico Paril, brought the lifeless body of a person. Pursuant to the standard
operating procedure of the hospital, the security guards did not allow the two men to
leave the hospital because they called the police station so that an investigation could be
conducted. Two policemen arrived later at the hospital. During his testimony, Natividad
identified Sibal and Dungo as the two persons who brought Villanueva to the hospital.

PO2 Alaindelon Ignacio (PO2 Ignacio) testified that on January 14, 2006 at around 3:30
o'clock in the early morning, Natividad called up the PNP Calamba City Station to report
that a lifeless body of a man was brought to JP Rizal Hospital. When PO2 Ignacio
arrived, he saw Villanueva's corpse with contusions and bite marks all over his body.
PO2 Ignacio and his policemen companions then brought Dungo and Sibal to the police
station. He asked them about what happened, but they invoked their right to remain
silent. The policemen then proceeded to Brgy. Pansol at around 9:00 o'clock in the
morning. After finding Villa Novaliches Resort, they knocked on the door and the
caretaker, Maricel Capillan (Capillan), opened it.

The police asked Capillan if there were University of the Philippines Los Baños (UP Los
Baños) students who rented the resort on the evening of January 13, 2006. Capillan said
yes and added that about twenty (20) persons arrived onboard a jeepney and told her that
they would be renting the resort from 9:30 o'clock in the evening up to 7:00 o'clock the
following mornmg.

Gay Czarina Sunga (Sunga) was a food technology student at UP Los Baños during the
academic year of 2005-2006 and a member of the Symbiosis UPLB Biological Society.
Around 3:00 o'clock in the afternoon of January 13, 2006, she was at their
organization's tambayan in the UPLB Biological Sciences Building, when she noticed
three (3) men seated two meters away from her. She identified the two of the three men
as Sibal and Dungo.[14] They were wearing black shirts with the logo of APO. Later at
5:00 o'clock in the afternoon, two more men arrived and, with their heads bowed,
approached the three men. One of thm was Villanueva, who was carrying a 5-gallon
water container. Dungo then stood up and asked Villanueva why the latter did not report
to him when he was just at their tambayan. Dungo then punched Villanueva twice, but
the latter just kept quiet with his head bowed. Fifteen minutes later, all the men left.
Joey Atienza (Atienza) had been a good friend of Villanueva since 2004. They were
roommates at the UP Los Baños Men's Dormitory and housemates at the DPS Apartment
in Umali Subdivision, Los Baños, Laguna. According to Atienza, on January 9, 2006,
Villanueva introduced him to Daryl Decena (Decena) as his APO - Theta Chapter
batchmate, who was also to undergo final initiation rites on January 13, 2006.

Severino Cuevas, Director of the Students Affairs at UP Los Baños, testified that Dungo
and Sibal were both members of the APO Fraternity, and that there was no record of any
request for initiation or hazing activity filed by the said fraternity.

McArthur Padua of the Office of the Registrar, UP Los Baños, testified that Villanueva
was a B.S. Agricultural Economics student at the UP Los Baños,[15] as evidenced by his
official transcript of record.[16]

Atty. Eleno Peralta and Dina S. Carlos, officers of the Student Disciplinary Tribunal
(SDT) of the UP Los Baños, testified that an administrative disciplinary case was filed on
March 31, 2006 against the APO Fraternity regarding the death of Villanueva. They
confirmed that Capilla of Villa Novaliches Resort and Irene Tan (Tan) of APO Sorority
Theta Chapter appeared as witnesses for the complainant.[17]

Roman Miguel De Jesus, UP - Office of the Legal Aid (UP-OLA) supervising student,
testified that he met Tan of the APO Sorority sometime between July and August 2006 in
UP Diliman to convince her to testify in the criminal case. Tan, however, refused because
she feared for her safety. She said that after testifying in the SDT hearing, her place in
Imus, Cavite was padlocked and vandalized.

Evelyn Villanueva, mother of victim Villanueva, testified that, as a result of the death of
her son, her family incurred actual damages consisting of medical, burial and funeral
expenses in the aggregate amount of P140,000.00 which were evidenced by receipts.
[18]
 Her husband also incurred travel expenses in the amount of P7,000.00 in returning to
the Philippines to attend his son's wake and burial, as supported by a plane ticket. [19] She
further attested that she experienced mental anguish, sleepless nights, substantial weight
loss, and strained family relationship as a result of her son's death.

Version of the Defense

The defense presented seven (7) witnesses to prove the innocence of the petitioners. Their
testimonies are summarized as follow:

Richard Cornelio (Cornelio), an APO Fraternity member, testified that on January 13,
2006, around 4:00 to 4:30 o'clock in the afternoon, he met Dungo at the UP Los Baños
Graduate School. Dungo asked him if he would attend the initiation ceremony, and
Cornelio answered in the negative because he had other things to do. At 10:00 o'clock in
the evening of the same day, Cornelio again met Dungo and his girlfriend while eating a
hamburger at the Burger Machine along; Raymundo Street, Umali Subdivision, Los
Baños, Laguna (Raymundo Street). He asked Dungo if he would attend the initiation
ceremony. Dungo replied that he would not because he and his girlfriend had something
to do.

Ana Danife Rivera (Rivera), the girlfriend of Dungo, testified that on January 13, 2006 at
around 1:00 o'clock in the afternoon, Dungo came and visited her at her boarding house
on Raymundo Street. Around 4:00 o'clock of the same afternoon, they went to the UP
Los Baños Graduate School and saw Cornelio. Afterwards, they went back to her
boarding house and stayed there from 5:00 o'clock in the afternoon to 7:00 o'clock in the
evening. Then, they went to Lacxo Restaurant for dinner and left at around 10:00 o'clock
in the evening. On their way back to her boarding house, they encountered Cornelio again
at the Burger Machine. Dungo then stayed and slept at her boarding house. Around 2:00
o'clock in the early morning of January 14, 2006, they were roused from their sleep by a
phone call from Sibal, asking Dungo to go to a resort in Pansol, Calamba City. Dungo
then left the boarding house.

Dungo testified that around 1:00 o'clock in the early afternoon of January 13, 2006, he
arrived at the boarding house of his girlfriend, Rivera, on Raymundo Street. At around
4:00 o'clock in the afternoon, they went to the UP Los Baños Graduate School and
inquired about the requirements for a master's degree. They walked back to the boarding
house and met Cornelio. They talked about their fraternity's final initiation ceremony for
that night in Pansol, Calamba City. Dungo and Rivera then reached the latter's boarding
house around 5:00 o'clock in the afternoon. At around 7:00 o'clock in the evening, they
went out for dinner at the Lacxo Restaurant, near Crossing Junction, Los Baños. They ate
and stayed at the restaurant for at least one and a half hours. Then they walked back to
the boarding house of Rivera and, along the way, they met Cornelio again at the Burger
Machine along Raymundo Street. Cornelio asked Dungo if he would attend their
fraternity's final initiation ceremony, to which he replied in the negative. Dungo and
Rivera reached the boarding house around 9:00 o'clock in the evening and they slept
there.

Around 2:00 o'clock in the early morning of January 14, 2006, Dungo was roused from
his sleep because Sibal was calling him on his cellphone. Sibal asked for his help,
requesting him to go to Villa Novaliches Resort in Pansol, Calamba City. Upon Dungo's
arrival at the resort, Sibal led him inside. There, he saw Rudolfo Castillo (Castillo), a
fellow APO fraternity brother, and Villanueva, who was unconscious. Dungo told them
that they should bring Villanueva to the hospital. They all agreed, and Castillo called a
tricycle that brought them to JP Rizal Hospital. He identified himself before the security
guard as Jerico Paril because he was scared to tell his real name.
Gilbert Gopez (Gopez) testified that he was the Grand Chancellor of the APO- Theta
Chapter for years 2005-2006. At around 7:00 o'clock in the evening of January 13, 2006,
he was at the tambayan of their fraternity in UP Los Baños because their neophytes
would be initiated that night. Around 8:30 o'clock in the evening, they met their fraternity
brothers in Bagong Kalsada, Los Baños. He noticed that their neophyte, Villanueva, was
with Castillo and that there was a bruise on the left side of his face. Then they boarded a
jeepney and proceeded to Villa Novaliches Resort in Pansol, Calamba City. There, Gopez
instructed Sibal to take Villanueva to the second floor of the resort. He confronted
Castillo as to what happened to Villanueva. Around 11:00 or 11:30 o'clock in the
evening, Gopez decided to cancel the final rites. He told Sibal to stay at the resort and
accompany Villanueva and Castillo. Together with the other neophytes, Gopez left the
resort and went back to UP Los Baños.

Sibal testified that he was a DOST Scholar at the UP Los Baños from 2002 to 2006,
taking up B.S. Agricultural Chemistry. He was a Brother Actuary of the APO - Theta
Chapter, and was in charge of fraternity activities, such as tree planting, free medical and
dental missions, and blood donations. On January 13, 2006, at around 6:00 o'clock in the
evening, he was at the fraternity's tambayan for the final initiation rites of their
neophytes. After preparing the food for the initiation rites, Sibal, together with some
neophytes, went to Bagong Kalsada, Los Baños, where he saw fellow fraternity brother
Castillo with their neophyte Villanueva, who had a bruised face. Thereafter, they boarded
a jeepney and proceeded to Villa Novaliches Resort in Pansol, Calamba City. Once inside
the resort, he accompanied Villanueva upstairs for the latter to take a rest. A few minutes
later, he went down and confronted Castillo about the bruises on Villanueva's face. He
was angry and irritated with Castillo. He then stayed outside the resort until Gopez and
the other neophytes came out and told him that the final initiation rite was cancelled, and
that they were returning to UP Los Baños. Sibal wanted to go with them but he was
ordered to stay with Villanueva and Castillo.

After the group of Gopez left, Sibal checked on the condition of Villanueva, who was
sleeping on the second floor of the resort. Then he went outside for one hour, or until
1:00 o'clock in the early morning of January 14, 2006. Sibal entered the resort again and
saw Villanueva, who looked unconscious, seated in one of the benches on the ground
floor. Sibal inquired about Villanueva's condition but he was ignored by Castillo. He then
called Dungo for help. After Dungo arrived at the resort, they hailed a tricycle and
brought Villanueva to JP Rizal Hospital. There, he gave a false name to the security
guard as he heard that Dungo had done the same.

The RTC Ruling

On February 23, 2011, the RTC found Dungo and Sibal guilty of the crime of violating
Section 4 of the Anti-Hazing Law and sentenced them to suffer the penalty of reclusion
perpetua. The trial court stated that the prosecution established the presence of Dungo
and Sibal (1) at the UP Los Baños Campus on January 13, 2006 around 3:0.0 o'clock in
the afternoon, by the testimony of Sunga and (2) at the Villa Novaliches Resort around
9:00 o'clock in the evening of the same day by the testimony of Ignacio. With the
extensive testimonies of Dr. Masilungan and Dr. Camarillo, the prosecution also proved
that Villanueva died from hazing injuries.

According to the RTC, the evidence of the prosecution undeniably proved that
Villanueva, a UP Los Baños student, was a neophyte of the APO - Theta Chapter
Fraternity; that Dungo and Sibal were members of the said fraternity; that on the evening
of January 13, 2006, Dungo and Sibal, together with the other fraternity members,
officers and alumni, brought and transported Villanueva and two other neophytes to Villa
Novaliches Resort at Barangay Pansol, Calamba City, for the final initiation rites; that the
initiation rites were conducted inside the resort, performed under the cover of darkness
and secrecy; that due to the injuries sustained by Villanueva, the fraternity members and
the other two neophytes haphazardly left the resort; and that Dungo and Sibal boarded a
tricycle and brought the lifeless body of Villanueva to JP Rizal Hospital, where
Villanueva was pronounced dead.

The RTC explained that even if there was no evidence that Dungo and Sibal participated
to bodily assault and harm the victim, it was irrefutable that they brought Villanueva to
the resort for their final initiation rites. Clearly, they did not merely induce Villanueva to
attend the final initiation rites, but they also brought him to Villa Novaliches Resort.

The RTC held that the defense of denial and alibi were self-serving negative assertions.
The defense of denial and alibi of Dungo, which was corroborated by the testimony of his
girlfriend Rivera and his co-fraternity brother, could not be given credence. The
witnesses presented by the defense were partial and could not be considered as
disinterested parties. The defense of denial of Sibal likewise failed. The corroborative
testimonies of his fraternity brothers were suspect because they had so much at stake in
the outcome of the criminal action.

The decretal portion of the decision reads:

WHEREFORE, the Court finds the accused Dandy Dungo and Gregorio Sibal GUILTY
of violating Section 4 of the Anti-Hazing Law and sentenced them to suffer the penalty
of RECLUSION PERPETUA and order them to jointly and severally pay the family/heirs
of Deceased Marlon Villanueva the following sums of money:
1. P141,324.00 for and as actual damages;

2. P200,000.00 for and as moral damages;

3. P100,000.00 for and as exemplary damages; and

4. P50,000.00 for the death of Marlon Villanueva.

SO ORDERED.[20]
Aggrieved, the petitioners filed a notice of appeal. In their brief, they contended that the
prosecution failed to establish their guilt beyond reasonable doubt for violating R.A. No.
8049. They also assailed the constitutionality of Section 4 of the said law, which stated
that mere presence in the hazing was prima facie evidence of participation therein,
because it allegedly violated the constitutional presumption of innocence of the accused.

The CA Ruling

The CA ruled that the appeal of Dungo and Sibal was bereft of merit. It stated that, in
finding them guilty of violating R.A. No. 8049, the RTC properly relied on circumstantial
evidence adduced by the prosecution. The CA painstakingly discussed the unbroken
chain of circumstantial evidence to convict Dungo and Sibal as principals in the crime of
hazing.

It further found that the defense of denial and alibi of Dungo and Sibal failed to cast
doubt on the positive identification made by the prosecution witnesses; and that denial,
being inherently weak, could not prevail over the positive identification of the accused as
the perpetrators of the crime.

The CA also stated that Dungo and Sibal were not only convicted based on their presence
in the venue of the hazing, but also in their act of bringing the victim to Villa Novaliches
Resort for the final initiation rites.

The dispositive portion of the decision reads:

WHEREFORE, premises considered, the February 23, 2011 Decision of the Regional
Trial Court, Branch 36 of Calamba City in CRIM. Case No. 13958-2006-C, finding
accused-appellant guilty beyond reasonable doubt of Violation of R.A. 8049 is hereby
AFFIRMED in TOTO.

SO ORDERED.[21]
Dungo and Sibal moved for reconsideration but their motion was denied by the CA in the
assailed October 8, 2013 Resolution.

Hence, this petition.

SOLE ASSIGNMENT OF ERROR

THE JUDGMENTS OF THE RTC AND THE CA A QUO CONSTITUTE A

VIOLATION OF THE CONSTITUTIONAL RIGHT OF THE ACCUSED TO BE
INFORMED OF THE NATURE AND CAUSE OF ACCUSATION AGAINST
THEM BECAUSE THE OFFENSE PROVED AS FOUND AND PRONOUNCED
THEREBY IS DIFFERENT FROM THAT CHARGED IN THE INFORMATION,
NOR DOES ONE INCLUDE OR NECESSARILY INCLUDE THE OTHER. [22]
Petitioners Dungo and Sibal argue that the amended information charged them as they
"did then and there willfully, unlawfully and feloniously assault and use personal
violence upon one Marlon Villanueva y Mejilla."[23] Yet, both the RTC and the CA found
them guilty of violating R.A. No. 8049 because they "[i]nduced the victim to be
present"[24] during the initiation rites. The crime of hazing by inducement does not
necessarily include the criminal charge of hazing by actual participation. Thus, they
cannot be convicted of a crime not stated or necessarily included in the information. By
reason of the foregoing, the petitioners contend that their constitutional right to be
informed of the nature and cause of accusation against them has been violated.

In its Comment,[25] filed on May 23, 2014, the Office of the Solicitor General (OSG)
asserted that Dungo and Sibal were charged in the amended information with the proper
offense and convicted for such. The phrases "planned initiation" and "in conspiracy with
more or less twenty members and officers" in the amended information sufficiently cover
"knowingly cooperated in carrying out the hazing by inducing the victim to be present
thereat." The planned initiation rite would not have been accomplished were it not for the
acts of the petitioners in inducing the victim to be present thereat and it was obviously
conducted in conspiracy with the others.[26]

In their Reply[27] filed on September 10, 2014, Dungo and Sibal insisted that there was a
variance between the offense charged of "actually participated in the infliction of physical
harm," and the offense "knowingly cooperated in carrying out the hazing by inducing the
victim to be present thereat."[28] The prosecution, moreover, failed to establish conspiracy
because no act or circumstance was proved pointing to a joint purpose and design
between and among the petitioners and the other twenty accused.

The Court's Ruling

The petition lacks merit.

Procedural Matter

An appeal is a proceeding undertaken to have a decision reconsidered by bringing it to a

higher court authority.[29] The right to appeal is neither a natural right nor is it a
component of due process. It is a mere statutory privilege, and may be exercised only in
the manner and in accordance with the provisions oflaw.[30]

Section 13(c), Rule 124 of the Revised Rules of Criminal Procedure, as amended by
A.M. No. 00-5-03, dated October 15, 2004, governs the procedure on the appeal from the
CA to the Court when the penalty imposed is either reclusion perpetua or life
imprisonment.[31] According to the said provisiOn, "[i]n cases where the Court of Appeals
imposes reclusion perpetua, life imprisonment or a lesser penalty, it shall render and
enter judgment imposing such penalty. The judgment may be appealed to the Supreme
Court by notice of appeal filed with the Court of Appeals."

Hence, an accused, upon whom the penalty of reclusion perpetua or life imprisonment
had been imposed by the CA, can simply file a notice of appeal to allow him to pursue an
appeal as a matter of right before the Court. An appeal in a criminal case opens the entire
case for review on any question including one not raised by the parties.[32] Section 13(c),
Rule 124 recognizes the constitutionally conferred jurisdiction of the Court in all criminal
cases in which the penalty imposed is reclusion perpetua or higher.[33]

An accused, nevertheless, is not precluded in resorting to an appeal by certiorari to the

Court via Rule 45 under the Rules of Court. An appeal to this Court by petition for
review on certiorari shall raise only questions of law.[34] Moreover, such review is not a
matter of right, but of sound judicial discretion, and will be granted only when there are
special and important reasons.[35]

In other words, when the CA imposed a penalty of reclusion perpetua or life

imprisonment, an accused may: (1) file a notice of appeal under Section 13(c), Rule 124
to avail of an appeal as a matter of right before the Court and open the entire case for
review on any question; or (2) file a petition for review on certiorari under Rule 45 to
resort to an appeal as a matter of discretion and raise only questions of law.

In this case, the CA affirmed the RTC decision imposing the penalty of reclusion
perpetua upon the petitioners. The latter opted to appeal the CA decision via a petition
for certiorari under Rule 45. Consequently, they could only raise questions of law.
Oddly, the petitioners began to assail the existence of conspiracy in their reply, [36] which
is a question of fact that would require an examination of the evidence presented. In the
interest of justice, however, and due to the novelty of the issue presented, the Court
deems it proper to open the whole case for review.[37]

Substantive Matter

In our contemporary society, hazing has been a nightmare of parents who send their
children to college or university. News of deaths and horrible beatings primarily among
college students due to hazing injuries continue to haunt us. Horrid images of eggplant-
like buttocks and thighs and pounded arms and shoulders ofyoung men are depicted as a
fervent warning to those who dare undergo the hazing rites. The meaningless death of
these promising students, and the agony, cries and ordeal of their families, resonate
through the very core of our beings. But no matter how modem and sophisticated our
society becomes, these barbaric acts of initiation of fraternities, sororities and other
organizations continue to thrive, even within the elite grounds of the academe.

The history and phenomenon of hazing had been thoroughly discussed in the recent case
of Villareal v. People.[38] It is believed that the fraternity system and its accompanying
culture of hazing were transported by the Americans to the Philippines in the late 19th
century.[39] Thus, a study of the laws and jurisprudence of the United States (US) on
hazing can enlighten the current predicament of violent initiations in fraternities,
sororities and other organizations.

United States Laws and Jurisprudence on Hazing

There are different definitions of hazing, depending on the laws of the states. [40] In the
case of People v. Lenti,[41] the defendant therein challenged the constitutionality of the·
state law defining hazing on the ground of vagueness. The court rejected such contention
and held that it would have been an impossible task if the legislature had attempted to
define hazing specifically because fraternal organizations and associations never suffered
for ideas in contriving new forms of hazing. Presently, the acceptable definition of hazing
is the practice of physically or emotionally abusing newcomers to an organization as a
means of initiation.[42]

Hazing can be classified into various categories including, but not limited to, acts of
violence, acts of humiliation, sexual-related acts, and alcohol-related acts. [43] The physical
form of hazing may include beating, branding, paddling, excessive exercise, drinking,
and using drugs. Sexual hazing have included simulated sex acts, sodomy and forced
kissing.[44] Moreover, hazing does not only result in physical injuries and hospitalization,
but also lead to emotional damage and traumatic stress.[45]

Based on statistics and alarming frequency of hazing, states have attempted to combat
hazing through the passage of state laws that prohibit such acts.[46] Forty-four states, with
the exception of Alaska, Hawaii, Montana, New Mexico, South Dakota, and Wyoming,
have passed antihazing laws.[47] The severity of these laws can range from minor penalties
to a prison sentence for up to six years.[48] In the states of Illinois, Idaho, Missouri, Texas,
Virginia, Wisconsin, hazing that result in death or "great bodily harm" is categorized as a
felony.[49]

In Florida, the Chad Meredith Act,[50] a law named after a student who died in a hazing
incident, was enacted on July 1, 2005. It provides that a person commits a third degree
felony when he or she intentionally or recklessly commits any act of hazing and the
hazing results in serious bodily injury or death. If a person only creates substantial risk of
physical injury or death, then hazing is categorized as a first degree misdemeanor. A
similar provision can be observed in the Penal Law ofNew York.[51]

Interestingly, some states included notable features in their antihazing statute to increase
its effectiveness. In Alabama, Arkansas, Massachusetts, New Hampshire, South Carolina
and Texas, the law imposes a duty on school personnel to report hazing.[52] In fact, in
Alabama, no person is allowed to knowingly permit, encourage, aid, or assist any person
in committing the offense of hazing, or willfully acquiesces in its commission.[53]
Also, some states enacted statutes that have been interpreted to mean that persons are
guilty of hazing even if they have the consent of the victim.[54] In New Jersey, consent is
not a defense to a hazing charge, and its law permits the prosecution of offenders under
other applicable criminal statutes.[55] By including these various provisions in their anti-
hazing statutes, these states have removed the subjective inquiry of consent from
consideration, thus, presumably allowing courts to effectively and properly adjudicate
hazing cases.[56]

In the US, hazing victims can either file a criminal action, based on anti-hazing statutes,
or a civil suit, arising from tort law and constitutional law, against the members of the
local fraternity, the national fraternity and even against the university or college
concerned.[57] Hazing, which threatens to needlessly harm students, must be attacked from
whatever legal means are possible.[58]

In State v. Brown,[59] a member of the Alpha Kappa Alpha at Kent State University was
indicted for complicity to hazing. The group physically disciplined their pledges by
forcing them to stand on their heads, beating them with paddles, and 'smacking and
striking initiates in the face and head. The Ohio court held that evidence presented therein
was more than sufficient to sustain a conviction.

Excessive intake of alcohol in the fraternity initiations can be considered as hazing.

In Oja v. Grand Chapter of Theta Chi Fraternity Inc.,[60] a 17-year old college freshman
died as a result of aspirating his own vomit after consuming excessive amounts of alcohol
in a fraternity initiation ritual. The defendants in the said case contended that they only
furnished the alcohol drinks to the victim. The court denied the defense because such acts
of the fraternity effectively contributed to the death of the victim as part of their hazing.

Even in high school, hazing could exist. In Nice v. Centennial Area School District,[61] a
tenth-grade wrestler at William Tennet High School was subjected to various forms of
hazing, including a ritual where the victim was forcibly held down, while a teammate sat
on his face with his buttocks exposed. The parents of the student sued the school because
it failed to prevent the incident despite its knowledge of the hazing rites. The court
approved the settlement ofthe parties in the amount of US$151,000.00.

More recently, the case of Yost v. Wabash College[62] involved the hazing of an 18-year
old freshman, who suffered physical and mental injuries in the initiation rites conducted
by the Phi Kappa Psi fraternity. As a pledge, the victim was thrown into a creek and was
placed in a chokehold, until he lost consciousness. The court upheld that action against
the local fraternity because, even if the student consented, the fraternity had the duty to
ensure the safety of its activities.

The US anti-hazing laws and jurisprudence show that victims of hazing can properly
attain redress before the court. By crafting laws and prosecuting offenders, the state can
address the pistinct dilemma of hazing.

Anti-Hazing Law in the Philippines

R.A. No. 8049, or the Anti-Hazing Law of 1995, has been enacted to regulate hazing and
other forms of initiation rites in fraternities, sororities, and other organizations. It was in
response to the rising incidents of death of hazing victims, particularly the death of
Leonardo "Lenny" Villa.[63] Despite its passage, reports of deaths resulting from hazing
continue to emerge. Recent victims were Guillo Servando of the College of St. Benilde,
Marc Andre Marcos and Marvin Reglos of the San Beda College - Manila, and Cris
Anthony Mendez of the University of the Philippines - Diliman. With the continuity of
these senseless tragedies, one question implores for an answer: is R.A. No. 8049 a
sufficient deterrent against hazing?

To answer the question, the Court must dissect the provisions of the law and scrutinize its
effect, implication and application.

Criminal law has long divided crimes into acts wrong in themselves called acts mala in
se; and acts which would ot be wrong but for the fact that positive law forbids them,
called acts mala prohibita. This distinction is important with reference to the intent with
which a wrongful act is done. The rule on the subject is that in acts mala in se, the intent
governs; but in acts mala prohibita, the only inquiry is, has the law been violated? When
an act is illegal, the intent of the offender is immaterial.[64] When the doing of an act is
prohibited by law, it is considered injurious to public welfare, and the doing of the
prohibited act is the crime itself.[65]

A common misconception is that all mala in se crimes are found in the Revised Penal
Code (RPC), while all mala prohibita crimes are provided by special penal laws. In
reality, however, there may be mala in se crimes under special laws, such as plunder
under R.A. No. 7080, as amended.[66]

Similarly, there may be mala prohibita crimes defined in the RPC, such as technical
malversation.[67]

The better approach to distinguish between mala in se and mala prohibita crimes is the

determination of the inherent immorality or vileness of the penalized act. If the
punishable act or omission is immoral in itself, then it is a crime mala in se; on the
contrary, if it is not immoral in itself, but there is a statute prohibiting its commission by
reasons of public policy, then it is mala prohibita. In the final analysis, whether or not a
crime involves moral turpitude is ultimately a question of fact and frequently depends on
all the circumstances surrounding the violation of the statute.[68]
The crime of hazing under R.A. No. 8049 is malum prohibitum. The Senate deliberations
would show that the lawmakers intended the antihazing statute to be malum prohibitum,
as follows:
SENATOR GUINGONA: Most of these acts, if not all, are already punished under the
Revised Penal Code.

SENATOR LINA. That is correct, Mr. President.

SENATOR GUINGONA. If hazing is done at present and it results in death, the charge
would be murder or homicide.

SENATOR LINA. That is correct, Mr. President.

SENATOR GUINGONA. If it does not result in death, it may be frustrated homicide or

serious physical injuries.

SENATOR LINA. That is correct, Mr. President.

SENATOR GUINGONA. Or, if the person who commits sexual abuse does so it can be
penalized under rape or acts of lasciviousness.

SENATOR LINA. That is correct, Mr. President.

SENATOR GUINGONA. So, what is the rationale for making a new offense under this
definition of the crime of hazing?

SENATOR LINA. To discourage persons or group of persons either composing a

sorority, fraternity or any association from making this requirement of initiation that has
already resulted in these specific acts or results, Mr. President.

That is the main rationale. We want to send a strong signal across the land that no group
or association can require the act of physical initiation before a person can become a
member without being held criminally liable.

x x x  x x x  x x x

SENATOR GUINGONA. Yes, but what would be the rationale for that imposition?
Because the distinguished Sponsor has said that he is not punishing a mere organization,
he is not seeking the punishment of an initiation into a club or organization, he is seeking
the punishment of certain acts that resulted in death, etcetera as a result of hazing which
are already covered crimes.

The penalty is increased in one, because we would like to discourage hazing, abusive
hazing, but it may be a legitimate defense for invoking two or more charges or offenses,
because these very same acts are already punishable under the Revised Penal Code.

That is my difficulty, Mr. President.

SENATOR LINA. x x x

Another point, Mr. President, is this, and this is a very telling difference: When a person
or group of persons resort to hazing as a requirement for gaining entry into an
organization, the intent to commit a wrong is not visible or is not present, Mr.
President. Whereas, in these specific crimes, Mr. President, let us say there is death
or there is homicide, mutilation, if one files a case, then the intention to commit a
wrong has to be proven. But if the crime of hazing is the basis, what is important is
the result from the act of hazing.

To me, that is the basic difference and that is what will prevent or deter the sororities or
fraternities; that they should really shun this activity called "hazing." Because, initially,
these fraternities or sororities do not even consider having a neophyte killed or maimed or
that acts of lasciviousness are even committed initially, Mr. President.

So, what we want to discourage is the so-called initial innocent act. That is why there is
need to institute this kind of hazing. Ganiyan po ang nangyari. Ang fraternity o ang
sorority ay magre-recruit. Wala talaga silang intensiyong makamatay. Hindi ko na
babanggitin at buhay pa iyong kaso. Pero dito sa anim o pito na namatay nitong
nakaraang taon, walang intensiyong patayin talaga iyong neophyte. So, kung maghihintay
pa tayo, na saka lamang natin isasakdal ng murder kung namatay na, ay after the fact ho
iyon. Pero, kung sasabihin natin sa mga kabataan na: "Huwag ninyong gagawin iyong
hazing. Iyan ay kasalanan at kung mamatay diyan, mataas ang penalty sa inyo."

x x x  x x x  x x x

SENATOR GUINGONA. I join the lofty motives, Mr. President, of the distinguished
Sponsor. But I am again disturbed by his statement that the prosecution does not have to
prove the intent that resulted in the death, that resulted in the serious physical injuries,
that resulted in the acts of lasciviousness or deranged mind. We do not have to prove
the willful intent of the accused in proving or establishing the crime of hazing. This
seems, to me, a novel situation where we create the special crime without having to go
into the intent, which is one of the basic elements of anycnme.

If there is no intent, there is no crime. If the intent were merely to initiate, then there is no
offense. And even the distinguished Sponsor admits that the organization, the intent to
initiate, the intent to have a new society or a new club is, per se, not punishable at all.
What are punishable are the acts that lead to the result. But if these results are not going
to be proven by intent, but just because there was hazing, I am afraid that it will disturb
the basic concepts of the Revised Penal Code, Mr. President.

SENATOR LINA. Mr. President, the act of hazing, precisely, is being criminalized
because in the context of what is happening in the sororities and fraternities, when they
conduct hazing, no one will admit that their intention is to maim or to kill. So, we are
already criminalizing the fact of inflicting physical pain. Mr. President, it is a criminal act
and we want it stopped, deterred, discouraged.

If that occurs, under this law, there is no necessity to prove that the masters.
intended to kill or the masters intended to maim. What is important is the result of
the act of hazing. Otherwise, the masters or those who inflict the physical pain can easily
escape responsibility and say, "We did not have the intention to kill. This is part of our
initiation rites. This is normal. We do not have any intention to kill or maim."

This is the lusot, Mr. President. They might as well have been charged therefore with the
ordinary crime of homicide, mutilation, etcetera, where the prosecution will have a
difficulty proving the elements if they are separate offenses.

x x x  x x x  x x x

SENATOR LINA. x x x

I am very happy that the distinguished Minority Leader brought out the idea of intent or
whether it is mala in se or mala prohibita. There can be a radical amendment if that is the
point that he wants to go to.

If we agree on the concept, then, maybe, we can just make this a special law on
hazing. We will not include this anymore under the Revised Penal Code. That is a
possibility. I will not foreclose that suggestion, Mr. President.[69]

[Emphases Supplied]
Having in mind the potential conflict between the proposed law and the core principle
of mala in se adhered to under the RPC, the Congress did not simply enact an amendment
thereto. Instead, it created a special law on hazing, founded upon the principle of mala
prohibita.[70] In Vedaña v. Valencia,[71] the Court noted that in our nation's very recent
history, the people had spoken, through the Congress, to deem conduct constitutive of
hazing, an act previously considered harmless by custom, as criminal. [72] The act of
hazing itself is not inherently immoral, but the law deems the same to be against public
policy and must be prohibited. Accordingly, the existence of criminal intent is immaterial
in the crime of hazing. Also, the defense of good faith cannot be raised in its prosecution.
[73]
Section 1 of R.A. No. 8049 defines hazing as an initiation rite or practice as a prerequisite
for admission into membership in a fraternity, sorority or organization by placing the
recruit, neophyte or applicant in some embarrassing or humiliating situations such as
forcing him to do menial, silly, foolish and other similar tasks or activities or otherwise
subjecting him to physical or psychological suffering or injury. From the said definition,
the elements of the crime of hazing can be determined:

1. That there is an initiation rite or practice as a prerequisite for admission into

membership in a fraternity, sorority or organization;

2. That there must be a recruit, neophyte or applicant of the fraternity, sorority or

organization; and

3. That the recruit, neophyte or applicant is placed in some embarrassing or

humiliating situations such as forcing him to do menial, silly, foolish and other
similar tasks or activities or otherwise subjecting him to physical or psychological
suffering or injury.

From the said definition of hazing, it is apparent that there must be an initiation rite or
practice performed by the fraternities, sororities or organization. The law, however, did
not limit the definition of these groups to those formed within academic colleges and
universities.[74] In fact, the second paragraph of Section 1 provides that the term
"organization" shall include any club or the Armed Forces of the Philippines (AFP),
Philippine National Police (PNP), Philippine Military Academy (PMA), or officer and
cadet corp of the Citizen's Military Training and Citizen's Army Training. Even the
president, manager, director or other responsible officer of a corporation engaged in
hazing as a requirement for employment are covered by the law.[75]

R.A. No. 8049 qualifies that the physical, mental and psychological testing and training
procedure and practices to determine and enhance the physical, mental and psychological
fitness of prospective regular members of the AFP and the PNP, as approved by the
Secretary of National Defense and the National Police Commission, duly recommended
by the Chief of Staff of the AFP and the Director General of the PNP, shall not be
considered as hazing.

And not all forms of initiation rites are prohibited by the law. Section 2 thereof provides
that initiation rites of fraternities, sororities or organizations shall be allowed provided
that the following requisites are met:

1. That the fraternity, sorority or organization has a prior written notice to the school
authorities or head of organization;
 2. The said written notice must be secured at least seven (7) days before the conduct
of such initiation;

3. That the written notice shall indicate:

a. The period of the initiation activities, which shall not exceed three (3) days;

b. The names of those to be subjected to such activities; and

c. An undertaking that no physical violence be employed by anybody

during such initiation rites.

Section 3 of R.A. No. 8049 imposes an obligation to the head of the school or
organization or their representatives that they must assign at least two (2) representatives,
as the case may be, to be present during these valid initiations. The duty of such
representative is to see to it that no physical harm of any kind shall be inflicted upon a
recruit, neophyte or applicant.

Noticeably, the law does not provide a penalty or sanction to fraternities, sororities or
organizations that fail to comply with the notice requirements of Section 2. Also, the
school and organization administrators do not have a clear liability for non-compliance
with Section 3.

Any person who commits the crime of hazing shall be liable in accordance with Section 4
of the law, which provides different classes of persons who are held liable as principals
and accomplices.

The first class of principals would be the actual participants in the hazing. If the person
subjected to hazing or other forms of initiation rites suffers any physical injury or dies as
a result thereof, the officers and members of the fraternity, sorority or organization who
actually participated in the infliction of physical harm shall be liable as principals.
Interestingly, the presence of any person during the hazing is prima facie evidence of
actual participation, unless he prevented the commission of the acts punishable herein. [76]

The prescribed penalty on the principals depends on the extent of injury inflicted to the
victim.[77] The penalties appear to be similar to that of homicide, serious physical injuries,
less serious physical injuries, and slight physical injuries under the RPC,[78] with the
penalties for hazing increased one degree higher. Also, the law provides several
circumstances which would aggravate the imposable penalty. [79]

Curiously, although hazing has been defined as consisting of those activities involving
physical or psychological suffering or injury, the penalties for hazing only covered the
infliction of physical harm. At best, the only psychological injury recognized would be
causing insanity to the victim. Conversely, even if the victim only sustained physical
injuries which did not incapacitate him, there is still a prescribed penalty. [80]

The second class of principals would be the officers, former officers, or alumni of the
organization, group, fraternity or sorority who actually planned the hazing.[81] Although
these planners were not present when the acts constituting hazing were committed, they
shall still be liable as principals. The provision took in consideration the non-resident
members of the organization, such as their former officers or alumni.

The third class of principals would be officers or members of an organization group,

fraternity or sorority who knowingly cooperated in carrying out the hazing by inducing
the victim to be present thereat.[82] These officers or members are penalized, not because
of their direct participation in the infliction of harm, but due to their indispensable
cooperation in the crime by inducing the victim to attend the hazing.

The next class of principals would be the fraternity or sorority's adviser who was present
when the acts constituting hazing were committed, and failed to take action to prevent
them from occurring.[83] The liability of the adviser arises, not only from his mere
presence in the hazing, but also his failure to prevent the same.

The last class of principals would be the parents of the officers or members of the
fraternity, group, or organization.[84] The hazing must be held in the home of one of the
officers or members. The parents must have actual knowledge of the hazing conducted in
their homes and failed to take any action to avoid the same from occurring.

The law also provides for accomplices in the crime of hazing. The school authorities,
including faculty members, who consented to the hazing or who have actual knowledge
thereof, but failed to take any action to prevent the same from occurring shall be punished
as accomplices.[85]

Likewise, the owner of the place where the hazing was conducted can also be an
accomplice to the crime.[86] The owner of the place shall be liable when he has actual
knowledge of the hazing conducted therein and he failed to take any steps to stop the
same.

Recognizing the malum prohibitum characteristic of hazing, the law provides that any

person charged with the said crime shall not be entitled to the mitigating circumstance
that there was no intention to commit so grave a wrong.[87] Also, the framers of the law
intended that the consent of the victim shall not be a defense in hazing. During the
discussion of whether sodomy shall be included as a punishable act under the law, the
issue of consent was tackled:
SENATOR LINA x x x

But sodomy in this case is connected with hazing, Mr. President. Such that the act may
even be entered into with consent. It is not only sodomy. The infliction of pain may be
done with the consent of the neophyte. If the law is passed, that does not make the act of
hazing not punishable because the neophyte accepted the infliction of pain upon himself.

If the victim suffers from serious physical injuries, but the initiator said, "Well, he
allowed it upon himself. He consented to it." So, if we allow that reasoning that sodomy
was done with the consent of the victim, then we would not have passed any law at lflll.
There will be no significance if we pass this bill, because it will always be a defense that
the victim allowed the infliction of pain1 or suffering. He accepted it as part of the
initiation rites.

But precisely, Mr. President that is one thing that we would want to prohibit. That the
defense of consent will not apply because the very act of inflicting physical pain or
psychological suffering is, by itself, a punishable act. The result of the act of hazing,
like death: or physical injuries merely aggravates the act with higher penalties. But
the defense of consent is not going to nullify the criminal nature of the act.

So, if we accept the amendment that sodomy can only aggravate the offense if it is
committedr without consent of the victim, then the whole foundation of this proposed law
will collapse.

SENATOR BIAZON. Thank you, Mr. President. SENATOR LINA. Thank you very
much.

THE PRESIDENT. Is there any objection to the committee amendment? (Silence.) The
Chair hears none; the same is approved.[88]

[Emphasis supplied]
Further, the law acknowledges that the offended party in the crime of hazing can seek
different courses of action. It provides that the responsible officials of the school or of the
police, military or citizen's army training organization, may impose the appropriate
administrative sanctions on the person or the persons charged under this provision even
before their conviction.[89] Necessarily, the offended party can file either administrative,
civil, or criminal actions against the offenders.[90]

The study of the provisions of R.A. No. 8049 shows that, on paper, it is complete and
robust in penalizing the crime of hazing. It was made malum prohibitum to discount
criminal intent and disallow the defense of good faith. It took into consideration the
different participants and contributors in the hazing activities. While not all acts cited in
the law are penalized, the penalties imposed therein involve various and serious terms of
imprisonment to discourage would be offenders. Indeed, the law against hazing is ideal
and profound. As to whether the law can be effectively implemented, the Court begs to
continue on the merits of the case.

The Information properly charged the offense proved

The petitioners claim that the amended information avers a criminal charge of hazing by
actual participation, but the only offense proved during the trial was hazing by
inducement. Their contention must faiL The Amended Information reads:
That on or about 2:30 in the early morning of January 14, 2006, at Villa Novaliches,
Brgy. Pansol, Calamba City, Province of Laguna and within the jurisdiction of the
Honorable Court, the above-named accused, during a planned initiation rite and being
then officers and members of Alpha Phi Omega fraternity and present thereat, in
conspiracy with more or less tvventy other members and officers, whose identity is not
yet known, did then and there willfully, unlawfully and feloniously assault and use
personal violence upon one MARLON VILLANUEVA y MEJILLA, a neophyte thereof
and as condition for his admission to the fraternity, thereby subjecting him to physical
harm, resulting to his death, to the damage and prejudice of the heirs of the victim.

CONTRARY TO LAW.[91]
On the manner of how the Information should be worded, Section 9, Rule 110 of the
Rules of Court, is enlightening:
Section 9. Cause of the accusation. The acts or omissions complained of as constituting
the offense and the qualifying and aggravating circumstances must be stated in ordinary
and concise language and not necessarily in the language used in the statute but in terms
sufficient to enable a person of common understanding to know what offense is being
charged as well as its qualifying and aggravating circumstances and for the court to
pronounce judgment.
It is evident that the Information need not use the exact language of the statute in alleging
the acts or omissions complained of as constituting the offense. The test is whether it
enables a person of common understanding to know the charge against him, and the court
to render judgment properly.[92]

The Court agrees with the OSG that the "planned initiation rite" as stated in the
information included the act of inducing Villanueva to attend it. In ordinary parlance, a
planned event can be understood to have different phases. Likewise, the hazing activity
had different stages and the perpetrators had different roles therein, not solely inflicting
physical injury to the neophyte. One of the roles of the petitioners in the hazing activity
was to induce Villanueva to be present. Dungo and Sibal not only induced Villanueva to
be present at the resort, but they actually brought him there. They fulfilled their roles in
the planned hazing rite which eventually led to the death of Villanueva. The hazing
would not have been accomplished were it not for the acts of the petitioners that induced
the victim to be present.
Secrecy and silence are common characterizations of the dynamics of hazing. [93] To
require the prosecutor to indicate every step of the planned initiation rite in the
information at the inception of the criminal case, when details of the clandestine hazing
are almost nil, would be an arduous task, if not downright impossible. The law does not
require the impossible (lex non cognit ad impossibilia).

The proper approach would be to require the prosecution to state every element of the
crime of hazing, the offenders, and the accompanying circumstances in the planned
initiation activity, which has been satisfied in the present case. Accordingly, the amended
information sufficiently informed the petitioners that they were being criminally charged
for their roles in the planned initiation rite.

Conspiracy of the offenders was duly proven

The petitioners assail that the prosecution failed to establish the fact of conspiracy.

The Court disagrees.

A conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it. To determine conspiracy, there must be
a common design to commit a felony.[94] The overt act or acts of the accused may consist
of active participation in the actual commission of the crime itself or may consist of
moral assistance to his co-conspirators by moving them to execute or implement the
criminal plan.[95]

In conspiracy, it need not be shown that the parties actually came together and agreed in
express terms to enter into and pursue a common design. The assent of the minds may be
and, from the secrecy of the crime, usually inferred from proof of facts and circumstances
which, taken together, indicate that they are parts of some complete whole.
[96]
 Responsibility of a conspirator is not confined to the accomplishment of a particular
purpose of conspiracy but extends to collateral acts and offenses incident to and growing
out of the purpose intended.[97]

The lawmakers ·deliberated on whether the prosecution was still obliged to prove the
conspiracy between the offenders under R.A. 8049, to wit:
SENATOR GUINGONA. Mr. President, assuming there was a group that initiated and a
person died. The charge is murder. My question is: Under this bill if it becomes a law,
would the prosecution have to prove conspiracy or not anymore?

SENATOR LINA. Mr. President, if the person is present during hazing x x x

SENATOR GUINGONA. The persons are present. First, would the prosecution have to
prove conspiracy? Second, would the prosecution have to prove intent to kill or not?

SENATOR LINA. No more. As to the second question, Mr. President, if that occurs,
there is no need to prove intent to kill.

SENATOR GUINGONA. But the charge is murder.

SENATOR LINA. That is why I said that it should not be murder. It should be hazing,
Mr. President.[98]
The Court does not categorically agree that, under R.A. No. 8049, the prosecution need
not prove conspiracy. Jurisprudence dictates that conspiracy must be established, not by
conjectures, but by positive and conclusive evidence. Conspiracy transcends mere
companionship and mere presence at the scene of the crime does not in itself amount to
conspiracy. Even knowledge, acquiescence in or agreement to cooperate, is not enough to
constitute one as a party to a conspiracy, absent any active participation in the
commission of the crime with a view to the furtherance of the common design and
purpose.[99]

R.A. No. 8049, nevertheless, presents a novel provision that introduces a disputable
presumption of actual participation; and which modifies the concept of conspiracy.
Section 4, paragraph 6 thereof provides that the presence of any person during the hazing
is prima facie evidence of participation as principal, unless he prevented the commission
of the punishable acts. This provision is unique because a disputable presumption arises
from the mere presence of the offender during the hazing, which can be rebutted by
proving that the accused took steps to prevent the commission of the hazing.

The petitioners attempted to attack the constitutionality of Section 4 of R.A. No. 8049
before the CA, but did not succeed. "[A] finding of prima facie evidence x x x does not
shatter the presumptive innocence the accused enjoys because, before prima
facie evidence arises, certain facts have still to be proved; the trial court cannot depend
alone on such evidence, because precisely, it is merely prima facie. It must still satisfy
that the accused is guilty beyond reasonable doubt of the offense charged. Neither can it
rely on the weak defense the latter may adduce."[100]

Penal laws which feature prima facie evidence by disputable presumptions against the

offenders are not new, and can be observed in the following: (1) the possession of drug
paraphernalia gives rise to prima facie evidence of the use of dangerous drug;[101] (2) the
dishonor of the check for insufficient funds is. prima facie evidence of knowledge of
such insufficiency of funds or credit;[102] and (3) the possession of any good which has
been the subject of robbery or thievery shall be prima facie evidence of fencing.[103]

Verily, the disputable presumption under R.A. No. 8049 can be related to the conspiracy
in the crime of hazing. The common design of offenders is to haze the victim. Some of
the overt acts that could be committed by the offenders would be to (1) plan the hazing
activity as a requirement of the victim's initiation to the fraternity; (2) induce the victim
to attend the hazing; and (3) actually participate in the infliction of physical injuries.

In this case, there was prima facie evidence of the petitioners' participation in the hazing
because of their presence in the venue. As correctly held by the RTC, the presence of
Dungo and Sibal during the hazing at Villa Novaliches Resort was established by the
testimony of Ignacio. She testified that she saw Sibal emerge from the resort and
approach her store, to wit:
MR. DIMACULANGAN
Q: And how many persons from this group did you see again?
WITNESS
A: Three (3), sir.
Q: Where did they come from, did they come out from the resort? Where did this 3 people or
this group of people coming from?
A: Inside the resort, sir.
Q: And around what time was this?
A: Around 9:00, sir.
Q: And what did they do if any if they came out of the resort?
A: They went to my store, sir.
xxxx
Q: Did you have any other visitors to your store that night?
xxxx
A: "Meron po".
Q: Who were these visitors?
A: I don't know their names but I recognize their faces, sir.
Q: If I show you pictures of these people, will you be able to identify them before this Court.
A: Yes, sir.
xxxx
Q: Mrs. Ignacio, I am showing you this picture of persons marked as Exhibit "L" in the Pre-
Trial, can you please look over this document carefully and see if any of the persons whom
you said visited your store is here?
 
xxxx
A: "Siya rin po."
COURT:
Make it of record that the witness pinpointed to the first picture appearing on the left picture
on the first row.
xxxx
ATTY. PAMAOS:
For the record, your Honor, we manifest that the picture and the name pointed by the
witness has been previously marked as Exhibit "L-3" and previously admitted by the
defense as referring to Gregorio Sibal, Jr., accused in this case...[104]
Ignacio, also positively identified Dungo as among the guests of Villa Novaliches Resort
on the night of the hazing, to wit:
COURT
Q: x x x Now, when you say other people you could identify who are not in the pictures then
how would you know that these people are indeed those people you could identify?
WITNESS
A: "lyon pong...di ba po nagkuwento ako na dumating sila tapos nag shake hands at saka iyong
nagyakapan po..."
Q: And what will be the significance of the alleged embrace and shake hands for you to say
that you could identify those people?
A: "Hindi po: Noong dumating po sila nasa isang jeep, meron pong lalaki doon sa may tabi ng
driver bumaba siya tapos po noong bumaba siya tapas iyong mga kasamahan nya sa likod
nagbaba-an din, iyon po nagbati-an po sila."
Q: And from these greeting, how could you identify these people?
A: "Ngayon ko lang po napag masdan ang taong iyon, hindi ko po alam na akusado po sa
kabila iyon."
Q: And who was that person?
A: "Siya po, iyon po."
Q: Who are you pointing to?
A: "lyon pong naka-dilaw na..." (Witness pointing to Dandy Dungo)
Q: So, are you telling the Court that this person you positively saw seated beside the driver
came out and subsequently embraced and shook hands with the other people from the
jeepney, is that your testimony?
A: Yes, your Honor.[105]
The testimony of Ignacio was direct and straightforward. Her testimony was given great
weight because she was a disinterested and credible witness. The prosecution indubitably
established the presence of Dungo and Sibal during the hazing. Such gave rise to
the prima facie evidence of their actual participation in the hazing of Villanueva. They
were given an opportunity to rebut and overcome the prima facie evidence of the
prosecution by proving that they prevented the commission of the hazing, yet they failed
to do so.

Because of the uncontroverted prima facie evidence against the petitioners, it was shown

that they performed an overt act in the furtherance of the criminal design of hazing. Not
only did they induce the victim to attend the hazing activity, the petitioners also actually
participated in it based on the prima facie evidence. These acts are sufficient to establish
their roles in the conspiracy of hazing.

Hence, generally, mere presence at the scene of the crime does not in itself amount to
conspiracy.[106] Exceptionally, under R.A. No. 8049, the participation of the offenders in
the criminal conspiracy can be proven by the prima facie evidence due to their presence
during the hazing, unless they prevented the commission of the acts therein.

The guilt of the petitioners was proven beyond reasonable doubt

Aside from inducing Villanueva to attend the initiation rites and their presence during the
hazing, the petitionersguilt was proven beyond reasonable doubt by the sequence of
circumstantial evidence presented by the prosecution. Their involvement in the hazing of
Villanueva is not merely based on prima facie evidence but was also established by
circumstantial evidence.

In considering a criminal case, it is critical to start with the law's own starting perspective
on the status of the accused - in all criminal prosecutions, he is presumed innocent of the
charge laid unless the contrary is proven beyond reasonable doubt.[107] In criminal law,
proof beyond reasonable doubt does not mean such degree of proof that produces
absolute certainty. Only moral certainty is required or that degree of proof which
produces conviction in an unprejudiced mind.[108]

While it is established that nothing less than proof beyond reasonable doubt is required
for a conviction, this exacting standard does not preclude resort to circumstantial
evidence when direct evidence is not available. Direct evidence is not a condition sine
qua non to prove the guilt of an accused beyond reasonable doubt. For in the absence of
direct evidence, the prosecution may resort to adducing circumstantial evidence to
discharge its burden. Crimes are usually committed in secret and under conditions where
concealment is highly probable. If direct evidence is insisted on under all circumstances,
the prosecution of vicious felons who commit heinous crimes in secret or secluded places
will be hard, if not impossible, to prove.[109]

Needless to state, the crime of hazi,ng is shrouded in secrecy. Fraternities and sororities,
especially the Greek organizations, are secretive in nature and their members are reluctant
to give any information regarding initiation rites.[110] The silence is only broken after
someone has been injured so severely that medical attention is required. It is only at this
point that the secret is revealed and the activities become public.[111] Bearing in mind the
concealment of hazing, it is only logical and proper for the prosecution to resort to the
presentation of circumstantial evidence to prove it.

The rules on evidence and precedents to sustain the conviction of an accused through
circumstantial evidence require the existence of the following requisites: (1) there are
more than one circumstance; (2) the inference must be based on proven facts; and (3) the
combination of all circumstances produces a conviction beyond reasonable doubt of the
guilt of the accused.[112] To justify a conviction upon circumstantial evidence, the
combination of circumstances must be such as to leave no reasonable doubt in the mind
as to the criminal liability of the accused. Jurisprudence requires that the circumstances
must be established to form an unbroken chain of events leading to one fair reasonable
conclusion pointing to the accused, to the exclusion of all others, as the author of the
crime.[113]

The CA meticulously wrote in detail the unbroken chain of circumstantial evidence

which established the petitioners' gult in the death of Villanueva as follows:
1. Marlon Villanueva is a neophyte of Alpha Phi Omega, as testified by his
roommate Joey Atienza.

2. At around 3:00 o'clock in the afternoon of January 13, 2006, Sunga was staying at
their tambayan, talking to her organization mates. Three men were seated two
meters way from her. She identified two of the men as appellants Sibal and
Dungo, while she did not know the third man. The three men were wearing black
shirts with the seal of the Alpha Phi Omega.

3. Later at 5:00 o'clock in the afternoon, two more men coming from the entomology
wing arrived and approached the three men. Among the men who just arrived was
the victim, Marlon Villanueva. One of the men wearing black APO shirts handed
over to the two fraternity neophytes some money and told the men "Mamalengke
na kayo." He later took back the money and said, "Huwag na, kami na lang."

4. One of the men wearing a black APO shirt, who was later identified as appellant
Dungo, stood up and asked Marlon if the latter already reported to him, and asked
him why he did not report to him when he was just at the tambayan. Dungo then
continuously punched the victim on his arm. This went on for five minutes.
Marlon just kept quiet with his head bowed down. Fifteen minutes later, the men
left going towards the Entomology wing.

5. The deceased Marlon Villanueva was last seen alive by Joey Atienza at 7:00 in the
evening of 13 January 2006, from whom he borrowed the shoes he wore at the
initiation right [sic]. Marlon told Joey that it was his "finals" night.

6. On January 13, 2006 at around 8:30 to 9:00 o'clock in the evening, Susan Ignacio
saw more than twenty (20) persons arrive at the Villa Novaliches Resort onboard a
jeepney. She estimated the ages of these persons to be between 20 to 30 years old.
Three (3) persons rirling a single motorcycle likewise arrived at the resort.

7. Ignacio saw about fifteen (15) persons gather on top of the terrace at the resort
who looked like they were praying. Later that evening, at least three (3) of these
persons went to her store to buy some items. She did not know their names but
could identity [sic] their faces. After she was shown colored photographs, she
pointed to the man later identified as Herald Christopher Braseros. She also
pointed out the man later identified as Gregorio Sibal, Jr.

8. Donato Magat, a tricycle driver plying the route of Pansol, Calamba City, testified
that around 3:00 o'clock in the morning of January 14, 2006, he was waiting for
passengers at the corner of Villa Novaliches Resort when a man approached him
and told him that someone inside the resort needed a ride. Magat then went to the
resort and asked the two (2) men standing by the gate who will be riding his
tricycle.
9. The four (4) men boarded his tricycle but Magat noticed that when he touched the
body of the man who was being carried, it felt cold. The said man looked very
weak like a vegetable.

10. Seferino Espina y Jabay testified that he worked as a security guard at the J.P.
Rizal Hospital and was assigned at the emergency room. At around 3:00 o'clock in
the early morning of January 14, 2006, he was with another security guard,
Abelardo Natividad and hospital helper Danilo Glindo a.k.a. Gringo, when a
tricycle arrived at the emergency room containing four (4) passengers, excluding
the driver. He was an arm's length away from said tricycle. He identified two of
the passengers thereof as appellants Dungo and Sibal. Espina said he and Glindo
helped the passengers unload a body inside the tricycle and brought it to the
emergency room.

11. Afterwards, Espina asked the two men for identification cards. The latter replied
that they did not bring with them any I.D. or wallet. Instead of giving their true
names, the appellants listed down their names in the hospital logbook as Brandon
Gonzales y Lanzon and Jericho Paril y Rivera. Espina then told the two men not to
leave, not telling them that they secretly called the police to report the incident
which was their standard operating procedure when a dead body was brought to
the hospital.

12. Dr. Ramon Masilungan, who was then the attending physician at the emergency
room, observed that Marlon was motionless, had no heartbeat and already
cyanotic.

13. Dr. Masilungan tried to revive Marlon for about 15 to 20 minutes. However, the
latter did not respond to resuscitation and was pronounced dead. Dr. Masilungan
noticed a big contusion hematoma on the left side of the victim's face and several
injuries on his arms and legs. He further attested that Marlon's face was already
cyanotic.

14. When Dr. Masilungan pulled down Marlon's pants, he saw a large contusion on
both legs which extended from the upper portion of his thigh down to the
couplexial portion or the back of the knee.

15. Due to the nature, extent and location of Marlon's injuries, Dr. Masilungan opined
that he was a victim of hazing. Dr. Masilungan is familiar with hazing injuries,
having undergone hazing when he was a student and also because of his
experience treating victims of hazing incidents.

16. Dr. Roy Camarillo, Medico-Legal Officer of the PNP Crime Laboratory in Region
IV, Camp Vicente Lim, Canlubang, Calamba City, testified that he performed an
autopsy on the cadaver of the victim on January 14, 2006; that the victim's cause
 of death was blunt head trauma. From 1999 to 2006, he was able to conduct post-
mortem examination of the two (2) persons whose deaths were attributed to
hazing. These two (2) persons sustained multiple contusions and injuries on
different parts of their body, particularly on the buttocks, on both upper and lower
extremities. Both persons died of brain hemorrhage. Correlating these two cases to
the injuries found on the victim's body, Dr. Camarillo attested that the victim,
Marlon Villanueva, sustained similar injuries to those two (2) persons. Based on
the presence of multiple injuries and contusions on his body, he opined that these
injuries were hazing-related.[114]

Petitioners Dungo and Sibal, on the other hand, presented the defense of denial and alibi.
These defenses, however, must fail. Time and time again, this Court has ruled that denial
and alibi are the weakest of all defenses, because they are easy to concoct and fabricate.
[115]
 As properly held by the RTC, these defenses cannot prevail over the positive and
unequivocal identification of the petitioners by prosecution witnesses Sunga and Ignacio.
The testimonies of the defense witnesses also lacked credibility and reliability. The
corroboration of defense witness Rivera was suspect because she was the girlfriend of
Dungo, and it was only logical and emotional that she would stand by the man she loved
and cared for. The testimonies of their fellow fraternity brothers, likewise, do not hold
much weight because they had so much at stake in the outcome of the case. Stated
differently, the petitioners did not present credible and disinterested witnesses to
substantiate their defenses of denial and alibi.

After a careful review of the records, the Court agrees with the CA and the RTC that the
circumstantial evidence presented by the prosecution was overwhelming enough to
establish the guilt of the petitioners beyond a reasonable doubt. The unbroken chain of
events laid down by the CA leaves us no other conclusion other than the petitioners'
participation in the hazing. They took part in the hazing and, together with their fellow
fraternity officers and members, inflicted physical injuries to Villanueva as a requirement
of his initiation to the fraternity. The physical injuries eventually took a toll on the body
of the victim, which led to his death. Another young life lost.

With the fact of hazing, the identity of the petitioners, and their participation therein duly
proven, the moral certainty that produces conviction in an unprejudiced mind has been
satisfied.

Final Note

Hazing has been a phenomenon that has beleaguered the country's educational
institutions and communities. News of young men beaten to death as part of fraternities'
violent initiation rites supposedly to seal fraternal bond has sent disturbing waves to
lawmakers. Hence, R.A. No. 8049 was signed into to law on June 7, 1995. Doubts on the
effectiveness of the law were raised. The Court, however, scrutinized its provisions and it
is convinced that the law is rigorous in penalizing the crime of hazing.

Hopefully, the present case will serve as a guide to the bench and the bar on the
application of R.A. No. 8049. Through careful case-build up and proper presentation of
evidence before the court, it is not impossible for the exalted constitutional presumption
of innocence of the accused to be overcome and his guilt for the crime of hazing be
proven beyond reasonable doubt. The prosecution must bear in mind the secretive nature
of hazing, and carefully weave its chain of circumstantial evidence. Likewise, the defense
must present a genuine defense and substantiate the same through credible and reliable
witnesses. The counsels of both parties must also consider hazing as a malum
prohibitum crime and the law's distinctive provisions.

While the Court finds R.A. No. 8049 adequate to deter and prosecute hazing, the law is
far from perfect. In Villareal v. People,[116] the Court suggested that the fact of
intoxication and the presence of non-resident or alumni fraternity members during hazing
should be considered as aggravating circumstances that would increase the applicable
penalties. Equally, based on the discussion earlier, this Court suggests some further
amendments to the law. First, there should be a penalty or liability for noncompliance
with Section 2, or the written notice requirement, and with Section 3, or the
representation requirement. Second, the penalties under Section 4 should also consider
the psychological harm done to the victim of hazing. With these additional inputs on R.A.
No. 8049, the movement against hazing can be invigorated.

R.A. No. 8049 is a democratic response to the uproar against hazing. It demonstrates that
there must, and should, be another way of fostering brotherhood, other than through the
culture of violence and suffering. The senseless deaths of these young men shall never be
forgotten, for justice is the spark that lights the candles of their graves.

WHEREFORE, the petition is DENIED. The April 26, 2013 Decision and the October
8, 2013 Resolution of the Court of Appeals in CAG.R. CR-H.C. No. 05046 are
hereby AFFIRMED in toto.

Let copies of this Decision be furnished to the Secretary of the Department of Justice as
guidance for the proper implementation and prosecution of violators of R.A. No. 8049;
and to the Senate President and the Speaker of the House of Representatives for possible
consideration of the amendment of the Anti-Hazing Law to include the penalty for non
compliance with its Section 2 and 3, and the penalty for the psychological harms to the
surviving victims of hazing.

SO ORDERED.

SECOND DIVISION
 [ G.R. No. 232326, October 02, 2017 ]
PEOPLE OF THE PHILIPPINES V. THE HON. SANDIGANBAYAN [FIFTH
DIVISION], CESAR P. GOPILAN, ELMER AYTONA, AND JORGE JAVIER

Sirs/Mesdames:

Please take notice that the Court, Second Division, issued a Resolution dated 02
October 2017 which reads as follows:

"G.R. No. 232326 (People of the Philippines v. The Hon. Sandiganbayan [Fifth

Division], Cesar P. Gopilan, Elmer Aytona, and Jorge Javier)

After a judicious study of the case, the Court resolves to DISMISS the instant
[1]
petition and AFFIRM the January 25, 2017 Decision  and May 8, 2017
[2]
Resolution  of the Sandiganbayan (SB) in Criminal Case No. 28345 for failure to
sufficiently show that the SB committed grave abuse of discretion in acquitting
respondents Cesar P. Gopilan, Elmer Aytona, and Jorge Javier (respondents) of the
crime charged.

As the SB correctly ruled, the totality of the evidence presented casts reasonable
doubt thereby tilting the presumption still in favor of respondents' innocence. The
presumption of innocence of an accused in a criminal case is a basic constitutional
principle. An accused can be convicted only upon the prosecution's presentation of
[3]
proof of guilt beyond reasonable doubt.  Where there is reasonable doubt, as in
this case, the accused must be acquitted even though their innocence may not have
[4]
been established.   In this regard, the Court emphasizes that certiorari lies only in
curing errors of jurisdiction or those where the act complained of was issued by the
court without or in excess of jurisdiction, or with grave abuse of discretion which is
tantamount to lack or in excess of jurisdiction. Any possible lapses which the court
may commit in its appreciation of the parties' evidence, its conclusions anchored on
the said findings, and its conclusions of law, as petitioner argues in this case, are
[5]
mere errors of judgment for which certiorari will not lie.   Accordingly, the SB
acted well within the bounds of law and jurisprudence and properly exercised its
discretion in acquitting respondents for failure to prove their guilt beyond
reasonable doubt.

Notably, while the rule against double jeopardy is not without ; exceptions,
namely: (a) where there has been a deprivation of due process and where there is a
finding of mistrial; or (b) where there has been a grave abuse of discretion under
 [6]
exceptional circumstances,  none of the foregoing are present in this case. As such,
respondents' acquittal can no longer be overturned.

SO ORDERED."
SECOND DIVISION
[ G.R. No. 186472, July 05, 2010 ]
PEOPLE OF THE PHILIPPINES, APPELLEE, VS. ANTONIO
SIONGCO Y DELA CRUZ, ERIBERTO ENRIQUEZ Y GEMSON, GEORGE
HAYCO Y CULLERA, AND ALLAN BONSOL Y PAZ, ACCUSED, ANTONIO
SIONGCO Y DELA CRUZ AND ALLAN BONSOL Y PAZ, APPELLANTS.

DECISION

NACHURA, J.:

Before the Court for review is the September 20, 2007 Decision[1] of the Court of Appeals
(CA), affirming the guilty verdict rendered by the Regional Trial Court (RTC), Branch
166, Pasig City,[2] promulgated on November 6, 2000, against appellants Antonio
Siongco (Siongco) and Allan Bonsol (Bonsol), with modification on the penalty imposed
and the amount of damages to be paid to their victim, Nikko Satimbre (Nikko).[3] This
review is made, pursuant to the pertinent provisions of Sections 3 and 10 of Rule 122 and
Section 13 of Rule 124 of the Revised Rules of Criminal Procedure, as amended by A.M.
No. 00-5-03-SC.

The factual findings of both courts show that between 6:00 and 7:00 p.m. of December
27, 1998, 11-year-old Nikko, a resident of Balanga, Bataan, was induced by Siongco to
board a bus bound for Pilar, Bataan, together with the latter's friends, Marion Boton
(Boton) and Eriberto Enriquez (Enriquez). Nikko was told that the two would accompany
him in getting the "Gameboy" that Siongco promised. Siongco was no stranger to Nikko
as he used to be a security guard at Footlockers shoe store where Nikko's mother, Elvira
Satimbre (Elvira), works as a cashier. After a short stop in Pilar, Bataan, the three
proceeded to Mariveles, Bataan, where they met with George Hayco (Hayco). The boy
was then brought to Dinalupihan, Bataan, where he was kept for the night. [4]

Meanwhile, Elvira arrived home at 7:00 p.m. and found that her son was not there. She
searched for him in the places he frequented, but to no avail. As her continued search for
the child proved futile, she reported him missing to the nearest police detachment. [5]

The following day, December 28, 1998, Enriquez and Siongco took Nikko to Bicutan,
Taguig, Metro Manila.[6] On December 29, 1998, Elvira received a phone call from a
man, later identified as appellant Siongco, who claimed to have custody of Nikko and
asked for P400,000.00 in exchange for his liberty. Elvira haggled with her son's captor
until the latter agreed to reduce the ransom money to P300,000.00. Elvira was also able to
talk to her son who was only able to utter "Hello Ma" as Siongco immediately grabbed
the phone from him. Siongco warned Elvira to refrain from reporting the matter to the
police. He also threatened that Nikko would be killed if she fails to give the ransom
money at 6:00 p.m. of the next day at Genesis Bus Station in Pasay City.[7] That night,
Elvira telephoned the Office of the Chief of Police of Balanga, Bataan and reported that
Nikko was kidnapped.[8]

On December 30, 1998, Enriquez and Siongco moved Nikko to Pateros and cautioned
him not to tell anybody that he was kidnapped. They stayed at the house of Heracleo San
Jose (Heracleo), a relative of Enriquez. They again called Elvira who failed to keep her
appointment with them in Pasay City. She explained that she was still gathering funds for
the ransom money. The captors reiterated their threats and, at midnight, they called and
instructed her to proceed to Avenida with whatever available money she had, subject to a
subsequent agreement as to the balance. Elvira refused and insisted that she preferred to
give the amount in full.[9]

In the morning of December 31, 1998, Siongco called Elvira several times with the same
threats and demands. Elvira agreed to meet them that afternoon at the Genesis Bus
Station in Pasay City. Nikko was allowed to speak with his mother and he assured her
that he was not being maltreated. After the call, Enriquez informed Nikko that his mother
wanted a "kaliwaan" (face to face exchange) deal. Soon thereafter, Enriquez and Siongco
left to meet Elvira, while Nikko stayed behind.[10]

On the same day, Police Senior Inspector Rodolfo Azurin, Jr. (Police Senior Inspector
Azurin, Jr.) was on duty at Crimes Operation Division of the Philippine Anti-Organized
Crime Task Force (PAOCTF) office in Camp Crame, Quezon City. At 11:00 a.m., Elvira
arrived and requested for assistance for the recovery of her kidnapped son. The PAOCTF
team then instructed her to bring to the pay-off site a brown envelope with a letter asking
for extension of payment. After briefing, Azurin and other police operatives proceeded to
Genesis Bus Station in Pasay City. While waiting for Elvira, they noticed two (2) male
persons, later identified as Enriquez and Siongco, restlessly moving around the place. At
around 2:30 p.m., Elvira arrived carrying the brown envelope. As instructed by the
kidnappers, she positioned herself near a tree and tied a white kerchief around her neck.
Shortly thereafter, Enriquez approached Elvira and took the brown envelope from her. As
he was walking away, the PAOCTF team arrested him. Thereafter, they followed
Siongco, who hurriedly hailed a taxicab and sped away. Siongco was arrested at the
residence of Heracleo in Pateros where Nikko was also rescued. Thereafter, Siongco and
Enriquez were brought to Camp Crame.[11]
The investigations of Nikko and the two detainees, coupled with the follow-up operations
of the PAOCTF, led to the arrest of appellant Bonsol, and the other cohorts, Hayco and
Boton.[12]

On January 4, 1999, an Information[13] was filed in court, charging herein appellants

Siongco and Bonsol, together with Enriquez, Hayco, Boton, and a John Doe, with
KIDNAPPING and SERIOUS ILLEGAL DETENTION under Article 267 of the Revised
Penal Code.

Arraigned on February 24, 1999, the five accused pleaded not guilty to the offense
charged.[14]Trial then ensued; in the course of which, the prosecution presented in
evidence the oral testimonies of its witnesses: 1) the victim himself, 11-year-old Nikko;
2) his mother, Elvira; 3) Heracleo, relative of accused Enriquez; 4) Police Senior
Inspector Azurin, Jr. of the PAOCTF; and 5) Police Superintendent Paul Tucay, the one
who arrested Bonsol, Hayco and Boton.[15]

With the exception of Boton, all of the accused took the witness stand. Hayco and Bonsol
denied knowledge of and participation in the crime. Siongco testified that, on December
27, 1998, he saw Nikko at a "peryahan" in Balanga, Bataan but he did not mind the boy
as he was busy conversing with Enriquez about their business of selling toys. He went to
Manila and stayed at the house of Heracleo on December 28 and 29, 1998 to collect
installment payments from customers. On December 31, 1998, he went to his brother's
house in San Juan, Metro Manila and when he came back to Pateros on the same day, he
was arrested by PAOCTF agents.

Enriquez declared that Nikko voluntarily went with them. He affirmed that he travelled
with Nikko and Siongco to Manila. They stayed in Bicutan and then moved to Pateros.
He alleged that they called Nikko's mother because the boy kept asking for a "Gameboy."
He went to the Genesis Bus Station to meet Nikko's mother, who, according to Siongco,
would have something tied around her neck.[16]

The RTC rejected the denials and alibis raised by the accused and held that they
conspired and mutually helped one another in kidnapping and illegally detaining Nikko
by taking him through a circuitous journey from Balanga, Bataan to Manila where
ransom demands for his liberty were made.

In a decision dated November 6, 2000, the RTC convicted Siongco, Bonsol, Enriquez and
Hayco of the offense charged in the Information and meted upon them the extreme
penalty of death. Boton was ACQUITTED on the ground of reasonable doubt. The
pertinent portion of the RTC decision reads:

WHEREFORE, the Court finds accused Antonio Siongco y Dela Cruz, Eriberto

Enriquez y Gemson, George Hayco y Cullera and Allan Bonsol y Paz
GUILTY beyond reasonable doubt of the crime of Kidnapping and Serious Illegal
Detention for the purpose of extorting ransom, as defined and penalized under Article
267 of the Revised Penal Code, as amended by Section 8 of R.A. 7659, and are hereby
sentenced to suffer the Supreme penalty of Death and indemnify the victim, Nikko
Satimbre, and his mother, Elvira Satimbre, each, in the amount of P50,000.00, as moral
damages, plus the costs of suit.

On the ground of reasonable doubt, the Court finds accused Marion Boton y Cereza
NOT GUILTY of the crime charged in the Information.

SO ORDERED.[17]

From the RTC, the case went directly to this Court for automatic review.[18] The parties
were then required to file, as they did file, their respective appellants'[19] and
appellee's[20] briefs. Consistent with this Court's ruling in People v. Mateo,[21] the case was
transferred to the CA[22] for intermediate review and disposition.

Upon review, the CA concurred with the factual findings and conclusions of the trial
court and affirmed the judgment of conviction but modified the penalty imposed
to reclusion perpetua. The CA increased the amount of moral damages to P100,000.00
and awarded P100,000.00 as exemplary damages, to be paid jointly and solidarily by the
accused to their victim, Nikko. The fallo of the CA Decision states:

WHEREFORE, the Judgment dated November 6, 2000 of the RTC Branch 166, Pasig
City, in Criminal Case No. 115317-H, is AFFIRMED with the MODIFICATION that
accused-appellants are sentenced to suffer the penalty of reclusion perpetua without
eligibility for parole and ordered to jointly and solidarily pay private complainant Nikko
Satimbre the amounts of P100,000.00 as moral damages and P100,000.00 as exemplary
damages.

SO ORDERED.[23]

Only herein appellants Siongco and Bonsol were able to perfect an appeal [24] of the CA
Decision. Consequently, in its September 29, 2008 Resolution,[25] the CA declared the
conviction of accused Enriquez and Hayco as final and executory, and a Partial Entry of
Judgment was made against them.[26] In a Resolution dated April 13, 2009,[27] this Court
accepted the appeal interposed by Siongco and Bonsol.

We deny the appeal.

Article 267 of the Revised Penal Code, as amended by Republic Act (R.A.) No. 7659,
defines and penalizes kidnapping and serious illegal detention as follows:
Art. 267. Kidnapping and serious illegal detention. - Any private individual who shall
kidnap or detain another, or in any other manner deprive him of his liberty, shall suffer
the penalty of reclusion perpetua to death:

1. If the kidnapping or detention shall have lasted more than three days.
2. If it shall have been committed simulating public authority.
3. If any serious physical injuries shall have been inflicted upon the person
kidnapped or detained, or if threats to kill him shall have been made.
4. If the person kidnapped or detained shall be a minor, except when the accused is
any of the parents, female, or a public officer.

The penalty shall be death where the kidnapping or detention was committed for the
purpose of extorting ransom from the victim or any other person, even if none of the
circumstances above-mentioned were present in the commission of the offense.

When the victim is killed or dies as a consequence of the detention or is raped, or is

subjected to torture or dehumanizing acts, the maximum penalty shall be imposed.

In the recent People of the Philippines v. Christopher Bringas y Garcia, Bryan Bringas y

Garcia, John Robert Navarro y Cruz, Erickson Pajarillo y Baser (deceased), and Eden
Sy Chung,[28] we reiterated the following elements that must be established by the
prosecution to obtain a conviction for kidnapping, viz.: (a) the offender is a private
individual; (b) he kidnaps or detains another, or in any manner deprives the latter of his
liberty; (c) the act of detention or kidnapping must be illegal; and (d) in the commission
of the offense, any of the following circumstances is present: (1) the kidnapping or
detention lasts for more than three days; (2) it is committed by simulating public
authority; (3) any serious physical injuries are inflicted upon the person kidnapped or
detained, or threats to kill him are made; or (4) the person kidnapped or detained, is a
minor, a female, or a public officer. If the victim is a minor, or is kidnapped or detained
for the purpose of extorting ransom, the duration of detention becomes immaterial.

The essence of kidnapping is the actual deprivation of the victim's liberty, coupled with
indubitable proof of the intent of the accused to effect such deprivation.[29]

As correctly held by the RTC and the CA, the prosecution indubitably proved beyond
reasonable doubt that the elements of kidnapping and serious illegal detention obtain in
the case at bar. Accused-appellants are private individuals who, together with their
cohorts, took 11-year-old Nikko out of his hometown in Balanga, Bataan on December
27, 1998. They brought him to Manila on December 28, 1998, where demands for a
P400,000.00 ransom were made to his mother.

Appellants contend that the essential element of detention or deprivation of liberty was
absent because Nikko voluntarily went with them and that he was free to move around
and play with other children. We disagree.

The deprivation required by Article 267 of the Revised Penal Code means not only the
imprisonment of a person, but also the deprivation of his liberty in whatever form and for
whatever length of time. It includes a situation where the victim cannot go out of the
place of confinement or detention or is restricted or impeded in his liberty to move.[30] In
this case, although Nikko was free to move around, he was at all times under the alternate
watch of appellants and their cohorts. He was in their physical custody and complete
control as he was kept in places strange and unfamiliar to him. While he was allowed to
play in the houses where he was kept, the fact remains that he was under the control of
his captors who left him there, as he could not leave the house until they shall have
returned for him. Because of his tender age and the fact that he did not know the way
back home, he was then and there deprived of his liberty.

As to the contention of appellant Siongco that there was no force or intimidation involved
in the taking, this Court held in People of the Philippines v. Ernesto Cruz, Jr. y
Concepcion and Reynaldo Agustin y Ramos[31]that the fact that the victim voluntarily
went with the accused did not remove the element of deprivation of liberty, because the
victim went with the accused on a false inducement, without which the victim would not
have done so. In the present case, when Nikko boarded the bus bound for Pilar, Bataan,
he was under the impression that Bonsol and Enriquez were to be trusted as he was
assured by Siongco that the two would accompany him to get his much desired
"Gameboy." Without such assurance, Nikko would not have boarded the said vehicle. In
kidnapping, the victim need not be taken by the accused forcibly or against his will. What
is controlling is the act of the accused in detaining the victim against his or her will after
the offender is able to take the victim in his custody. In short, the carrying away of the
victim in the crime of kidnapping and serious illegal detention can either be made
forcibly or, as in the instant case, fraudulently.[32]

Equally significant is the fact that, in kidnapping, the victim's lack of consent is also a
fundamental element.[33] The general rule is that the prosecution is burdened to prove lack
of consent on the part of the victim. However, where the victim is a minor, lack of
consent is presumed. In this case, Nikko was only 11 years old when he was kidnapped;
thus incapable of giving consent, and incompetent to assent to his seizure and illegal
detention. The consent of the boy could place appellants in no better position than if the
act had been done against his will. A kidnapper should not be rewarded with an acquittal
simply because he is ingenious enough to conceal his true motive from his victim until he
is able to transport the latter to another place.[34]

The identical factual findings of both the trial and appellate courts likewise show that the
actuations and roles played by appellants Siongco and Bonsol undoubtedly demonstrate
that they conspired with Hayco and Enriquez in kidnapping and illegally detaining
Nikko. Being sufficiently supported by evidence on record, we find no reason to disturb
the same.

Siongco was the one who promised Nikko a "Gameboy." He told the boy to go with
Bonsol and Enriquez and get the toy in Pilar, Bataan. On December 28, 1998, he arrived
in Dinalupihan, Bataan to fetch Nikko. From there, he, Enriquez and Nikko left for
Bicutan, Taguig, Metro Manila in a bus. The following day, Siongco, Nikko, Enriquez,
and the latter's friend went to the marketplace and called Nikko's mother. Siongco
demanded from her payment of P400,000.00 as a condition for the boy's release. Siongco
repeatedly telephoned Elvira with the same demand and threats over the next couple of
days. On December 31, 1998, he instructed Enriquez to meet Elvira at the Genesis Bus
Station to get the ransom money.

It is immaterial whether appellant Bonsol acted as a principal or as an accomplice

because the conspiracy and his participation therein have been established. In conspiracy,
the act of one is the act of all and the conspirators shall be held equally liable for the
crime.[35] On the pretext of getting Nikko's much desired "Gameboy," Bonsol and
Enriquez were able to conveniently whisk Nikko out of Balanga and bring him to Pilar,
then to Mariveles, and eventually to Dinalupihan, where Siongco fetched him. Thus,
Enriquez and Siongco's plan of bringing Nikko to Metro Manila, a terrain unfamiliar to
the boy and where the two could enjoy anonymity to carry out their ultimate goal of
extorting ransom money from Nikko's mother, was accomplished. As shown by the
evidence, without the participation of appellant Bonsol, the commission of the offense
would not have come to fruition.

Finally, appellants bewail that they were deprived of their right to an independent and
competent counsel when the RTC appointed Atty. Michael Moralde (Atty. Moralde) as
their counsel de oficio during the pre-trial conference, direct examination and cross-
examination of the prosecution's principal witness, Nikko. This was so, despite Atty.
Moralde's manifestation during Nikko's cross-examination that the defense of his actual
client, accused Boton, conflicts with that of the other accused. [36]

A scrutiny of the records shows that Atty. Moralde was appointed as appellants'
counsel de oficio in six (6) hearings, because their regular counsel de oficio, Atty.
Antoniano from the Public Attorney's Office P AO), was inexplicably absent. There is no
denial of the right to counsel where a counsel de oficio is appointed during the absence of
the accused's counsel de parte, or in this case the regular counsel de oficio, pursuant to
the court's desire to finish the case as early as practicable under the continuous trial
system.[37] The choice of counsel by the accused in a criminal prosecution is not a plenary
one. If the chosen counsel deliberately makes himself scarce, the court is not precluded
from appointing a de oficio counsel, which it considers competent and independent, to
enable the trial to proceed until the counsel of choice enters his appearance. Otherwise,
the pace of a criminal prosecution will be entirely dictated by the accused, to the
detriment of the eventual resolution of the case.[38]

The fact that Boton's defense conflicts with that of appellants is immaterial because, as
borne out by records, Atty. Moralde expressly declared that the questions he propounded
to Nikko were only for his client Boton. Thereafter, Atty. Antoniano was furnished with
copies of the transcript of stenographic notes of the proceedings she missed and was
given ample opportunity to conduct her own cross-examination during the subsequent
hearings. Eventually, she adopted the cross-examination conducted by the other defense
counsels.[39]

The CA correctly modified the penalty imposed by the RTC to reclusion

perpetua without eligibility for parole. The penalty for kidnapping for the purpose of
extorting ransom from the victim or any other person under Article 267 of the Revised
Penal Code[40] is death. However, R.A. No. 9346[41] has banned the imposition of death
penalty and reduced all death sentences to reclusion perpetua without eligibility for
parole.[42] In line with prevailing jurisprudence,[43] an award of P50,000.00 as civil
indemnity is proper. The award of P100,000.00 moral damages is increased to
P200,000.00 considering the minority of Nikko.[44] As the crime was attended by a
demand for ransom, and by way of example or correction, Nikko is entitled to
P100,000.00 exemplary damages as correctly awarded by the CA.[45]

WHEREFORE, the September 20, 2007 Decision..of the Court of Appeals in CA-G.R.
CR-H.C. No. 00774, finding appellants Antonio Siongco y dela Cruz and Allan
Bonsol y Paz guilty beyond reasonable doubt of KIDNAPPING and SERIOUS
ILLEGAL DETENTION, is AFFIRMED with the MODIFICATION that a
P50,000.00 civil indemnity is awarded and the amount of moral damages is increased to
P200, 000.00.

Costs against appellants.

SO ORDERED.

SECOND DIVISION
[ G.R. No. 188726, June 18, 2012 ]
CRESENCIO C. MILLA V. THE PEOPLE OF THE PHILIPPINES AND
MARKET PURSUITS, INC. REPRESENTED BY CARLO V. LOPEZ.

Sirs/Mesdames:
 Please take notice that the Court, Second Division, issued a Resolution dated  18
June 2012  which reads as follows:

G.R. No. 188726 (Cresencio C. Milla v. The People of the Philippines and Market

Pursuits, Inc. represented by Carlo V. Lopez).  — Before this Court is a Motion for
Reconsideration dated 24 February 2012 filed by petitioner Cresencio C. Milla (Milla),
moving for the reconsideration of this Court's Decision dated 25 January 2012 and
praying for his acquittal, or in the alternative, for an order directing the reopening of the
case for reception of defense evidence. The assailed Decision denied his Petition dated 11
August 2009 and affirmed the finding of his guilt for two counts of estafa through
falsification of public documents.

In the present Motion for Reconsideration, Milla reiterates his allegations in his Petition,
insisting that: (a) the mistake and negligence of his former counsel deprived him of due
process, and (b) the lower courts committed a misappreciation of facts warranting a
reversal of the trial court's factual findings.

A. Negligence of counsel

Milla maintains that his former counsel pursued various inappropriate remedies
amounting to mistake and gross negligence that deprived him of due process. This
argument fails to persuade.

In Ong v. Ciba Geigy,[1] this Court held as follows: 

The general rule is that the client is bound by the actuation of his counsel in the
conduct of the case and cannot be heard to complain that the result of the litigation
might have been different had his counsel proceeded differently. In criminal cases, as
well as in civil cases, it has frequently been held that the fact that blunders and mistakes
may have been made in the conduct of the proceedings in the trial court as a result of the
ignorance, inexperience or incompetence of counsel does not constitute a ground for new
trial. The exception to this rule is when the negligence of counsel is so gross, reckless and
inexcusable that the client is deprived of his day in court.[2] (Emphasis supplied.)

In this case, the allegations that the former counsel of Milla pursued remedies that the
latter deemed inappropriate for his defense is insufficient to show that petitioner was
deprived of due process. It must be recalled that in the course of the trial, Milla was given
several opportunities to present his defense. Moreover, even when the trial court
subsequently considered his right to present evidence to have been waived, he was still
allowed to file a memorandum, which his former counsel submitted. Thus, the contention
of Milla that he was deprived of due process cannot be countenanced.

B. Misappreciation of facts 
Milla further asserts that the trial court committed a misappreciation of facts warranting a
reversal of its findings. Specifically, he avers that the P1.6 million he received was for
partial payment of taxes and other related expenses, while the other P400,000 was for the
full payment thereof. He maintains that the total amount of P2 million was not for and in
consideration of the alleged sale subject of this case. He then proceeds to argue that these
amounts were in the nature of a cash advance or a simple loan, for which he cannot be
criminally liable. These assertions cannot be sustained.

Milla misleads this Court by making it appear as though the P2 million tendered for the
payment of taxes and other expenses was separate and distinct from the subject sale. On
the contrary, these taxes, consisting of capital gains and other transfer taxes, resulted
precisely from this sale, which was forged by Milla by falsifying the notarized Deed of
Sale and Certificate of Title. Clearly, the P2 million was not merely a cash advance or
loan he obtained from private complainant. Therefore, the trial court was correct in its
finding, as affirmed by the Court of Appeals, that he was guilty of estafa through
falsification of public documents.

WHEREFORE, the Motion for Reconsideration is DENIED. The 25 January 2012

Decision of this Court is AFFIRMED WITH FINALITY. No further pleadings shall be
allowed.

SO ORDERED.  

SECOND DIVISION
[ G.R. No. 199877, August 13, 2012 ]
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ARTURO
LARA Y ORBISTA, ACCUSED-APPELLANT.

DECISION

REYES, J.:

This is an automatic appeal from the Decision[1] dated July 28, 2011 of the Court of
Appeals (CA) in CA-G.R. CR HC No. 03685. The CA affirmed the Decision [2] dated
October 1, 2008 of the Regional Trial Court (RTC), Pasig City, Branch 268, finding
Arturo Lara (Lara) guilty beyond reasonable doubt of robbery with homicide.

On June 14, 2001, an Information[3] charging Lara with robbery with homicide was filed
with the RTC:
On or about May 31, 2001, in Pasig City, and within the jurisdiction of this Honorable
Court, the accused, armed with a gun, conspiring and confederating together with one
unidentified person who is still at-large, and both of them mutually helping and aiding
one another, with intent to gain, and by means of force, violence and intimidation, did
then and there wilfully, unlawfully and feloniously take, steal and divest from Joselito M.
Bautista cash money amounting to P230,000.00 more or less and belonging to San
Sebastian Allied Services, Inc. represented by Enrique Sumulong; that on the occasion of
said robbery, the said accused, with intent to kill, did then and there wilfully, unlawfully
and feloniously attack, assault, and shoot said Joselito M. Bautista with the said gun,
thereby inflicting upon the latter mortal wounds which directly caused his death.

Contrary to law.[4]

Following Lara’s plea of not guilty, trial ensued. The prosecution presented three (3)
witnesses: Enrique Sumulong (Sumulong), SPO1 Bernard Cruz (SPO1 Cruz) and PO3
Efren Calix (PO3 Calix).

Sumulong testified that: (a) he was an accounting staff of San Sebastian Allied Services,
Inc. (San Sebastian); (b) on May 31, 2001 and at around 9:00 in the morning, he
withdrew the amount of P230,000.00 from the Metrobank-Mabini Branch, Pasig City to
defray the salaries of the employees of San Sebastian; (c) in going to the bank, he rode a
pick-up and was accompanied by Virgilio Manacob (Manacob), Jeff Atie (Atie) and
Joselito Bautista (Bautista); (d) he placed the amount withdrawn in a black bag and
immediately left the bank; (e) at around 10:30 in the morning, while they were at the
intersection of Mercedes and Market Avenues, Pasig City, Lara suddenly appeared at the
front passenger side of the pick-up and pointed a gun at him stating, “Akin na ang pera,
iyong bag, nasaan?”; (f) Bautista, who was seated at the back, shouted, “Wag mong
ibigay”; (g) heeding Bautista’s advice, he threw the bag in Bautista’s direction; (h) after
getting hold of the bag, Bautista alighted from the pick-up and ran; (i) seeing Bautista,
Lara ran after him while firing his gun; (j) when he had the chance to get out of the pick-
up, he ran towards Mercedes Plaza and called up the office of San Sebastian to relay the
incident; (k) when he went back to where the pick-up was parked, he went to the rear
portion of the vehicle and saw blood on the ground; (l) he was informed by one bystander
that Bautista was shot and the bag was taken away from him; (m)
when barangay officials and the police arrived, he and his two (2) other companions
were brought to the police station for investigation; (n) on June 7, 2001, while on his way
to Barangay Maybunga, Pasig City, he saw Lara walking along Dr. Pilapil
Street, Barangay San Miguel, Pasig City; (o) he alerted the police and Lara was thereafter
arrested; and (p) at the police station, he, Atie and Manacob identified Lara as the one
who shot and robbed them of San Sebastian’s money.[5]

SPO1 Cruz testified that: (a) he was assigned at the Follow-Up Unit of the Pasig City
Police Station; (b) at around 7:55 in the evening of June 7, 2001, Sumulong went to the
police station and informed him that he saw Lara walking along Dr. Pilapil Street; (c)
four (4) police officers and Sumulong went to Dr. Pilapil Street where they saw Lara,
who Sumulong identified; (d) they then approached Lara and invited him for questioning;
(e) at the police station, Lara was placed in a line-up where he was positively identified
by Sumulong, Manacob and Atie; and (f) after being identified, Lara was informed of his
rights and subsequently detained.[6]

PO3 Calix testified that: (a) he was a member of the Criminal Investigation Unit of the
Pasig City Police Station; (b) on May 31, 2001, he was informed of a robbery that took
place at the corner of Mercedes and Market Avenues, Pasig City; (c) he, together with
three (3) other police officers, proceeded to the crime scene; (d) upon arriving thereat,
one of the police officers who were able to respond ahead of them, handed to him eleven
(11) pieces of empty shells and six (6) deformed slugs of a 9mm pistol; (e) as part of his
investigation, he interviewed Sumulong, Atie, Manacob at the police station; and (f)
before Bautista died, he was able to interview Bautista at the hospital where the latter was
brought after the incident.[7]

In his defense, Lara testified that: (a) he was a plumber who resided at Dr. Pilapil Street,
San Miguel, Pasig City; (b) on May 31, 2001, he was at his house, digging a sewer trench
while his brother, Wilfredo, was constructing a comfort room; (c) they were working
from 8:00 in the morning until 3:00 in the afternoon; (d) on June 7, 2001 and at around
7:00 in the evening, while he was at the house of one of his cousins, police officers
arrived and asked him if he was Arturo Lara; (e) after confirming that he was Arturo
Lara, the police officers asked him to go with them to the Barangay Hall; (f) he
voluntarily went with them and while inside the patrol car, one of the policemen said,
“You are lucky, we were able to caught you in your house, if in another place we will kill
you” (sic); (g) he was brought to the police station and not the barangay hall as he was
earlier told where he was investigated for robbery with homicide; (h) when he told the
police that he was at home when the subject incident took place, the police challenged
him to produce witnesses; (i) when his witnesses arrived at the station, one of the police
officers told them to come back the following day; (j) while he was at the police line-up
holding a name plate, a police officer told Sumulong and Atie, “Ituru nyo na yan at uuwi
na tayo”; and (k) when his witnesses arrived the following day, they were told that he
will be subjected to an inquest.[8]

To corroborate his testimony, Lara presented one of his neighbors, Simplicia Delos
Reyes. She testified that on May 31, 2001, while she was manning her store, she saw
Lara working on a sewer trench from 9:00 in the morning to 5:00 in the afternoon.[9] Lara
also presented his sister, Edjosa

Manalo, who testified that he was working on a sewer line the whole day of May 31,
2001.[10]
On October 1, 2008, the RTC convicted Lara of robbery with homicide in a Decision,
[11]
 the dispositive portion of which states:

WHEREFORE, premises considered, this Court finds the accused ARTURO LARA Y
Orbista GUILTY beyond reasonable doubt of the crime of Robbery with Homicide,
defined and penalized under Article 294 (1) as amended by Republic Act 7659, and is
hereby sentenced to suffer the penalty of imprisonment of reclusion perpetua, with all the
accessory penalties prescribed by law.

Accused is further ordered to indemnify the heirs of the deceased the sum of
Php50,000.00 as civil indemnity and Php230,000.00 representing the money carted by
the said accused.

SO ORDERED.[12]

The RTC rejected Lara’s defense of alibi as follows:

The prosecution’s witness Enrique Sumulong positively identified accused Arturo Lara as
the person who carted away the payroll money of San Sebastian Allied Services, Inc., on
May 31, 2001 at around 10:30 o’clock in the morning along the corner of Mercedez and
Market Ave., Pasig City and the one who shot Joselito Bautista which caused his
instantaneous death on the same day. As repeatedly held by the Supreme Court, “For
alibi to prosper, an accused must show he was at some other place for such a period of
time that it was impossible for him to have been at the crime scene at the time of the
commission of the crime” (People versus Bano, 419 SCRA 697). Considering the
proximity of the distance between the place of the incident and the residence of the
accused where he allegedly stayed the whole day of May 31, 2001, it is not physically
impossible for him to be at the crime scene within the same barangay. The positive
identification of the accused which were categorical and consistent and without any
showing of ill motive on the part of the eyewitnesses, should prevail over the alibi and
denial of the accused whose testimony was not substantiated by clear and convincing
evidence (People versus Aves 420 SCRA 259).[13] (Emphasis supplied)

On appeal, Lara pointed out several errors that supposedly attended his conviction. First,
that he was arrested without a warrant under circumstances that do not justify a
warrantless arrest rendered void all proceedings including those that led to his conviction.
Second, he was not assisted by counsel when the police placed him in a line-up to be
identified by the witnesses for the prosecution in violation of Section 12, Article III of the
Constitution. The police line-up is part of custodial investigation and his right to counsel
had already attached. Third, the prosecution failed to prove his guilt beyond reasonable
doubt. Specifically, the prosecution failed to present a witness who actually saw him
commit the alleged acts. Sumulong merely presumed that he was the one who shot
Bautista and who took the bag of money from him. The physical description of Lara that
Sumulong gave to the police was different from the one he gave during the trial,
indicating that he did not have a fair glimpse of the perpetrator. Moreover, this gives rise
to the possibility that it was his unidentified companion who shot Bautista and took
possession of the money. Hence, it cannot be reasonably claimed that his conviction was
attended with moral certainty. Fourth, the trial court erred in discounting the testimony of
his witnesses. Without any showing that they were impelled by improper motives in
testifying in his favor, their testimonies should have been given the credence they
deserve. While his two (2) witnesses were his sister and neighbor, this does not by itself
suggest the existence of bias or impair their credibility.

The CA affirmed Lara’s conviction. That Lara was supposedly arrested without a warrant
may not serve as a ground to invalidate the proceedings leading to his conviction
considering its belated invocation. Any objections to the legality of the warrantless arrest
should have been raised in a motion to quash duly filed before the accused enters his
plea; otherwise, it is deemed waived. Further, that the accused was illegally arrested is
not a ground to set aside conviction duly arrived at and based on evidence that
sufficiently establishes culpability:

Appellant’s avowal could hardly wash.

It is a shopworn doctrine that any objection involving a warrant of arrest or the

acquisition of jurisdiction over the person of an accused must be made before he enters
his plea, otherwise the objection is deemed waived. In voluntarily submitting himself to
the court by entering a plea, instead of filing a motion to quash the information for lack of
jurisdiction over his person, accused-appellant is deemed to have waived his right to
assail the legality of his arrest. Applying the foregoing jurisprudential touchstone,
appellant is estopped from questioning the validity of his arrest since he never raised this
issue before arraignment or moved to quash the Information.

What is more, the illegal arrest of an accused is not sufficient cause for setting aside a
valid judgment rendered upon a sufficient complaint after trial free from error. The
warrantless arrest, even if illegal, cannot render void all other proceedings including
those leading to the conviction of the appellants and his co-accused, nor can the state be
deprived of its right to convict the guilty when all the facts on record point to their
culpability.[14] (Citations omitted)

As to whether the identification of Lara during the police line-up is inadmissible as his
right to counsel was violated, the CA ruled that there was no legal compulsion to afford
him a counsel during a police line-up since the latter is not part of custodial investigation.

Appellant’s assertion that he was under custodial investigation at the time he was
identified in a police line-up and therefore had the right to counsel does not hold water.
Ingrained in our jurisdiction is the rule that an accused is not entitled to the assistance of
counsel in a police line-up considering that such is usually not a part of custodial
investigation. An exception to this rule is when the accused had been the focus of police
attention at the start of the investigation. In the case at bench, appellant was identified in
a police line-up by prosecution witnesses from a group of persons gathered for the
purpose. However, there was no proof that appellant was interrogated at all or that a
statement or confession was extracted from him. A priori, We refuse to hearken to
appellant’s hollow cry that he was deprived of his constitutional right to counsel given
the hard fact that during the police line-up, the accusatory process had not yet
commenced.

Assuming ex hypothesi that appellant was subjected to interrogation sans counsel during

the police line-up, it does not in any way affect his culpability. Any allegation of
violation of rights during custodial investigation is relevant and material only to cases in
which an extrajudicial admission or confession extracted from the accused becomes the
basis of their conviction. Here, appellant was convicted based on the testimony of a
prosecution witness and not on his alleged uncounseled confession or admission.
[15]
 (Citations omitted)

The CA addressed Lara’s claim that the prosecution’s failure to present a witness who
actually saw him commit the crime charged as follows:

Third. Appellant takes umbrage at the alleged failure of the prosecution to present an
eyewitness to prove that he shot the victim and took the money.

Such posture is unpersuasive.

Contrary to appellant’s assertion, prosecution witness Sumulong actually saw him shoot
Bautista, the victim. Sumulong vividly recounted, viz:

“Q When you said that “tinutukan ka”, aside from this act was there any other words
spoken by this person?
A There was, sir.
Q What did he say?
A “Nasaan ang bag ilabas mo yung pera”, sir.
Q Where were you looking when this person approached you?
A I was looking at his face, sir.
Q And upon hearing those words, what did you do?
A  
I put out the money, sir, because I got afraid at that time.
Q Did you hand over the black bag containing the money to him?
A No, sir, because one of my companion(s) shouted not to give the money or the bag so
I immediately threw away the bag at the back seat, sir.
Q And how long approximately was that person standing by your car window?
A Five (5) to ten (10) minutes, sir.
Q And after you have thrown the black bag containing money to the back of the vehicle,
what did that person do?
A I saw Joey alight(ed) from the vehicle carrying the bag and ran away, sir, and I also
saw somebody shoot a gun?
Q Who was firing the gun?
A The one who held-up us, sir.
Q By how, do you know his name?
A No, sir.
Q But if you can see him again, (were) you be able to recognize him?
A Yes, sir.
Q If he is in the courtroom, will you be able to recognize him?
A Yes, sir.
Q Please look around and please tell this Honorable Court whether indeed the person
you saw holding you up at that time is in court?
A Yes, sir.
Q Will you please stand up and tap his shoulder to identify him?
Interpreter
:
The witness tap the shoulder of a person sitting on the first bench of the courtroom
wearing yellow t-shirt and black pants who when ask identify himself as Arturo Lara
(sic).
Q And when as you said Joey got the bag. Alighted from the vehicle and ran away
with it, what did the accused do? (sic)
A He shot Joey while running around our vehicle, sir.
Q Around how many shots according to your recollection were fired?
A There were several shots, more or less nine (9) shots, sir.
x x x x x x[”]
“Q So, you did not personally notice what had transpired or happened after you stepped
down from the Nissan pick-up, that is correct?
A There was, sir, my companion Joselito Bautista was shot.
Q When you heard the gunfire, you were already proceeding towards that store to call
your office by phone, that is correct?
A Not yet, sir, we were still inside the vehicle.
Q And was Joselito Bautista at the rear of the Nissan Sentra when you heard this
gunfire?
A Yes, sir.
Q And so he was at the back, so the shooter was also at the back of the vehicle, that is
correct?
A Yes, sir, he went towards the rear portion of the vehicle, he followed Joselito
Bautista and shot him.
Q So, to be clear, when Joselito Bautista ran to the rear, this alleged holdup(p)er
followed him?
A Yes, sir.
Q And that was the time(,) you heard this gunfire?
A Yes, sir.
Q So, you did not personally see who fired that firearm?
A Because at that time he was the one holding the gun, sir.
Q So, you are presuming that he was the one who fired the gun because he was holding
the gun, am I correct?
A Yes, sir.”
xxxx

Under Section 4, Rule 133, of the Rules of Court, circumstantial evidence is sufficient for
conviction if the following requisites concur:

(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.

Here, the following circumstantial evidence are tellingly sufficient to prove that the guilt
of appellant is beyond reasonable doubt, viz:

1. While the vehicle was at the intersection of Mercedes and Market Avenues, Pasig
City, appellant suddenly emerged and pointed a gun at prosecution witness
Sumulong, demanding from him to produce the bag containing the money[.]
2. Prosecution witness Sumulong threw the bag to the victim who was then seated at
the backseat of the vehicle.
3. The victim alighted from vehicle carrying the bag.
4. Appellant chased and fired several shots at the victim.
5. The victim sustained several gunshot wounds.
6. The police officers recovered from the scene of the crime six deformed empty
shells.[16] (Citations omitted and emphasis supplied)

Finally, the CA found that Lara’s alibi failed to convince.  Specifically:

Deeply embedded in our jurisprudence is the rule that positive identification of the
accused, where categorical and consistent, without any showing of ill motive on the part
of the eyewitness testifying, should prevail over the alibi and denial of appellants, whose
testimonies are not substantiated by clear and convincing evidence.

All the more, to establish alibi the accused must prove (a) that he was present at another
place at the time of the perpetration of the crime, and (b) that it was physically impossible
for him to be at the scene of the crime. Physical impossibility “refers to the distance
between the place where the accused was when the crime transpired and the place where
it was committed, as well as the facility of access between the two places. Appellant
miserably failed to prove the physical impossibility of his presence at the locus
criminis at the time of the perpetration of the felonious act. He himself admitted that his
house was just a stone’s throw (about three minutes away) from the crime scene.
[17]
 (Citations omitted)

In a Resolution[18] dated February 1, 2012, this Court accepted the appeal as the penalty
imposed was reclusion perpetua and the parties were afforded an opportunity to file their
supplemental briefs. Both parties waived their right to do so, stating that they would
adopt the allegations in their respective briefs that they filed with the CA.

Issues

The present review of Lara’s conviction for robbery with homicide gives rise to the
following issues:

a. whether the identification made by Sumulong, Atie and Manacob in the police
line-up is inadmissible because Lara stood therein without the assistance of
counsel;

b. whether Lara’s supposedly illegal arrest may be raised for the first time on appeal
for the purpose of nullifying his conviction;

c. whether there is sufficient evidence to convict Lara; and

d. whether Lara’s alibi can be given credence so as to exonerate him from the crime
charged.

Our Ruling

This Court resolves to deny the appeal.

Jurisdiction over the person of the accused may be acquired through compulsory process
such as a warrant of arrest or through his voluntary appearance, such as when he
surrenders to the police or to the court.[19] Any objection to the arrest or acquisition of
jurisdiction over the person of the accused must be made before he enters his plea,
otherwise the objection is deemed waived. An accused submits to the jurisdiction of the
trial court upon entering a plea and participating actively in the trial and this precludes
him invoking any irregularities that may have attended his arrest.[20] Furthermore, the
illegal arrest of an accused is not a sufficient ground to reverse and set aside a conviction
that was arrived upon a complaint duly filed and a trial conducted without error.[21] As
Section 9, Rule 117 of the Revised Rules of Criminal Procedure provides:
Sec. 9. Failure to move to quash or to allege any ground therefor. — The failure of the
accused to assert any ground of a motion to quash before he pleads to the complaint or
information, either because he did not file a motion to quash or failed to allege the same
in said motion, shall be deemed a waiver of any objections except those based on the
grounds provided for in paragraphs (a), (b), (g) and (i) of Section 3 of this Rule.

II

Contrary to Lara’s claim, that he was not provided with counsel when he was placed in a
police line-up did not invalidate the proceedings leading to his conviction. That he stood
at the police line-up without the assistance of counsel did not render Sumulong’s
identification of Lara inadmissible. The right to counsel is deemed to have arisen at the
precise moment custodial investigation begins and being made to stand in a police line-up
is not the starting point or a part of custodial investigation. As this Court previously ruled
in People v. Amestuzo:[22]

The contention is not meritorious. The guarantees of Sec. 12 (1), Art. III of the 1987
Constitution, or the so-called Miranda rights, may be invoked only by a person while he
is under custodial investigation. Custodial investigation starts when the police
investigation is no longer a general inquiry into an unsolved crime but has begun to focus
on a particular suspect taken into custody by the police who starts the interrogation and
propounds questions to the person to elicit incriminating statements. Police line-up is not
part of the custodial investigation; hence, the right to counsel guaranteed by the
Constitution cannot yet be invoked at this stage. This was settled in the case of People vs.
Lamsing and in the more recent case of People vs. Salvatierra. The right to be assisted by
counsel attaches only during custodial investigation and cannot be claimed by the
accused during identification in a police line-up because it is not part of the custodial
investigation process. This is because during a police line-up, the process has not yet
shifted from the investigatory to the accusatory and it is usually the witness or the
complainant who is interrogated and who gives a statement in the course of the line-up.
[23]
 (Citations omitted)

III

It is apparent from the assailed decision of the CA that the finding of guilt against Lara is
based on circumstantial evidence. The CA allegedly erred in this wise considering that
only direct and not circumstantial evidence can overcome the presumption of innocence.

However, well-settled is the rule that direct evidence of the commission of the crime is
not the only matrix wherefrom a trial court may draw its conclusion and finding of guilt.
Even in the absence of direct evidence, conviction can be had if the established
circumstances constitute an unbroken chain, consistent with each other and to the
hypothesis that the accused is guilty, to the exclusion of all other hypothesis that he is
not.[24]

Under Section 4, Rule 133 of the Revised Rules on Criminal Procedure, circumstantial
evidence sufficed to convict upon the concurrence of the following requisites: (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.

It is not only by direct evidence that an accused may be convicted of the crime for which
he is charged. Resort to circumstantial evidence is essential since to insist on direct
testimony would, in many cases, result in setting felons free and denying proper
protection to the community.[25]

As the CA correctly ruled, the following circumstances established by the evidence for
the prosecution strongly indicate Lara’s guilt: (a) while the vehicle Sumulong, Atie,
Manacob and Bautista were riding was at the intersection of Mercedes and Market
Avenues, he appeared at the front passenger side thereof armed with a gun; (b) while
pointing the gun at Sumulong who was at the front passenger seat, Lara demanded that
Sumulong give him the bag containing the money; (c) instead of giving the bag to Lara,
Sumulong gave it to Bautista who was seated at the back of the pick-up; (d) when
Bautista got hold of the bag, he alighted and ran towards the back of the pick-up; (e) Lara
ran after Bautista and while doing so, fired his gun at Bautista’s direction; (f) Bautista
sustained several gunshot wounds; and (g) Bautista’s blood was on the crime scene and
empty shells were recovered therefrom.

Indeed, in cases of robbery with homicide, the taking of personal property with intent to
gain must itself be established beyond reasonable doubt. Conclusive evidence proving the
physical act of asportation by the accused must be presented by the prosecution. It must
be shown that the original criminal design of the culprit was robbery and the homicide
was perpetrated with a view to the consummation of the robbery by reason or on the
occasion of the robbery.[26] The mere presence of the accused at the crime scene is not
enough to implicate him. It is essential to prove the intent to rob and the use of violence
was necessary to realize such intent.

In this case, Lara’s intent to gain is proven by Sumulong’s positive narration that it was
Lara who pointed the gun at him and demanded that the bag containing the money be
turned over to him. That Lara resorted to violence in order to actualize his intent to gain
is proven by Sumulong’s testimony that he saw Lara fire the gun at the direction of
Bautista, who was running away from the pick-up in order to prevent Lara from taking
possession of the money.

Notably, the incident took place in broad daylight and in the middle of a street. Thus,
where considerations of visibility are favorable and the witness does not appear to be
biased against the accused, his or her assertions as to the identity of the malefactor should
be normally accepted.[27] Lara did not allege, much less, convincingly demonstrate that
Sumulong was impelled by improper or malicious motives to impute upon him, however
perjurious, such a serious charge. Thus, his testimony, which the trial court found to be
forthright and credible, is worthy of full faith and credit and should not be disturbed. If an
accused had nothing to do with the crime, it is against the natural order of events and of
human nature and against the presumption of good faith that a prosecution witness would
falsely testify against the former.[28]

IV

In view of Sumulong’s positive identification of Lara, the CA was correct in denying

Lara’s alibi outright. It is well-settled that positive identification prevails over alibi,
which is inherently a weak defense. Such is the rule, for as a defense, alibi is easy to
concoct, and difficult to disapprove.[29]

Moreover, in order for the defense of alibi to prosper, it is not enough to prove that the
accused was somewhere else when the offense was committed, but it must likewise be
demonstrated that he was so far away that it was not possible for him to have been
physically present at the place of the crime or its immediate vicinity at the time of its
commission. Due to its doubtful nature, alibi must be supported by clear and convincing
proof.

In this case, the proximity of Lara’s house at the scene of the crime wholly negates his
alibi. Assuming as true Lara’s claim and that of his witnesses that he was digging a sewer
trench on the day of the incident, it is possible that his witnesses may not have noticed
him leaving and returning given that the distance between his house and the place where
the subject incident took place can be negotiated, even by walking, in just a matter of
minutes. Simply put, Lara and his witnesses failed to prove that it is well- nigh
impossible for him to be at the scene of the crime.

In fine, the assailed decision of the CA is affirmed in all respects.

WHEREFORE, premises considered, the Decision dated July 28, 2011 of the Court of
Appeals in CA-G.R. CR HC No. 03685 is hereby AFFIRMED.

SO ORDERED.

THIRD DIVISION
[ G.R. No. 190798, January 27, 2016 ]
 RONALD IBAÑEZ, EMILIO IBAÑEZ, AND DANIEL "BOBOT" IBAÑEZ,
PETITIONERS, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.

DECISION

PEREZ, J.:

On appeal is the September 25, 2009 Decision [1] of the Court of Appeals (CA) in
CA-G.R. CR. No. 31285 which affirmed with modifications the July 17, 2007 Decision [2] of
the Regional Trial Court (RTC), Branch 255 of Las Piñas City, convicting Ronald Ibañez
(Ronald), Emilio Ibañez (Emilio) and Daniel "Bobot" Ibañez (Bobot) (collectively,
petitioners) of the crime of frustrated homicide.

The Facts

For allegedly stoning, hitting and stabbing Rodolfo M. Lebria (Rodolfo), the petitioners
together with their co-accused, Boyet Ibañez (Boyet) and David Ibañez (David), who
have remained at large, were charged with the crime of frustrated homicide in an
Information[3] dated October 11, 2001. The accusatory portion thereof reads:

"That on or about 15th day of July, 2001, in the City of Las Piñas, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, conspiring
and confederating together, acting in common accord and mutually helping and aiding
one another, with intent to kill and without justifiable cause, did then and there
willfully, unlawfully and feloniously attack, assault, stone, hit with an spade and stab
with bladed weapons one RODOLFO M. LEBRIA, thereby inflicting upon him physical
injuries, thus performing all the acts of execution which would produce the crime of
Homicide as a consequence but which, nevertheless, did not produce it by reason of
causes independent of the will of the accused, that is, by the timely and able medical
assistance rendered to said RODOLFO M. LEBRIA, which prevented his death.

CONTRARY TO LAW."

After posting their bail bond at P24,000.00 each, Ronald, Bobot and Emilio were
released on bail.[4] Arraignment of Ronald and Bobot was held on May 9, 2002. Emilio
was, in turn, arraigned on December 10, 2002. All the petitioners entered a plea of not
guilty to the crime charged.[5] After termination of pre-trial on April 23, 2003, [6] trial on
the merits immediately followed. In the course of trial, two versions of what transpired
on the early morning of July 15, 2001 surfaced. These conflicting versions of the
incident, as culled from the records, are as follows:

Version of the Prosecution

In his narration, Rodolfo claimed that Ronald and his sons Emilio, Bobot, Boyet and
David were his neighbors in CAA, Las Pinas City. Rodolfo recalled that he had visitors on
the day of the incident. When his guests left at around 1:00 a.m. of July 15, 2001,
Rodolfo accompanied them outside his house. After about thirty minutes and as he was
about to go inside, Rodolfo noticed some garbage in front of his house. Addressing
nobody in particular, Rodolfo uttered in the vernacular "bakit dito tinambak ang basiira
sa harap ng aking bah ay na malawak naman ang pagtataponan ng basura?"[7] Emilio
and Boyet, who was then present and angered by what they heard, threw stones at the
private complainant hitting him twice on the forehead. With blood oozing from his
forehead, Rodolfo went inside his house to cleanse his face obscured by blood and
emerged again, this time, carrying a 2" x 2" (dos por dos) piece of wood. Rodolfo was
caught off guard when he was hit on the head with a shovel by another accused, David.
[8]
 Then, Ronald held Rodolfo, rendering him helpless, as Boyet and Bobot
simultaneously stabbed him in the abdomen. [9] At this point, Rodolfo fell to the ground,
lying flat and eventually lost consciousness. When he regained consciousness, Rodolfo
found himself at the Las Pinas District Hospital (LPDH) but was later on transferred to
the Philippine Genera] Hospital (PGH) for the much-needed surgical procedure. At the
PGH, Rodolfo was operated on, confined for nine days and incurred hospital expenses
amounting to P30,000.00.[10]

PO2 Sulit testified that he was the investigating police officer who took the statements
of Rodolfo's daughter Ruth Ann Lebria (Ruth) and Rodolfo's wife, Salvacion Lebria
(Salvacion) when they went to the police station to complain about the incident. PO2
Sulit disclosed that when he asked Ruth and Salvacion why Rodolfo was not with them,
he was informed that Rodolfo was still undergoing medication and treatment for the
injuries suffered from the petitioners. PO2 Sulit also testified that he endorsed the
complaint against the petitioners to the Office of the City Prosecutor of Las Piñas for
proper disposition.[11]
To corroborate Rodolfo's testimony, the prosecution presented Ruth and Salvacion as
witnesses.

Ruth testified that she actually witnessed the entire incident which she admitted was
preceded by the utterance made by his father. [12] Her testimony on how Ronald, Emilio,
Bobot, Boyet and David ganged up on her father and who among them stoned, hit, held
and stabbed Rodolfo perfectly matched the latter's sworn declarations. [13]

Salvacion, who was also home on that fateful morning, confirmed the beating and
stabbing her husband endured in the hands of the petitioners and their co-accused.
Salvacion also submitted receipts in the total amount of P2,174.80, representing the
medical expenses incurred for the treatment of Rodolfo's injuries resulting from the
incident.[14]

The prosecution presented the Medico-Legal Certificate issued by the Records Division
of the PGH showing that Rodolfo suffered multiple stab wounds in the abdomen and
underwent an exploratory laparotomy,[15] the standard surgery in abdominal trauma
cases involving life-threatening injuries.[16]

Version of the Defense

To refute the accusations against them, the petitioners offered an entirely different
scenario.

Not only did he deny the allegations against him but Ronald even claimed that he was
the one who was stabbed by Rodolfo. Ronald averred that the incident happened within
the vicinity of his home, which was about four meters away from the house of Rodolfo.
[17]
 When Ronald heard Rodolfo shouting at around 2:00 a.m., he tried pacifying Rodolfo
by telling him that they would just talk later in the day. Unappeased, Rodolfo allegedly
destroyed the bicycle belonging to Ronald's son-in-law. Rodolfo then attacked Ronald by
stabbing him on his right arm. It was during this time that Ronald's son, Bobot, came to
his rescue but was prevented from doing so as Bobot was also struck with a knife by
Rodolfo. Ronald and his son instituted a criminal complaint against Rodolfo for
attempted homicide but nothing came out of it. In support of his testimony, Ronald
presented a picture taken the day after the incident showing a slipper purportedly
belonging to Rodolfo and a balisong. Ronald further insisted that all the other accused
were not around as they were residing elsewhere at that crucial time.

Bobot testified that he immediately rushed outside his house, which is located beside
his father's, upon hearing Ronald shout, "Tulungan mo ako, ako'y sinaksak"[18] However,
he was not able to save his father as he himself was stabbed twice with a knife by
Rodolfo. A struggle for the possession of the knife between Bobot and Rodolfo ensued
and in the process, the latter accidentally sustained a stab wound in the abdomen. Still,
Bobot asserted that it was Rodolfo who ran away from the scene of the crime.
Meanwhile, Ronald had already left for the nearby police detachment to seek help.

Accused Emilio, for his part, interposed denial and alibi as his defenses. He emphatically
denied that he threw a stone at Rodolfo. On the date and time of the incident, Emilio
claimed that he was working overtime as a laborer in Moonwalk, Las Piñas City, which is
one kilometer away from the crime scene. He argued that he was just unfortunately
dragged into this case which had nothing to do with him at all. [19]

The defense likewise proffered two medical certificates to support the petitioners'
claims. The July 15, 2001 medical certificate issued by Dr. Ma. Cecilia Leyson (Dr.
Leyson), of the Ospital ng Maynila, declared that Ronald's body bore lacerations and
hematoma at the time she attended to him. Nevertheless, Dr. Leyson acknowledged
that she had no idea how the injuries were sustained by Ronald. The other medical
certificate dated March 20, 2006 was issued by Dr. Renato Borja (Dr. Borja), a physician
affiliated with the Paranaque Community Hospital where Bobot was taken after getting
injured. Based on the hospital records, Dr. Boria testified that Bobot had sustained
wounds on the head and chest, possibly caused by a sharp instrument. [20]

Petitioners' Representation in the Trial Court Proceedings

In view of the petitioners' allegation that they were denied of right to counsel, a
narration of petitioners' representation in the trial court proceedings is imperative.

During the arraignment on May 9, 2002, Ronald and Bobot were assisted by Atty.
Bibiano Colasito, who was selected as their counsel de oficio only for that occasion. At
his arraignment on December 10, 2002, Emilio appeared with the assistance of Atty.
Antonio Manzano (Atty. Manzano), who was then appointed by the trial court as
counsel de oficio for all the accused. In the pre-trial conference that followed, Atty.
Manzano appeared for the petitioners. Atty. Manzano was informed that the trial for
the presentation of prosecution evidence was set on June 18,2003.

Both Rodolfo and PO2 Sulit completed their respective testimonies during the June 18,
2003 hearing. However, Atty. Manzano failed to appear at the said hearing despite prior
notice. Likewise, Ronald, one of the petitioners, absented himself from the same
hearing. As a result, the RTC issued the June 18, 2003 Order, [21] the pertinent portion of
which reads:

Due to the failure of Atty. Manzano to appear in today's proceeding despite due
notice and so as not to delay the proceedings herein, his right to cross-examine the said
two (2) witnesses is deemed waived. At the same time, Atty. Manzano is hereby fined
the amount of P2,000.00 for his absence in today's proceedings despite the fact that the
same has been previously set and known to him, without even filing any motion or
pleading regarding his inability to appear herein which clearly indicates a show of
disrespect to the authority of this Court.

Let a warrant of arrest be issued against accused Ronald Ibañez for failing to appear in
today's hearing despite notice and the bond posted by him for his provisional liberty
confiscated in favor of the government. As such, the bondsman BF General Insurance
Company, Inc., is hereby directed to produce the body of the said accused within thirty
(30) days from receipt of this Order and to show cause why no judgment should be
rendered against the bond.

The Director of the National Bureau of Investigation and the Director of the Criminal
Investigation Service Command, PNP, Camp Crame, are hereby directed to explain
within five (5) days from receipt of this Order why the warrants of arrest issued against
Boyet Ibañez and David Ibañez remain unimplemcnted and/or no return submitted to
this Court.

Thereafter, Atty. Manzano withdrew as petitioners' counsel de oficio. In its

Order[22] dated September 3, 2003, the trial court appointed Atty. Gregorio Caneda, Jr.
(Atty. Caneda) as the new counsel de oficio of the petitioners. On the same date, Atty.
Caneda conducted the cross-examination of Ruth and even expressed his desire to
continue with the cross-examination of said witness on the next scheduled hearing. In
the hearing of September 17, 2003, Atty. Caneda appeared for the petitioners but Bobot
and Emilio did not show up. This prompted the trial court to issue the corresponding
warrants for their arrest and the bonds posted by them for their provisional liberty were
ordered confiscated in favor of the government. Despite the continued absence of his
clients, Atty. Caneda religiously attended the succeeding hearings. On November 5,
2003, upon his request, the trial court relieved Atty. Caneda of his designation as
counsel de oficio for the petitioners.

Per the trial court's Order[23] dated February 10, 2004, Atty. Ma. Teresita C. Pantua (Atty.
Pantua), of the Public Attorney's Office, was designated as the petitioners' counsel de
oficio. However, Atty. Pantua's designation was recalled upon her manifestation that
she had previously assisted Rodolfo in initiating the present case. In her stead, the trial
court appointed the petitioners' current counsel de oficio, Atty. Juan Sindingan (Atty.
Sindingan).

Since then, Atty. Sindingan has been representing the petitioners. With his help, all
three petitioners finally appeared before the trial court on May 5, 2005. Atty. Sindingan
handled the cross-examination of another prosecution witness, Salvacion, as well as the
presentation of evidence for the defense.

After both parties had rested their case, they were required to submit their respective
memoranda in thirty (30) days. Atty. Sindingan submitted the Memorandum for the
petitioners while no memorandum was ever filed by the prosecution. Thereafter, the
case was deemed submitted for decision.

The RTC's Ruling

The RTC accorded more weight to the positive testimonies of the prosecution witnesses
over the declarations of the defense, thus, the dispositive portion of its judgment reads:

WHEREFORE, the foregoing considered, the Court finds accused Ronald Ibañez,
Emilio Ibañez and Daniel "Bobot" Ibanez GUILTY beyond reasonable doubt of the crime
of frustrated homicide and hereby sentences them to each suffer the penalty of
imprisonment of SIX (6) YEARS AND ONE (1) DAY of prision mayor, as minimum, up to
EIGHT (8) YEARS of prision mayor, as maximum, as well as to suffer the accessory
penalties provided for by law.

Also, accused Ronald Ibañez, Emilio Ibanez and Daniel "Bobot" Ibañez are ordered to
pay to private complainant or victim Rodolfo Lebria the sum of P2,174.80 representing
his actual medical expenses.

With costs de officio.

SO ORDERED.[24]

The petitioners filed a motion for reconsideration of the RTC Decision but this was
denied in an Order[25] dated October 11, 2007. Undaunted, the petitioners elevated their
case to the CA. They faulted the trial court for totally disregarding their claim that
Rodolfo was the aggressor and for not recognizing that Bobot was merely acting in self-
defense when Rodolfo was stabbed. The petitioners also asserted that they were
deprived of their constitutional right to counsel.

The CA's Ruling

The CA agreed with the trial court's judgment of conviction but modified the penalty
imposed. The appellate court sentenced the petitioners to suffer the indeterminate
penalty of six (6) years of prision correctional, as minimum, to eight (8) years and one (1)
day of prision mayor as maximum. The CA also found it proper to award P15,000,00 as
temperate damages and P30,000.00 as moral damages to Rodolfo. The petitioners
sought a reconsideration of the CA's decision. Still, their motion was denied in the
Resolution[26] of December 28, 2009.

The Issue

Hence, the present petition for review on certiorari raising the lone issue of whether the
petitioners were deprived of their constitutionally guaranteed right to counsel.

The Court's Ruling

The Court sustains the conviction of the petitioners with modification.

No Deprivation of Right to Counsel

The right invoiced by the petitioners is premised upon Article III, Section 14 of the
Constitution which states that:

Section 14. (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, x x x.

Guided by the constitutionally guaranteed right of an accused to counsel and pursuant

to its rule-making authority, the Court, in promulgating the Revised Rules of Criminal
Procedure, adopted the following provisions:

Rule 115, SEC. 1. Rights of accused at the trial.  - In all criminal prosecutions, the
accused shall be entitled to the following rights:

xxxx

(c) To be present and defend in person and by counsel at every stage of the
proceedings, from arraignment to promulgation of the judgment, x x x

xxxx

Rule 116 of the same Rules makes it mandatory for the trial court to designate a
counsel de oficio for the accused in the absence of private representation. It provides:

SEC. 6. Duty of court to inform accused of his right to counsel.  - Before

arraignment, the court shall inform the accused of his right to counsel and ask him if he
desires to have one. Unless the accused is allowed to defend himself in person or has
employed counsel of his choice, the court must assign a counsel de officio to defend
him.

SEC. 7.  Appointment of counsel de officio. - The court, considering the gravity of the
offense and the difficulty of the questions that may arise, shall appoint as counsel de
officio such members of the bar in good standing who, by reason of their experience and
ability, can competently defend the accused. But in localities where such members of
the bar are not available, the court may appoint any person, resident of the province
and of good repute for probity and ability, to defend the accused.

The right to be assisted by counsel is an indispensable component of due process in

criminal prosecution.[27] As such, right to counsel is one of the most sacrosanct rights
available to the accused.[28] A deprivation of the right to counsel strips the accused of an
equality in arms resulting in the denial of a level playing field. [29] Simply put, an accused
without counsel is essentially deprived of a fair hearing which is tantamount to a grave
denial of due process.[30]

On the basis of this ratiocination and as a last ditch effort to be exculpated, the
petitioners insisted that they were denied of their right to counsel when their
counsel de oficio failed to appear on the June 18, 2003 trial court hearing during which
Rodolfo and PO2 Sulit gave their testimonies. As a consequence, the petitioners argued
that they were divested of the opportunity to cross-examine the said two prosecution
witnesses.

The Office of the Solicitor General (OSG), for its part, disputed the petitioners' claim that
they were deprived of their constitutional right to counsel. In their May 5, 2010
Comment[31] on the instant petition, the OSG pointed out that since the beginning of the
proceedings in the trial court until the filing of the present petition before this Court,
three (3) counsel de oficio were appointed and represented the petitioners [32] and to
which designation the latter did not raise any protest. [33] The OSG opined that the trial
court judge made sure that the petitioners were adequately assisted by a counsel de
oficio when they failed to engage the services of a lawyer of their own choice. Thus, the
OSG recommended the dismissal of the petition.

The Court agrees with the position taken by the OSG.

There was no denial of right to counsel as evinced by the fact that the petitioners were
not only assisted by a counsel de oficio during arraignment and pre-trial but more so,
their counsel de oficio  actively participated in the proceedings before the trial court
including the direct and cross-examination of the witnesses. [34] As aptly found by the CA,
the petitioners were duly represented by a counsel de oficio all throughout the
proceedings except for one hearing when their court appointed lawyer was absent and
Rodolfo and PO2 Sulit presented their testimonies. [35] As previously stated, it was during
said hearing when the trial court declared that the cross-examination of the said two
prosecution witnesses was deemed waived.

Mere opportunity and not actual cross-examination is the essence of the right to cross-
examine.[36] The case of Savory Luncheonette v. Lakas ng Manggagawang Pilipino, et
al. thoroughly explained the meaning and substance of right to cross-examine as an
integral component of due process with a colatilla that the same right may be expressly
or impliedly waived, to quote:

The right of a party to confront and cross-examine opposing witnesses in a

judicial litigation, be it criminal or civil in nature, or in proceedings before administrative
tribunals with quasi-judicial powers, is a fundamental right which is part of due process.
However, the right is a personal one which may be waived expressly or impliedly, by
conduct amounting to a renunciation of the right of cross-examination. Thus, where a
party has had the opportunity to cross-examine a witness but failed to avail himself of it,
he necessarily forfeits the right to cross-examine and the testimony given on direct
examination of the witness will be received or allowed to remain in the record. [37]

Such is the scenario in the present case where the reason why Rodolfo and PO2 Sulit
were not subjected to cross-examination was not because the petitioners were not
given opportunity to do so. Noticeably, the petitioners' counsel de oficio omitted to
mention that in the June 18, 2003 hearing, Ronald, one of the accused, did not show up
despite prior notice. Thus, the bail bond posted for his provisional liberty was ordered
confiscated in favor of the government. Ironically, Ronald comes to this Court asserting
the very right he seemingly waived and abandoned for not attending the scheduled
hearing without justifiable cause. Moreover, neither did the petitioners interpose any
objection to the presentation of testimony of the prosecution witnesses during the June
18, 2003 hearing nor did their counsel de oficio subsequently seek a reconsideration of
the June 18, 2003 Order.

Further, the trial court judge, when he issued the June 18, 2003 Order, was merely
exercising a judicial prerogative. No proof was presented by the defense showing that
the exercise of such discretion was either despotic or arbitrary.

Going by the records, there is no indication that any of the counsel de oficio had been
negligent in protecting the petitioners' interests. As a matter of fact, the counsel de
oficio kept on attending the trial court hearings in representation of the petitioners
despite the latter's unjustified absences.

In sum, the Court is not persuaded that the absence of the counsel de oficio in one of
the hearings of this case amounts to a denial of right to counsel. Nor does such absence
warrant the nullification of the entire trial court proceedings and the eventual
invalidation of its ruling. In People v. Manalo, the Court held that the fact that a
particular counsel de oficio did not or could not consistently appear in all the hearings of
the case, is effectively a denial of the right to counsel, especially so where, as in the
instant case, there is no showing that the several appointed counsel de oficio in any way
neglected to perform their duties to the appellant and to the trial court and that the
defense had suffered in any substantial sense therefrom.[38]

Guilt Proven Beyond Reasonable Doubt

At any rate, the factual findings of the RTC as affirmed by the CA, which are backed up
by substantial evidence on record, led this Court to no other conclusion than that the
petitioners are guilty of frustrated homicide.

The elements of frustrated homicide are: (1) the accused intended to kill his victim, as
manifested by his use of a deadly weapon in his assault; (2) the victim sustained fatal or
mortal wound/s but did not die because of timely medical assistance; and (3) none of
the qualifying circumstance for murder under Article 248 of the Revised Penal Code, as
amended, is present.[39] There being no prior determination by both the trial and
appellate courts of any qualifying circumstance that would elevate the homicide to
murder, the Court will simply limit its discussion to the first two elements.

In ascertaining whether intent to kill exists, the Court considers the presence of the
following factors: (1) the means used by the malefactors; (2) the nature, location and
number of wounds sustained by the victim; (3) the conduct of the malefactors before,
during, or immediately after the killing of the victim; and (4) the circumstances under
which the crime was committed and the motives of the accused. [40]

Here, intent to kill Rodolfo was evident in the manner in which he was attacked, by the
concerted actions of the accused, the weapon used and the nature of wounds sustained
by Rodolfo.

Both the RTC and CA correctly appreciated the presence of conspiracy. Conspiracy
presupposes unity of purpose and unity of action towards the realization of an unlawful
objective among the accused.[41] Its existence can be inferred from the individual acts of
the accused, which if taken as a whole are in fact related, and indicative of a
concurrence of sentiment.[42] In this case, conspiracy was manifested in the spontaneous
and coordinated acts of the accused, where two of them delivered the initial attack on
Rodolfo by stoning, while another struck him with a shovel and the third held him so
that the other two can simultaneously stab Rodolfo. It was only when Rodolfo laid
helpless on the ground and had lost consciousness that the accused hurriedly left the
scene. This chain of events leading to the commission of the crime adequately
established a conspiracy among them.

Plainly, the kind of weapon used for the attack, in this case, a knife and the vital parts of
Rodolfo's body at which he was undeniably stabbed demonstrated petitioners' intent to
kill. The medico-legal certificate revealed that Rodolfo sustained multiple stab wounds
in the epigastrium, left upper quadrant of the abdomen resulting to internal injuries in
the transverse colon (serosal), mesentery and left kidney. [43] Given these injuries,
Rodolfo would have succumbed to death if not for the emergency surgical intervention.

With respect to the petitioners' defenses of denial and alibi, the Court concurs with the
lower courts' rejection of these defenses. An assessment of the defenses of denial and
alibi necessitates looking into the credibility of witnesses and their testimonies. Well-
settled is the rule that in determining who between the prosecution and defense
witnesses are to be believed, the evaluation of the trial court is accorded much respect
for the simple reason that the trial court is in a better position to observe the demeanor
of the witnesses as they deliver their testimonies. [44] As such, the findings of the trial
court is accorded finality unless it has overlooked substantial facts which if properly
considered, could alter the result of the case. [45]
In the instant case, the Court finds no cogent reason to deviate from this rule
considering the credibility of the prosecution witnesses.

The trial and appellate courts were right in not giving probative value to petitioners'
denial. Denial is an intrinsically weak defense that further crumbles when it comes face-
to-face with the positive identification and straightforward narration of the prosecution
witnesses.[46] Between an affirmative assertion which has a ring of truth to it and a
general denial, the former generally prevails. [47] The prosecution witnesses recounted
the details of the crime in a clear, detailed and consistent manner, without any hint of
hesitation or sign of untruthfulness, which they could not have done unless they
genuinely witnessed the incident. Besides, the prosecution witnesses could not have
mistakenly identified the petitioners as Rodolfo's perpetrators considering there is so
much familiarity among them. The records are also bereft of any indication that the
prosecution witnesses were actuated by ill motives when they testified against the
petitioners. Thus, their testimonies are entitled to full faith and credit.

In contrast, the petitioners' testimonies are self-serving and contrary to human reason
and experience.

The Court notes that the defense presented no witnesses, other than themselves, who
had actually seen the incident and could validate their story. Additionally, aside from the
medical certificates of Ronald and that of Bobot which was issued almost five (5) years
since the incident occurred, the defense have not submitted any credible proof that
could efficiently rebut the prosecution's evidence.

Further, the Court finds it contrary to human reason and experience that Ronald, would
just leave his son Bobot, while the latter was being stabbed and struggling for the
possession of the knife with Rodolfo, to go to a police station for assistance. Logic
dictates that a father would not abandon a son in the presence of actual harm.

For the defense of alibi to prosper, the petitioners must not only prove by clear and
convincing evidence that he was at another place at the time of the commission of the
offense but that it was physically impossible for him to be at the scene of the crime.
[48]
 Emilio himself admitted that he was just one kilometer away from the crime scene
when the incident happened during the unholy hour of 1:00 a.m. of July 15, 2001. As
such, Emilio failed to prove physical impossibility of his being at the crime scene on the
date and time in question. Just like denial, alibi is an inherently weak defense that
cannot prevail over the positive identification by the witnesses of the petitioners as the
perpetrators of the crime.[49] In the present case, Emilio was positively identified by the
prosecution witnesses as one of the assailants. Moreover, alibi becomes less credible if
offered by the accused himself and his immediate relatives as they are expected to
make declarations in his favor,[50] as in this case, where Emilio, his father and brother
insisted that the former was somewhere else when the incident occurred. For these
reasons, Emilio's defense of alibi will not hold.

Anent Bobot's claim of self-defense, it is undeserving of any serious consideration or

credence. Basic is the rule that the person asserting self-defense must admit that he
inflicted an injury on another person in order to defend himself. [51] Here, there is nothing
on record that will show that Bobot categorically admitted that he wounded Rodolfo.

Based on the foregoing, the Court upholds the trial and appellate courts' conviction of
the petitioners for frustrated homicide.

Penalty and Civil Liability

Article 249 of the Revised Penal Code provides that the imposable penalty for homicide
is reclusion temporal. Article 50 of the same Code states that the imposable penalty
upon principals of a frustrated crime shall be the penalty next lower in degree than that
prescribed by law for the consummated felony. Hence, frustrated homicide is
punishable by prision mayor. Applying the Indeterminate Sentence Law, there being no
aggravating or mitigating circumstances present in this case, the minimum penalty to be
meted on the petitioners should be anywhere within the range of six (6) months and
one (1) day to six (6) years of prision correccional and the maximum penalty should be
taken from the medium period of  prision mayor ranging from eight (8) years and one (1)
day to ten (10) years. Thus, the imposition by the CA of imprisonment of six (6) years
of prision correccional, as minimum, to eight (8) years and one (1) day of prision
mayor, as maximum, is proper.

As regards the civil liability of the petitioners, the Court sustains the award of moral and
temperate damages with modification as to the tatter's amount.
Pursuant to Article 2224 of the Civil Code, temperate damages may be recovered when
some pecuniary loss has been suffered but the amount of which cannot be proven with
certainty. In People v. Villanueva[52] and Serrano v. People,[53] the Court ruled that in case
the amount of actual damages, as proven by receipts during trial is less than P25,000.00,
the victim shall be entitled to P25,000.00 temperate damages, in lieu of actual damages
of a lesser amount. In the instant case, only the amount of P2,174.80 was supported by
receipts. Following the prevailing jurisprudence, the Court finds it necessary to increase
the temperate damages from P15,000.00 to P25,000.00.

The award of moral damages is justified under Article 2219 of the Civil Code as Rodolfo
sustained physical injuries which were the proximate effect of the petitioners' criminal
offense. As the amount is left to the discretion of the court, moral damages should be
reasonably proportional and approximate to the degree of the injury caused and the
gravity of the wrong done.[54] In light of the attendant circumstances in the case, the
Court affirms that P30,000.00 is a fair and reasonable grant of moral damages.

WHEREFORE, the assailed Court of Appeals Decision dated September 25, 2009 in CA-
G.R. CR. No. 31285 is AFFIRMED with MODIFICATION. Petitioners RONALD IBAÑEZ,
EMILIO IBAÑEZ and DANIEL "BOBOT" IBAÑEZ are found guilty of frustrated homicide
and sentenced to a prison term of six (6) years of prision correctional, as minimum, to
eight (8) years and one (1) day of prision mayor,  as maximum. They are also ordered to
pay RODOLFO LEBRIA Twenty Five Thousand Pesos (P25,000.00) as temperate damages
and Thirty Thousand Pesos (P30,000.00) as moral damages.

SO ORDERED

THIRD DIVISION
[ G.R. No. 223506, November 28, 2016 ]
GARRY V. INACAY, PETITIONER, VS. PEOPLE OF THE PHILIPPINES,
RESPONDENT.

RESOLUTION
REYES, J.:

This is a Petition for Review on Certiorari[1] under Rule 45 of the Rules of Court

seeking to annul and set aside the Decision [2] dated March 15, 2016 issued by the Court
of Appeals (CA) in CA-G.R. CR No. 35652.

Facts

Garry V. Inacay (Inacay) was a former sales agent of Mega Star Commercial (MSC), a
business enterprise engaged in the wholesale of electrical and construction materials.
As part of his duties, Inacay was tasked to find clients in Pangasinan, solicit orders,
collect payments, and issue receipts. Inacay was able to collect a check payment from
Gamboa Lumber and Hardware (GLH), one of MSC's clients, in the amount of
P53,170.00.[3]

Fernando Tan (Tan), the proprietor of MSC, claimed that he demanded Inacay to remit
the said amount paid by GLH, but he failed to do so.[4] Tan then filed a criminal
complaint for estafa with the Office of the Prosecutor in Quezon City against Inacay.
Consequently, an Information for the crime of estafa was filed with the Regional Trial
Court (RTC) of Quezon City against Inacay.[5]

In the proceedings before the RTC, Inacay was represented by a certain Eulogia B.
Manila (Manila), who represented herself as a lawyer. During arraignment, Inacay
pleaded not guilty to the crime charged. [6]

Inacay admitted that he received the payment made by GLH, but claimed that he
remitted the same to Melinda Castro, the accounting officer of MSC. However, on cross-
examination, Inacay claimed that he previously executed an Affidavit dated November
3, 2006, stating that he was held up by robbers and among the things taken from him
were several checks issued by the customers of MSC. [7]

On February 21, 2013, the RTC of Quezon City, Branch 80 rendered a Decision [8] finding
Inacay guilty beyond reasonable doubt of the crime of Estafa punishable under Article
315(1)(b) of the Revised Penal Code and sentencing him to suffer the indeterminate
penalty of one (1) year, eight (8) months and twenty-one (21) days of prision
correccional, as minimum, to nine (9) years, eight (8) months and twenty-one (21) days
of prision mayor, as maximum. The RTC likewise directed Inacay to pay MSC the amount
of P53,170.00.[9]

Unperturbed, Inacay appealed the RTC decision to the CA; he was still represented by
Manila in the proceedings before the appellate court.[10]

On March 15, 2016, the CA rendered a Decision,[11] affirming the RTC's disposition in

toto. When Inacay learned of the CA's decision, he requested Manila to file the
appropriate petition with this Court, but the latter refused and told him to find another
lawyer.[12]

Subsequently, Inacay found out, after talking to a lawyer, that Manila is not a member
of the Bar. Thus, Inacay obtained a Certification[13] from the Office of the Bar Confidant
(OBC) showing that Manila is indeed not a member of the Philippine Bar. [14]

In this petition, Inacay claims that he was denied due process since he was not
represented by a lawyer. He, likewise, avers that the lower courts erred in convicting
him of the offense charged since there was no evidence presented showing that he
actually encashed the check paid by GLH and misappropriated the proceeds thereof.

Issue

Essentially, the issue for the Court's resolution is whether Inacay's guilt of the crime
charged had been proven beyond reasonable doubt.

Ruling of the Court

The petition is granted.

Section 1, Article III of the Constitution provides that no person shall be deprived of life,
liberty, or property without due process of law. Section 14(2), Article III of the
Constitution further mandates that in all criminal prosecutions, the accused shall enjoy
the right to be heard by himself and counsel.

In criminal cases, the right of the accused to be assisted by counsel is immutable.

Otherwise, there will be a grave denial of due process. The right to counsel proceeds
from the fundamental principle of due process which basically means that a person
must be heard before being condemned.[15] "Thus, even if the judgment had become
final and executory, it may still be recalled, and the accused afforded the opportunity to
be heard by himself and counsel."[16]

"The right to counsel is absolute and may be invoked at all times. More so, in the case of
an on-going litigation, it is a right that must be exercised at every step of the way, with
the lawyer faithfully keeping his client company." [17] Unless the accused is represented
by a lawyer, there is great danger that any defense presented in his behalf will be
inadequate considering the legal perquisites and skills needed in the court proceedings.
This would certainly be a denial of due process.[18]

In this case, Inacay, during the proceedings before the trial court and the appellate
court, was represented by Manila who, based on the Certification issued by the OBC, is
not a lawyer. At that time, Inacay had no inkling that he was being represented by a
sham lawyer. It was only when his conviction of the offense charged was upheld by the
appellate court did Inacay learn that Manila is not a lawyer. Clearly, Inacay was not
assisted by counsel in the proceedings before the lower courts and, hence, was denied
of due process.

In People v. Santocildes, Jr.,[19] the Court held that:

The presence and participation of counsel in criminal proceedings should never
be taken lightly. 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. The right of an accused to counsel is guaranteed to minimize the imbalance
in the adversarial system where the accused is pitted against the awesome prosecutory
machinery of the State. Such a right proceeds from the fundamental principle of due
process which basically means that a person must be heard before being condemned.
The due process requirement is a part of a person's basic rights; it is not a mere
formality that may be dispensed with or performed perfunctorily. [20] (Citations omitted)
Considering that there was a denial of due process, there is a need to set aside
the judgment of conviction against Inacay and remand the case to the trial court for
new, trial. Further, Manila, for representing herself as a lawyer, should be held liable for
indirect contempt of court.

WHEREFORE, in consideration of the foregoing disquisitions, the petition is GRANTED.

The Decision dated March 15, 2016 issued by the Court of Appeals in CA-G.R. CR No.
35652 is hereby SET ASIDE. The case is REMANDED to the Regional Trial Court of
Quezon City, Branch 80, for new trial.

With respect to the unauthorized practice of law by the person named Eulogia B. Manila
in connection with this case, the local chapter of the Integrated Bar of the Philippines of
Quezon City is DIRECTED to conduct a prompt and thorough investigation regarding this
matter and to report its recommendations to the Court within ninety (90) days from
notice of this Resolution. Let all concerned parties, including the Office of the Bar
Confidant, be each furnished a copy of this Resolution for their appropriate action.

SO ORDERED.

SECOND DIVISION
[ G.R. No. 90294, September 24, 1991 ]
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. RICARDO
RIO, ACCUSED-APPELLANT.

DECISION

PADILLA, J.:

Convicted of rape and sentenced to reclusion perpetua by the Regional Trial

Court, Branch CXLVI[*] of Makati, Metro Manila, in Criminal Case No. 12042, accused-
appellant Ricardo Rio interposed his appeal and as a consequence, the clerk of court of
said regional trial court branch forwarded the records of the case to the Court of
Appeals.  The appellate court, however, forwarded the records of the case to the
Supreme Court in view of the penalty imposed upon the accused.

On 29 December 1989, the accused-appellant Ricardo Rio, in two (2) letters dated 14
December 1989, addressed to Division Clerk of Court Fermin J. Garma and to Assistant
Clerk of Court Tomasita M. Dris, manifested his intention to withdraw the appeal due to
his poverty.[1]

The Court resolved in a resolution dated 22 June 1990 to require the Solicitor General to
comment on the appellant's manifestation to withdraw the appeal.

In the Comment filed by the Solicitor General, the action recommended was for the
Court to ascertain from the accused-appellant, through the clerk of court of the trial
court, whether he desired the appointment of a counsel de oficio on appeal, in view of
the reasons stated by him for the withdrawal of his appeal, and inasmuch as poverty
should not preclude anyone from pursuing a cause.  It was also recommended that the
clerk of court of the trial court be required by the Court to submit the response of the
accused appellant along with a certificate of compliance with the duty imposed on
him[2] by Section 13 of Rule 122 of the Rules of Court, which provides:
"Sec. 13.  Appointment of counsel de oficio for accused on appeal. — It shall be
the duty of the clerk of the trial court upon the presentation of a notice of appeal in a
criminal case, to ascertain from the appellant, if he is confined in prison, whether he
desires the Intermediate Appellate Court or the Supreme Court to appoint a counsel to
defend him de oficio and to transmit with the record, upon a form to be prepared by the
clerk of the appellate court, a certificate of compliance with this duty and of the
response of the appellant to his inquiry."
The branch clerk of the trial court, in a letter addressed to the Assistant Clerk of
Court of the Second Division, this Court, in compliance with the resolution of this Court,
dated 16 April 1990, adopting the suggestions of the Solicitor General, which required
him to comply with his duty mandated in Section 13, Rule 122 of the Rules of Court,
submitted the reply of the accused-appellant informing the Court that he was no longer
interested in pursuing his appeal and had, in fact, withdrawn his appeal. [3]

Upon recommendation of the Solicitor General, however, the Court in a resolution

dated 1 October 1990, denied the appellant's motion withdrawing the appeal and
appointed a counsel de oficio for the accused-appellant for, as correctly observed by the
Solicitor General, all the letters of the accused-appellant reveal that the only reason
offered by him for the withdrawal of his appeal is his inability to retain the services of a
counsel de parte on account of his poverty, a reason which should not preclude anyone
from seeking justice in any forum.[4]
It seems that the accused-appellant was unaware that this Court can appoint a
counsel de oficio to prosecute his appeal pursuant to Section 13 of Rule 122 of the Rules
of Court and the constitutional mandate provided in Section 11 of Article III of the 1987
Constitution which reads as follows:
"Sec. 11.  Free access to the courts and quasi-judicial bodies and adequate legal
assistance shall not be denied to any person by reason of poverty."
This constitutional provision imposes a duty on the judicial branch of the
government which can not be taken lightly.  "The Constitution", as aptly stated in one
case, "is a law for rulers and for people equally in war and in peace and covers with the
shield of its protection all classes of men at all times and under all circumstances."[5]

Paraphrasing Mr. Justice Malcolm, "Two (2) of the basic privileges of the accused in a
criminal prosecution are the right to the assistance of counsel and the right to a
preliminary examination.  President Mckinley made the first a part of the Organic Law in
his Instructions to the Commission by imposing the inviolable rule that in all criminal
prosecutions the accused ‘shall enjoy the right x x x to have assistance of counsel for the
defense’".[6] Today said right is enshrined in the 1987 Constitution for, as Judge Cooley
says, this is "perhaps the privilege most important to the person accused of crime." [7]
"In criminal cases there can be no fair hearing unless the accused be given an
opportunity to be heard by coun [sel.  The right to be heard would be of little meaning 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."8]
This right to a counsel de oficio does not cease upon the conviction of an accused
by a trial court.  It continues, even during appeal, such that the duty of the court to
assign a counsel de oficio persists where an accused interposes an intent to appeal. 
Even in a case, such as the one at bar, where the accused had signified his intent to
withdraw his appeal, the court is required to inquire into the reason for the withdrawal. 
Where it finds the sole reason for the withdrawal to be poverty, as in this case, the court
must assign a counsel de oficio, for despite such withdrawal, the duty to protect the
rights of the accused subsists and, perhaps, with greater reason.  After all, "those who
have less in life must have more in law." [9] Justice should never be limited to those who
have the means.  It is for everyone, whether rich or poor.  Its scales should always be
balanced and should never equivocate or cogitate in order to favor one party over
another.

It is with this thought in mind that we charge clerks of court of trial courts to be more
circumspect with the duty imposed on them by law (Section 13, Rule 122 of the Rules of
Court) so that courts will be above reproach and that never (if possible) will an innocent
person be sentenced for a crime he has not committed nor the guilty allowed to go scot-
free.

In this spirit, the Court ordered the appointment of a counsel de oficio for the accused-
appellant and for said counsel and the Solicitor General to file their respective briefs,
upon submission of which the case would be deemed submitted for decision.

From the records of the case, it is established that the accused-appellant was charged
with the crime of rape in a verified complaint filed by complainant Wilma Phua Rio, duly
subscribed before 3rd Assistant Fiscal Rodolfo M. Alejandro of the province of Rizal,
which reads as follows:
"That on or about the 24th day of March, 1984, in the Municipality of Muntinlupa,
Metro Manila, Philippines, a place within the jurisdiction of this Honorable Court, the
above-named accused, by means of force and intimidation did then and there wilfully,
unlawfully and feloniously have carnal knowledge of the undersigned Wilma Phua
against her will."[10]
On 26 June 1985, at the arraignment, the accused-appellant, assisted by Atty.
Leonido Manalo of the Makati CLAO office, as counsel de oficio, entered a plea of not
guilty to the offense charged. [11] The evidence for the prosecution adduced at the trial
established the following facts:

During the months of February and March 1984, complainant Wilma Phua, then only 13
years of age, was living with her mother and three (3) sisters in a house in Barangay
Bayanan, Municipality of Muntinlupa, Metro Manila.  At a distance of about three (3)
meters from this house is another house with a toilet and bath also owned by
complainant's mother but which was uninhabited at that time.  The accused,
complainant's uncle, being the younger brother of complainant's mother, was staying in
their house, free of board and lodging, although he helped in the household chores. 
The children used the bathroom in the uninhabited house because the amenities in the
inhabited house were used only by the adults. [12]

At about 2:00 o'clock in the afternoon of 24 March 1984, classes having closed for
vacation and while Maria Zena Phua Rio was in the house occupied by her family, her
daughter Wilma (complainant) asked her for the key to the comfort room of the
uninhabited house because she had to answer a call of nature.  After having delivered
the key to Wilma, the latter proceeded to the other house, entered the comfort room,
and seeing that nobody was around and that her uncle was washing dishes in their
house, proceeded to answer nature's call without taking the precaution of locking the
comfort room from inside.[13]

After relieving herself but before she could raise her panty, the accused entered the
bathroom with his body already exposed, held Wilma's hands, and ordered her in a loud
voice to lie down and when she resisted, the accused got mad and ordered her to lie
down.  After she lay down on her back, the accused put himself on top of her and tried
to insert his private organ into her private part.  Wilma kept pushing the accused away
and calling for her mother; however, since the accused was heavier than she, the
accused succeeded in overpowering her, inserting his penis into her vagina and having
sexual intercourse with her.  After satisfying his lust, the accused released Wilma and
allowed her to leave the bathroom. [14]

Outside the bathroom door, complainant met her mother Maria Zena who, meanwhile,
had proceeded to the said other house after sensing that an inordinate length of time
had passed and her daughter, complainant herein, had not returned from the
bathroom.  Maria Zena, upon noticing that Wilma was speechless, trembling and looking
fearful, suspected something remiss, so she tried to open the door of the bathroom. 
Unable to open it the first time because it was locked from inside, Maria Zena waited a
few minutes before pushing the door again.  This time she was successful in finding her
brother, the herein accused-appellant in the process of raising his pants.  Maria Zena
was ignored by her brother when she asked him the reason for his presence inside the
bathroom.[15]

Still suspecting that the accused has done something to her daughter, Maria Zena
continued her inquisition of her brother for several days but to no avail.  Finally, on 9
April 1984, the accused was asked to leave the house and move out by his sister Maria
Zena.[16]

Only after the departure of the accused did Wilma report to her mother the fact that
she had been raped by the accused four (4) times between the months of February and
March of that year (1984).  After receiving such information, Maria Zena wanted her
daughter to immediately undergo physical examination; however, Wilma, apparently
traumatized by her experience, was too weak to go with her for such examination and
frequently suffered from fainting spells.  It was only on 30 April 1984 that Maria Zena
was able to bring Wilma to the police to report the matter and to file the complaint. 
After the report to the police, they were referred to the P.C. Crime Laboratory at Camp
Crame where Wilma underwent physical examination. [17]

Dr. Dario Gajardo, the physician who conducted the internal examination of Wilma,
submitted a report of his examination dated 6 May 1984.  The medical report showed,
among others, the following findings:
"There is a scanty growth of pubic hair.  Labia majora are full, convex and gaping
which pale brown, slightly hypertrophied labia minora presenting in between.  On
separating the same is  disclosed an elastic, fleshy-type hymen with deep lacerations at
3, 8 and 9 o'clock.  x x x."[18]
The medical report also showed that "there was (sic) no external signs of recent
application of any form of trauma." [19] All these findings led him to conclude that Wilma
is "in a non-virgin state physicially."[20] Later, on the witness stand, Dr. Gajardo would
further testify that Wilma, on inquiry, revealed that the first rape happened in the
month of February 1984, but that he could not tell the approximate period or age of the
lacerations.[21]

Armed with this medical report, Maria Zena and Wilma went back to the police where a
sworn statement of Wilma was taken and the complaint for rape against the accused
was filed before Third Assistant Fiscal Rodolfo M. Alejandro on 12 May 1984. [22]

The evidence for the defense consisted of the testimony of the accused himself and his
brother, Amado Rio.  The accused's defense was anchored on alibi and he substantially
testified as follows: that contrary to the statements made by the witnesses for the
prosecution, he was not asked to leave their house in April 1984, the truth being that he
left in the month of January 1984 or about a month before the alleged first rape on
Wilma was committed because, contrary to an alleged employment agreement between
brother and sister, his sister, Maria Zena, had not paid him any salary as helper in their
house; that from the month of January 1984, up to 24 March 1984 when the rape
charged in the complaint was allegedly committed, he was in their hometown in
Kambalo, Cahidiocan, province of Romblon; that at the time of his arrest, he was
informed of the criminal charge of rape on his niece filed against him in court; that from
January 1984 up to the time of his arrest on 6 May 1984, he had stayed in the house of
his uncle, Francisco Rio, and had never left the place during the whole period.

The accused vehemently denied the rape and conjectured that his sister could have
fabricated the charge because he left her house due to her non-payment of his salary as
helper.  The brother of the accused in the person of Amado Rio corroborated the
defense of alibi of the accused.[23]

On rebuttal, the prosecution presented Nemesia B. Merca, the Election Registrar of the
Municipality of Muntinlupa, who brought with her a Voter's Affidavit which was
executed on 31 March 1984 by one Ricardo Rio and was subscribed and sworn to on 31
March 1984 before Tessie Balbas, Chairman of Voting Center No. 37-A of Bayanan,
Muntinlupa, Metro Manila.  On cross-examination, Registrar Merca admitted that she
does not know the accused personally but that the xerox copy of the Voter's Affidavit
that she brought to court was copied from a book containing about 60 voter's affidavits
of said precinct.[24]

After comparing the signature appearing in the Voter's Affidavit with the penmanship
appearing on a letter[25] dated 12 December 1985 written by the accused to his brother,
Amado Rio and on the envelope of said letter, [26] the trial court ruled that the writing
characteristics on the presented documents are the same, especially the rounded dot
over the letter "i" appearing in the afore-mentioned documents.  It was, therefore,
satisfied that the Voter's Affidavit was indeed prepared by the accused in Bayanan,
Muntinlupa, Metro Manila, on 31 March 1984, before Tessie Balbas and that this piece
of evidence completely belies the defense of the accused as corroborated by his
brother, Amado, that he was in Romblon continuously from the month of January 1984
up to the time that he was arrested on 6 May 1984. [27]

Thus, the trial court found the accused-appellant guilty of the crime of rape.  The
dispositive portion of the decision reads as follows:
"WHEREFORE, finding the above-named accused guilty of the crime charged in
the information beyond reasonable doubt the Court hereby sentences him to suffer the
penalty of reclusion perpetua, with the accessory penalties of the law, to indemnify
Wilma Phua in the sum of P15,000.00, Philippine currency, and to pay the costs.

"SO ORDERED."
The theory of the defense at the trial level was grounded on alibi.  The accused
claimed that at the time of the alleged commission of the crime of rape he was in
Romblon.  This claim was corroborated by the accused's brother, Amado Rio.  However,
this claim was, as aforestated, rebutted by the prosecution's submission of the voter's
affidavit executed by the accused in Muntinlupa, Metro Manila on 31 March 1984 when
appellant claimed he was in Romblon.

Upon careful examination of the voter's affidavit, the Court is convinced, as the trial
court, that the affidavit was indeed executed by the accused himself and the date
appearing therein must be presumed correct and genuine.

Alibi is inherently a weak defense, easy of fabrication especially between parents and
children, husband and wife, and other relatives and even among those not related to
each other.  For such defense to prosper, the accused must prove that it was not
possible for him to have been at the scene of the crime at the time of its commission. [28]

In the present case, where nothing supports the alibi except the testimony of a relative,
in this case the accused's brother Amado, it deserves but scant consideration.
[29]
 Moreover, the Court notes the fact that while the accused-appellant had another
brother and sister living in Manila besides the complainant's mother, those two never
came to his aid.  Were the accused the innocent man he claims to be, these siblings
would have readily helped in his defense.  The testimony of his other brother Amado
alone cannot raise the necessary doubt to acquit him as against the evidence presented
by the prosecution.

Furthermore, it would be hard to believe that a female, especially a twelve-year old

child, would undergo the expense, trouble and inconvenience of a public trial, not to
mention suffer the scandal, embarrassment and humiliation such action inevitably
invites, as well as allow an examination of her private parts if her motive were not to
bring to justice the person who had abused her.  A victim of rape will not come out in
the open if her motive were not to obtain justice. [30]

It is harder still to believe that the mother of a child of twelve will abuse her child and
make her undergo the trauma of a public trial only to punish someone, let alone a
brother, for leaving her without the services of an unpaid helper were it not with the
aim to seek justice for her child.  Nobody in his right mind could possibly wish to stamp
his child falsely with the stigma that follows a rape.

On appeal, appellant's counsel de oficio changed the theory of the defense.  The new
theory presented by counsel de oficio is that Wilma Phua consented when accused-
appellant had sexual intercourse with her on 24 March 1984.  It was stressed by
counsel de oficio that the rape occurred on 24 March 1984 and that, allegedly, it was the
fourth time accused had abused complainant.  This allegation as well as the fact that
complainant failed to lock the door to the bathroom could only have been due to the
fact that there was consent.  The charge was filed, according to defense counsel de
oficio, only because the complainant's mother caught them. [31]

This theory of the defense on appeal that there had been consent from the
complainant, fails to generate doubt as to the accused's guilt, for it would be an
incredulous situation indeed to believe that one, so young and as yet uninitiated to the
ways of the world, would permit the occurrence of an incestuous relationship with an
uncle, a brother of her very own mother.

The Court notes the sudden shift in the theory of the defense from one of total denial of
the incident in question, by way of alibi, to one of participation, that is, with the alleged
consent of the complainant.  This new version could only be attributed by the Court to
the fact that counsel on appeal is different from the counsel in the trial court.  Although
the Solicitor General has suggested that this sudden shift be interpreted as an
afterthought by the accused or a desperate effort to get himself acquitted, [32] the Court
deems it more likely that this shift was caused by counsel de oficio's preparation of the
appellant's brief without examining the entire records of the case.  If the appointed
counsel for the accused, on appeal, had read the records and transcripts of the case
thoroughly, he would not have changed the theory of the defense for such a shift can
never speak well of the credibility of the defense.  Moreover, the rule in civil procedure,
which applies equally in criminal cases, is that a party may not shift his theory on
appeal.  If the counsel de oficio had been more conscientious, he would have known
that the sudden shift would be violative of aforementioned procedural rule and
detrimental to the cause of the accused-appellant (his client).

The Court hereby admonishes members of the Bar to be more conscious of their duties
as advocates of their clients' causes, whether acting de parte or de oficio, for "public
interest requires that an attorney exert his best efforts and ability in the prosecution or
defense of his client's cause." [33] Lawyers are an indispensable part of the whole system
of administering justice in this jurisdiction. [34] And a lawyer who performs that duty with
diligence and candor not only protects the interests of his client; he also serves the ends
of justice, does honor to the Bar and helps maintain the respect of the community to
the legal profession.  This is so because the entrusted privilege to practice law carries
with it correlative duties not only to the client but also to the court, to the bar and to
the public.[35]

While a lawyer is not supposed to know all the laws, [36] he is expected to take such
reasonable precaution in the discharge of his duty to his client and for his professional
guidance as will not make him, who is sworn to uphold the law, a transgressor of its
precepts.[37]

The fact that he merely volunteered his services or the circumstance that he was a
counsel de oficio neither diminishes nor alters the degree of professional responsibility
owed to his client.[38] The ethics of the profession require that counsel display warm zeal
and great dedication to duty irrespective of the client's capacity to pay him his fees.
[39]
 Any attempted presentation of a case without  adequate preparation distracts the
administration of justice and discredits the Bar. [40]
Returning to the case at bar, even if we consider the sudden shift of defense theory as
warranted (which we do not), the Court is just as convinced, beyond reasonable doubt,
that the accused-appellant is guilty of the crime as charged.  His conviction must be
sustained.

WHEREFORE, the decision of the trial court finding the accused-appellant Ricardo Rio
guilty beyond reasonable doubt of the crime of rape and sentencing him to the penalty
of reclusion perpetua with all the accessory penalties of the law, is
hereby AFFIRMED.   The Court, however, increases the amount of indemnity to be paid
by the accused-appellant to Wilma Phua to thirty thousand pesos (P30,000.00) in line
with prevailing jurisprudence on this matter.  Costs against accused-appellant.

SO ORDERED.

SECOND DIVISION
[ G.R. No. 132852, May 31, 2000 ]
TEOFILO MARTINEZ, PETITIONER, VS. PEOPLE OF THE PHILIPPINES,
RESPONDENT.

DECISION

BELLOSILLO, J.:

This is a petition for certiorari under Rule 65, erroneously filed as a petition for
review on certiorari under Rule 45. But this procedural infirmity notwithstanding, we
have decided to give it due course to resolve the question whether the Court of Appeals
gravely abused its discretion in denying petitioner's motion to appeal as a pauper
litigant.[1]

The antecedents: Petitioner was accused of homicide in Crim. Case No. 5753 before the
Regional Trial Court of Butuan City. [2] During the hearing on 23 June 1994 petitioner
represented by Atty. Jesus G. Chavez of the Public Attorney's Office of Butuan City
objected to petitioner's motion to be allowed to litigate as pauper and moved instead to
strike out the entire testimony of the first witness for the prosecution on the ground
that it was inadmissible for being violative of the testimonial privilege afforded to
children in cases involving their parents. The Presiding Judge [3] deferred his ruling on the
objection and allowed the testimony to be continued. [4] On 21 July 1994 the trial court
issued an order overruling the objection. On 8 August 1994 the court denied the motion
for reconsideration.[5] This prompted petitioner to go to the Court of Appeals by way of a
petition for certiorari alleging that the trial court acted with grave abuse of discretion
amounting to lack of jurisdiction when it issued the assailed orders. [6]

On 23 August 1994 petitioner filed before the Court of Appeals a Motion to Litigate as
Pauper attaching thereto supporting affidavits executed by petitioner himself and by
two (2) ostensibly disinterested persons attesting to petitioner's eligibility to avail
himself of this privilege.[7] The appellate court subsequently issued its resolution dated
21 March 1997 denying the motion and directing petitioner to remit the docketing fees
in the total amount of P420.00 within five (5) days from notice. [8] On 7 April 1997
petitioner filed a Motion for Reconsideration of the order denying his motion to litigate
as a pauper, but this was similarly denied in the resolution of 8 October 1997.
[9]
 Petitioner then filed a Manifestation on 28 October 1997 wherein he stated through
counsel that he was transmitting the docket fees required of his client "under protest"
and that the money remitted was advanced by his counsel, Atty. Jesus G. Chavez
himself.[10] The transmittal of the amount was evidenced by two (2) postal money orders
attached to the Motion to Litigate as Pauper.[11]

In the assailed Resolution of 10 November 1997 the Court of Appeals dismissed the
petition, citing petitioner's failure to pay the required docket fee. [12] Petitioner moved
for reconsideration citing his compliance with the docket fee requirement as alleged in
his Manifestation adverted to above.[13] However, the Court of Appeals in the second
assailed Resolution of 21 January 1998 denied this latest motion on the ground that, per
verification by the Judicial Records Division, the amount remitted by petitioner as
docket fee was short of 150.00. [14]

The only issue expressly raised by petitioner is whether a motion to litigate as pauper
can be entertained by an appellate court. When petitioner filed on 23 August 1994 his
original motion to appeal as pauper before the appellate court the applicable rule was
the second paragraph of Sec. 16, rule 41, of the 1964 Revised Rules of Court, which
provides-
Sec. 16. Appeal by pauper â€“ Where a party desiring to appeal shall establish to
the satisfaction of the trial court that he is a pauper and unable to pay the expenses of
prosecuting the appeal, and that the case is of such importance, by reason of the
amount involved, or the nature of the question raised, that it ought to be reviewed by
the appellate court, the trial judge may enter an order entitling the party to appeal as
pauper. The clerk shall transmit to the appellate court the entire record of the case,
including the evidence taken on trial and the record on appeal, and the case shall be
heard in the appellate court upon the original record so transmitted without printing the
same.

A petition to be allowed to appeal as pauper shall not be entertained by the appellate

court.
Even prior to the adoption of the 1964 Revised Rules of Court, the Court had
uniformly frowned upon appellate courts entertaining petitions to litigate as pauper,
holding that the question of whether a party-litigant is so poor as to qualify him to
litigate as pauper is a question of fact which is best determined by the trial court. The
trial court is the court which may properly decide or pass upon the question of fact
which may require presentation of evidence whether the appellant is an indigent and
may appeal as such, and whether the case is of such importance that, by reason not only
of the amount involved but of the nature of the question raised in the court below, it
ought to be reviewed by the appellate court. [15]

When the 1997 Rules of Civil Procedure came into effect on 1 July 1997 the provision
abovequoted was not reenacted. Section 21 of Rule 3, as now worded, outlines the
procedure for, as well as the effects of, the grant of a motion to litigate as pauper -
Sec. 21. Indigent party. - A party may be authorized to litigate his action, claim or
defense as an indigent if the court, upon an ex parte application and hearing, is satisfied
that the party is one who has no money or property sufficient and available for food,
shelter and basic necessities for himself and his family.

Such authority shall include an exemption from payment of docket and other lawful
fees, and of transcripts of stenographic notes which the court may order to be furnished
him. The amount of the docket and other lawful fees which the indigent was exempted
from paying shall be a lien on any judgment rendered in the case favorable to the
indigent, unless the court otherwise provides.

Any adverse party may contest the grant of such authority at any time before judgment
is rendered by the trial court. If the court should determine after hearing that the party
declared as an indigent is in fact a person with sufficient income or property, the proper
docket and other lawful fees shall be assessed and collected by the clerk of court. If
payment is not made within the time fixed by the court, execution shall issue or the
payment thereof, without prejudice to such other sanctions as the court may impose.
On the other hand, Sec. 18 of Rule 141 prescribes the evidentiary requirements
for the exemption of pauper litigants from payment of legal fees -Z
Sec. 18. Pauper-litigants exempt from payment of legal fees. - Pauper-litigants (a)
whose gross income and that of their immediate family do not exceed four thousand
(P4,000.00) pesos a month if residing in Metro Manila, and three thousand (P3,000.00)
pesos a month if residing outside Metro Manila, and (b) who do not own real property
with an assessed value of more than fifty thousand (P50,000.00) pesos shall be exempt
from the payment of legal fees.

The legal fees shall be a lien on any judgment rendered in the case favorably to the
pauper-litigant, unless the court otherwise provides.

To be entitled to the exemption herein provided, the litigant shall execute an affidavit
that he and his immediate family do not earn the gross income abovementioned, nor do
they own any real property with the assessed value aforementioned, supported by an
affidavit of a disinterested person attesting to the truth of the litigant's affidavit.

Any falsity in the affidavit of a litigant or disinterested person shall be sufficient cause to
strike out the pleading of that party, without prejudice to whatever criminal liability may
have been incurred.
It cannot be inferred from any of the aforementioned provisions that the
restrictive policy enunciated by Sec. 16, Rule 41, of the 1964 Revised Rules of Court was
carried over to the 1997 Rules of Civil Procedure. Nowhere can we find a provision to the
effect that "(a) petition to be allowed to appeal as pauper shall not be entertained by
the appellate court."
We resolve to apply the present rules on petitioner retrospectively. Statutes regulating
the procedure of the courts will be construed as applicable to actions pending and
undetermined at the time of their passage. In that sense and to that extent procedural
laws are retroactive.[16] We therefore hold that a motion to litigate as an indigent can be
made even before the appellate courts, either for the prosecution of appeals, in
petitions for review or in special civil actions.

We believe that this interpretation of the present rules is more in keeping with our Bill
of Rights, which decrees that, "(f)ree access to the courts and quasi-judicial bodies and
adequate legal assistance shall not be denied to any person by reason of
poverty."[17] Our espousal of the democratization of appellate remedies is shared by the
United States Supreme Court, speaking through Mr. Justice Hugo L. Black -
There is no meaningful distinction between a rule which would deny the poor the
right to defend themselves in a trial court and one which effectively denies the poor an
adequate appellate review accorded to all who have money enough to pay the costs in
advance x x x x Such a denial is a misfit in a country dedicated to affording equal justice
to all and special privileges to none in the administration of its criminal law. There can
be no equal justice where the kind of trial a man gets depends on the amount of money
he has.[18]
A perusal of the records shows that petitioner has complied with all the
evidentiary requirements for prosecuting a motion to appear in court as a pauper. He
has executed an affidavit attesting to the fact that he and his immediate family do not
earn a gross income of more than P3,000.00 a month, and that their only real property,
a hut, cannot be worth more than P10,000.00. [19] He has also submitted a joint affidavit
executed by Florencia L. Ongtico and Helen Maur, both residents of Butuan City, who
generally attested to the same allegations contained in petitioner's own affidavit.
[20]
 Based on this evidence, the Court finds that petitioner is qualified to litigate as an
indigent.

WHEREFORE, the questioned Resolution of the Court of Appeals dated 10 November

1997 dismissing the petition for certiorari of petitioner Teofilo Martinez and its
Resolution dated 21 January 1998 denying reconsideration are SET ASIDE for having
been issued with grave abuse of discretion. Accordingly, this case is REMANDED for
appropriate action to the Court of Appeals which is further ordered to allow petitioner
to litigate as pauper and to return to him the amount of P420.00 representing the
docket fees he paid.

SO ORDERED.

THIRD DIVISION
[ G.R. No. 182192, October 29, 2008 ]
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. AGRIPINO
GUEVARRA Y MULINGTAPANG ALIAS "BOY DUNGGOL," ACCUSED-
APPELLANT.

DECISION

CHICO-NAZARIO, J.:

For review is the Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 02367,
dated 16 October 2007,[1] affirming with modification the Decision, dated 4 July 2006, of
the Batangas City Regional Trial Court (RTC), Branch IV, in Criminal Case No. 12486,
[2]
 finding accused-appellant Agripino Guevarra y Mulingtapang, alias "Boy Dunggol,"
guilty of murder, and imposing upon him the penalty of reclusion perpetua.

The facts gathered from the records of the case are as follows:

On 30 August 2002, an Information [3] was filed with the RTC charging appellant with
murder. The accusatory portion of the information reads:
That on or about August 24, 2002 at around 9:15 o'clock in the evening at Ebora
Road, Brgy. Kumintang Ibaba, Batangas City, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, while armed with a caliber .45 pistol, a
deadly weapon, with intent to kill and with the qualifying circumstance of treachery, did
then and there willfully, unlawfully and feloniously attack, assault and repeatedly shot
with said firearm suddenly and without warning one P/Chief Inspector Marcos Barte y
Paz while the latter was unarmed and completely defenseless, thereby hitting him on
different parts of his body which directly caused the victim's death.
That the special aggravating circumstance of the use of an unlicensed firearm is
attendant in the commission of the offense.
When arraigned on 12 November 2002, appellant, assisted by his counsel de
oficio, pleaded "Not guilty" to the charge. [4] Trial on the merits thereafter followed.

The prosecution presented as witnesses Anacleto Gonzales (Anacleto), Maria Antonette

Gonzales (Antonette), Senior Police Officer 1 Felixberto Cabungcal (SPO1 Cabungcal),
SPO1 Florentino Buenafe (SPO1 Buenafe), Dr. Edwin Castillo (Dr. Castillo), Dr. Antonio S.
Vertido (Dr. Vertido), and Marita Gonzales Vda. de Barte (Mrs. Barte). Their testimonies
are summarized as follows:

Anacleto, cousin of herein deceased victim Police Chief Inspector Marcos P. Barte
(Inspector Barte) of the Batangas City Police Station, testified that on 24 August 2002, at
around 3:30 p.m., Inspector Barte, accompanied by a certain Roberto Godoy (Godoy)
and Ronnie Valiente (Valiente), arrived at his house located at Barangay Kumintang
Ibaba, Batangas City. He, Inspector Barte, Godoy, Valiente, and Anacleto's father-in-law,
Nicasio Resurreccion (Nicasio), talked and drank gin inside the house. Subsequently, the
group, with the exception of Godoy, left the house and went to a videoke bar owned by
a certain Sergeant Emilio Vidal (Sgt. Vidal) located at Ebora Road, Barangay Kumintang
Ibaba, Batangas City. They arrived at the videoke bar at about 8:30 p.m. He drank one
bottle of beer while Inspector Barte consumed two bottles of beer. Thereafter, at about
9:15 p.m., the group went out of the videoke bar. He saw his wife, Antonette, outside
the videoke bar. Antonette approached and talked to him. He also saw Godoy seated in
the driver's seat of an owner-type jeep parked near the videoke bar, and a certain
Imelda Shin (Imelda) sitting at the back portion of the jeep. Valiente boarded the jeep
and sat beside Imelda. Inspector Barte also boarded the jeep and sat in the front
passenger's seat beside Godoy. When Anacleto was about to board the jeep, appellant
suddenly appeared and approached Inspector Barte. Appellant asked Inspector Barte if
he was "Major Barte." Thereupon, he saw appellant shoot Inspector Barte several times
with a short firearm. He was then one arm's length from Inspector Barte and one meter
away from appellant. Inspector Barte slumped on his seat bloodied while Godoy
shouted that he was also hit. Appellant immediately fled the scene. [5]

Subsequently, Anacleto drove the jeep and brought Inspector Barte to the Batangas
Regional Hospital. Inspector Barte was pronounced dead on arrival. Godoy was also
brought to the said hospital for treatment of his wounds. Later, the police arrived at the
hospital and interviewed him about the incident. He executed a sworn statement
regarding the incident.[6]

Antonette narrated that on 24 August 2002, at about 8:40 p.m., she, together with
Godoy and Imelda, went to a videoke bar owned by Sgt. Vidal at Ebora Road, Barangay
Kumintang Ibaba, Batangas City, to fetch her husband, Anacleto. She and Imelda
boarded an owner-type jeep driven by Godoy in going to the videoke bar. Upon arriving
thereat, she proceeded to the videoke bar, peeped in its window, and saw Anacleto,
Inspector Barte, her father, and Valiente therein. She signaled to Anacleto that she
would wait for them on the jeep outside the videoke bar. Afterwards, Anacleto,
Inspector Barte, Nicasio, and Valiente went out of the videoke bar. Nicasio boarded a
tricycle and proceeded home while Valiente and Inspector Barte boarded the jeep.
Valiente sat beside Imelda at the backseat of the jeep while Inspector Barte sat beside
the driver's seat then occupied by Godoy. When Anacleto was about to board the jeep,
she heard a gunshot. Upon turning her head towards the direction of the gunshot, she
saw appellant shoot Inspector Barte with a short firearm. Thereafter, she heard Godoy
shouting that Inspector Barte was shot and told her to call the police. She immediately
proceeded to a nearby drug store where she used a telephone in contacting the police.
She saw Anacleto driving the jeep with Inspector Barte on board. Later, she proceeded
to the Batangas Regional Hospital where she saw the lifeless body of Inspector Barte in
a stretcher. She also saw therein Godoy being treated for wounds. [7]

SPO2 Cabungcal, a member of the Batangas City Police Station, Intelligence Division,
testified that he was on duty at the said station on the night of 24 August 2002. On that
same night, the station received a report about a shooting incident at Ebora Road,
Barangay Kumintang Ibaba, Batangas City. He and several police officers immediately
proceeded to the crime scene. Upon arriving thereat, they searched the crime scene
and recovered four caliber .45 empty shells, one live caliber .45 ammunition and one
deformed caliber .45 slug. Thereafter, they went to the Batangas Regional Hospital
where they were informed that Inspector Barte was already dead. He turned over to
SPO1 Buenafe, the investigator of the case, the evidence they recovered from the crime
scene.[8]

SPO1 Buenafe, a member of the Batangas City Police Station, Investigation Section,
averred that he conducted an investigation in the instant case; that after the incident,
he went to the Batangas Regional Hospital where he was informed that Inspector Barte
was already dead and Godoy was injured; and that SPO1 Cabungcal turned over to him
object evidence recovered from the crime scene. [9]

Dr. Castillo, a surgeon assigned at the Batangas Regional Hospital, recounted that he
attended to Inspector Barte when the latter was brought to the hospital on the night of
24 August 2002. During the initial examination, he observed that Inspector Barte
sustained gunshot wounds and had no blood pressure, cardiac and respiratory rate. He
and some medical staff tried to resuscitate Inspector Barte but to no avail. The gunshot
wounds were located on the left temporal area, left anterior chest, right nipple, and left
arm of Inspector Barte. He considered the gunshot wounds in the left temporal area and
left anterior chest of Inspector Barte fatal. He issued a medico-legal certificate
pertaining to Inspector Barte and an anatomical chart showing the location of gunshot
wounds sustained by Inspector Barte. [10] His findings, as stated in the medico-legal
certificate of Inspector Barte, are as follows:
THIS IS TO CERTIFY that Marcos P. Barte, 46 years of age, male, Filipino of Soro-
soro 2, Batangas City, at about 9:30 p.m., August 24, 2002 with the following injuries
sustained by him:

Multiple gunshot wounds anterior chest left, Right nipple left temporal area, left arm

NOTE: DEAD ON ARRIVAL.[11]

Dr. Vertido, Medico-Legal Officer of the National Bureau of Investigation (NBI),
Southern Tagalog, Region 4, declared that he conducted an autopsy on the corpse of
Inspector Barte; that Inspector Barte sustained three gunshot wounds; that the first
gunshot wound was located on the left portion of the head which fractured the skull;
that the second gunshot wound was situated on the right portion of the chest which
perforated the heart and the upper lobe of the left lung exiting at the left side of the
back; that the third wound was on the left portion of the chest which penetrated the
upper lobe of the left lung and exited at the posterior side of the left arm; and that
these wounds caused the death of Inspector Barte. [12] He issued a Certificate of Post-
Mortem Examination on Inspector Barte in support of his foregoing findings, viz:
POSTMORTEM FINDINGS
Pallor, lips and nailbed.
Contusion; anterior chest wall, midline, 2 x 3 cm.

GUNSHOT WOUNDS:

1. ENTRANCE 1.3 x 1.0 cm. ovaloid, edges inverted, with a contusion collar widest at its
upper border, surrounded by an area of tattoing, 8 x 6 cms. at the left temple 6 cms.
infront and 5 cms. above the left external auditory meatus, directed backwards,
downwards and medially, involving the skin and underlying soft tissue, fracturing left
temporal bone, lacerating corresponding lobe, fracturing and penetrating left midcranial
fossa, into the soft tissue of the left posterior neck, 12 cms, below and 10 cm behind the
left external auditory meatus where a semideformed slug was recovered.

2. ENTRANCE 1.3 x. 1.0 cm. ovaloid, edges inverted, with a contusion collar widest at its
lower border located at the right anterior chest wall, 10 cms. from the anterior median
line, 125 cms. above the right heel, directed, backward, upward and from right to left
involving the skin and underlying soft tissue perforating the heart, and upper lobe of the
left lung, then making an EXIT wound, 1.0 x 1.1. cm., ovaloid, edges everted, located at
the back left side, (scapular area) 20 cm. from the posterior median line, 137 cm. above
the left heel.

3. ENTRANCE 1.2 x 1.0 cm. ovaloid, edges inverted with a contusion collar widest at its
lower border, located at the left anterior chest wall, 2 cm. from the anterior median line
131 cm. above the left heel, directed backward, upward and laterally, involving the skin
and underlying soft tissues, perforating upper lobe of the left lung then making an EXIT
wound, 1 x 1.1 cm. ovaloid, edges everted located at the left arm, posterior aspect,
upper 3rd 28 cms. above the left elbow.

CAUSE OF DEATH: GUNSHOT WOUNDS, HEAD AND CHEST.[13]

Mrs. Barte, wife of Inspector Barte, testified on the civil aspect of the case. She
presented a list of expenses incurred for the wake and burial of Inspector Barte which
amounted to P183,425.00. She also submitted official receipts pertaining to the funeral
expenses (P46,250.00), burial lot (P53,000.00), and interment fee (P10,000.00). She
claimed that at the time of Inspector Barte's death, the latter was receiving a monthly
income of P30,982.00.[14]

The prosecution also adduced documentary and object evidence to buttress the
testimonies of its witnesses, to wit: (1) sworn statement of Mrs. Barte (Exhibit A); [15] (2)
sworn statement of Anacleto (Exhibit B);[16] (3) sworn statement of Antonette (Exhibit C);
[17]
 (4) sworn statement of SPO1 Buenafe (Exhibit D); [18] (5) death certificate of Inspector
Barte (Exhibit E);[19] (6) certification from the PNP, Firearms and Explosives Division,
Camp Crame, Quezon City, that appellant is not a licensed/registered firearm holder of
any kind and caliber (Exhibit F);[20] (7) four empty bullet shells, one deformed slug and
one live ammunition (Exhibit G);[21] (8) list of wake and burial expenses (Exhibit H); [22] (9)
official receipt covering the funeral expenses (Exhibit I); [23] (10) official receipt for the
burial lot (Exhibit J);[24] (11) anatomical chart showing the location of gunshot wounds
sustained by Inspector Barte (Exhibit K); [25] (12) medico-legal certificate of Inspector
Barte signed by Dr. Castillo (Exhibit L);[26] (13) pay slip of Inspector Barte for August 2002
(Exhibit M);[27] (14) list of expenses incurred for the food served during the wake and
burial of Inspector Barte (Exhibit N);[28] (15) request for autopsy of Inspector Barte
signed by Mrs. Barte (Exhibit O);[29] (16) certificate of identification signed by Dr. Vertido
(Exhibit P);[30] (17) certificate of post-mortem examination on Inspector Barte (Exhibit Q);
[31]
 (18) autopsy report on Inspector Barte signed by Dr. Vertido (Exhibit R); [32] and (19)
anatomical sketch of the location of the gunshot wounds sustained by Inspector Barte
prepared by Dr. Vertido.[33]

For its part, the defense presented the testimonies of appellant and Ferdinand Ravino
(Ravino) to refute the foregoing accusation. No documentary evidence was presented.
Appellant denied any liability and interposed the defense of alibi.

Appellant testified that at the time of the incident (9:15 p.m., 24 August 2002), he was
at Barangay Malad, Calapan City, Oriental Mindoro vacationing at the house of a certain
Hector Africa (Africa). He arrived therein on the afternoon of 23 August 2002 and left on
the morning of 26 August 2002. He was not acquainted with Inspector Barte and came
to know that he was accused of killing Inspector Barte when he arrived at Batangas City
from Oriental Mindoro on the afternoon of 26 August 2002. He was informed that he
would be "salvaged" for killing Inspector Barte. Hence, he became afraid and hid in his
house for two weeks. Thereafter, he surrendered to the mayor of Batangas City who
turned him over to the Batangas City police. He alleged that Anacleto and Antonette
testified against him because he did not support the candidacy of Antonette during the
previous election for barangay captain where Antonette lost. He supported then the
candidacy of the incumbent barangay captain. [34]

Ravino narrated that he has known appellant since 1991 because they were co-workers
in Toyota Motors, Batangas City. On 24 August 2002, at around 12:00 in the afternoon,
Africa came to his auto mechanic shop in Calapan, Oriental Mindoro and talked to him.
Africa requested him to go to his house at Barangay Malad, Calapan City, Oriental
Mindoro, to fix Africa's car and thereafter to drink liquor with him. Subsequently, he
went to Africa's house arriving therein at 5:30 p.m. of the same day. He saw Africa,
appellant and one helper of Africa inside the house. Africa told him that appellant was
taking a vacation at his house. After fixing Africa's car, he, Africa and appellant had a
drinking spree until 11:00 p.m. of the same day. Thereupon, he left Africa's house. Later,
he and appellant met at the city jail of Batangas City. He was detained for a criminal
charge while appellant was detained on the charge of killing Inspector Barte. During
their detention, appellant requested him to testify in his favor to which he acceded. He
was still a detainee at the time he testified in the RTC as regards the instant case. [35]

After trial, the RTC rendered a Decision on 4 July 2006 convicting appellant of murder.
[36]
 Appellant was sentenced to reclusion perpetua. He was also ordered to pay the heirs
of Inspector Barte the amounts of P50,000.00 as compensatory damages, P109,250.00
as actual damages, P50,000.00 as moral and exemplary damages, P4,212,312.72 for loss
of earning capacity, and cost of suit. The dispositive portion of the RTC Decision reads:
In view of all the foregoing and upon evidence established by the Prosecution,
accused Agripino Guevarra y Mulingtapang alias "Boy Dunggol" is hereby found Guilty
beyond a reasonable doubt of committing the crime of Murder under Article 248 of the
Revised Penal Code as amended by Republic Act No. 7659. The proper penalty would
have been death by lethal injection but with the repeal of the death penalty pursuant to
Republic Act No. 9346 which was recently signed into law by the President on June 22,
2006, imposition thereof is no longer possible. Consequently, herein accused is
sentenced to suffer the penalty of reclusion perpetua and to pay the costs. Further, he
shall pay the private offended party P50,000.00 for the death of Major Barte as
compensatory damages; P109,250.00 as actual damages sustained which were reflected
in the official receipts submitted in evidence; P50,000.00 as moral and exemplary
damages; P4,212,312.72 loss of earnings computed on the basis of the pay slip of Major
Barte for the month of August, 2002 showing that at the time of his death his full
compensation amounted to P30,982.00.

The accused maybe credited with his preventive imprisonment if he is entitled to any
and directed to be immediately committed to the National Penitentiary in Muntinlupa
City.[37]
Appellant appealed to the Court of Appeals. On 16 October 2007, the appellate
court promulgated its Decision affirming with modification the RTC Decision. [38] It held
that an additional amount of P25,000.00 as exemplary damages should also imposed on
appellant because the qualifying circumstance of treachery attended the killing of
Inspector Barte. Thus:
WHEREFORE, premises considered, the July 4, 2006 Decision of the Regional Trial
Court of Batangas City, Branch IV, is hereby AFFIRMED with
the MODIFICATION that exemplary damages in the amount of P25,000.00 should also
be awarded.[39]
Appellant elevated the instant case before us assigning a single error, to wit:
THE TRIAL COURT GRAVELY ERRED IN FINDING ACCUSED-APPELLANT GUILTY OF
THE CRIME CHARGED DESPITE FAILURE OF THE PROSECUTION TO ESTABLISH HIS GUILT
BEYOND REASONABLE DOUBT.[40]
Appellant maintains in his lone assigned error that his testimony and that of his
corroborating witness, Ravino, were more credible than the testimonies of Anacleto and
Antonette; that his denial and alibi were meritorious; and that the mitigating
circumstance of voluntary surrender should be appreciated in his favor.

In resolving issues pertaining to the credibility of the witnesses, this Court is guided by
the following well-settled principles: (1) the reviewing court will not disturb the findings
of the lower court, unless there is a showing that it overlooked, misunderstood or
misapplied some fact or circumstance of weight and substance that may affect the
result of the case; (2) the findings of the trial court on the credibility of witnesses are
entitled to great respect and even finality, as it had the opportunity to examine their
demeanor when they testified on the witness stand; and (3) a witness who testifies in a
clear, positive and convincing manner is a credible witness. [41]

After carefully reviewing the evidence on record and applying the foregoing guidelines
to this case, we found no cogent reason to overturn the RTC's ruling finding the
testimonies of Anacleto and Antonette credible. As an eyewitness to the incident,
Anacleto positively identified appellant as the one who shot Inspector Barte with a short
firearm. He was merely one arm's length from Inspector Barte and one meter away from
appellant during the incident. In addition, the crime scene was well-lighted by a nearby
lamp post and lights coming from the videoke bar which enabled him to recognize
appellant. Further, he was familiar with the face of appellant because the latter was his
barriomate. Anacleto's direct account of how appellant shot Inspector Barte is candid
and convincing, thus:
Q: Now, while you were outside the [videoke] restaurant at around 9:15 in the evening
of August 24, 2002, do you remember any untoward incident that happened thereat?
A: Yes, sir.
Q: What was that particular incident?
A: The shooting of Major Barte (Inspector Barte), sir.
Q: Who shot Major Barte?
A: Agripino Guevarra y Mulingtapang alias "Boy Dunggol."
Q: How did it happen that accused was there at that time and said place?
A: I did not notice where he came from, he suddenly appeared.
Q: After he suddenly appeared, what did the accused do?
A: He approached Major Barte and asked "are you Major Barte?" and afterwards he
fired shots at Major Barte.
Q: Was Major Barte able to answer that question of the accused to him?
A: No ma'am.
Q: What happened to Major Barte after having (sic) shot by the accused?
A: I saw him slumped on his seat on the car, bloodied.
Q: How far were you from Major Barte at that time?
A: About one arm['s] length, ma'am.
x
xxx
Q: Now, you said Agripino Guevarra is the one who shot to death Major Barte, if he is in
Court this morning, would you be able to identify him?
A: Yes, ma'am.
Q: Would you please point to him?
A: (Note: Witness is pointing to the man wearing a yellow shirt seated in the front row of
the Courtroom who answers by the name of Agripino Guevarra when he was asked by the
Court). [42]
x
xxx
Q: You stated that while you were talking with Major Barte when the latter was sitted
(sic) in the front seat, the accused suddenly appeared?
A: Yes, sir.
Q: Where did he suddenly appear, from your right or left?
A: From my right side, sir.
Q: Where was he at that time in relation to the jeep?
A: On the right side of the jeep, sir.
 Q: You are also on the right side of the jeep?
A: Yes, sir.
Q: You are also 1 ½ meters from the jeep?
A: No sir.
Q: How far were you from the jeep?
A: More or less one (1) arm length, sir.
Q: How far was the accused in this case when you first saw him?
A: We were both on the same distance from the jeep, sir.
Q: After you saw the accused suddenly appeared on your right side you also saw him put
up his gun?
A: No sir.
C
ourt:
How about you, how far are you from the accused when you first saw him?
Almost one (1) meter, sir.[43]
xxxx
Q: You stated last time that when the accused asked if he is Major Barte the accused
immediately shot Major Barte, is that correct?
A: Yes, sir.
Q: You also stated that the accused shot him five (5) times?
A: No, sir.
Q: How many times did the accused shoot Major Barte?
A: I heard four (4) shots, sir.
Q: When you say you heard four (4) shots you mean to say you did not see him fired (sic)
his gun?
A: I saw it, sir.[44]
Antonette's testimony, corroborating the foregoing testimony of Anacleto, was
also clear and reliable. Being an eyewitness to the incident, she pointed to appellant as
the one who shot Inspector Barte. Her narration of the incident is truthful, to wit:
Q: After Major Barte occupied the front seat at the right [side] of the driver and your
husband was about to board the jeep, what happened next, if any?
A: I heard that gunshot, ma'am.
Q: Upon hearing that gunshot, what did you do?
A: I turned my head where the gunshot came from, ma'am.
Q: And what did you find out?
A: I saw a man shooting a man riding at the right side of the vehicle, ma'am.
Q: Who was being shot by that person?
A: Major Barte, ma'am.
Q: Did you recognize who [shot] Major Barte?
A: Yes, ma'am.
Q: Who is that person?
A: Mr. Agripino Guevarra, ma'am.
x
xxx
Q: You said that you saw Agripino Guevarra shooting Major Barte, do you know this
 Agripino Guevarra?
A: Yes, ma'am.
Q: Even before this date?
A: Yes, ma'am. Being a native of this barangay and I have been a barangay
councilwoman and he became also a barangay tanod.
x
xxx
Q: If he [is] present in Court this afternoon, would you able to identify him?
A: Yes, ma'am.
Q: Would you please point to him?
A: (Witness is pointing to a man wearing a yellow shirt who answers by the name of
Agripino Guevarra when he was asked by the Court). [45]
Further, the foregoing testimonies are consistent with documentary and object
evidence submitted by the prosecution. The RTC and the Court of Appeals found the
testimonies of Anacleto and Antonette to be clear and credible.

Denial is inherently a weak defense as it is negative and self-serving. Corollarily, alibi is

the weakest of all defenses for it is easy to contrive and difficult to prove. [46] Denial and
alibi must be proved by the accused with clear and convincing evidence otherwise they
cannot prevail over the positive testimony of credible witnesses who testify on
affirmative matters.[47] For alibi to prosper, it is not enough for the accused to prove that
he was somewhere else when the crime was committed. He must likewise prove that it
was physically impossible for him to be present at the crime scene or its immediate
vicinity at the time of its commission.[48]

Appellant testified that he was vacationing in Africa's house at Barangay Malad, Calapan
City, Oriental Mindoro at the time (9:15 p.m.) and date (24 August 2002) of the incident.
Ravino claimed that, upon arriving at Africa's house in Calapan Oriental, Mindoro at
about 5:30 p.m. of the day of the incident, he saw appellant there. Ravino then
proceeded to fix Africa's car. After fixing Africa's car, he, Africa and appellant had a
drinking spree until 11:00 p.m. of the same day. Be that as it may, Ravino neither
categorically stated nor confirmed that appellant was present in Africa's house from the
time he was fixing Africa's car at past 5:30 p.m. up to the time he was done with it which
was before 11:00 p.m. As mentioned earlier, Ravino merely claimed that he saw
appellant in Africa's house at about 5:30 p.m. and after fixing Africa's car, he, Africa and
appellant had a drinking spree until 11:00 p.m. Thus, it was highly possible that since
Ravino's sight was directed or focused on Africa's car as he was fixing it, he did not
notice appellant's departure from Africa's house at past 5:30 p.m. Appellant then
proceeded to the videoke bar of Sgt. Vidal in Barangay Kumintang Ibaba, Batangas City,
where he killed Inspector Barte at around 9:15 p.m. It was also probable that Ravino did
not notice appellant's subsequent arrival in Africa's house, which was before 11:00 p.m.,
from the crime scene because he was still busy fixing Africa's car. The foregoing view is
bolstered by appellant's admission that it would only take him 45 minutes to reach
Calapan City, Oriental Mindoro from the Batangas pier via a "Supercat" boat.[49] There
was, therefore, a great possibility that appellant was present at the scene of the crime
when it was committed at about 9:15 p.m. of 24 August 2002. Thus, the defense failed
to prove that it was physically impossible for appellant to be at or near the crime scene
when the incident occurred. Besides, we have held that an alibi becomes less plausible
as a defense when it is corroborated only by relatives or friends of the accused. [50]

We agree with the RTC and the Court of Appeals that the qualifying circumstance of
treachery and the special aggravating circumstance of use of an unlicensed firearm
attended the killing of Inspector Barte.

It is settled that aggravating/qualifying circumstances must be alleged in the information

and proven during the trial before they can be appreciated. [51]

There is treachery when the offender commits any of the crimes against the person,
employing means, methods or forms in the execution thereof which tend directly and
specially to insure its execution, without risk to himself arising from any defensive or
retaliatory act which the victim might make. [52] The essence of treachery is a deliberate
and sudden attack that renders the victim unable and unprepared to defend himself by
reason of the suddenness and severity of the attack. Two essential elements are
required in order that treachery can be appreciated: (1) The employment of means,
methods or manner of execution that would ensure the offender's safety from any
retaliatory act on the part of the offended party who has, thus, no opportunity for self-
defense or retaliation; and (2) deliberate or conscious choice of means, methods or
manner of execution.[53]

In the case at bar, treachery was alleged in the information and all its elements were
duly established by the prosecution.

Inspector Barte was sitting inside the jeep when appellant suddenly appeared and
approached him. Appellant asked Inspector Barte if he was "Major Barte." However,
before Inspector Barte could respond or utter a word, appellant quickly shot him several
times in the head and chest with a caliber .45 pistol. The suddenness and
unexpectedness of the appellant's attack rendered Inspector Barte defenseless and
without means of escape. There is no doubt that appellant's use of a caliber .45 pistol,
as well as his act of waiting for Inspector Barte to be seated first in the jeep before
approaching him and of shooting Inspector Barte several times on the head and chest,
was adopted by him to prevent Inspector Barte from retaliating or escaping. Considering
that Inspector Barte was tipsy or drunk and he was seated inside the jeep where the
space is narrow, there was absolutely no way for him to defend himself or escape.

Pertinent provision of Presidential Decree No. 1866, as amended by Republic Act No.
8294,[54] states that if homicide or murder is committed with the use of an unlicensed
firearm, such use of an unlicensed firearm shall be considered as an aggravating
circumstance. Appellant's use of an unlicensed firearm in killing Inspector Barte was
alleged in the information as a special aggravating circumstance. Such circumstance was
also duly proven by the prosecution during the trial. The prosecution presented a
certification from the PNP Firearms and Explosives Division which attests that appellant
was not a licensed/registered firearm holder. [55]

Appellant's assertion that he was entitled to the mitigating circumstance of voluntary

surrender is meritorious. For voluntary surrender to be appreciated as a mitigating
circumstance, the following requisites must concur: (1) that the offender had not been
actually arrested; (2) that the offender surrendered himself to a person in authority; and
(3) that the surrender was voluntary. [56]

All of the foregoing requisites are present in the case at bar. Appellant had not been
actually arrested by the police or other law enforcers. He surrendered unconditionally
to the mayor of Batangas City, a person in authority, thereby saving the police trouble
and expenses which it would otherwise incur in his search and capture. The fact that
appellant surrendered two weeks after the incident is immaterial. We have held that for
voluntary surrender to mitigate an offense, it is not required that the accused surrender
at the first opportunity.[57] As long as the aforementioned requisites are met, voluntary
surrender can be appreciated.[58]
We shall now determine the propriety of the penalties imposed on appellant.

Article 248 of the Revised Penal Code states that murder is punishable by reclusion
perpetua to death. Article 63(4) of the same Code provides that if the penalty is
composed of two indivisible penalties, as in this case, and both mitigating and
aggravating circumstances attended the commission of the crime, the courts shall
reasonably allow them to offset one another in consideration of their number and
importance. As earlier determined, the mitigating circumstance of voluntary surrender
and the aggravating circumstances of treachery and use of an unlicensed firearm were
present in the instant case. Nonetheless, the aggravating circumstance of treachery in
this case cannot be applied for offsetting because it was already considered as a
qualifying circumstance.[59] Thus, only the aggravating circumstance of use of an
unlicensed firearm may be utilized in offsetting the mitigating circumstance of voluntary
surrender.

We stated earlier that the use of an unlicensed firearm in murder is

a special aggravating circumstance and not merely a generic aggravating circumstance.
As such, it cannot be offset by an ordinary mitigating circumstance such as voluntary
surrender.[60] Thus, the only modifying circumstance remaining in the present case is the
special aggravating circumstance of use of an unlicensed firearm. Article 63(1) of the
Code provides that if the penalty is composed of two indivisible penalties, as in this case,
and there is present only one aggravating circumstance, the greater penalty shall be
applied. Consequently, the penalty imposable on appellant is death. However, with the
effectivity of Republic Act No. 9346 entitled, "An Act Prohibiting the Imposition of Death
Penalty in the Philippines," the imposition of the capital punishment of death has been
prohibited. Pursuant to Section 2 thereof, the penalty to be meted to appellant shall
be reclusion perpetua. Said section reads:
SECTION 2. In lieu of the death penalty, the following shall be imposed:

(a) the penalty of reclusion perpetua, when the law violated makes use of the
nomenclature of the penalties of the Revised Penal Code; or

(b) the penalty of life imprisonment, when the law violated does not make use of the
nomenclature of the penalties of the Revised Penal Code.
 Notwithstanding the reduction of the penalty imposed on appellant, he is not
eligible for parole following Section 3 of said law which provides:
SECTION 3. Persons convicted of offenses punished with reclusion perpetua, or
whose sentences will be reduced to reclusion perpetua, by reason of this Act, shall not
be eligible for parole under Act No. 4103, otherwise known as the Indeterminate
Sentence Law, as amended.
Hence, the RTC and the Court of Appeals were correct in imposing the penalty
of reclusion perpetua on appellant.

As to damages, both courts acted accordingly in awarding civil indemnity [61] to the heirs
of Inspector Barte since the award of this damage is mandatory in murder cases.
[62]
 Nevertheless, the amount of P50,000.00 imposed as civil indemnity should be
increased to P75,000.00 based on prevailing jurisprudence. [63] In People v. Quiachon,
[64]
 we explained that even if the penalty of death is not to be imposed on accused
because of the prohibition in Republic Act No. 9346, the civil indemnity of P75,000.00 is
still proper as the said award is not dependent on the actual imposition of the death
penalty but on the fact that qualifying circumstances warranting the imposition of the
death penalty attended the commission of the offense. In the instant case, the
qualifying circumstance of treachery and the special aggravating circumstance of use of
unlicensed firearm attended the killing of Inspector Barte. These circumstances were
duly alleged in the information and proven during the trial.

The award of moral damages in the amount of P50,000.00 is proper in view of the
violent death of Inspector Barte and the resultant grief to his family. [65] Likewise, the
award of exemplary damages in the amount of P25,000.00 is in order because the killing
of Inspector Barte was committed with the aggravating circumstances of treachery and
use of an unlicensed firearm.[66] Also, the award of P109,250.00 as actual damages is
appropriate since these were supported by official receipts attached on records. [67]

The heirs of Inspector Barte should also be indemnified for loss of earning capacity
pursuant to Article 2206 of the New Civil Code. [68] Consistent with our previous
decisions,[69] the formula for the indemnification of loss of earning capacity is:
Net Earning Life Expectancy x
Capacity
[Gross Annual Income (GAI) - Living
Expenses]
 2/3 (80 - age of deceased) x (GAI - 50% of
GAI).
Inspector Barte's death certificate states that he was 46 years old at the time of
his demise.[70] The pay slip issued by the PNP, Camp Crame, Quezon City, to Inspector
Barte for August 2002 shows that the latter was earning an annual gross income of
P371,784.00.[71]

Applying the above-stated formula, the indemnity for the loss of earning capacity of
Inspector Barte is P4,213,551.00, computed as follows:
Net Earning 2/3 (34) x (P371,784.00 - P185,892.00)
Capacity
2/3 (34) x P185,892.00.
P4,213,551.00.
Hence, the amount of P4,212,312.72 awarded to the heirs of Inspector Barte as
indemnity for the latter's loss of earning capacity should be increased to P4,213,551.00.

In addition to the damages awarded, we also impose on all the amounts of damages an
interest at the legal rate of 6% from this date until fully paid. [72]

WHEREFORE, after due deliberation, the Decision of the Court of Appeals in CA-G.R. CR
H.C. No. 02367, dated 16 October 2007, is hereby AFFIRMED with the
following MODIFICATIONS: (1) the civil indemnity of appellant is increased from
P50,000.00 to P75,000.00; (2) the indemnity for Inspector Barte's loss of earning
capacity is increased from P4,212,312.72 to P4,213,551.00; and (3) an interest on all the
damages awarded at the legal rate of 6% from this date until fully paid is imposed.

SO ORDERED.

[ G.R. No. 179498, August 03, 2010 ]

PEOPLE OF THE PHILIPPINES, APPELLEE, VS. RUSTICO BARTOLINI Y
AMPIS, APPELLANT.

DECISION

VILLARAMA, JR., J.:

We review the May 31, 2007 Decision[1] of the Court of Appeals (CA) which affirmed the
guilty verdict rendered by Branch 29 of the Regional Trial Court (RTC) of Bislig
City[2] in Criminal Case Nos. 99-1-2083-H, 99-1-2084-H and 99-1-2085-H, finding
appellant Rustico Bartolini y Ampis guilty of three (3) counts of incestuous rape against
his two (2) daughters, AAA and BBB.[3]

The facts are culled from the findings of both the trial and appellate courts.

Appellant Bartolini was charged with three (3) counts of rape before the RTC, Branch 29,
of Bislig City, Surigao del Sur. The informations filed against him read:

Criminal Case No. 99-1-2083-H:

That on or about 7:00 o'clock in the morning sometime in the month of March 1995, at
Sitio [ABC], Barangay [123], Municipality of Hinatuan, Province of Surigao del Sur,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused with lewd and unchaste designs, did then and there wilfully, unlawfully and
feloniously rape [his] daughter, [AAA], by means of force and intimidation, and against
his daughter's will, to the damage and prejudice of the said [AAA], who was then 14
years old.

CONTRARY TO LAW: In violation of Article 335 of the Revised Penal Code as

amended by Section 11 of Republic Act No. 7659.

Bislig, Surigao del Sur, November 23, 1998.[4]

Criminal Case No. 99-1-2084-H:

That on or about March 2, 1998, at 8:00 o'clock in the morning, more or less, at Sitio
[ABC], Barangay [123], Municipality of Hinatuan, Province of Surigao del Sur,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, with lewd and unchaste designs and by means of force and intimidation, did
then and there wilfully, unlawfully and feloniously [have] carnal knowledge or rape his
own daughter, [BBB], against the latter's will, to the damage and prejudice of said [BBB].

CONTRARY TO LAW: In violation of Article 335 of the Revised Penal Code, as

amended by Section 11 of Republic Act No. 7659.

Bislig, Surigao del Sur, November 27, 1998.[5]

Criminal Case No. 99-1-2085-H:

That on or about 3:00 o'clock in the afternoon sometime in the month of March 1994, at
Sitio [ABC], Barangay [123], Municipality of Hinatuan, Province of Surigao del Sur,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused with lewd and unchaste designs and by means of force and intimidation, did then
and there wilfully, unlawfully and feloniously rape [his] daughter [BBB], 16 years old,
against the latter's will, to the damage and prejudice of the said [BBB].

CONTRARY TO LAW: In violation of Article 335 of the Revised Penal Code as

amended by Section 11 of Republic Act No. 7659.

Bislig, Surigao del Sur, November 27, 1998.[6]

Upon arraignment on May 4, 1999, Bartolini pleaded not guilty to all the three (3)
charges filed against him.[7] The three (3) criminal cases were thereafter tried jointly.

In the course of the trial, the prosecution presented four (4) witnesses: AAA; BBB; CCC,
appellant's wife and mother of both victims; and Dr. Emelie S. Viola, the Municipal
Health Officer of Hinatuan District Hospital who conducted the physical examination of
both victims.

Below are the facts established by their testimonies.

Bartolini is married to CCC.[8] They begot six (6) children, the eldest being BBB who was
born on January 14, 1978,[9] followed by AAA who was born on June 16, 1980.[10]

Sometime in March 1994, at around 3:00 in the afternoon, while BBB was weeding the
grass on their vegetable garden with her father, the latter suddenly pulled her to the
ground and forced her to lie down. Bartolini then lifted BBB's skirt, removed her panty
and proceeded to have sexual intercourse with her. As BBB struggled, appellant punched
her and hit her at her back. Afterwards, appellant put back his clothes and left. When
BBB went inside their house, appellant, who was waiting for her, warned her not to tell
CCC about the incident. Despite the warning, BBB reported the incident to her mother,
but the latter told her to just keep quiet.[11]

After the said incident, appellant repeatedly had sexual intercourse with BBB, the last of
which happened on March 2, 1998 at about 8:00 in the morning inside their house while
her mother was away selling fish and while all her siblings were attending school. That
morning, appellant ordered BBB to get his clothes for him. Appellant then followed BBB
to the room, took off her clothes and raped her.[12]

It also appears that sometime in March 1995, at about 6:30 in the morning, while having
breakfast, appellant instructed his second eldest daughter, AAA, to burn the dried leaves
in their garden. Dutifully, AAA went to the garden at around 7:00 that morning and met
her father there. To her surprise, appellant immediately pulled her and brought her near a
big fallen tree while threatening to kill her and all the members of their family if she
would not acquiesce to his demands. Appellant told her to remove her panties, but since
AAA was crying and pushing her father away, appellant himself took off AAA's panties,
laid her on the ground and placed one (1) of her feet on top of the fallen tree. Afterwards,
appellant removed his pants and raped her. After having sexual intercourse with AAA,
appellant put back his pants and went to the barangay hall to report for duty as appellant
was a barangay kagawad at that time. Like her sister, AAA also told the incident to their
mother, but the latter told her to keep silent for fear that appellant would fulfill his
threats. Consequently, AAA was repeatedly raped by appellant until sometime in October
1998, a month before she gave birth to appellant's child.[13]

When CCC discovered that AAA was pregnant, she confided the matter to her sister-in-
law, DDD, who, in turn, reported the incident to the barangay captain and to a
representative of the Department of Social Welfare and Development (DSWD) in Butuan
City. On November 19, 1998, while under the custody of the DSWD, AAA gave birth to
her child.[14]

During the trial, CCC testified that sometime in March 1994, her daughter BBB confided
to her that she was raped by appellant. She just kept silent about the incident for fear that
her husband will maul her when confronted. AAA also reported to her that she was raped
by her father sometime in 1995. In one (1) instance, CCC even saw appellant touching
AAA's vagina while the two (2) were inside their kitchen. She got angry and told her
parents-in-law about the incident, but the latter replied that she has no other evidence to
prove her accusation. CCC also testified that appellant, despite being an elected
barangay kagawad, was a drunkard, violent and an irresponsible individual. She added
that she had received a letter from appellant threatening to kill them.

Dr. Emelie S. Viola, Municipal Health Officer of Hinatuan District Hospital, testified that
sometime in October 1998, BBB and AAA were brought to her clinic for physical
examination. Although there were no visible signs of physical trauma, Dr. Viola found
that BBB had deep healed hymenal lacerations at the 6 and 7 o'clock positions, as well as
superficial healed hymenal laceration at the 10 o'clock position, which indicate that there
was a penetration of an object or a male reproductive organ at BBB's female genitalia. [15]

Dr. Viola also examined AAA and found that the latter had deep healed lacerations at the
12 o'clock position and superficial healed hymenal lacerations at the 3, 9 and 10 o'clock
positions, also indicating penetration of an object or a male reproductive organ at AAA's
vagina. AAA was also pregnant.[16]

The defense, on the other hand, presented its lone witness, appellant Bartolini, who
interposed the defense of denial and alibi. According to him, he could not have raped
BBB in the morning of March 2, 1998 because he has been out of their house from 4:00
a.m. that day to deliver shrimps, prawns, and crabs to a certain Benjamin Castañas who
resides in Hinatuan, Surigao del Sur. Appellant claims that he arrived at Castañas's house
at around 4:20 a.m. and stayed there for breakfast upon the latter's invitation. After
getting paid, he left for home at around 10:00 a.m. and reached his house fifteen (15)
minutes later.[17]

On September 4, 2000, a subpoena was issued for Benjamin Castañas to appear as

witness for the defense.[18] Castañas, however, failed to appear before the trial court. A
warrant of arrest was thereafter issued against him,[19] but to no avail. Thus, on July 24,
2002, the trial court issued another subpoena to Castañas.[20] When Castañas still failed to
appear, the trial court issued an order declaring the case submitted for decision. [21]

On September 18, 2002, the RTC promulgated its decision finding appellant guilty
beyond reasonable doubt of three (3) counts of rape committed against AAA and BBB.
The fallo reads:

WHEREFORE, finding the accused RUSTICO BARTOLINI Y AMPIS, forty-four (44)

years of age, a fisherman and a resident of [ABC, 123,] Hinatuan, Surigao del Sur, guilty
beyond reasonable doubt of the crime of RAPE pursuant to Article 335 of the Revised
Penal Code, as amended by Section 11, Republic Act No. 7659, paragraph (1), this Court
hereby sentences him:

1. In Criminal Case No. [99-1-]2083-H, to suffer the penalty of Death by Lethal

Injection. To pay Seventy-Five Thousand (P75,000.00) pesos as civil indemnity
and Fifty Thousand (P50,000.00) pesos as moral damages and to pay the costs;

2. In Criminal Case No. [99-1-]2084-H, to suffer the penalty of Death by Lethal

Injection. To pay Seventy-Five Thousand (P75,000.00) pesos as civil indemnity
and Fifty Thousand (P50,000.00) pesos as moral damages and to pay the costs;
[and]

3. In Criminal Case No. [99-1-]2085-H, to suffer the penalty of Death by Lethal

Injection. To pay Seventy-Five Thousand (P75,000.00) pesos as civil indemnity
and Fifty Thousand (P50,000.00) pesos as moral damages and to pay the costs.

Let the entire records of this case be forwarded to the Supreme Court for automatic
review pursuant to Section 22 of Republic Act No. 7659.

SO ORDERED.[22]

At the CA, Bartolini argued that he should not have been convicted of the crime of
qualified rape since the information in Criminal Case No. 99-1-2085-H was defective
because it failed to allege that the act was committed by force or intimidation as required
by law, while there was no allegation of minority of the victim in the information for
Criminal Case No. 99-1-2084-H. Bartolini also argued that the prosecution failed to
prove his guilt beyond reasonable doubt.[23]

After an extensive discussion on the issues raised by Bartolini, the appellate court
found no compelling reason to deviate from the findings of the trial court. Nevertheless,
the CA modified the penalties by reducing the penalty of death to reclusion
perpetua following the abolition of the death penalty and by modifying the monetary
award in favor of the victims. The dispositive portion of the appellate court's decision
reads,

WHEREFORE, the Decision dated September 18, 2002 of the Regional Trial Court,
11th Judicial Region, Branch 29, Bislig City, in Criminal Case Nos. [99-1-]2083-H, [99-
1-]2084-H and [99-1-]2085-H finding appellant Rustico Bartolini y Ampis guilty beyond
reasonable doubt for three counts of rape is AFFIRMED with the following
MODIFICATIONS:

(a) in Criminal Case Nos. [99-1-]2083-H and [99-1-]2085-H, the penalty of death is
reduced to reclusion perpetua; and to pay the amount of seventy-five thousand pesos
(P75,000.00) as civil indemnity, seventy-five thousand pesos (P75,000.00) as moral
damages and twenty-five thousand pesos (P25,000.00) as exemplary damages for each
count; and

(b) in Criminal Case No. [99-1-]2084-H, the accused is sentenced to suffer the penalty
of reclusion perpetua; and to pay the amount of fifty thousand pesos (P50,000.00) as civil
indemnity, the amount of fifty thousand pesos (P50,000.00) as moral damages, and
twenty-five thousand pesos (P25,000.00) as exemplary damages;

(c) with costs.

SO ORDERED.[24]

On August 30, 2007, the records of the case were forwarded to this Court for automatic
review.[25] The Court accepted the appeal and directed the parties to file their respective
supplemental briefs if they so desire. However, both the Office of the Solicitor General,
for the appellee, and the appellant submitted manifestations[26] stating that they replead
and adopt the arguments raised in their respective briefs[27] before the CA.

Appellant raises the following issues:

I. Whether the trial court erred in convicting the appellant;

 II. Whether the trial court erred in convicting the appellant in Criminal Case No. 99-
1-2085-H despite the fact that the information therein was allegedly defective; and

III. Whether the trial court erred in imposing the death penalty upon the appellant after
finding him guilty in Criminal Case No. 99-1-2084-H considering the failure of
the information to allege minority.[28]

We shall first discuss the second and third issues raised by the appellant, i.e., whether the
element of force and intimidation was correctly alleged in the information in Criminal
Case No. 99-1-2085-H and whether the penalty of death was properly imposed upon the
appellant in Criminal Case No. 99-1-2084-H.

The appellant's arguments are partially meritorious.

Rape is committed by having carnal knowledge of a woman under any of the following
circumstances: (1) when force or intimidation is used; (2) when the woman is deprived of
reason or is otherwise unconscious; and (3) when she is under 12 years of age. [29]

A perusal of the information used as basis for Criminal Case No. 99-1-2085-H readily
reveals the allegation that appellant employed force and intimidation in raping BBB. We
reproduce the contents of the information below:

Criminal Case No. 99-1-2085-H:

That on or about 3:00 o'clock in the afternoon sometime in the month of March 1994, at
Sitio [ABC], Barangay [123], Municipality of Hinatuan, Province of Surigao del Sur,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused with lewd and unchaste designs and by means of force and intimidation, did then
and there wilfully, unlawfully and feloniously rape [his] daughter [BBB], 16 years old,
against the latter's will, to the damage and prejudice of the said [BBB].

CONTRARY TO LAW: In violation of Article 335 of the Revised Penal Code as

amended by Section 11 of Republic Act No. 7659.

Bislig, Surigao del Sur, November 27, 1998.[30]

The same allegation was proven during the trial. We quote BBB's testimony during her
direct examination:

Q: Do you recall of any unusual incident that happened on March 1994, while you were
still residing at [Sitio ABC], [123], Lingig, Surigao del Sur, together with your parents?
A: Yes, sir.
   
Q: What was that unusual incident all about?
A: We were weeding grasses, sir.
   
Q: Where were you [weeding] grasses?
A: We were weeding grasses near to our house, sir.
   
Q: Were you alone while you were weeding grasses at [Sitio ABC], [123], Lingig, Surigao
del Sur?
A: We were two, me and my father, sir.
   
Q: What time was that?
A: Afternoon, sir.
   
Q: Now, while you were weeding grasses near your house in the afternoon of March 1994,
with your father, what happened if any?
A: He pulled me, sir.
   
Q: Where did he bring you?
A: At the place where we were weeding grasses, sir.
   
Q: What happened next after you[r] father brought you near the place where you were
weeding grasses?
A: He made me lie down, sir.
   
Q: What did you do when your father made you lie down?
A: He lift[ed] my skirt and took up my panty, sir.
   
Q: What did you do when your father pulled you[r] panty?
A: I pushed aside his hands, sir.
   
Q: What did your father do next?
A: He made me lie down, sir.
   
Q: Afterward[s], what happened next?
A: He also took [off] his brief and his pant[s], sir.
   
Q: You want to tell this Honorable Court that you were already [lying] down when your
father removed his brief and his pant[s]?
A: Yes, sir.
   
Q: In relation to you[,] where was your father situated when he removed his brief and
pant[s]?
A: [Just by] my side[,] just near me, sir.
   
Q: What happened after your father removed his pant[s] and brief?
A: He inserted his penis in my vagina, sir.
   
  xxxx
   
Q: While his penis was inside your vagina, what happened?
A: He boxed me, sir.
   
Q: Were you hit by the blow?
A: Yes, sir.
   
Q: Where?
A: [O]n my back, sir.
   
  xxxx
   
Q: When you reached to your house, what did [he] do?
A: He scolded me, sir.
   
Q: Who scolded you?
A: My father, sir.
   
Q: Why did he scold you?
A: He was afraid I might tell my mother, sir.
   
Q: Did you tell your mother about the incident?
A: Yes, sir.[31]

We are adequately convinced that the prosecution proved that appellant employed force
and intimidation upon his victim. This being so, we find no cogent reason to disturb the
ruling of both the RTC and the appellate court on this matter.

However, we disagree with the trial court's ruling convicting appellant Bartolini for
qualified rape under Criminal Case No. 99-1-2084-H. The appellate court was correct in
sustaining appellant's argument that the special qualifying circumstance cannot be
appreciated in Criminal Case No. 99-1-2084-H since the age of the victim was not
specifically alleged in the information.[32]

Our disquisition in People v. Tagud, Sr.[33] succinctly explains the matter. There, we said:

To justify the imposition of the death penalty in this case, the single special qualifying
circumstance of the minority of the victim and her relationship to the offender must be
specifically alleged in the Information and proven during the trial. x x x

xxxx

Even under the old Rules of Criminal Procedure, jurisprudence already required that
qualifying circumstances must be specifically alleged in the Information to be
appreciated as such.

xxxx

Notably, the amended Information merely stated that appellant had carnal knowledge of
his minor daughter without stating Arwin's actual age. In a rape case where the very life
of the accused is at stake, such an inexact allegation of the age of the victim is
insufficient to qualify the rape and raise the penalty to death. The sufficiency of the
Information is held to a higher standard when the only imposable penalty is death.
The constitutional right of the accused to be properly informed of the nature and
cause of the accusation against him assumes the greatest importance when the only
imposable penalty in case of conviction is death.[34]

Similar to Tagud, the qualifying circumstance of relationship of BBB to appellant was

specifically alleged and proven during the trial. Notably absent in the information,
however, is a specific averment of the victim's age at the time the offense against her was
committed. Such an omission committed by the prosecutor is fatal in the imposition of
the supreme penalty of death against the offender. It must be borne in mind that the
requirement for complete allegations on the particulars of the indictment is based on the
right of the accused to be fully informed of the nature of the charges against him so that
he may adequately prepare for his defense pursuant to the constitutional requirement on
due process,[35] specially so if the case involves the imposition of the death penalty in case
the accused is convicted. Thus, even if the victim is below eighteen (18) years of age and
the offender is her parent, but these facts are not alleged in the information, or if only one
(1) is so alleged such as what happened in the instant case, their proof as such by
evidence offered during trial cannot sanction the imposition of the death penalty.[36]

Appellant also argues that both the trial court and the CA committed reversible errors
when he was found guilty for the three (3) counts of rape even if his guilt was not proven
beyond reasonable doubt. In particular, appellant attacks AAA's credibility by arguing
that it would have been physically impossible for him to rape said victim on top of a log
as claimed by AAA in her testimony. Appellant also questions the motive of both victims
saying that it is unnatural for both to report the abuses made on them only after the lapse
of several years.

We cannot subscribe to appellant's desperate attempt to save himself from the

consequences of his dastardly acts.

Settled is the rule that when the issue is one (1) of credibility of witnesses, appellate
courts will generally not disturb the findings of the trial courts considering that the latter
are in a better position to decide the question as they have heard the witnesses and
observed their deportment and manner of testifying during the trial. It is for this reason
that the findings of the trial court are given the highest degree of respect. These findings
will not ordinarily be disturbed by an appellate court absent any clear showing that the
trial court has overlooked, misunderstood, or misapplied some facts or circumstances of
weight or substance which could very well affect the outcome of the case. [37]

Moreover, AAA's testimony was vivid and precise. She said:

Q:  What was your position at that time when you said your father spread your legs apart?

A: When I spread my legs, I was laying (sic), and he put my one leg on top of the fallen
tree.[38]

We note with approval the CA's observation that such revelation is plausible and
consistent with human experience. Indeed, if there is any incongruity in the manner of
intercourse as portrayed by the appellant, the same would be trivial and will not smother
AAA's revelation of sexual abuse.[39]

How the victims managed to endure the bestial treatment of their father to them for four
(4) long years, with one (1) even having to live with the shame of siring an offspring
from her very own father, should not be taken against them. Children of tender age have
natural respect and reverence for their loved ones. More often than not, they would try to
keep to themselves if anything unnatural was committed against them, especially if the
offender is one (1) of their relatives. A father is known to have a strong natural, cultural
and psychological hold upon his child. Hence, it would be too assuming for us to ask the
victims why they have kept these facts of abuse to themselves, when their very own
mother decided to be mum on the matter as well.

Anent the award of damages, we find modifications to be in order. We increase the award
of civil indemnity and moral damages in Criminal Case No. 99-1-2084-H from
P50,000.00 to P75,000.00 each. In People v. Catubig,[40] we explained that the
commission of an offense has a two (2)-pronged effect, one (1) on the public as it
breaches the social order and the other upon the private victim as it causes personal
sufferings. Each effect is respectively addressed by the prescription of heavier
punishment for the accused and by an award of additional damages to the victim.The
increase of the penalty or a shift to a graver felony underscores the exacerbation of the
offense by the attendance of aggravating circumstances, whether ordinary or qualifying,
in its commission.But unlike the criminal liability which is basically the State's concern,
the award of damages is in general intended for the offended party who suffers thereby.
Hence, although it is essential to observe the requirements imposed by Sections 8 [41] and
9[42] of Rule 110 of the Revised Rules of Criminal Procedure, as amended, the
requirements should affect only the criminal liability of the accused, which is the State's
concern, and should not affect the civil liability of the accused, which is for the benefit of
the injured party. Where the special qualifying circumstances of age and relationship,
although not alleged in the information, are nonetheless established during the trial, the
award of civil indemnity and moral damages in a conviction for simple rape should equal
the award of civil indemnity and moral damages in convictions for qualified rape.  Truly,
BBB's moral suffering is just as great as when her father who raped her is convicted for
qualified rape as when he is convicted only for simple rape due to a technicality.

Likewise, we modify the award for exemplary damages. Pursuant to prevailing

jurisprudence, the award of exemplary damages for the two (2) counts of qualified rape
under Criminal Case Nos. 99-1-2083-H and 99-1-2085-H  and for the crime of simple
rape in Criminal Case No. 99-1-2084-H is increased to P30,000.00 for each count of rape.
[43]

  WHEREFORE, the judgment on review is AFFIRMED with MODIFICATIONS.

In Criminal Case Nos. 99-1-2083-H and 99-1-2085-H, appellant Rustico Bartolini y

Ampis is found GUILTY beyond reasonable doubt of two (2) counts of QUALIFIED
RAPE and is hereby sentenced to suffer the penalty of reclusion perpetua, in lieu of
death, without the possibility of parole. He is ORDERED to pay each of his two (2)
victims, AAA and BBB, P75,000.00 as civil indemnity, P75,000.00 as moral damages,
and P30,000.00 as exemplary damages.

In Criminal Case No. 99-1-2084-H, appellant is found GUILTY beyond reasonable

doubt of the crime of RAPE and is hereby sentenced to suffer the penalty of reclusion
perpetua. He is ORDERED to pay the victim, BBB, P75,000.00 as civil indemnity,
P75,000.00 as moral damages, and P30,000.00 as exemplary damages.

Costs against the appellant.

SO ORDERED.

FIRST DIVISION
[ G.R. No. 164457, April 11, 2012 ]
ANNA LERIMA PATULA, PETITIONER, VS. PEOPLE OF THE
PHILIPPINES, RESPONDENT.

DECISION
BERSAMIN, J.:

In the trial of every criminal case, a judge must rigidly test the State’s evidence of guilt in
order to ensure that such evidence adheres to the basic rules of admissibility before
pronouncing an accused guilty of the crime charged upon such evidence. Nothing less is
demanded of the judge; otherwise, the guarantee of due process of law is nullified. The
accused need not adduce anything to rebut evidence that is discredited for failing the test.
Acquittal should then follow.

Antecedents

Petitioner was charged with estafa under an information filed in the Regional Trial Court
(RTC) in Dumaguete City that averred:

That on or about and during the period from March 16 to 20, 1997 and for sometime prior
thereto, in the City of Dumaguete, Philippines, and within the jurisdiction of this
Honorable Court, the said accused, being then a saleswoman of Footlucker’s Chain of
Stores, Inc., Dumaguete City, having collected and received the total sum of P131,286.97
from several customers of said company under the express obligation to account for the
proceeds of the sales and deliver the collection to the said company, but far from
complying with her obligation and after a reasonable period of time despite repeated
demands therefore, and with intent to defraud the said company, did, then and there
willfully, unlawfully and feloniously fail to deliver the said collection to the said
company but instead, did, then and there willfully unlawfully and feloniously
misappropriate, misapply and convert the proceeds of the sale to her own use and benefit,
to the damage and prejudice of the said company in the aforesaid amount of P131,286.97.

Contrary to Art. 315, par 1 (b) of the Revised Penal Code.[1]

Petitioner pled not guilty to the offense charged in the information.  At pre-

trial, no stipulation of facts was had, and petitioner did not avail herself of plea
bargaining.  Thereafter, trial on the merits ensued.

The Prosecution’s first witness was Lamberto Go, who testified that he was the branch
manager of Footlucker’s Chain of Stores, Inc. (Footlucker’s) in Dumaguete City since
October 8, 1994; that petitioner was an employee of Footlucker’s, starting as a saleslady
in 1996 until she became a sales representative; that as a sales representative she was
authorized to take orders from wholesale customers coming from different towns (like
Bacong, Zamboanguita, Valencia, Lumbangan and Mabinay in Negros Oriental, and
Siquijor), and to collect payments from them; that she could issue and sign official
receipts of Footlucker’s for the payments, which she would then remit; that she would
then submit the receipts for the payments for tallying and reconciliation; that at first her
volume of sales was quite high, but later on dropped, leading him to confront her; that she
responded that business was slow; that he summoned the accounting clerk to verify; that
the accounting clerk discovered erasures on some collection receipts; that he decided to
subject her to an audit by company auditor Karen Guivencan; that he learned from a
customer of petitioner’s that the customer’s outstanding balance had already been fully
paid although that balance appeared unpaid in Footlucker’s records; and that one night
later on, petitioner and her parents went to his house to deny having misappropriated any
money of Footlucker’s and to plead for him not to push through with a case against her,
promising to settle her account on a monthly basis; and that she did not settle after that,
but stopped reporting to work.[2]

On March 7, 2002, Go’s cross examination, re-direct examination and re-cross

examination were completed.

The only other witness for the Prosecution was Karen Guivencan, whom Footlucker’s
employed as its store auditor since November 16, 1995 until her resignation on March 31,
2001. She declared that Go had requested her to audit petitioner after some customers had
told him that they had already paid their accounts but the office ledger had still reflected
outstanding balances for them; that she first conducted her audit by going to the
customers in places from Mabinay to Zamboanguitain Negros Oriental, and then in
Siquijor; that she discovered in the course of her audit that the amounts appearing on the
original copies of receipts in the possession of around 50 customers varied from the
amounts written on the duplicate copies of the receipts petitioner submitted to the office;
that upon completing her audit, she submitted to Go a written report denominated as “List
of Customers Covered by Saleswoman LERIMA PATULA w/ Differences in Records as
per Audit Duly Verified  March 16-20, 1997” marked as Exhibit A; and that based on the
report, petitioner had misappropriated the total amount of P131,286.92.[3]

During Guivencan’s stint as a witness, the Prosecution marked the ledgers of petitioner’s
various customers allegedly with discrepancies as Exhibits B to YY and their derivatives,
inclusive. Each of the ledgers had a first column that contained the dates of the entries, a
second that identified the invoices by the number, a third that stated the debit, a fourth
that noted the credit (or the amounts paid), and a fifth that summed the balances (debit
minus credit).  Only 49 of the ledgers were formally offered and admitted by the RTC 
because the 50th ledger could no longer be found.

In the course of Guivencan’s direct-examination,petitioner’s counsel interposed a

continuing objection on the ground that the figures entered in Exhibits B to YY and their
derivatives, inclusive, were hearsay because the persons who had made the entries were
not themselves presented in court.[4] With that, petitioner’s counsel did not anymore
cross-examine Guivencan, apparently regarding her testimony to be irrelevant because
she thereby tended to prove falsification, an offense not alleged in the information.
The Prosecution then formally offered its documentary exhibits, including Exhibits B to
YY and their derivatives (like the originals and duplicates of the receipts supposedly
executed and issued by petitioner), inclusive, the confirmation sheets used by Guivencan
in auditing the accounts served by petitioner, and Guivencan’s  so-called Summary (Final
Report) of Discrepancies.[5]

After the Prosecution rested its case, the Defense decided not to file a demurrer to
evidence although it had manifested the intention to do so, and instead rested its case.The
Prosecution and Defense submitted their respective memoranda, and submitted the case
for decision.[6]

On January 28, 2004, the RTC, stating that inasmuch as petitioner had opted “not to
present evidence for her defense” the Prosecution’s evidence remained “unrefuted and
uncontroverted,”[7] rendered its decision finding petitioner guilty of estafa, to wit:

Wherefore, in the light of the foregoing facts and circumstances, the Court finds ANNA
LERIMA PATULA guilty beyond reasonable doubt of the crime of Estafa under Art. 315
par (1b) of the Revised Penal Code and accordingly, she is hereby sentenced to suffer an
INDETERMINATE PENALTY of imprisonment of 8 years and 1 day of prision mayor
as minimum to 18 years and 4 months of reclusion temporal as maximum with all the
accessory penalties provided by law and to indemnify private complainant the amount of
P131,286.92 with interest at 12% per annum until fully paid and to pay the costs.

Pursuant to Sec. 2, Rule 114 of the Revised Rules of Criminal Procedure, the cash bail
put up by the accused shall be effective only until the promulgation of this judgment.

SO ORDERED.[8]

Petitioner filed a motion for reconsideration, but the RTC denied the motion on May 7,
2004.[9]

Issues

Insisting that the RTC’s judgment “grossly violated [her] Constitutional and statutory
right to be informed of the nature and cause of the accusation against her because, while
the charge against her is estafa under Art. 315, par. 1 (b) of the Revised Penal Code, the
evidence presented against her and upon which her conviction was based, was
falsification, an offense not alleged or included in the Information under which she was
arraigned and pleaded not guilty,” and that said judgment likewise “blatantly ignored and
manifestly disregarded the rules on admission of evidence in that the documentary
evidence admitted by the trial court were all private documents, the due execution and
authenticity of which were not proved in accordance with Sec. 20 of Rule 132 of the
Revised Rules on Evidence,” petitioner has directly appealed to the Court via petition for
review on certiorari, positing the following issues, to wit:

1.  WHETHER THE ACCUSED OR ANY ACCUSED FOR THAT MATTER ,

CHARGED OF ESTAFA UNDER ART. 315, PAR. 1 (B) OF THE REVISED PENAL
CODE CAN BE CONVICTED UPON OR BY EVIDENCE OF FALSIFICATION
WHICH IS EVEN (SIC) NOT ALLEGED IN THE INFORMATION.

2.  WHETHER THE ACCUSED’S CONSTITUTIONAL AND STATUTORY RIGHT

TO BE INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION
AGAINST HER WAS VIOLATED WHEN SHE WAS CONVICTED UPON OR BY
EVIDENCE OF FALSIFICATION CONSIDERING THAT THE CHARGE AGAINST
HER IS ESTAFA THROUGH MISAPPROPRIATION UNDER ART. 315, PAR. 1 (B)
OF THE REVISED PENAL CODE.

3.  WHETHER OR NOT THE TRIAL COURT ERRED IN ADMITTING IN

EVIDENCE, EXHIBITS “B” TO “YY”-“YY-2”, ALL PRIVATE DOCUMENTS, THE
DUE EXECUTION AND AUTHENTICITY OF WHICH WERE NOT PROVED IN
ACCORDANCE WITH SEC. 20, RULE 132 OF THE SAID REVISED RULES ON
EVIDENCE ASIDE FROM THE FACT THAT SAID EXHIBITS TEND TO PROVE
FALSIFICATION BY THE ACCUSED, A CRIME NEITHER CHARGED NOR
ALLEGED IN THE INFORMATION.

4.  WHETHER OR NOT THE TRIAL COURT ERRED IN ADMITTING THE

TESTIMONY OF KAREN GUIVENCAN DESPITE THE OBJECTION THAT SAID
TESTIMONY WHICH TRIED TO PROVE THAT THE ACCUSED FALSIFIED
EXHIBITS “B” TO “YY”-“YY-2” INCLUSIVE VIOLATED THE ACCUSED’S
CONSTITUTIONAL RIGHT TO BE INFORMED OF THE NATURE AND CAUSE
OF THE ACCUSATION AGAINST HER, FOR BEING IRRELEVANT AND
IMMATERIAL SINCE THE CHARGE AGAINST THE ACCUSED IS ESTAFA
UNDER ART. 315, PAR. 1 (B) OF THE REVISED PENAL CODE.

5.  WHETHER OR NOT THE TRIAL COURT ERRED IN CONCLUDING THAT THE
EVIDENCE OF THE PROSECUTION “REMAINS UNREFUTED AND
UNCONTROVERTED” DESPITE ACCUSED’S OBJECTION THAT SAID
EVIDENCE IS IMMATERIAL AND IRRELEVANT TO THE CRIME CHARGED.

6.  WHETHER OR NOT THE DEFENSE’S NOT CROSS-EXAMINING KAREN

GUIVENCAN FOR THE REASON THAT HER TESTIMONY IS IMMATERIAL AND
IRRELEVANT AS IT TENDED TO PROVE AN OFFENSE NOT CHARGED IN
INFORMATION RESULTED IN THE ADMISSION OF SAID TESTIMONY AS
BEING “UNREFUTED AND UNCONTROVERTED”, AND WHETHER OR NOT
THE DEFENSE’S OBJECTION WOULD NOT BE CONSIDERED WAIVED IF THE
DEFENSE CROSS-EXAMINED SAID WITNESS.

7.  WHETHER OR NOT THE TRIAL COURT ERRED IN RULING THAT EXHIBIT
“A”, WHICH IS THE LIST OF CUSTOMERS COVERED BY SALESWOMAN
LERIMA PATULA WITH DIFFERENCE IN RECORD IS NOT HEARSAY AND
SELF-SERVING.[10]

The foregoing issues are now restated as follows:

1. Whether or not the failure of the information for estafa to allege the falsification of
the duplicate receipts issued by petitioner to her customers violated petitioner’s
right to be informed of the nature and cause of the accusation;

2. Whether or not the RTC gravely erred in admitting evidence of the falsification of
the duplicate receipts despite the information not alleging the falsification;

3. Whether or not the ledgers and receipts (Exhibits B to YY, and their derivatives,
inclusive) were admissible as evidence of petitioner’s guilt for estafa as charged
despite their not being duly authenticated;and

4. Whether or not Guivencan’s testimony on the ledgers and receipts (Exhibits B to

YY, and their derivatives, inclusive) to prove petitioner’s misappropriation or
conversion was in admissible for being hearsay.

Ruling

The petition is meritorious.

I
Failure of information to allege falsification
did not violate petitioner’s right to be informed
of the nature and cause of the accusation

Petitioner contends that the RTC grossly violated her Constitutional right to be informed
of the nature and cause of the accusation when: (a) it held that the information did not
have to allege her falsification of the duplicate receipts, and (b) when it convicted her
of estafa under Article 315, paragraph 1(b) of the Revised Penal Code by relying on the
evidence on falsification.

The contention of petitioner cannot be sustained.

The Bill of Rights guarantees some rights to every person accused of a crime, among
them the right to be informed of the nature and cause of the accusation, viz:

Section 14. (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.

Rule 110 of the Revised Rules of Court, the rule then in effect when the information was
filed in the RTC, contained the following provisions on the proper manner of alleging the
nature and cause of the accusation in the information, to wit:

Section 8. Designation of the offense.– Whenever possible, a complaint or information

should state the designation given to the offense by the statute, besides the statement of
the acts or omissions constituting the same, and if there is no such designation, reference
should be made to the section or subsection of the statute punishing it. (7)

Section 9. Cause of accusation. – The acts or omissions complained of as constituting the

offense must be stated in ordinary and concise language without repetition, not
necessarily in the terms of the statute defining the offense, but in such form as is
sufficient to enable a person of common understanding to know what offense is intended
to be charged, and enable the court to pronounce proper judgment. (8)

The importance of the proper manner of alleging the nature and cause of the accusation in
the information should never be taken for granted by the State. An accused cannot be
convicted of an offense that is not clearly charged in the complaint or information. To
convict him of an offense other than that charged in the complaint or information would
be violative of the Constitutional right to be informed of the nature and cause of the
accusation.[11] Indeed, the accused cannot be convicted of a crime, even if duly proven,
unless the crime is alleged or necessarily included in the information filed against him.

The crime of estafa charged against petitioner was defined and penalized by Article 315,
paragraph 1 (b), Revised Penal Code, viz:

Article 315. Swindling (estafa). — Any person who shall defraud another by any of the
means mentioned herein below shall be punished by:
1st. The penalty of prision correccional in its maximum period to prision mayor in its
minimum period, if the amount of the fraud is over 12,000 pesos but does not exceed
22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this
paragraph shall be imposed in its maximum period, adding one year for each additional
10,000 pesos; but the total penalty which may be imposed shall not exceed twenty years.
In such cases, and in connection with the accessory penalties which may be imposed
under the provisions of this Code, the penalty shall be termed prision mayor or reclusion
temporal, as the case may be.

2nd. The penalty of prision correccional in its minimum and medium periods, if the
amount of the fraud is over 6,000 pesos but does not exceed 12,000 pesos;

3rd. The penalty of arresto mayor in its maximum period to prision correccional in its
minimum period if such amount is over 200 pesos but does not exceed 6,000 pesos; and

4th. By arresto mayor in its maximum period, if such amount does not exceed 200 pesos,
provided that in the four cases mentioned, the fraud be committed by any of the following
means:

xxx

1.   With unfaithfulness or abuse of confidence, namely:

xxx

(b) By misappropriating or converting, to the prejudice of another, money, goods, or

any other personal property received by the offender in trust or on commission, or
for administration, or under any other obligation involving the duty to make
delivery of or to return the same, even though such obligation be totally or partially
guaranteed by a bond; or by denying having received such money, goods, or other
property.

xxx

The elements of the offense charged were as follows:

(a) That the offender received money, goods or other personal property in trust, or on
commission, or for administration, or under any other obligation involving the duty to make
delivery of, or to return, the same;
(b) That the offender misappropriated or converted such money, goods or other personal
property, or denied his part in its receipt;
(c) That the misappropriation or conversion or denial was to the prejudice of another; and
(d) That the offended party made a demand on the offender for the delivery or return of such
money, goods or other personal property.[12]
According to the theory and proof of the Prosecution, petitioner misappropriated or
converted the sums paid by her customers, and later falsified the duplicates of the receipts
before turning such duplicates to her employer to show that the customers had paid less
than the amounts actually reflected on the original receipts. Obviously, she committed the
falsification in order to conceal her misappropriation or conversion. Considering that the
falsification was not an offense separate and distinct from the estafa charged against her,
the Prosecution could legitimately prove her acts of falsification as its means of
establishing her misappropriation or conversion as an essential ingredient of the crime
duly alleged in the information. In that manner, her right to be informed of the nature and
cause of the accusation against her was not infringed or denied to her.

We consider it inevitable to conclude that the information herein completely pleaded

the estafa defined and penalized under Article 315, paragraph 1 (b), Revised Penal
Code within the context of the substantive law and the rules. Verily, there
was no necessity for the information to allege the acts of falsification by petitioner
because falsification was not an element of the estafa charged.

Not surprisingly,the RTC correctly dealt in its decision with petitioner’s concern thus
wise:

In her Memorandum, it is the contention of [the] accused that [the] prosecution’s

evidence utterly fails to prove the crime charged. According to the defense, the essence of
Karen Guivencan’s testimony is that the accused falsified the receipts issued to the
customers served by her by changing or altering the amounts in the duplicates of the
receipts and therefore, her testimony is immaterial and irrelevant as the charge is
misappropriation under Art. 315, paragraph (1b) of the Revised Penal Code and there
is no allegation whatsoever of any falsification or alteration of amounts in the
[i]nformation under which the accused was arraigned and pleaded NOT GUILTY.
Accused, thus, maintains that the testimony of Karen Guivencan should therefore not be
considered at all as it tended to prove an offense not charged or included in the
[i]nformation and would violate [the] accused’s constitutional and statutory right to be
informed of the nature and cause of the accusation against her. The Court is not in accord
with such posture of the accused.

It would seem that the accused is of the idea that because the crime charged in the
[i]nformation is merely [e]stafa and not [e]stafa [t]hru [f]alsification of documents,
the prosecution could not prove falsification. Such argumentation is not correct.
Since the information charges accused only of misappropriation pursuant to Art.
315, par. (1b) of the Revised [P]enal Code, the Court holds that there is no necessity
of alleging the falsification in the Information as it is not an element of the crime
charged.
Distinction should be made as to when the crimes of Estafa and Falsification will
constitute as one complex crime and when they are considered as two separate
offenses. The complex crime of Estafa Through Falsification of Documents is
committed when one has to falsify certain documents to be able to obtain money or
goods from another person. In other words, the falsification is a necessary means of
committing estafa. However, if the falsification is committed to conceal the
misappropriation, two separate offenses of estafa and falsification are committed. In
the instant case, when accused collected payments from the customers, said
collection which was in her possession was at her disposal. The falsified or erroneous
entries which she made on the duplicate copies of the receipts were contrived to
conceal some amount of her collection which she did not remit to the company xxx.
[13]

II
Testimonial and documentary evidence,being hearsay,
did not prove petitioner’s guilt beyond reasonable doubt

Nonetheless, in all criminal prosecutions, the Prosecution bears the burden to establish
the guilt of the accused beyond reasonable doubt. In discharging this burden, the
Prosecution’s duty is to prove each and every element of the crime charged in the
information to warrant a finding of guilt for that crime or for any other crime necessarily
included therein.[14] The Prosecution must further prove the participation of the accused in
the commission of the offense.[15] In doing all these, the Prosecution must rely on the
strength of its own evidence, and not anchor its success upon the weakness of the
evidence of the accused. The burden of proof placed on the Prosecution arises from the
presumption of innocence in favor of the accused that no less than the Constitution has
guaranteed.[16] Conversely, as to his innocence, the accused has no burden of proof,[17] that
he must then be acquitted and set free should the Prosecution not overcome the
presumption of innocence in his favor.In other words, the weakness of the defense put up
by the accused is inconsequential in the proceedings for as long as the Prosecution has
not discharged its burden of proof in establishing the commission of the crime charged
and in identifying the accused as the malefactor responsible for it.

Did the Prosecution adduce evidence that proved beyond reasonable doubt the guilt of
petitioner for the estafa charged in the information?

To establish the elements of estafa earlier mentioned, the Prosecution presented the

testimonies of Go and Guivencan, and various documents consisting of: (a) the receipts
allegedly issued by petitioner to each of her customers upon their payment, (b) the
ledgers listing the accounts pertaining to each customer with the corresponding notations
of the receipt numbers for each of the payments, and (c) the confirmation sheets
accomplished by Guivencan herself.[18] The ledgers and receipts were marked and
formally offered as Exhibits B to YY, and their derivatives, inclusive.
On his part, Go essentially described for the trial court the various duties of petitioner as
Footlucker’s sales representative. On her part, Guivencan conceded having no personal
knowledge of the amounts actually received by petitioner from the customers or remitted
by petitioner to Footlucker’s.This means that persons other than Guivencan prepared
Exhibits B to YY and their derivatives, inclusive,and that Guivencan based her testimony
on the entries found in the receipts supposedly issued by petitioner and in the ledgers held
by Footlucker’s corresponding to each customer, as well as on the unsworn statements of
some of the customers. Accordingly, her being the only witness who testified on the
entries effectively deprived the RTC of the reasonable opportunity to validate and test the
veracity and reliability of the entries as evidence of petitioner’s misappropriation or
conversion through cross-examination by petitioner. The denial of that opportunity
rendered thee ntire proof of misappropriation or conversion hearsay, and thus unreliable
and untrustworthy for purposes of determining the guilt or innocence of the accused.

To elucidate why the Prosecution’s hearsay evidence was unreliable and untrustworthy,
and thus devoid of probative value, reference is made to Section 36 of Rule 130, Rules of
Court, a rule that states that a witness can testify only to those facts that she knows of her
personal knowledge; that is, which are derived from her own perception, except as
otherwise provided in the Rules of Court. The personal knowledge of a witness is a
substantive prerequisite for accepting testimonial evidence that establishes the truth of a
disputed fact. A witness bereft of personal knowledge of the disputed fact cannot be
called upon for that purpose because her testimony derives its value not from the credit
accorded to her as a witness presently testifying but from the veracity and competency of
the extrajudicial source of her information.

In case a witness is permitted to testify based on what she has heard another person say
about the facts in dispute, the person from whom the witness derived the information on
the facts in dispute is not in court and under oath to be examined and cross-examined.
The weight of such testimony then depends not upon the veracity of the witness but upon
the veracity of the other person giving the information to the witness without oath. The
information cannot be tested because the declarant is not standing in court as a witness
and cannot, therefore, be cross-examined.

It is apparent, too, that a person who relates a hearsay is not obliged to enter into any
particular, to answer any question, to solve any difficulties, to reconcile any
contradictions, to explain any obscurities, to remove any ambiguities; and that she
entrenches herself in the simple assertion that she was told so, and leaves the burden
entirely upon the dead or absent author.[19] Thus, the rule against hearsay testimony rests
mainly on the ground that there was no opportunity to cross-examine the declarant.[20] The
testimony may have been given under oath and before a court of justice, but if it is
offered against a party who is afforded no opportunity to cross-examine the witness, it is
hearsay just the same.[21]
Moreover, the theory of the hearsay rule is that when a human utterance is offered as
evidence of the truth of the fact asserted, the credit of the assert or becomes the basis of
inference, and, therefore, the assertion can be received as evidence only when made on
the witness stand, subject to the test of cross-examination. However, if an extrajudicial
utterance is offered, not as an assertion to prove the matter asserted but without reference
to the truth of the matter asserted, the hearsay rule does not apply. For example, in a
slander case, if a prosecution witness testifies that he heard the accused say that the
complainant was a thief, this testimony is admissible not to prove that the complainant
was really a thief, but merely to show that the accused uttered those words. [22] This kind
of utterance is hearsay in character but is not legal hearsay. [23] The distinction is,
therefore, between (a) the fact that the statement was made, to which the hearsay rule
does not apply, and (b) the truth of the facts asserted in the statement, to which the
hearsay rule applies.[24]

Section 36, Rule 130 of the Rules of Court is understandably not the only rule that
explains why testimony that is hearsay should be excluded from consideration. Excluding
hearsay also aims to preserve the right of the opposing party to cross-examine
the original declarant claiming to have a direct knowledge of the transaction or
occurrence.[25] If hearsay is allowed, the right stands to be denied because the declarant is
not in court.[26] It is then to be stressed that the right to cross-examine the adverse party’s
witness,

being the only means of testing the credibility of witnesses and their testimonies, is
essential to the administration of justice.

To address the problem of controlling inadmissible hearsay as evidence to establish the

truth in a dispute while also safeguarding a party’s right to cross-examine her adversary’s
witness, the Rules of Court offers two solutions. The first solution is to require that all the
witnesses in a judicial trial or hearing be examined only in court under oath or
affirmation. Section 1, Rule 132 of the Rules of Court formalizes this solution,viz:

Section 1. Examination to be done in open court. - The examination of witnesses

presented in a trial or hearing shall be done in open court, and under oath or affirmation.
Unless the witness is incapacitated to speak, or the question calls for a different mode of
answer, the answers of the witness shall be given orally. (1a)

The second solution is to require that all witnesses be subject to the cross-examination by

the adverse party. Section 6, Rule 132 of the Rules of Court ensures this solution thusly:

Section 6. Cross-examination; its purpose and extent. – Upon the termination of the
direct examination, the witness may be cross-examined by the adverse party as to any
matters stated in the direct examination, or connected therewith, with sufficient fullness
and freedom to test his accuracy and truthfulness and freedom from interest or bias, or the
reverse, and to elicit all important facts bearing upon the issue. (8a)

Although the second solution traces its existence to a Constitutional precept relevant to
criminal cases, i.e., Section 14, (2), Article III, of the 1987 Constitution,which guarantees
that: “In all criminal prosecutions, the accused shall xxx enjoy the right xxx to meet the
witnesses face to face xxx,” the rule requiring the cross-examination by the adverse party
equally applies to non-criminal proceedings.

We thus stress that the rule excluding hearsay as evidence is based upon serious concerns
about the trustworthiness and reliability of hearsay evidence due to its not being given
under oath or solemn affirmation and due to its not being subjected to cross-examination
by the opposing counsel to test the perception, memory, veracity and articulateness of the
out-of-court declarant or actor upon whose reliability the worth of the out-of-court
statement depends.[27]

Based on the foregoing considerations, Guivencan’s testimony as well as Exhibits B to

YY, and their derivatives, inclusive, must be entirely rejected as proof of petitioner’s
misappropriation or conversion.

III
Lack of their proper authentication rendered
Exhibits B to YY and their derivatives
inadmissible as judicial evidence

Petitioner also contends that the RTC grossly erred in admitting as evidence Exhibits B to
YY, and their derivatives, inclusive, despite their being private documents that were not
duly authenticated as required by Section 20, Rule 132 of the Rules of Court.

Section 19, Rule 132 of the Rules of Court distinguishes between a public document and
a private document for the purpose of their presentation in evidence, viz:

Section 19. Classes of documents. – For the purpose of their presentation in evidence,

documents are either public or private.

Public documents are:

(a) The written official acts, or records of the official acts of the sovereign authority,
official bodies and tribunals, and public officers, whether of the Philippines, or of a
foreign country;

(b) Documents acknowledged before a notary public except last wills and testaments, and
(c) Public records, kept in the Philippines, of private documents required by law to be
entered therein.

All other writings are private.

The nature of documents as either public or private determines how the documents may
be presented as evidence in court. A public document, by virtue of its official or
sovereign character, or because it has been acknowledged before a notary public (except
a notarial will) or a competent public official with the formalities required by law, or
because it is a public record of a private writing authorized by law, is self-authenticating
and requires no further authentication in order to be presented as evidence in court.In
contrast, a private document is any other writing, deed, or instrument executed by a
private person without the intervention of a notary or other person legally authorized by
which some disposition or agreement is proved or set forth. Lacking the official or
sovereign character of a public document, or the solemnities prescribed by law, a private
document requires authentication in the manner allowed by law or the Rules of
Court before its acceptance as evidence in court. The requirement of authentication of a
private document is excused only in four instances, specifically: (a) when the document is
an ancient one within the context of Section 21,[28] Rule 132 of the Rules of Court; (b)
when the genuineness and authenticity of an actionable document have not been
specifically denied under oath by the adverse party;[29] (c) when the genuineness and
authenticity of the document have been admitted;[30] or (d) when the document is not
being offered as genuine.[31]

There is no question that Exhibits B to YY and their derivatives were private documents
because private individuals executed or generated them for private or business purposes
or uses. Considering that none of the exhibits came under any of the four exceptions, they
could not be presented and admitted as evidence against petitioner without the
Prosecution dutifully seeing to their authentication in the manner provided in Section20
of Rule 132 of the Rules of Court,viz:

Section 20. Proof of private documents. – Before any private document offered as

authentic is received in evidence, its due execution and authenticity must be
proved either:

(a) By anyone who saw the document executed or written; or

(b) By evidence of the genuineness of the signature or handwriting of the maker.

Any other private document need only be identified as that which it is claimed to be.

The Prosecution attempted to have Go authenticate the signature of petitioner in various

receipts, to wit:
ATTY. ABIERA:
Q. Now, these receipts which you mentioned which do not tally with the original receipts,
do you have copies of these receipts?
A. Yes, I have a copy of these receipts, but it’s not now in my possession.
Q. But when asked to present those receipts before this Honorable Court, can you assure
this
(Next Page)
ATTY ABIERA (continuing):
Honorable Court that you will be able to present those receipts?
A. Yes.
Q. You are also familiar with the signature of the accused in this case, Anna Lerima
Patula?
A. Yes.
Q. Why are you familiar with the signature of the accused in this case?
A. I used to see her signatures in the payroll and in the receipts also.
Q. Okay, I have here a machine copy of a receipt which we would present this,or offer
the same as soon as the original receipts can be presented, but for purposes only of
your testimony, I’m going to point to you a certain signature over this receipt
number FLDT96 20441, a receipt from Cirila Askin, kindly go over the signature
and tell the Honorable Court whether you are familiar with the signature?
A. Yes, that is her signature.
INTERPRETER:
Witness is pointing to a signature above the printed word “collector”.
(Next Page)
ATTY. ABIERA:
Q. Is this the only receipt wherein the name, the signature rather, of the accused in
this case appears?
A. That is not the only one, there are many receipts.
ATTY. ABIERA:
In order to save time, Your Honor, we will just be presenting the original
receipts Your Honor, because it’s quite voluminous, so we will just forego with the
testimony of the witness but we will just present the same using the testimony of
another witness, for purposes of identifying the signature of the accused. We will
request that this signature which has been identified to by the witness in this case be
marked, Your Honor, with the reservation to present the original copy and present the
same to offer as our exhibits but for the meantime, this is only for the purposes of
recording, Your Honor, which we request the same, the receipt which has just been
identified awhile ago be marked as our Exhibit “A” You Honor.
COURT:
Mark the receipt as Exhibit “A”.
ATTY. ABIERA:
And the signature be bracketed and be marked as Exhibit “A-1”.
(Next Page)
COURT:
Bracket the signature &mark it as Exh. “A-1”. What is the number of that receipt?
ATTY. ABIERA:
 Receipt No. 20441 dated August 4, 1996 the statement that: received from Cirila
Askin.[32]
xxx

As the excerpts indicate, Go’s attempt at authentication of the signature of petitioner on

the receipt with serial number FLDT96 No. 20441 (a document that was marked as
Exhibit A, while the purported signature of petitioner thereon was marked as Exhibit A-
1) immediately fizzled out after the Prosecution admitted that the document was a
mere machine copy, not the original. Thereafter, as if to soften its failed attempt, the
Prosecution expressly promised to produce at a later date the originals of the receipt with
serial number FLDT96 No. 20441 and other receipts. But that promise was not even true,
because almost in the same breath the Prosecution offered to authenticate the signature of
petitioner on the receipts through a different witness (though then still unnamed).  As
matters turned out in the end, the effort to have Go authenticate both the machine copy of
the receipt with serial number FLDT96 No. 20441 and the signature of petitioner on that
receipt was wasteful because the machine copy was inexplicably forgotten and
was no longer even included in the Prosecution’s Offer of Documentary Evidence.

It is true that the original of the receipt bearing serial number FLDT96 No. 20441was
subsequently presented as Exhibit B through Guivencan. However, the Prosecution did
not establish that the signature appearing on Exhibit B was the same signature that Go
had earlier sought to identify to be the signature of petitioner (Exhibit A-1) on the
machine copy (Exhibit A). This is borne out by the fact that the Prosecution abandoned
Exhibit A as the marking nomenclature for the machine copy of the receipt bearing serial
number FLDT96 No. 20441 for all intents and purposes of this case, and used the same
nomenclature to refer instead to an entirely different document entitled “List of
Customers covered by ANA LERIMA PATULA w/difference in Records as per Audit
duly verified March 16-20, 1997.”

In her case, Guivencan’s identification of petitioner’s signature on two receipts based

alone on the fact that the signatures contained the legible family name of Patula was
ineffectual, and exposed yet another deep flaw infecting the documentary evidence
against petitioner. Apparently, Guivencan could not honestly identify petitioner’s
signature on the receipts either because she lacked familiarity with such signature, or
because she had not seen petitioner affix her signature on the receipts, as the following
excerpts from her testimony bear out:

ATTY. ZERNA to witness:

Q. There are two (2) receipts attached here in the confirmation sheet, will you go over
these Miss witness?
A. This was the last payment which is fully paid by the customer. The other receipt is the
one showing her payment prior to the last payment.
COURT:
Q. Where did you get those two (2) receipts?
A. From the customer.
Q. And who issued those receipts?
A. The saleswoman, Miss Patula.
ATTY. ZERNA:
We pray, Your Honor, that this receipt identified be marked as Exhibit “B-3”, receipt
number 20441.
(Next Page)
COURT:
Mark it.
ATTY. ZERNA:
The signature of the collector be marked as –
Q. By the way, there is a signature above the name of the collector, are your familiar
with that signature? (shown to witness)
A. Yes.
Q. Whose signature is that?
A. Miss Patula.
Q. How do you know?
A. It can be recognized because of the word Patula.
Q. Are you familiar with her signature?
A. Yes.
ATTY. ZERNA:
We pray that the signature be bracketed and marked as Exhibit “B-3-a”
COURT:
Mark it.
ATTY. ZERNA:
The other receipt number 20045 be marked as Exhibit “B-4” and the signature as
Exhibit “B-4-a”.
COURT:
Mark it.[33]
xxx
ATTY. ZERNA:
Q. Ms. Witness, here is a receipt colored white, number 26603 issued to one Divina
Cadilig. Will you please identify this receipt if this is the receipt of your office?
A. Yes.
Q. There is a signature over the portion for the collector. Whose signature is this?
A. Ms. Patula.
Q. How do you know that this is her signature?
A. Because we can read the Patula.[34]

We also have similar impressions of lack of proper authentication as to the ledgers the
Prosecution presented to prove the discrepancies between the amounts petitioner had
allegedly received from the customers and the amounts she had actually remitted to
Footlucker’s. Guivencan exclusively relied on the entries of the unauthenticated ledgers
to support her audit report on petitioner’s supposed misappropriation or conversion,
revealing her lack of independent knowledge of the veracity of the entries, as the
following excerpts of her testimony show:
ATTY. ZERNA to witness:
Q. What is your basis of saying that your office records showed that this Cecilia
Askin has an account of P10,791.75?
ATTY. DIEZ:
The question answers itself, You Honor, what is the basis, office record.
COURT:
Let the witness answer.
WITNESS
:
A. I made the basis on our ledger in the office. I just copied that and showed it to the
customers for confirmation.
ATTY. ZERNA to witness:
Q. What about the receipts?
COURT:
Make a follow-up question and what was the result when you copied that amount in
the ledger and you had it confirmed by the customers, what was the result when you
had it confirmed by the customers?
WITNESS
:
A. She has no more balance but in our office she has still a balance of P10,971.75.
ATTY. ZERNA to witness:
Q. Do you have a-what’s the basis of saying that the balance of this customer is still
P10,971.75
(Next Page)
ATTY. ZERNA (continuing):
[i]n your office?
COURT:
That was already answered pañero, the office has a ledger.
Q. Now, did you bring the ledger with you?
A. No, Ma’am.[35]
(Continuation of the Direct Examination of Karen Guivencan on August 13, 2002)
ATTY. ZERNA to witness:
Q. Okay, You said there are discrepancies between the original and the duplicate, will
you please enlighten the Honorable Court on that discrepancy which you said?
A. Like in this case of Cirila Askin, she has already fully paid. Her ledger shows a
zero balance she has fully paid while in the original
(Next page)
WITNESS (continuing):
[r]eceipt she has a balance of Ten Thousand Seven hundred Ninety-one Pesos
and Seventy-five Centavos (10,791.75).
COURT:
Q. What about the duplicate receipt, how much is indicated there?
A. The customer has no duplicate copy because it was already forwarded to the Manila
Office.
Q. What then is your basis in the entries in the ledger showing that it has already a zero
balance?
A. This is the copy of the customer while in the office, in the original receipt she has still
a balance.
xxx
ATTY. ZERNA:
The confirmation sheet ---
COURT:
The confirmation sheet was the one you referred to as the receipt in your earlier
testimony? Is that what you referred to as the receipts, the original receipts?
A. This is what I copied from the ledger.
Q. So where was that(sic) original receipt which you said showed that that particular
customer still has a balance of Ten Thousand something?
A. The receipt is no longer here.
Q. You mean the entry of that receipt was already entered in the ledger?
A. Yes.[36]

In the face of the palpable flaws infecting the Prosecution’s evidence, it should come
as no surprise that petitioner’s counsel interposed timely objections. Yet, the RTC
mysteriously overruled the objections and allowed the Prosecution to present the
unauthenticated ledgers, as follows:

(Continuation of the Direct Examination of

Witness Karen Guivencan on September 11, 2002)

ATTY. ZERNA:
CONTINUATION OF DIRECT-EXAMINATION
Q– Ms. Witness, last time around you were showing us several ledgers. Where is it now?
A– It is here.
Q– Here is a ledger of one Divina Cadilig. This Divina Cadilig, how much is her account
in your office?
ATTY. DIEZ:
Your Honor please before the witness will proceed to answer the question, let me
interpose our objection on the ground that this ledger has not been duly
identified to by the person who made the same. This witness will be testifying on
hearsay matters because the supposed ledger was not identified to by the person
who made the same.
COURT:
Those ledgers were already presented in the last hearing. I think they were already
duly identified by this witness. As a matter of fact, it was she who brought them to
court
(Next Page)
COURT (cont.):
because these were the ledgers on file in their office.
ATTY. DIEZ
That is correct, Your Honor, but the person who made the entries is not this
witness, Your Honor. How do we know that the entries there is (sic) correct on
the receipts submitted to their office.
COURT:
Precisely, she brought along the receipts also to support that. Let the witness answer.
WITNESS
:
A– It’s the office clerk in-charge.
COURT:
The one who prepared the ledger is the office clerk.
ATTY. ZERNA:
She is an auditor, Your Honor. She has been qualified and she is the auditor of
Footluckers.
COURT:
I think, I remember in the last setting also, she testified where those entries were
taken. So, you answer the query of counsel.
xxx
ATTY. DIEZ:
Your Honor please, to avoid delay, may I interpose a continuing objection to the
questions profounded (sic) on those ledgers on the ground that, as I have said, it
is hearsay.
COURT:
Okey(sic). Let the continuing objection be noted.
Q– (To Witness) The clerk who allegedly was the one who prepared the entries on
those ledgers, is she still connected with Footluckers?
A– She is no longer connected now, Your Honor,
COURT:
Alright proceed.
(Next Page)
ATTY. ZERNA:
Your Honor, these are entries in the normal course of business. So, exempt from
the hearsay rule.
COURT:
Okey(sic), proceed.[37]

The mystery shrouding the RTC’s soft treatment of the Prosecution’s flawed presentation
was avoidable simply by the RTC adhering to the instructions of the rules earlier quoted,
as well as with Section 22 of Rule 132 of the Rules of Court,which contains instructions
on how to prove the genuineness of a handwriting in a judicial proceeding, as follows:

Section 22. How genuineness of handwriting proved. – The handwriting of a person may

be proved by any witness who believes it to be the handwriting of such person because he
has seen the person write, or has seen writing purporting to be his upon which the
witness has acted or been charged, and has thus acquired knowledge of the handwriting
of such person. Evidence respecting the handwriting may also be given by a comparison,
made by the witness or the court, with writings admitted or treated as genuine by
the party against whom the evidence is offered, or proved to be genuine to the
satisfaction of the judge. (Emphases supplied)
If it is already clear that Go and Guivencan had not themselves seen the execution or
signing of the documents,the Prosecution surely did not authenticate Exhibits B to YY
and their derivatives conformably with the aforequoted rules. Hence, Exhibits B to YY,
and their derivatives, inclusive, were inescapably bereft of probative value as evidence.
That was the only fair and just result, as the Court held in Malayan Insurance Co., Inc. v.
Philippine Nails and Wires Corporation:[38]

On the first issue, petitioner Malayan Insurance Co., Inc., contends that Jeanne
King’s testimony was hearsay because she had no personal knowledge of the
execution of the documents supporting respondent’s cause of action, such as the sales
contract, invoice, packing list, bill of lading, SGS Report, and the Marine Cargo Policy. 
Petitioner avers that even though King was personally assigned to handle and monitor the
importation of Philippine Nails and Wires Corporation, herein respondent, this cannot be
equated with personal knowledge of the facts which gave rise to respondent’s cause of
action. Further, petitioner asserts, even though she personally prepared the summary of
weight of steel billets received by respondent, she did not have personal knowledge of the
weight of steel billets actually shipped and delivered.

At the outset, we must stress that respondent’s cause of action is founded on breach of
insurance contract covering cargo consisting of imported steel billets. To hold petitioner
liable, respondent has to prove, first, its importation of 10,053.400 metric tons of steel
billets valued at P67,156,300.00, and second, the actual steel billets delivered to and
received by the importer, namely the respondent. Witness Jeanne King, who was
assigned to handle respondent’s importations, including their insurance coverage, has
personal knowledge of the volume of steel billets being imported, and therefore
competent to testify thereon.  Her testimony is not hearsay, as this doctrine is defined in
Section 36, Rule 130 of the Rules of Court.However, she is not qualified to testify on
the shortage in the delivery of the imported steel billets. She did not have personal
knowledge of the actual steel billets received. Even though she prepared the
summary of the received steel billets, she based the summary only on the receipts
prepared by other persons. Her testimony on steel billets received was hearsay. It
has no probative value even if not objected to at the trial.

On the second issue, petitioner avers that King failed to properly authenticate
respondent’s documentary evidence. Under Section 20, Rule 132, Rules of Court,
before a private document is admitted in evidence, it must be authenticated either
by the person who executed it, the person before whom its execution was
acknowledged, any person who was present and saw it executed, or who after its
execution, saw it and recognized the signatures, or the person to whom the parties to
the instruments had previously confessed execution thereof.  In this case, respondent
admits that King was none of the aforementioned persons.  She merely made the
summary of the weight of steel billets based on the unauthenticated bill of lading
and the SGS report. Thus, the summary of steel billets actually received
had no proven real basis, and King’s testimony on this point could not be taken at
face value.

xxx Under the rules on evidence, documents are either public or private. Private
documents are those that do not fall under any of the enumerations in Section 19, Rule
132 of the Rules of Court.Section 20of the same law, in turn, provides that before any
private document is received in evidence, its due execution and authenticity must be
proved either by anyone who saw the document executed or written, or by evidence of
the genuineness of the signature or handwriting of the maker.  Here, respondent’s
documentary exhibits are private documents.  They are not among those
enumerated in Section 19, thus, their due execution and authenticity need to be
proved before they can be admitted in evidence.With the exception concerning the
summary of the weight of the steel billets imported, respondent
presented no supporting evidence concerning their authenticity. Consequently, they
cannot be utilized to prove less of the insured cargo and/or the short delivery of the
imported steel billets. In sum, we find no sufficient competent evidence to prove
petitioner’s liability.

That the Prosecution’s evidence was left uncontested because petitioner decided not to
subject Guivencan to cross-examination, and did not tender her contrary evidence was
inconsequential. Although the trial court had overruled the seasonable objections to
Guivencan’s testimony by petitioner’s counsel due to the hearsay character, it could not
be denied that hearsay evidence, whether objected to or not, had no probative value.
[39] 
Verily, the flaws of the Prosecution’s evidence were fundamental and substantive, not
merely technical and procedural, and were defects that the adverse party’s waiver of her
cross-examination or failure to rebut could not set right or cure. Nor did the trial court’s
overruling of petitioner’s objections imbue the flawed evidence with any virtue and
value.

Curiously, the RTC excepted the entries in the ledgers from the application of the hearsay
rule by also tersely stating that the ledgers “were prepared in the regular course of
business.”[40] Seemingly, the RTC applied Section 43, Rule 130 of the Rules of Court, to
wit:

Section 43. Entries in the course of business. – Entries made at, or near the time of the
transactions to which they refer, by a person deceased, or unable to testify, who was in a
position to know the facts therein stated, may be received as prima facie evidence, if such
person made the entries in his professional capacity or in the performance of duty and in
the ordinary or regular course of business or duty.

This was another grave error of the RTC.The terse yet sweeping manner of justifying the
application of Section 43 was unacceptable due to the need to show the concurrence of
the several requisites before entries in the course of business could be excepted from the
hearsay rule. The requisites are as follows:

(a) The person who made the entry must be dead or unable to testify;
(b) The entries were made at or near the time of the transactions to which they refer;
(c) The entrant was in a position to know the facts stated in the entries;
(d) The entries were made in his professional capacity or in the performance of a duty, whether
legal, contractual, moral, or religious;
(e) The entries were made in the ordinary or regular course of business or duty.[41]

The Court has to acquit petitioner for failure of the State to establish her guilt beyond
reasonable doubt. The Court reiterates that in the trial of every criminal case, a judge
must rigidly test the State’s evidence of guilt in order to ensure that such evidence
adhered to the basic rules of admissibility before pronouncing an accused guilty of the
crime charged upon such evidence. The failure of the judge to do so herein nullified the
guarantee of due of process of law in favor of the accused, who had no obligation to
prove her innocence. Her acquittal should follow.

IV
No reliable evidence on damage

Conformably with finding the evidence of guilt unreliable, the Court declares that the
disposition by the RTC ordering petitioner to indemnify Footlucker’s in the amount of
P131,286.92 with interest of 12% per annum until fully paid was not yet shown to be
factually founded. Yet, she cannot now be absolved of civil liability on that basis. Her
acquittal has to be declared as without prejudice to the filing of a civil action against her
for the recovery of any amount that she may still owe to Footlucker’s.

WHEREFORE, the Court SETS ASIDE AND REVERSES the decision

convicting ANNA LERIMA PATULA of estafa as charged, and ACQUITS her for
failure of the Prosecution to prove her guilt beyond reasonable doubt, without prejudice
to a civil action brought against her for the recovery of any amount still owing in favor of
Footlucker’s Chain of Stores, Inc.

No pronouncement on costs of suit.

SO ORDERED.

SECOND DIVISION
[ G.R. No. 206442, July 01, 2015 ]
 JOVITO CANCERAN, PETITIONER, VS. PEOPLE OF THE PHILIPPINES,
RESPONDENT.

DECISION

MENDOZA, J.:

This is a petition for review on certiorari seeking to reverse and set aside the
August 10, 2012 Decision[1] and the March 7, 2013 Resolution[2] of the Court of Appeals
(CA), in CA-G.R. CR No. 00559, which affirmed and modified the September 20, 2007
Judgment[3] of the Regional Trial Court, Branch 39, Misamis Oriental, Cagayan de Oro
City (RTC), in Criminal Case No. 2003-141, convicting petitioner Jovito Canceran
(Canceran) for consummated Theft.

The records disclose that Caneeran, together with Frederick Vequizo and Marcial Diaz,
Jr., was charged with "Frustrated Theft." The Information reads:
That on or about October 6, 2002, at more or less 12:00 noon, at Ororama Mega
Center Grocery Department, Lapasan, Cagayan de Oro City, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, Jovito Caneeran,
conspiring, confederating together and mutually helping one another with his co-
accused Frederick Vequizo, URC Merchandiser, and Marcial Diaz, Jr., a Unilever
Philippines merchandiser both of Ororama Mega Center, with intent to gain and without
the knowledge and consent of the owner thereof, did then and there wilfully, unlawfully
and feloniously take, steal and carry away 14 cartons of Ponds White Beauty Cream
valued at P28,627,20, belonging to Ororama Mega Center, represented by William
Michael N. Arcenio, thus, performing all the acts of execution which would produce the
crime of theft as a consequence but, nevertheless, did not produce it by reason of some
cause independent of accused's will, that is, they were discovered by the employees of
Ororama Mega Center who prevented them from further carrying away said 14 cartons
of Ponds White Beauty Cream, to the damage and prejudice of the Ororama Mega
Center.

Article 308 in relation to Article 309, and 6 of the Revised Penal Code. [4]
Version of the Prosecution
To prove the guilt of the accused, the prosecution presented Damalito Ompoc (Ompoc),
a security guard; and William Michael N. Arcenio (Arcenio), the Customer Relation
Officer of Ororama Mega Center (Ororama), as its witnesses. Through their testimonies,
the prosecution established that on or about October 6, 2002, Ompoc saw Caneeran
approach one of the counters in Ororama; that Caneeran was pushing a cart which
contained two boxes of Magic Flakes for which he paid P1,423.00; that Ompoc went to
the packer and asked if the boxes had been checked; that upon inspection by Ompoc
and the packer, they found out that the contents of the two boxes were not Magic
Flakes biscuits, but 14 smaller boxes of Ponds White Beauty Cream worth P28,627.20;
that Caneeran hurriedly left and a chase ensued; that upon reaching the Don Mariano
gate, Caneeran stumbled as he attempted to ride a jeepney; that after being
questioned, he tried to settle with the guards and even offered his personal effects to
pay for the items he tried to take; that Arcenio refused to settle; and that his personal
belongings were deposited in the office of Arcenio. [5]

Version of the Defense

Canceran vehemently denied the charges against him. He claimed that he was a promo
merchandiser of La Tondena, Inc. and that on October 6, 2002, he was in Ororama to
buy medicine for his wife. On his way out, after buying medicine and mineral water, a
male person of around 20 years of age requested him to pay for the items in his cart at
the cashier; that he did not know the name of this man who gave him P1,440.00 for
payment of two boxes labelled Magic Flakes; that he obliged with the request of the
unnamed person because he was struck by his conscience; that he denied knowing the
contents of the said two boxes; that after paying at the cashier, he went out of Ororama
towards Limketkai to take a jeepney; that three persons ran after him, and he was
caught; that he was brought to the 4th floor of Ororama, where he was mauled and
kicked by one of those who chased him; that they took his Nokia 5110 cellular phone
and cash amounting to P2,500.00; and that Ompoc took his Seiko watch and ring, while
a certain Amion took his necklace. [6]

Canceran further claimed that an earlier Information for theft was already filed on
October 9, 2002 which was eventually dismissed. In January 2003, a second Information
was filed for the same offense over the same incident and became the subject of the
present case.[7]
The Ruling of the Regional Trial Court

In its Judgment, dated September 20, 2007, the RTC found Canceran guilty beyond
reasonable doubt of consummated Theft in line with the ruling of the Court
in Valenzuela v. People[8] that under Article 308 of the Revised Penal Code (RPC), there is
no crime of "Frustrated Theft." Canceran was sentenced to suffer the indeterminate
penalty of imprisonment from ten (10) years and one (1) day to ten (10) years, eight (8)
months of prision mayor, as minimum, to fourteen (14) years, eight (8) months
of reclusion temporal, as maximum.[9]

The RTC wrote that Canceran's denial deserved scant consideration because it was not
supported by sufficient and convincing evidence and no disinterested witness was
presented to corroborate his claims. As such, his denial was considered self-serving and
deserved no weight. The trial court was also of the view that his defense, that the
complaint for theft filed against him before the sala of Judge Maximo Paderanga was
already dismissed, was not persuasive. The dismissal was merely a release order signed
by the Clerk of Court because he had posted bail. [10]

The Ruling of the Court of Appeals

Aggrieved, Canceran filed an appeal where he raised the issue of double jeopardy for
the first time. The CA held that there could be no double jeopardy because he never
entered a valid plea and so the first jeopardy never attached. [11]

The CA also debunked Canceran's contention that there was no taking because he
merely pushed the cart loaded with goods to the cashier's booth for payment and
stopped there. The appellate court held that unlawful taking was deemed complete
from the moment the offender gained possession of the thing, even if he had no
opportunity to dispose of the same. [12]

The CA affirmed with modification the September 20, 2007 judgment of the RTC,
reducing the penalty ranging from two (2) years, four (4) months and one (1) day
of prision correccional, as minimum, to eight (8) years, eight (8) months and one (1) day
of prision mayor, as maximum.
Canceran moved for the reconsideration of the said decision, but his motion was denied
by the CA in its March 7, 2013 resolution.

Hence, this petition.

As can be synthesized from the petition and other pleadings, the following are the
issues: 1] whether Canceran should be acquitted in the crime of theft as it was not
charged in the information; and 2] whether there was double jeopardy.

Canceran argues that the CA erred in affirming his conviction. He insists that there was
already double jeopardy as the first criminal case for theft was already dismissed and
yet he was convicted in the second case. Canceran also contends that there was no
taking of the Ponds cream considering that "the information in Criminal Case No. 2003-
141 admits the act of the petitioner did not produce the crime of theft."[13] Thus, absent
the element of taking, the felony of theft was never proved.

In its Comment,[14] the Office of the Solicitor General (OSG) contended that there was no
double jeopardy as the first jeopardy never attached. The trial court dismissed the case
even before Canceran could enter a plea during the scheduled arraignment for the first
case. Further, the prosecution proved that all the elements of theft were present in this
case.

In his Reply,[15] Canceran averred that when the arraignment of the first case was
scheduled, he was already bonded and ready to enter a plea. It was the RTC who
decided that the evidence was insufficient or the evidence lacked the element to
constitute the crime of theft. He also stressed that there was no unlawful taking as the
items were assessed and paid for.

The Court's Ruling

The Court finds the petition partially meritorious.

Constitutional Right of the Accused to be Informed of the Nature and Cause of

Accusation against Him.
No less than the Constitution guarantees the right of every person accused in a criminal
prosecution to be informed of the nature and cause of accusation against him. [16] It is
fundamental that every element of which the offense is composed must be alleged in
the complaint or information. The main purpose of requiring the various elements of a
crime to be set out in the information is to enable the accused to suitably prepare his
defense. He is presumed to have no independent knowledge of the facts that constitute
the offense.[17]

Under Article 308 of the RPC, the essential elements of theft are (1) the taking of
personal property; (2) the property belongs to another; (3) the taking away was done
with intent of gain; (4) the taking away was done without the consent of the owner; and
(5) the taking away is accomplished without violence or intimidation against person or
force upon things. "Unlawful taking, which is the deprivation of one's personal property,
is the element which produces the felony in its consummated stage. At the same time,
without unlawful taking as an act of execution, the offense could only be attempted
theft, if at all."[18]

"It might be argued, that the ability of the offender to freely dispose of the property
stolen delves into the concept of 'taking' itself, in that there could be no true taking until
the actor obtains such degree of control over the stolen item. But even if this were
correct, the effect would be to downgrade the crime to its attempted, and not frustrated
stage, for it would mean that not all the acts of execution have not been completed, the
"taking not having been accomplished."[19]

A careful reading of the allegations in the Information would show that Canceran was
charged with "Frustrated Theft" only. Pertinent parts of the Information read:
x x x did then and there wilfully, unlawfully and feloniously take, steal and carry
away 14 cartons of Ponds White Beauty Cream valued at P28,627,20, belonging to
Ororama Mega Center, represented by William Michael N. Arcenio, thus performing ail
the acts of execution which would produce the crime of theft as a consequence, but
nevertheless, did not produce it by reason of some cause independent of accused's
will x x x.

[Emphasis and Underscoring Supplied]

As stated earlier, there is no crime of Frustrated Theft. The Information can never
be read to charge Canceran of consummated Theft because the indictment itself stated
that the crime was never produced. Instead, the Information should be construed to
mean that Canceran was being charged with theft in its attempted stage only.
Necessarily, Canceran may only be convicted of the lesser crime of Attempted Theft.

"[A]n accused cannot be convicted of a higher offense than that with which he was
charged in the complaint or information and on which he was tried. It matters not how
conclusive and convincing the evidence of guilt may be, an accused cannot be convicted
in the courts of any offense, unless it is charged in the complaint or information on
which he is tried, or necessarily included therein. He has a right to be informed as to the
nature of the offense with which he is charged before he is put on trial, and to convict
him of an offense higher than that charged in the complaint or information on which he
is tried would be an unauthorized denial of that right."[20]

Indeed, an accused cannot be convicted of a crime, even if duly proven, unless it is

alleged or necessarily included in the information filed against him. [21] An offense
charged necessarily includes the offense proved when some of the essential elements or
ingredients of the former, as alleged in the complaint or information, constitute the
latter.[22]

The crime of theft in its consummated stage undoubtedly includes the crime in its
attempted stage. In this case, although the evidence presented during the trial prove
the crime of consummated Theft, he could be convicted of Attempted Theft only.
Regardless of the overwhelming evidence to convict him for consummated Theft,
because the Information did not charge him with consummated Theft, the Court cannot
do so as the same would violate his right to be informed of the nature and cause of the
allegations against him, as he so protests.

The Court is not unmindful of the rule that "the real nature of the criminal charge is
determined, not from the caption or preamble of the information nor from the
specification of the law alleged to have been violated - these being conclusions of law -
but by the actual recital of facts in the complaint or information." [23] In the case
of Domingo v. Rayala,[24] it was written:
What is controlling is not the title of the complaint, nor the designation of the
offense charged or the particular law or part thereof allegedly violated, these
being mere conclusions of law made by the prosecutor, but the description of the crime
charged and the particular facts therein recited. The acts or omissions complained of
must be alleged in such form as is sufficient to enable a person of common
understanding to know what offense is intended to be charged, and enable the court to
pronounce proper judgment. No information for a crime will be sufficient if it does not
accurately and clearly allege the elements of the crime charged. Every element of the
offense must be stated in the information. What facts and circumstances are necessary
to be included therein must be determined by reference to the definitions and
essentials of the specified crimes. The requirement of alleging the elements of a crime in
the information is to inform the accused of the nature of the accusation against him so
as to enable him to suitably prepare his defense.[25]
In the subject information, the designation of the prosecutor of the offense,
which was "Frustrated Theft," may be just his conclusion. Nevertheless, the fact remains
that the charge was qualified by the additional allegation, but, nevertheless, did not
produce it by reason of some cause independent of accused's will, that is, they were
discovered by the employees of Ororama Mega Center who prevented them from
further carrying away said 14 cartons of Ponds White Beauty Cream, x x x [26] This
averment, which could also be deemed by some as a mere conclusion, rendered the
charge nebulous. There being an uncertainty, the Court resolves the doubt in favor of
the accused, Canceran, and holds that he was not properly informed that the charge
against him was consummated theft.

No double jeopardy when the first jeopardy never attached

Anent the issue of double jeopardy, the Court finds no reason to deviate from the ruling
of the CA.

No person shall be twice put in jeopardy for punishment for the same offense. The rule
of double jeopardy has a settled meaning in this jurisdiction. It means that when a
person is charged with an offense and the case is terminated either by acquittal or
conviction or in any other manner without the consent of the accused, the latter cannot
again be charged with the same or identical offense. This principle is founded upon the
law of reason, justice and conscience. [27]

Canceran argues that double jeopardy exists as the first case was scheduled for
arraignment and he, already bonded, was ready to enter a plea. It was the RTC who
decided that there was insufficient evidence to constitute the crime of theft.

To raise the defense of double jeopardy, three requisites must be present: (1) a first
jeopardy must have attached prior to the second; (2) the first jeopardy must have been
validly terminated; and (3) the second jeopardy must be for the same offense as that in
the first. 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.[28]

Here, the CA correctly observed that Canceran never raised the issue of double jeopardy
before the RTC. Even assuming that he was able to raise the issue of double jeopardy
earlier, the same must still fail because legal jeopardy did not attach. First, he never
entered a valid plea. He himself admitted that he was just about to enter a plea, but the
first case was dismissed even before he was able to do so. Second, there was no
unconditional dismissal of the complaint. The case was not terminated by reason of
acquittal nor conviction but simply because he posted bail. Absent these two elements,
there can be no double jeopardy.

Penalty of Attempted Theft

The penalty for consummated theft is prision mayor in its minimum and medium
periods.[29] The penalty lower by two degrees than that prescribed by law for the
consummated felony shall be imposed upon principals in an attempt to commit a felony.
[30]
 The basis for reduction of penalty by two degrees is the penalty prescribed by law for
the consummated crime. Also, when the offenses defined in the RPC are punished with
a penalty composed of two periods, like in the crime of theft, the penalty lower by one
degree is formed by two periods to be taken from the same penalty prescribed. [31]

Here, the products stolen were worth P28,627.20. Following Article 309 par. 1 of the
RPC, the penalty shall be the maximum period of the penalty prescribed in the same
paragraph, because the value of the things stolen exceeded P22,000.00. In other words,
a special aggravating circumstance shall affect the imposable penalty.

Applying the Indeterminate Sentence Law, the minimum penalty should be within the
range of Arresto Mayor Minimum to Arresto Mayor Medium. In view of the special
aggravating circumstance under Article 309 (1), the maximum penalty should be Arresto
Mayor Maximum to Prision Correccional Minimum in its maximum period.

WHEREFORE, the petition is PARTIALLY GRANTED. The August 10, 2012 Decision and
the March 7, 2013 Resolution of the Court of Appeals m CA-G.R. CR No. 00559 are
hereby MODIFIED, in that, the Court finds accused Jovito Canceran guilty beyond
reasonable doubt of the crime of Attempted Theft.

Accordingly, the Court sentences the accused to suffer the indeterminate prison term
ranging from Four (4) Months of Arresto Mayor, as minimum, to Two (2) Years, Four (4)
Months of Prision Correccional, as maximum.

SO ORDERED.

SECOND DIVISION
[ G.R. No. 184320, July 29, 2015 ]
CLARITA ESTRELLADO-MAINAR PETITIONER, VS. PEOPLE OF THE
PHILIPPINES, RESPONDENT.

DECISION

BRION, J.:

Before this Court is the Petition for Review on Certiorari[1] filed by petitioner

Clarita Estrellado-Mainar assailing the resolutions of the Court of Appeals (CA) dated
November 28, 2007,[2] and July 29, 2008,[3] respectively, in CA-G.R.CR No. 00429.

ANTECEDENT FACTS

Sometime in February 2005, the petitioner offered for sale to Eric Naval (Naval) portions
of land located in Matina Aplaya, Davao City. During the negotiations for this sale, the
petitioner told Naval that the title to the land she was selling had no problems. The
petitioner also informed Naval that the area subject of the proposed sale would "still be
segregated from the mother title."[4]

On March 24, 2003, the parties executed an Agreement to Buy and Self[5] where the
petitioner agreed to sell to Naval a 200-square meter portion of the land covered by
Transfer Certificate of Title (TCT) No. T-19932 representing a portion of the petitioner's
share in the estate of her deceased father, Nicolas Estrellado. [6] Naval paid a down
payment totaling P100,000.00,[7] and then asked permission from the petitioner if he
could construct his house on the land he bought. After the petitioner issued
an Authorization dated March 24, 2003, Naval built his house on the subject land.

On June 3, 2005, representatives from JS Francisco & Sons, Inc. (JS Francisco)
demolished Naval's house. It was only then that Naval discovered that the lot sold to
him had been the subject of a dispute between the petitioner's family and JS Francisco.
Naval demanded from the petitioner the return of the amount he paid for the land, as
well as to pay the value of the house demolished, but the latter refused to heed these
demands.

The prosecution charged the petitioner with the crime of other forms of swindling
under Article 316, paragraph 1 of the Revised Penal Code, as amended, before the
Municipal Trial Court in Cities (MTCC), Branch 2, Davao City[8] in an Information that
provides:
That sometime in February 2005, in the city of Davao, Philippines, and within the
jurisdiction of this Honorable Court, the above-mentioned accused, with deceit and
intent to defraud, pretending to be the lawful owner of a two hundred (200) square
meters lot portion of a lot covered by TCT-19932 located at Cogon, Matina Aplaya, this
City, with deceit and intent to gain, wilfully, unlawfully and feloniously succeeded in
selling the same to one Eric C. Naval for which the said Eric C. Naval paid to the accused
the total amount of P123,000.00, as partial payment of the said lot when in truth and in
fact and despite her knowledge that the entire property covered by TCT No. 19931 [sic]
had been sold and was already owned by JS Francisco and Sons, Inc., thereby defrauding
the said Eric C. Naval in the aforesaid amount of P123,000.00.

CONTRARY TO LAW.[9]
 In its decision[10] dated December 27, 2006, the MTCC found the petitioner guilty
beyond reasonable doubt of other forms of swindling under Article 316, paragraph 2 of
the Revised Penal Code, as amended, and sentenced her to suffer the penalty of
imprisonment of two (2) months and one (1) day of arresto mayor.

The MTCC essentially ruled that the petitioner "represented to the complainant that the
property is free from lien and encumbrance." [11] It added that Naval relied on the first
page of the title that had been shown to him, and that the petitioner deliberately did
not inform him of the fact that she (petitioner) no longer owned the area sold.

Accordingly, the MTCC directed the petitioner to pay the following amounts to the
offended party: (a) P123,000.00 fine with subsidiary imprisonment in case of insolvency;
(b) P123,000.00 civil indemnity; (c) P65,755.45 as actual expenses incurred and proven;
(d) P10,000.00 attorney's fees; and (e) P10,000.00 moral damages.

On appeal, the Regional Trial Court (RTC), Branch 16, Davao City, affirmed the MTCC
decision in toto.[12] The RTC essentially adopted the factual findings and the conclusions
of the MTCC.

The petitioner moved to reconsider this decision, but the RTC denied her motion in its
Order of May 29, 2007.

The petitioner challenged the RTC rulings before the CA via a petition for review,
docketed as CA-G.R. CR No. 00429. In its resolution [13] dated August 16, 2007, the CA
directed the petitioner to "show cause why the petition should not be dismissed for its
failure to: (1) allege the date of receipt of the assailed decision in the petition; (2) allege
the date of receipt of the denial of the petitioner's motion for reconsideration with the
court a quo; and (3) attach Exhibits "03" to "05" referred to on pages 8 and 9 of the
petition."

In her Compliance and Manifestation,[14] the petitioner specified the date when her

counsel's messenger received the assailed RTC decision and order. She, however,
manifested that her petition for review bore no Exhibits '"03" to "05" on pages 8-9.

In its resolution of November 28, 2007, [15] the CA dismissed the petition for the
petitioner's failure to attach the exhibits that would support the allegations of her
petition in violation of Section 2, Rule 42 of the Rules of Court.

The petitioner moved to reconsider this decision, but the CA denied her motion in its
resolution dated July 29, 2008.

THE PETITION FOR REVIEW ON CERTIORARI

In the present petition,[16] the petitioner claimed that the CA erred in dismissing her
petition for review on mere technicalities. She further argued that the courts a
quo erred in convicting her of violation of Article 316, paragraph 2 of the Revised Penal
Code because the Information charged her with violation of paragraph 1 of the same
article. The petitioner also maintained that she did not misrepresent the subject land to
be free from any lien or encumbrance.

OUR RULING

After due consideration, we resolve to grant the petition.

Noncompliance with Section 2, Rule 42 of the Rules of Court

The right to appeal is not a natural right and is not part of due process, but merely a
statutory privilege to be exercised only in accordance with the law. As the appealing
party, the petitioner must comply with the requirements of the relevant rules;
otherwise, she loses the statutory right to appeal. We emphasize that the procedures
regulating appeals as laid down in the Rules of Court must be followed because strict
compliance with them is indispensable for the orderly and speedy disposition of justice.
[17]

Section 2, Rule 42 of the Rules of Court provides:

Section 2. Form and contents. - The petition shall be filed in seven (7) legible
copies, with the original copy intended for the court being indicated as such by the
petitioner, and shall (a) state the full names of the parties to the case, without
impleading the lower courts or judges thereof either as petitioners or respondents; (b)
indicate the specific material dates showing that it was filed on time; (c) set forth
concisely a statement of the matters involved, the issues raised, the specification of
errors of fact or law, or both, allegedly committed by the Regional Trial Court, and the
reasons or arguments relied upon for the allowance of the appeal; (d) be accompanied
by clearly legible duplicate originals or true copies of the judgments or final orders of
both lower courts, certified correct by the clerk of court of the Regional Trial Court,
the requisite number of plain copies thereof and of the pleadings and other material
portions of the record as would support the allegations of the petition. (emphasis
ours)
Corollarily, Section 3 of this Rule states that, "[t]he failure of the petitioner to
comply with any of the foregoing requirements regarding, among others, the contents
of and the documents which should accompany the petition shall be sufficient ground
for the dismissal thereof."

We note that the CA exercised liberality in .its treatment of the petitioner's petition for
review when - instead of dismissing it outright - it still directed her to show cause why
her petition should not be dismissed for failing to strictly comply with Section 2 of Rule
42, particularly for failure to: (1) allege the date of receipt of the assailed decision in the
petition; (2) allege the date of receipt of the denial of petitioner's motion for
reconsideration; and (3) attach exhibits "03" to "05" referred to on pages 8 and 9 of the
petition.[18]

Instead of complying with the third directive, however, the petitioner stated that the
petition had no exhibits "03" and "05" on pages 8-9. An examination of the records
revealed that, indeed, exhibits "03" to "05" were stated on pages 4 to 5. The CA itself
admitted that it inadvertently stated in its directive that exhibits "03" to "05" were on
pages 8 and 9, instead of on pages 4 to 5.

Notwithstanding the CA's inadvertence, the petitioner ought to have complied with the
latter's third directive, considering that there could have been no other exhibits "03" to
"05" referred to other than those mentioned on pages 4 and 5 of the petition, namely
TCT No. T-364319 (Exh. "03"); Extrajudicial Settlement of Estate with Renunciation of
Shares, Donation and Deed of Absolute Sale (Exh. "04"); and Agreement to Buy and Sell
(Exh. "05").

Without doubt, these documents would have supported the material allegations in the
petitioner's petition for review. The petitioner should have been more prudent and
vigilant in pursuing her petition, instead of capitalizing on the CA's misquotation of the
pages. The CA already gave the petitioner the opportunity to rectify the procedural
infirmities in her petition, but the latter did not take advantage of this liberality by
exerting utmost diligence to comply with the CA's directives.

The records likewise showed that the petitioner did attach Exhibits "03" to "05" in her
motion for reconsideration before the CA. The CA, nonetheless, disregarded these
annexes due to the petitioner's failure to offer any explanation why she did not attach
these documents to her petition. While the CA could have stretched the limits of its
liberality a bit more, we could not fault it for ruling the way it did at that point since the
petitioner did not even bother to offer any explanation why she did not attach these
relevant documents to her petition. As the CA held:
Despite petitioner's second attempt to rectify the procedural infirmities in the
motion for reconsideration by attaching therein the exhibits, yet, petitioner did not even
proffer any explanation why she failed in the first instance to attach the same in the
petition.

xxxx

Finally, concomitant to petitioner's plea for liberal application of the rules of procedure
is her obligation to exert her utmost to comply therewith. Sadly, petitioner is wanting of
the traits that could qualify her to invoke liberality in the application of the Rules. [19]
What constitutes a good and sufficient cause that will merit a reconsideration of
the dismissal of the petition is a discretionary call by the CA, and the Court will not
interfere with the exercise of this prerogative unless there has been a grave abuse of
discretion. Following the clear provisions of Section 2, in relation with Section 3, of Rule
42, we hold that the CA did not act in a whimsical, arbitrary, or capricious manner that
amounted to an evasion or refusal to perform a positive duty enjoined by law or to act
at all in contemplation of law.

The petitioner's improper conviction under Article 316, paragraph 2 of the RPC

Notwithstanding the petitioner's noncompliance with Section 2, Rule 42, we resolve the
substantive issue raised by the petitioner in the interest of justice. This Court has, on
occasion, suspended the application of technical rules of procedure where matters of
life, liberty, honor or property, among other instances, are at stake. It has allowed some
meritorious cases to proceed despite inherent procedural defects and lapses on the
principle that rules of procedure are mere tools designed to facilitate the attainment of
justice. The strict and rigid application of rules that tends to frustrate rather than
promote substantial justice must always be avoided. [20]

Section 14(2) of Article III of the 1987 Constitution provides that an accused has the
right to be informed of the nature and cause of the accusation against him. Indeed,
Section 6, Rule 110 of the Revised Rules of Criminal Procedure requires that the acts or
omissions complained of as constituting the offense must be alleged in the Information.
Section 8 of said rule provides that the Information shall state the designation of the
offense given by the statute and aver the acts or omissions constituting the offense. The
real nature of the crime charged is determined by the facts alleged in the Information
and not by the title or designation of the offense contained in the caption of the
Information. It is fundamental that every element of which the offense is comprised
must be alleged in the Information.[21]

To recall, the prosecution charged the petitioner with the crime of other forms of
swindling under Article 316, paragraph 1 of the Revised Penal Code, as amended, which
punishes "[a]ny person who, pretending to be the owner of any real property, shall
convey, sell, encumber, or mortgage the same."

The trial courts, however, convicted the petitioner under Article 316, paragraph 2 which
punishes the act of any person who, knowing that real property is encumbered, shall
dispose of the same, although such encumbrance is not recorded.

The elements of other forms of swindling under Article 316, paragraph 2 of the Revised
Penal Code are as follows: (1) that the thing disposed of be real property; (2) that the
offender knew that the real property was encumbered, whether the encumbrance is
recorded or not; (3) that there must be express representation by the offender that the
real property is free from encumbrance; and (4) that the act of disposing of the real
property be made to the damage of another.[22]

The Information in the present case, aside from expressly indicating in its caption that it
is charging the petitioner under Article 316, paragraph 1 of the Revised Penal Code,
alleged that the petitioner "with deceit and intent to defraud," pretended to be the
lawful owner of a 200-square meter portion of a lot covered by TCT No. T-19932 despite
her knowledge that the entire property had already been sold and was owned by JS
Francisco. Notably, it had not been alleged that the petitioner expressly represented to
Naval that the subject property was free from any encumbrance.

In Nay a v. Abing,[23] the Court set aside the petitioner's conviction for estafa under

Article 316(2) of the Revised Penal Code since there had been no allegation in the
Information that he (petitioner) expressly represented in the sale of the subject
property to William Po that the said property was free from any encumbrance. We
explained that the gravamen of the crime is the disposition of legally encumbered real
property by the offender under the express representation that there is no encumbrance
thereon; and that the accused must make an express representation in the deed of
conveyance that the property sold or disposed of is free from any encumbrance for one
to be criminally liable. The Court explained that:
xxx there is no allegation in the Information that petitioner expressly represented
in the sale of the subject property to William Po that the said property was free from
any encumbrance. Irrefragably, then, petitioner was not charged with estafa under
Article 316, paragraph 2 of the Revised Penal Code. Hence, the trial court committed a
reversible error in finding petitioner guilty beyond reasonable doubt of estafa under
said provision and that the Court of Appeals likewise erred in affirming the decision of
the trial court on appeal.[24]
We reiterate that the Information in the present case did not allege that the
petitioner made an express representation that the property sold is free from any
encumbrance. This Information was crafted in such a way that only one particular crime
was charged (i.e., Article 316, paragraph 1), and the alleged manner through which such
offense was committed (that is, by pretending to be the lawful owner x x x) did not
constitute ground for conviction under paragraph 2, which may be committed even by
the owner of the property.

Significantly, the Agreement to Buy and Sell between the petitioner and Naval also did
not contain any representation by the petitioner that the property being sold was free
from any encumbrance.

It is not disputed that TCT No. T-19932 bore the following annotations:
xxxx
Entry No. 1131326 - AFFIDAVIT OF ADVERSE CLAIM - filed by J.S. Francisco and Sons, Inc.
represented by Joselito Franscisco affecting the property covered by this Certificate of
Title which is the subject of Deed of Sale executed between the said corporation and the
registered owner. This instrument was executed before Notary Public of Davao City
Francis Arnold de Vera, as Doc No. x x x

Date of instrument      :    Oct. 28, 1998;

Date of inscription      :     Oct. 29, 1998 at 8:10 a.m.
At any rate, paragraph 2 of Article 316 does not prohibit the sale of an
encumbered property; the vendor must have represented to the buyer that the
property was free from encumbrance. [25] What brings about criminal liability is the
deceit in selling the property. Corollarily, the deed must have a statement of warranty
that is false in order to commit the offense. [26] The petitioner's passive attitude regarding
the presence of an adverse claim (she assumed that Naval became aware of this
inscription after showing to him a copy of TCT No. T-19932 and "never complained") is
not sufficient to constitute fraud within the meaning of the law. The fraud and/or deceit
by misrepresentation contemplated by law must be the result of overt acts; they cannot
be implied or presumed.

In the light of these considerations, we hold that the trial courts erroneously convicted
the petitioner of other forms of swindling under Article 316, paragraph 2 of the Revised
Penal Code. To uphold the petitioner's conviction for an offense other than that charged
in the Information would be a violation of her right to be informed of the nature and
cause of the accusation against her.

Violation of Article 316, paragraph 1 of the Revised Penal Code not proven

The presented pieces of evidence do not also warrant a conviction for the crime for
which the petitioner had been charged, that is, Article 316, paragraph 1 of the Revised
Penal Code.

For a successful prosecution of the crime of swindling under Article 316, paragraph 1 of
the Revised Penal Code, the following essential elements of this crime must be
established: (1) that the thing be immovable, such as a parcel of land or a building; (2)
that the offender who is not the owner of said property should represent that he is the
owner thereof; (3) that the offender should have executed an act of ownership, e.g.,
selling, leasing, encumbering, or mortgaging the property; and (4) that the act be made
to the prejudice of the owner or a third person. [27]

The presence of the first and third elements are beyond question, as the parties
admitted that the petitioner sold to Naval a 200-square meter parcel of land located in
Matina Aplaya, Davao City. The fourth element is likewise settled, as the petitioner did
not deny that Naval paid her a total of P123,000.00. The fact of destruction of Naval's
house by the representatives of JS Francisco is also not disputed.

With regard to the second element, we hold that the prosecution failed to prove the
allegation in the Information that the petitioner pretended to be the lawful owner of a
200-square meter portion of a lot covered by TCT No. 19932.

It is not disputed that the petitioner was one of the nine (9) children of Nicolas and
Nareisa, who was the registered owner of TCT No. T-19932 entered at the Registry of
Deeds of Davao City on October 31, 1967. The Register of Deeds of Davao City
eventually cancelled TCT No. T-19932 and issued a new title (TCT No. T-364319) in the
name of "Nicolas Estrellado, married to Nareisa Trono, both of legal age, Filipinos and
residents of Davao City, Philippines." [28]

Naval's court testimony showed that he was aware that the title to the land being sold
to him was still under the name of Nicolas, thus:
ATTY. PERCY JANE ABIAN-FUÑE:
Mr. Naraval (sic), how long have you known the accused Clarita Mainar?
:
ERIC NAVAL:
We knew each other in 1999 for three years.
:
And you personally know that she is the daughter of the late Mr. Nicolas Estrellado?
:
Yes, ma'am.
:
And that you approached sometime in February, you said you approached her and made
: known your intent to buy the property?
Yes, ma'am.
:
And that you knew that the property that you are buying will still be segregated from the
: mother title?
 Yes, ma'am.
:
And at that time the accused had shown you copy of the owner's duplicate of title?
:
Correct.
:
Under the name of the late Nicolas Estrellado?
:
Yes, ma'am.
:
And at that time you knew you were buying a titled property, right?
:
Correct.
:
And at that time you did not verify with the Register of Deeds?
:
Yes, I did not.
:
Because you have already seen the duplicate copy of the title, right?
:
I just seen [sic] the front page of the title.
:
And knowing that you have only seen the front title, you did not check with the Register of
: Deeds?
I did not.
:
And did you find any other burden on the property other than what is stated in the title?
:
None.[29]
:
xxxx
In Naval's  own complaint-affidavit, he stated that the petitioner informed him
during the negotiations for the sale "that the area that I will buy would still be
segregated from the mother title."[30] In this same complaint-affidavit, Naval also stated
that he caused the property to be surveyed in order to determine the boundaries of the
area he bought, and to separate it from the mother title. These statements were
corroborated by Naval's wife, Josephine, who stated in her own affidavit that the
petitioner told her and Naval that the subject property was still part of the mother title.
In addition, stipulation no. 3 of the Agreement to Buy and Sell provides that "xxx the
SELLER shall cause the subdivision of the title and take out two hundred (200) square
meters portion of the BUYER from the SELLER's nine hundred thirty six (936) square
meters share."
Under these circumstances, it is clear that the petitioner did not pretend to be the
owner of the property sold. From the very start, the petitioner made it clear to Naval
that the subject property was still under the name of her (petitioner's) father; and that
the area subject of the sale would still be segregated from the mother title. Naval also
admitted that he saw the front page of the land's title showing Nicolas to be its
registered owner. The element of deceit - central to prosecutions for swindling - is
therefore wanting. We additionally point out that Nicolas' heirs (Narcisa and his nine
legitimate children) eventually executed an Extrajudicial Settlement of Estate with
Renunciation of Shares, Donation and Deed of Absolute Sale [31] where they agreed,
among others, to give a portion (totalling 1,236-square meters) of the land covered by
TCT No. T-364319 to the petitioner.

In the light of these considerations, we cannot hold the petitioner liable for other forms
of swindling under Article 316, paragraph 1 of the Revised Penal Code absent a finding
that she employed fraud or deceit in the form of false pretenses with regard to her
ownership of the real property sold.

We are aware that a decision [32] (attached to the records) had been issued by the MTCC,
Branch 3, Davao City, on April 26, 1999, in Civil Case No. 6, 297-C-98, where the trial
court ruled in favor of JS Francisco (plaintiff) against Nicolas Estrellado and Narcisa
Trono-Estrellado (Estrellado spouses). In this case, the MTCC ordered the Estrellado
spouses, their successors-in-interest, and other persons acting on their behalf, to
immediately vacate Lot 377-A-1-B-4-B (LRC) Psd-78004 (covered by TCT No. T-19932)
and to restore its peaceful possession to the plaintiff.

This MTCC decision, however, bears no relevance on the issue whether the petitioner
misrepresented to be the owner of the property covered by TCT No. T-19932. We point
out that this case arose from an action for forcible entry filed by J.S. Francisco against
the petitioner's parents, the Estrellado spouses. The issue in an ejectment case is the
right to physical possession of the premises or possession de facto, and the court may
pass upon such issue but only to determine the question of possession especially if the
former is inseparably linked with the latter. Corollarily, a party who can prove prior
possession de facto may recover the possession even from the owner himself, since such
cases proceed independently of any claim of ownership.
In its April 26, 1999 decision in Civil Case No. 6, 297-C-98, the MTCC merely resolved the
issue of prior physical possession or possession de facto, and did not resolve the issue of
ownership of the disputed property. The MTCC, in fact, recognized that the title (TCT
No. T-19932) to the disputed property was registered under the name of Nicolas.

We also point out that the petitioner sought the assistance of the Office of the
Ombudsman-Mindanao to require the Register of Deeds of Davao City to produce the
deed of absolute sale between Nicolas and JS Francisco referred to in the affidavit of
adverse claim. While the Register of Deeds could not yet certify with finality as to the
nonexistence of this deed,[33] the petitioner's act of seeking the aid of the Ombudsman
shows her honest and earnest desire to protect her family's interest over the subject
property (she claims that the deed of sale between her father and JS Francisco was
spurious), and that she had no intention to deceive Naval. Naval and Josephine, in fact,
lived on the subject property for two years, more or less, before their house was
destroyed by the representatives of JS Francisco. Josephine even intimated that she had
been hoping that the petitioner's family would be able to settle the dispute with JS
Francisco over the subject property while she (Josephine) and Naval were living there.

On a final note, we stress that it is the prosecution who determines the charges to be
filed and how the legal and factual elements in the case shall be utilized as components
of the information. Fairness demands that the petitioner should not be convicted of a
crime which she has not been charged with or which is not necessarily included therein.

WHEREFORE, in the light of these considerations, we GRANT the petition, and SET

ASIDE the resolutions of the Court of Appeals dated November 28, 2007, and July 29,
2008, respectively, in CA-G.R. CR No. 00429. Accordingly, we ACQUIT petitioner Clarita
Estrellado-Mainar of the crime of other forms of swindling under Article 316 of the
Revised Penal Code, as amended.

SO ORDERED.

SECOND DIVISION
[ G.R. Nos. 180956-57, August 05, 2015 ]
 PEOPLE OF THE PHILIPPINES V. JOEL E. CUENTO, CESAR S.
JUMAWAN, RONELIAD. EUSEBIO, HON. SANDIGANBAYAN (THIRD
DIVISION)

Sirs/Mesdames:

Please take notice that the Court, Second Division, issued a Resolution dated 05
August 2015 which reads as follows:

G.R. Nos. 180956-57 - People of the Philippines v. Joel E. Cuento, Cesar S. Jumawan,

RoneliaD. Eusebio, Hon. Sandiganbayan (Third Division)

This Court has reviewed the August 7, 2007 Decision of the Sandiganbayan  and is
convinced that petitioner failed to clearly show that the former acted with grave abuse
of discretion amounting to lack or excess of jurisdiction in acquitting the respondents.
The Sandiganbayan  committed no error in its determination of lack of cause of action
and failure to prove beyond reasonable doubt the guilt of the private respondents.

The prosecution tended to prove through its evidence the falsification of the excerpts of
the minutes of the Sangguniang Bayan session on April 10, 2000. This circumstance,
however, was not alleged or included in the Informations. The Informations were silent
as to what document was falsified to indicate that the subject resolutions were passed.
An accused cannot be convicted of a crime under a mode of commission different from
that alleged in the Information for that would jeopardize the accused's right to be
informed of the true nature of the offense he is being charged with.

Besides, the arguments raised by petitioner are not errors involving jurisdiction but one
of judgment which is beyond the province of the extraordinary remedy of certiorari.
Certiorari will not be issued to cure errors of the trial court in its appreciation of the
evidence of the parties or its conclusions anchored on the said findings and its
conclusions of law. It does not include an inquiry as to the correctness of the evaluation
of evidence.[1]

WHEREFORE, premises considered, the instant Petition for Certiorari is DISMISSED for

lack of merit. The August 7, 2007 Decision of the Sandiganbayan  in Criminal Case Nos.
26506 and 26507are hereby AFFIRMED.

SO ORDERED.

SECOND DIVISION
[ G.R. No. 245375, June 19, 2019 ]
CHRISTOPHER SATUR Y ABAYA V. PEOPLE OF THE PHILIPPINES

Sirs/Mesdames:

Please take notice that the Court, Second Division, issued a Resolution dated 19
June 2019 which reads as follows:

"G.R. No. 245375 - Christopher Satur y Abaya v. People of the Philippines

Assailed in this Petition for Review on Certiorari are the June 22, 2018 Decision[1] and
January 28, 2019 Resolution[2] of the Court of Appeals (CA)-Cagayan de Oro City, in CA-
G.R. CR No. 01397-MIN, a criminal case for violation of Section 5(b), Art III of Republic
Act (R.A.) No. 7610.[3]

The petition is denied.

Section 5 (b), Article III of R.A. No. 7610 provides:

SEC. 5. Child Prostitution and Other Sexual Abuse. — Children, whether male or
female, who for money, profit, or any other consideration or due to the coercion or
influence of any adult, syndicate or group, indulge in sexual intercourse or lascivious
conduct, are deemed to be children exploited in prostitution and other sexual abuse.

The penalty of reclusion temporal in its medium period to reclusion perpetua shall be

imposed upon the following:
xxxx
(b) Those who commit the act of sexual intercourse or lascivious conduct with a
child exploited in prostitution s or subject to other sexual abuse; Provided, That when
the victim is under twelve (12) years of age, the perpetrators shall be prosecuted under
Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the
Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That
the penalty for lascivious conduct when the victim is under twelve (12) years of age shall
be reclusion temporal in its medium period[.] (Emphases supplied)
The elements of sexual abuse under the aforequoted provision are, to wit:

1.    The accused commits the act of sexual intercourse or lascivious conduct.

2. The said act is performed with a child exploited in prostitution or subjected to other
sexual abuse.

3.    The child, whether male or female, is below 18 years of age. [4]
The Implementing Rules and Regulations (IRR) of R.A. No. 7610 define "lascivious
conduct" as:

The intentional touching, either directly or through clothing, of the genitalia,

anus, groin, breast, inner thigh, or buttocks, or the introduction of any object into the
genitalia, anus or mouth, of any person, whether of the same or opposite sex, with an
intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any
person, bestiality, masturbation, lascivious exhibition of the genitals or pubic area of a
person.
All of the aforementioned elements for lascivious conduct with a child were
sufficiently alleged in the Information filed against petitioner before the Regional Trial
Court, and subsequently established with proof beyond reasonable doubt during the
trial of the case.

Although the designation of the offense in the Information filed against petitioner was
different from that for which he was eventually convicted, it cannot be said that his
constitutional right to be informed of the charges against him was violated. It is well-
settled that allegations in the Information determine the nature of the offense, and not
the technical name that the public prosecutor assigns in the preamble of the
Information. From a legal point of view, and in a very real sense, the accused is not
concerned with the technical name of the crime of which he stands charged as it does
not aid him in any way in his defense on the merits. Petitioner's attention and interest
should be directed toward the facts alleged in the Information. The real question
is not "did he commit a crime given in the law with some technical and specific name,"
but "did he perform the  acts  alleged in the body of the information in the manner
therein set forth."[5]

In this case, although petitioner was indicted for violation of Section 10(a) of R.A. No.
7610, the Information alleged:

That on the 25th day of March 2011, around 7:00 o'clock in the evening, more or
less, at xxx, Province of Bukidnon, Philippines, within the jurisdiction of this Honorable
Court, the above-named accused taking advantage of one AAA, a 14-year old minor
born on February 8, 1997, did, then and there, wilfully, unlawfully and feloniously lay
beside AAA touch and masturbate his penis, thereby demeaning, debasing, and
degrading the intrinsic worth and dignity of the latter as a child, which act of violence
caused psychological distress upon the child which is prejudicial to his development, to
the damage and prejudice of the said AAA in such amount as may be allowed by law. [6]

Thus, the CA is correct in ruling that petitioner should be convicted of violation of

Section 5(b) of R.A. No. 7610 instead of Section 10(a) considering that the act
alleged to be committed by petitioner amounts to lascivious conduct as defined in
R.A. No. 7610. Petitioner had been sufficiently apprised through the Information
filed against him of the factual allegations against which he should defend himself.

As regards petitioner's defense of alibi, the Court has constantly ruled that the
defense of alibi will not stand if it was not physically impossible for the accused to be
[7]
at the locus criminis when the crime was committed.

Finally, the awards of damages are modified in accordance with recent

jurisprudence. Petitioner is ordered to pay moral damages, exemplary damages,
and civil indemnity in the amount of P50,000.00 each, pursuant to People v. Tulagan,
[8]
 with interest at the rate of six percent (6%) per annum from the date of finality
of judgment until fully paid, and a fine in the amount of P15,000.00, pursuant to
Section 31 (f), Article XII of R.A. No. 7610.

WHEREFORE, premises considered, the instant petition is DENIED. The assailed

Decision dated June 22, 2018 and Resolution dated January 28, 2019 of the Court of
Appeals are AFFIRMED with MODIFICATION. Christopher Satur y Abaya is found
guilty of Lascivious Conduct under Section 5 (b), Article III of Republic Act No.
7610, and is sentenced to suffer an indeterminate penalty of eight (8) years and one
(1) day of prision mayor, as minimum, to seventeen (17) years, four (4) months and
one (1) day of reclusion temporal, as maximum, and to pay a fine of P15,000.00. He is
further ORDERED to pay the victim, AAA, civil indemnity, moral damages and
exemplary damages, each, in the amount of P50,000.00. The fine, civil indemnity
and damages so imposed are subject to interest at the rate of six percent (6%) per
annum from the date of finality of judgement until fully paid."

FIRST DIVISION
[ G.R. No. 162206, November 17, 2010 ]
MONICO V. JACOB AND CELSO L. LEGARDA, PETITIONERS, VS. HON.
SANDIGANBAYAN FOURTH DIVISION AND THE OFFICE OF THE
OMBUDSMAN, RESPONDENTS.

DECISION

LEONARDO-DE CASTRO, J.:

This is a Petition for Certiorari under Rule 65 of the Rules of Court for the

nullification of the Resolutions dated February 4, 2002 [1] of the Sandiganbayan Special
Fourth Division and December 12, 2003 [2] of the Sandiganbayan Fourth Division.  In its
Resolution dated February 4, 2002, the Sandiganbayan Special Fourth Division set aside
the order to dismiss Criminal Case Nos. 25922-25939, among other cases, verbally
issued by Associate Justice Narciso S. Nario (Justice Nario), Chairman of the
Sandiganbayan Fourth Division, during the court session held on August 20, 2001;
[3]
 while in its Resolution dated December 12, 2003, the Sandiganbayan Fourth Division
denied the motions for reconsideration of the petitioners and other accused.

The following facts are duly established from the pleadings of the parties:

From 1993 to 1997, Petron Corporation (Petron), a corporation engaged in the business
of refining, marketing and distribution of petroleum products, received Tax Credit
Certificates (TCCs) by assignment from 18 private firms [4] registered with the Board of
Investments (BOI). The TCCs were issued by the One Stop Shop Inter-Agency Tax Credit
& Duty Drawback Center (OSS), an office under the Department of Finance (DOF),
created by virtue of Administrative Order No. 266 dated February 7, 1992.  Petron used
the assigned TCCs to pay its excise tax liabilities.

The practice was for the BOI-registered firms to sign the Deeds of Assignment upon
delivery of the TCCs to Petron.  Petron then forwarded said documents to the OSS, with
a request for authorization to use said TCCs to pay for its excise tax liabilities.   DOF
Undersecretary Antonio P. Belicena (Belicena) approved the request of Petron through
the issuance of Tax Debit Memoranda (TDM) addressed to the Collection Program
Division of the Bureau of Internal Revenue (BIR).  The BIR Collection Program Division
accepted the TCCs as payment for the excise tax liabilities of Petron by issuing its own
TDM.[5]  The control numbers of the BIR-TDM were indicated on the back of the TCCs,
marking the final utilization of the tax credits. [6]

However, the Fact Finding and Intelligence Bureau (FFIB) of the Office of the
Ombudsman eventually found that the aforementioned transactions involving the TCCs
were irregular and violative of the Memorandum of Agreement dated August 29, 1989
between the BOI and the DOF, which implemented Article 21 of Executive Order No.
226, otherwise known as the Omnibus Investments Code of 1987. [7]

After the termination of the requisite preliminary investigation, the Office of the
Ombudsman issued a Resolution dated March 27, 2000 finding probable cause against
several public officers and private individuals, including petitioners Monico V. Jacob
(Jacob), President, and Celso L. Legarda (Legarda), Vice-President and General Manager
for Marketing, both of Petron, for perpetrating the so-called "tax credit scam."  On April
10, 2010, the Office of the Ombudsman filed a total of 62 Informations, 18 of which,
docketed as Criminal Case Nos. 25922-25939, were against DOF Undersecretary
Belicena, OSS Deputy Executive Director Uldarico P. Andutan, Jr., petitioners and other
Petron officials, and officers of the BOI-registered firms which assigned the TCCs to
Petron, charging them with violation of Section 3(e) of Republic Act No. 3019, otherwise
known as the Anti-Graft and Corrupt Practices Act.

Petitioners provided an undisputed account of the events that subsequently took place
before the Sandiganbayan:

On April 14, 2000, petitioners and the four other Petron officers who were
similarly charged filed a Motion for Reinvestigation [with the Office of the Ombudsman].
On 17 April 2000, the [Sandiganbayan Fourth Division] issued an Order giving the
prosecution a period of sixty (60) days within which  -

... to re-assess its evidence in these cases and to take appropriate action on the
said motion for reconsideration of accused movants and to inform the Court within the
same period as to its findings and recommendations including the action thereon of the
Honorable Ombudsman.

Sixty (60) days passed but the Office of the Ombudsman did not even bother to submit a
report on the status of the motions for reconsideration.  Months passed, and then, AN
ENTIRE YEAR PASSED.  There was still nothing from the respondent Office of the
Ombudsman.

In the meantime, petitioner Jacob was arraigned on 1 June 2000 while petitioner
Legarda was arraigned on 18 May 2001.

On March 20, 2001, in view of a significant development in the Shell cases (then pending
with the 5th Division of [the Sandiganbayan]), petitioners and other accused Petron
officials filed a Motion to Resolve with the Office of the Ombudsman.   In the said
motion, petitioners cited the Memorandum dated 30 January 2001 issued by Special
Prosecutor Leonardo P. Tamayo upholding the dropping of the charges against Shell
official Pacifico Cruz on the ground that there was no sufficient evidence to prove that
he was part of the conspiracy.  Petitioners asserted that since their situation/alleged
participation is similar to that of Mr. Pacifico Cruz, they should similarly be dropped
from the criminal cases.  Despite this, the respondent Office of the Ombudsman took no
action.

Considering the time that had lapsed, the [Sandiganbayan Fourth Division], at the
hearing on 1 June 2001, expressly warned the prosecution that should it fail to resolve
the reconsideration/investigation, it would order the dismissal of the cases or require
the prosecution to show cause why it should not be cited for contempt.

In its Resolution dated 26 June 2001, the [Sandiganbayan Fourth Division] in fact denied
the motion of the prosecution for the resetting of the scheduled arraignment and pre-
trial on 2 July 2001 "it appearing that the Reinvestigation of these cases has been
pending for more than one (1) year now and the court cannot countenance the
unreasonable delay attributable to the plaintiff."

In spite of the denial of their motion, the prosecution still failed to submit its report to
the [Sandiganbayan Fourth Division] during the 2 July 2001 hearing.  Instead they asked
for a period of seven (7) more days to resolve the motions for reconsideration.  The
arraignment (of the other accused) and pre-trial therefore had to be reset again to 17
July 2001.

One day before the schedule hearing, the prosecution filed a Manifestation requesting
the cancellation of the arraignment and pre-trial scheduled the next day on the ground
that the motions for reconsideration/reinvestigation were still pending resolution.

Once again, [the Sandiganbayan Fourth Division] gave the prosecution another chance. 
During the hearing on 17 July 2001, the [Sandiganbayan 4 th Division] directed the
prosecution, through Prosecutor Orlando Ines, to terminate the reinvestigation within a
period of one (1) more month.  The arraignment and pre-trial were then reset to 20
August 2001.

At the scheduled hearing on August 20, 2001, Prosecutor Orlando Ines, however, again
requested for the deferment of the arraignment and pre-trial on the ground that the
resolution on the various motions for reconsideration/reinvestigation were still pending
approval by the Office of the Ombudsman.

In all the hearings conducted in the cases the defense verbally and consistently invoked
their right to speedy trial and moved for the dismissal of the cases.  In the course of
more than one year, however, the [Sandiganbayan 4 th Division] kept affording the
prosecution one chance after another. The sixty days granted to the prosecution
became more than four hundred days - still, there was no resolution in sight.

Thus on 20 August 2001, compelled by its duty to uphold the fundamental law, the
[Sandiganbayan Fourth Division, through its Chairman, Justice Nario] issued a verbal
order dismissing the cases.  The dismissal was duly recorded in the minutes of the
hearing of the said date which was attested to by the Clerk of Court and signed by the
parties.
On 24 August 2001, the prosecution filed a Motion for Reconsideration with the
following prayer: "WHEREFORE, the undersigned Ombudsman Prosecutors prayed (sic)
that the Order issued by the Honorable Court for the summary dismissal of all the graft
and estafa charges aforecited be SET ASIDE."

On August 31, 2001, the [Sandiganbayan Fourth Division] issued an Order taking
cognizance of the Motion for Reconsideration filed by the prosecution and requiring the
accused to file their respective comments thereon within five (5) days.

On 4 February 2002, OR SIX (6) MONTHS after [Justice Nario] issued the verbal order of
dismissal, the [Sandiganbayan Special Fourth Division] issued an Order setting aside said
verbal order.

x x x x

In the 4 February 2002 Resolution, this time a Division of five justices (two of whom
dissented) rendered a Resolution stating:

WHEREFORE, the dismissal of these cases orally ordered in open court by the
Chairman of the Fourth Division during its court session held on August 20, 2001, and
reiterated in his subsequent ponencia, is hereby set aside. [8] (Citations omitted.)

The Sandiganbayan Special Fourth Division gave the following reasons for overruling
Justice Nario's verbal order dismissing the criminal cases against the accused in the
alleged tax credit scam:

In the present case, (1) there is already a delay of the trial for more than one year
now; (2) but it is not shown that the delay is vexatious, capricious and oppressive; (3) it
may be that, as stated in the herein dissented Resolution, "at the hearings conducted in
these cases, the defense orally, openly and consistently asked for the dismissal of these
cases"; however, these oral manifestations were more of "knee-jerk reactions" of the
defense counsel in those hearings everytime the prosecution requested for
postponement than anything else as said defense counsel did not seriously pursue the
dismissal of these cases, such as by reducing their "request" in a formal written motion
to dismiss and/or insisting that the court formally rule on their request for dismissal and
go on certiorari if denied; and (4) considering the nature and importance of the cases, if
there is any prejudice that may have resulted as a consequence of the series of
postponements, it would be more against the government than against any of the
accused; however, be that as it may, none of the herein accused has come out to claim
having been thus prejudiced.[9]

On February 26, 2002, petitioners, together with four other co-accused Petron officials,
filed a Motion for Reconsideration[10] of the February 4, 2002 Resolution of the
Sandiganbayan Special Fourth Division.  Other accused also filed their motions for
reconsideration and motions to quash/dismiss. The prosecution expectedly opposed all
such motions of the accused.

In an Omnibus Resolution dated December 12, 2003, the Sandiganbayan Fourth Division

ruled in the prosecution's favor and denied all the motions filed by the accused, to wit:

Wherefore,  premises considered, this court issues an Omnibus

Resolution denying  all the above-described Motion to Quash for lack of merit.

Hence, petitioners come before us via the instant Petition for Certiorari averring grave

abuse of discretion on the part of the Sandiganbayan Special Fourth Division,
specifically:

THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO

LACK OR EXCESS OF JURISDICTION IN DENYING PETITIONERS' RIGHT TO SPEEDY TRIAL.

II

THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO

LACK OR EXCESS OF JURISDICTION IN HOLDING THAT PETITIONERS HAVE NOT BEEN PUT
IN DOUBLE JEOPARDY.

III

THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO

LACK OR EXCESS OF JURISDICTION IN NOT CONSIDERING THE GLARING LACK OF
EVIDENCE AGAINST PETITIONERS.[11]

To recall, Justice Nario, as the Chairman of the Sandiganbayan Fourth Division, ordered
the dismissal of all criminal cases arising from the purported tax credit scam on the
ground that the accused, including petitioners, had already been deprived of their right
to a speedy trial and disposition of the cases against them.  Petitioners assert that the
Sandiganbayan gravely abused its discretion in reversing Justice Nario's order of
dismissal of Criminal Case Nos. 25922-25939 because such reversal violated petitioners'
constitutional right against double jeopardy.

An accused's right to "have a speedy, impartial, and public trial" is guaranteed in

criminal cases by Section 14(2), Article III [12] of the Constitution.  This right to a speedy
trial may be defined as one free from vexatious, capricious and oppressive delays, its
"salutary objective" being to assure that an innocent person may be free from the
anxiety and expense of a court litigation or, if otherwise, of having his guilt determined
within the shortest possible time compatible with the presentation and consideration of
whatsoever legitimate defense he may interpose.  Intimating historical perspective on
the evolution of the right to speedy trial, we reiterate the old legal maxim, "justice
delayed is justice denied."  This oft-repeated adage requires the expeditious resolution
of disputes, much more so in criminal cases where an accused is constitutionally
guaranteed the right to a speedy trial. [13]

Hence, the Revised Rules on Criminal Procedure also include provisions that ensure the
protection of such right.  As we presented in Uy v. Hon. Adriano[14]:

Section 1(h), Rule 115 of the Revised Rules of Criminal Procedure provides that
the accused is entitled to a speedy, impartial and public trial. Section 2, Rule 119 of the
said Rules provides that trial, once commenced, shall be continuous until terminated:

Sec. 2. Continuous  trial until terminated; postponements. - Trial, once

commenced, shall continue from day to day as far as practicable until terminated. It may
be postponed for a reasonable period of time for good cause.

The court shall, after consultation with the prosecutor and defense counsel, 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 Supreme Court.

The time limitations provided under this section and the preceding section shall not
apply where special laws or circulars of the Supreme Court provide for a shorter period
of trial.

However, any period of delay resulting from a continuance granted by the court motu
proprio, or on motion of either the accused or his counsel, or the prosecution, if the
court granted the continuance on the basis of its findings set forth in the order that the
ends of justice is served by taking such action outweigh the best interest of the public
and the accused on a speedy trial, shall be deducted.

The trial court may grant continuance, taking into account the following factors:

(a) Whether or not the failure to grant a continuance in the proceeding would
likely make a continuation of such proceeding impossible or result in a miscarriage of
justice; and

(b) Whether or not the case taken as a whole is so novel, unusual and complex, due to
the number of accused or the nature of the prosecution, or that it is unreasonable to
expect adequate preparation within the periods of time established therein.

In addition, no continuance under section 3(f) of this Rule shall be granted because of
congestion of the court's calendar or lack of diligent preparation or failure to obtain
available witnesses on the part of the prosecutor.[15]

We further emphasized in Uy that "speedy trial" is a relative term and necessarily a

flexible concept. In determining whether the right of the accused to a speedy trial was
violated, the delay should be considered, in view of the entirety of the proceedings.
Indeed, mere mathematical reckoning of the time involved would not suffice as the
realities of everyday life must be regarded in judicial proceedings which, after all, do not
exist in a vacuum.[16]

Corpuz v. Sandiganbayan [17] is a case originating from exactly the same factual
background as the case at bar. Therein petitioners Marialen C. Corpuz and Antonio H.
Roman, Sr. were officers of FILSYN Corporation, one of the BOI-registered firms that
assigned TCCs to Petron; and were among the accused in Criminal Case No. 25922.  They
filed a separate Petition for Certiorari before us assailing the Resolutions dated February
4, 2002 of the Sandiganbayan Special Fourth Division and December 12, 2003 of the
Sandiganbayan Fourth Division.

We expounded more extensively in Corpuz on the right of the accused to a speedy trial
and disposition of the case against him, thus:

The right of the accused to a speedy trial and to a speedy disposition of the case
against him was designed to prevent the oppression of the citizen by holding criminal
prosecution suspended over him for an indefinite time, and to prevent delays in the
administration of justice by mandating the courts to proceed with reasonable dispatch
in the trial of criminal cases. Such right to a speedy trial and a speedy disposition of a
case is violated only when the proceeding is attended by vexatious, capricious and
oppressive delays. The inquiry as to whether or not an accused has been denied such
right is not susceptible by precise qualification. The concept of a speedy disposition is a
relative term and must necessarily be a flexible concept.

While justice is administered with dispatch, the essential ingredient is orderly,

expeditious and not mere speed. It cannot be definitely said how long is too long in a
system where justice is supposed to be swift, but deliberate. It is consistent with delays
and depends upon circumstances. It secures rights to the accused, but it does not
preclude the rights of public justice. Also, it must be borne in mind that the rights given
to the accused by the Constitution and the Rules of Court are shields, not weapons;
hence, courts are to give meaning to that intent.[18] (Emphases ours.)

We went on to lay down in Corpuz the test for determining whether an accused was
indeed deprived of his right to a speedy trial and disposition of the case against him:

In determining whether the accused has been deprived of his right to a speedy
disposition of the case and to a speedy trial, four factors must be considered: (a) length
of delay; (b) the reason for the delay; (c) the defendant's assertion of his right; and (d)
prejudice to the defendant. Prejudice should be assessed in the light of the interest of
the defendant that the speedy trial was designed to protect, namely: to prevent
oppressive pre-trial incarceration; to minimize anxiety and concerns of the accused to
trial; and to limit the possibility that his defense will be impaired. Of these, the most
serious is the last, because the inability of a defendant adequately to prepare his case
skews the fairness of the entire system. There is also prejudice if the defense witnesses
are unable to recall accurately the events of the distant past. Even if the accused is not
imprisoned prior to trial, he is still disadvantaged by restraints on his liberty and by living
under a cloud of anxiety, suspicion and often, hostility.His financial resources may be
drained, his association is curtailed, and he is subjected to public obloquy.

Delay is a two-edge sword. It is the government that bears the burden of proving its
case beyond reasonable doubt. The passage of time may make it difficult or impossible
for the government to carry its burden. The Constitution and the Rules do not require
impossibilities or extraordinary efforts, diligence or exertion from courts or the
prosecutor, nor contemplate that such right shall deprive the State of a reasonable
opportunity of fairly prosecuting criminals. As held in Williams v. United States, for the
government to sustain its right to try the accused despite a delay, it must show two
things: (a) that the accused suffered no serious prejudice beyond that which ensued
from the ordinary and inevitable delay; and (b) that there was no more delay than is
reasonably attributable to the ordinary processes of justice.

Closely related to the length of delay is the reason or justification of the State for such
delay. Different weights should be assigned to different reasons or justifications invoked
by the State. For instance, a deliberate attempt to delay the trial in order to hamper or
prejudice the defense should be weighted heavily against the State. Also, it is improper
for the prosecutor to intentionally delay to gain some tactical advantage over the
defendant or to harass or prejudice him. On the other hand, the heavy case load of the
prosecution or a missing witness should be weighted less heavily against the State.
Corollarily, Section 4, Rule 119 of the Revised Rules of Criminal Procedure enumerates
the factors for granting a continuance.[19]

In the Petition at bar, Criminal Case Nos. 25922-25939 were filed on April 10, 2000.
Petitioner Jacob was arraigned on June 1, 2000, while petitioner Legarda was arraigned
on May 18, 2001; with both petitioners pleading not guilty.  Since then, there had been
no other significant development in the cases since the prosecution repeatedly
requested for deferment or postponement of the scheduled hearings as it awaits the
result of the reinvestigation of the Office of the Ombudsman.  Judge Nario verbally
ordered the dismissal of said cases during the hearing on August 20, 2001.  Thus, the
criminal cases had been pending for about a year and four months by the time they
were dismissed by Justice Nario.

The accused, including petitioners, had consistently asked in open court that the
criminal cases be dismissed every time the prosecution moved for a deferment or
postponement of the hearings.

The prosecution attributed the delay in the criminal proceedings to: 1) the 23 motions
for reinvestigation or reconsideration filed by the accused, which was granted by the
Sandiganbayan in its April 17, 2000 Order; and 2) the failure of the Office of the
Ombudsman to terminate its reinvestigation and submit its report within the 60-day
period fixed by the said graft court.

Irrefragably, there had been an undue and inordinate delay in the reinvestigation of the
cases by the Office of the Ombudsman, which failed to submit its reinvestigation report
despite the lapse of the 60-day period set by the Sandiganbayan, and even more than a
year thereafter.  That there were 23 Motions for Reinvestigation filed is insignificant. It
should be stressed that reinvestigation, as the word itself implies, is merely a repeat
investigation of the case. It is simply a chance for the Office of the Ombudsman to
review and re-evaluate its findings based on the evidence previously submitted by the
parties.  The Office of the Ombudsman should have expedited the reinvestigation, not
only because it was ordered by the Sandiganbayan to submit a report within a period of
60 days, but also because said Office is bound by the Constitution [20] and Republic Act
No. 6770, otherwise known as the Ombudsman Act of 1989, [21] to act promptly on
complaints and cases pending before it.

Nevertheless, while the re-investigation by the Office of the Ombudsman delayed the
proceedings in Criminal Case Nos. 25922-25939, the said process could not have been
dispensed with as it was undertaken for the protection of the rights of petitioners
themselves (and their co-accused) and their rights should not be compromised at the
expense of expediency.

In Corpuz, we warned against the overzealous or precipitate dismissal of a case that may
enable the defendant, who may be guilty, to go free without having been tried, thereby
infringing the societal interest in trying people accused of crimes rather than granting
them immunization because of legal error.[22]  Earlier, in People v. Leviste,[23] we already
stressed that:

[T]he State, like any other litigant, is entitled to its day in court, and to a
reasonable opportunity to present its case. A hasty dismissal such as the one in
question, instead of unclogging dockets, has actually increased the workload of the
justice system as a whole and caused uncalled-for delays in the final resolution of this
and other cases. Unwittingly, the precipitate action of the respondent court, instead of
easing the burden of the accused, merely prolonged the litigation and ironically enough,
unnecessarily delayed the case - in the process, causing the very evil it apparently
sought to avoid. Such action does not inspire public confidence in the administration of
justice.[24]

Thus, even though we acknowledge the delay in the criminal proceedings, as well as the
prejudice suffered by petitioners and their co-accused by reason thereof, the weighing
of interests militate against a finding that petitioners' right to speedy trial and
disposition of the cases involving them would have justified the dismissal of Criminal
Case Nos. 25922-25939.  We agree with the Sandiganbayan Special Fourth Division that
Justice Nario's dismissal of the criminal cases was unwarranted under the
circumstances, since the State should not be prejudiced and deprived of its right to
prosecute the criminal cases simply because of the ineptitude or nonchalance of the
Office of the Ombudsman.  We reiterate our observations in Corpuz  that:

There can be no denying the fact that the petitioners, as well as the other
accused, was prejudiced by the delay in the reinvestigation of the cases and the
submission by the Ombudsman/Special Prosecutor of his report thereon. So was the
State. We have balanced the societal interest involved in the cases and the need to give
substance to the petitioners' constitutional rights and their quest for justice, and we are
convinced that the dismissal of the cases is too drastic a remedy to be accorded to the
petitioners. The cloud of suspicion may still linger over the heads of the petitioners by
the precipitate dismissal of the cases. We repeat -- the cases involve the so-called tax
credit certificates scam and hundreds of millions of pesos allegedly perpetrated by
government officials in connivance with private individuals. The People has yet to prove
the guilt of the petitioners of the crimes charged beyond reasonable doubt. We agree
with the ruling of the Sandiganbayan that before resorting to the extreme sanction of
depriving the petitioner a chance to prove its case by dismissing the cases, the
Ombudsman/Special Prosecutor should be ordered by the Sandiganbayan under pain of
contempt, to explain the delay in the submission of his report on his reinvestigation. [25]

Furthermore, the Sandiganbayan Special Fourth Division did not abuse its discretion in
setting aside Justice Nario's verbal order, which dismissed Criminal Case Nos. 25922-
25939, for not only was such order baseless, as we had previously discussed herein; but
more importantly, because it is an utter nullity, as we had ruled in Corpuz.

We held in Corpuz that:

In the unanimous Resolution of December 12, 2003, the Sandiganbayan ruled as

follows:

In the cases at bar, the dismissal made in open court by the Chairman, which was
not reduced in writing, is not a valid dismissal or termination of the cases.  This is
because the Chairman cannot unilaterally dismiss the same without the approval or
consent of the other members of the Division.  The Sandiganbayan is a collegiate court
and under its internal rules prevailing at the time (Rule XVIII, Section 1(b) of the
1984 Revised Rules of the Sandiganbayan, which is now Section 1(b), Rule VIII of the
2002 Revised Internal Rules of the Sandiganbayan), an order, resolution or judgment, in
order to be valid - that is to say, in order to be considered as an official action of the
Court itself - must bear the unanimous approval of the members of the division, or in
case of lack thereof, by the majority vote of the members of a special division of five.

We agree with the foregoing ratiocination. Section 1, Rule 120 of the Revised Rules of
Criminal Procedure, mandates that a judgment must be written in the official language,
personally and directly prepared by the judge and signed by him and shall contain
clearly and distinctly a statement of the facts and the law upon which it is based.  The
rule applies to a final order dismissing a criminal case grounded on the violation of the
rights of the accused to a speedy trial. A verbal judgment or order of dismissal is a
violation of the provision; hence, such order is, in contemplation of law, not
in esse, therefore, ineffective. Justice Nario failed to issue a written resolution
dismissing the criminal cases for failure of the prosecution to submit its report on the
reinvestigation of the cases within the sixty-day period fixed by the graft court. 
Moreover, the verbal order was rejected by majority vote of the members of the
Sandiganbayan Special Division.  In fine, there has been no valid and effective order of
dismissal of the cases.  The Sandiganbayan cannot then be faulted for issuing the
assailed resolutions.

Neither are the petitioners entitled to a writ of mandamus to compel the

Sandiganbayan to reinstate the cases, considering that the verbal order of Justice Nario
as aforestated does not exist at all in contemplation of law.[26] (Emphases ours.)

Given that Justice Nario's verbal order dismissing Criminal Case Nos. 25922-25939 is null
and void, and does not exist at all in contemplation of law, it follows that petitioners
cannot invoke the constitutional right against double jeopardy.

To substantiate a claim for double jeopardy, the following must be demonstrated:

(1)  [A] first jeopardy must have attached prior to the second; (2) the first
jeopardy must have been validly terminated; (3) the second jeopardy must be for the
same offense, or the second offense includes or is necessarily included in the offense
charged in the first information, or is an attempt to commit the same or is a frustration
thereof.

And legal jeopardy attaches only:  (a) upon a valid indictment; (b) before a competent
court; (c) after arraignment; (d) [when] a valid plea [has] been entered; and (e) the case
was dismissed or otherwise terminated without the express consent of the accused. [27]

In the instant Petition, legal jeopardy has not yet attached since there is so far no valid
dismissal or termination of the criminal cases against petitioners.

Finally, the Sandiganbayan Special Fourth Division did not commit grave abuse of
discretion nor erred in not considering the glaring lack of evidence against petitioners.

As we pointed out in Rizon v. Desierto[28]:

Time and again, we have held that a prosecutor does not decide whether there is
evidence beyond reasonable doubt of the guilt of the person charged.  He merely
determines whether there is sufficient ground to engender a well-founded belief that a
crime has been committed and that the accused is probably guilty thereof, and should
be held for trial.  A finding of probable cause, therefore, does not require an inquiry as
to whether there is sufficient evidence to secure a conviction.  It is enough that the
prosecutor believes that the act or omission complained of constitutes the offense
charged.  A trial is intended precisely for the reception of prosecution evidence in
support of the charge.  It is the court that is tasked to determine guilt beyond
reasonable doubt based on the evidence presented by the parties at the trial on the
merits.[29]

Here, there has been no trial yet.  Therefore, there has been no occasion yet for the full
and exhaustive display of the parties' evidence.  The presence or absence of the
elements of the crime is evidentiary in nature that shall be passed upon after a full-
blown trial on the merits.

WHEREFORE, there being no showing that the impugned Resolutions dated February 4,
2002 of the Sandiganbayan Special Fourth Division and December 12, 2003 of the
Sandiganbayan Fourth Division in Criminal Case Nos. 25922-25939 are tainted with
grave abuse of discretion amounting to lack or excess of jurisdiction, the instant Petition
for Certiorari is DISMISSED for lack of merit.

SO ORDERED.

THIRD DIVISION
[ G.R. No. 187728, September 12, 2011 ]
CHURCHILLE V. MARI AND THE PEOPLE OF THE PHILIPPINES,
PETITIONERS, VS. HON. ROLANDO L. GONZALES, PRESIDING JUDGE,
REGIONAL TRIAL COURT, BRANCH 39, SOGOD, SOUTHERN LEYTE,
AND PO1 RUDYARD PALOMA Y TORRES, RESPONDENTS.

DECISION

PERALTA, J.:
 This resolves the Petition for Certiorari under Rule 65 of the Rules of  Court,
praying that the Order[1] of the Regional Trial Court of Sogod, Southern Leyte (RTC),
dated January 16, 2009, dismissing the criminal case for rape against PO1 Rudyard
Paloma y Torres (private respondent), and the Resolution [2] dated March 16, 2009,
denying petitioners' motion for reconsideration, be annulled and set aside.

The records reveal the following antecedent facts.

On October 25, 2004, petitioner AAA, private complainant below,  executed a sworn
statement before an Investigator of the 8th Regional Office, Philippine National Police-
Criminal Investigation and Detection Group (PNP-CIDG) in Tacloban City, where she
stated that she was raped by herein private respondent on October 10, 2004 at her
boarding house at Sogod, Southern Leyte.  A preliminary investigation of the case was
commenced on November 4, 2004 before the Presiding Judge of the Municipal Circuit
Trial Court (MCTC) of Sogod.  A warrant of arrest was issued against private respondent,
so he voluntarily surrendered to the Chief of Police of Sogod on November 18, 2004 and
was then incarcerated at the Sogod Municipal Jail.

On November 20, 2004, private respondent filed a Motion for Bail.  Hearings on the
motion commenced on December 7, 2004, but petitioner failed to appear. Only private
respondent presented evidence.  Thus, on March 16, 2005, the MCTC of Sogod issued an
Order allowing private respondent to post bail set at P200,000.00.  After posting a
surety bond, private respondent was released from confinement.

Pursuant to the issuance of A.M. No. 05-8-26, divesting first-level courts of authority to
conduct preliminary investigation of criminal complaints cognizable by Regional Trial
Courts, records of the subject case were transmitted to the Provincial Prosecutor's
Office of Southern Leyte.[3]  The Prosecutor's Office issued a Resolution dated May 26,
2008, finding probable cause against private respondent and, accordingly, an
Information for Rape was filed on June 11, 2008.  A warrant of arrest was immediately
issued against private respondent.

On June 27, 2008, private respondent was committed to detention [4] and, on June 30,
2008, the RTC issued an Order [5] stating that accused had voluntarily surrendered to the
Office of the Clerk of Court and arraignment was set for July 31, 2008.  In the meantime,
on July 3, 2008, private respondent filed a Motion to Admit Cash Bond in Lieu of Surety
Bond; thus, in an Order dated July 10, 2008, the RTC cancelled the July 31, 2008
schedule for arraignment and reset the arraignment and hearing on said motion for
August 20, 2008.  At said scheduled date for arraignment and hearing on the motion,
nobody appeared for the prosecution.  Hence, the RTC issued the Order [6] dated August
20, 2008 resetting the arraignment for October 31, 2008 and stating that:

x  x x  this Court hereby orders the public prosecutor x  x  x and/or his assistant
prosecutor  x  x x  to appear and prosecute this case on the next scheduled hearing from
arraignment up to the termination of the trial of this case otherwise this Court will order
the dismissal of this case for failure to prosecute or nolle prosequi.[7]

On October 28, 2008, petitioner AAA, private complainant below, filed through her
private counsel, a Motion for Cancellation of Hearing, [8] manifesting that Atty. Pedro
Felicen, Jr. had been granted the authority to prosecute by the Provincial Prosecutor
and praying that the scheduled arraignment on October 31, 2008 be cancelled due to
the pendency of private complainant's petition for transfer of venue before this Court. 
The authorized private prosecutor did not appear on said hearing date.  The hearing on
October 31, 2008 proceeded as the RTC ruled, in its Order [9] issued on the same day,
that unless restrained by a higher court, the mere pendency of a petition for transfer of
venue is not sufficient reason to suspend the proceedings.  Moreover, counsel for
accused invoked the accused's right to a speedy trial and, thus, private respondent was
arraigned in the presence of the Provincial Prosecutor who was designated by the RTC
to represent the prosecution for the purpose of arraignment.  Pre-trial was set for
November 13, 2008.  Nevertheless, said schedule for pre-trial was cancelled (per
Order[10] dated November 4, 2008) as the Presiding Judge of the RTC had to attend a
PHILJA Seminar, and pre-trial was reset to November 24, 2008.  On November 24, 2008,
the day of the pre-trial itself, the private prosecutor again filed a Motion for
Cancellation of Hearing, again using as justification the pendency of the petition for
transfer of venue.  The RTC issued an Order on even date, reading as follows:

During the scheduled pre-trial conference of this case, the public prosecutors of
Leyte, the private prosecutor and the private complainant failed to appear despite
proper notices sent [to] them.  A motion for cancellation of hearing was filed by the
authorized private prosecutor, Pedro Felicen, Jr. for reasons stated therein to which this
Court finds to be not meritorious, hence, the same is denied. x x x the public prosecutor
as well as the counsel for the accused were directed to make their oral comments on
the first endorsement of the Hon. Deputy Court Administrator, regarding the motion to
transfer venue of this case to any of the RTC, at Tacloban City, x  x  x.

x  x x  Thereafter, the pre trial proceeded by discussing matters concerning the amicable
settlement, plea bargaining agreement, stipulation of facts, pre-marking of documentary
exhibits, number of witnesses, trial dates and nature of the defense.  There being no
other matters to discuss on pre-trial in order to expedite the early disposition of this
case, the pre-trial proper is now deemed terminated. [11]

The said Order also scheduled the initial hearing for trial on the merits for December 12,
2008.  On December 12, 2008, no one appeared for the prosecution, prompting counsel
for accused private respondent to move for dismissal of the case on the ground of
failure to prosecute.  Private respondent's motion to dismiss was denied per
Order[12] dated December 12, 2008, and hearing was reset to January 16, 2009.

Again, on the very day of the January 16, 2009 hearing, the private prosecutor filed an
Urgent Motion for Cancellation of Hearing, stating that it was only on January 14, 2009
that he was furnished a copy of the notice of the January 16, 2009 hearing and he had to
attend a previously scheduled hearing for another case he was handling, set for the very
same date.  Thus, in the Order dated January 16, 2009, the RTC disposed, thus:

x  x x  Again notably absent are the private prosecutor, the two public
prosecutors designated by the Department of Justice to prosecute this case as well as
the private complainant herself.

A last minute urgent motion to reset was filed by the private prosecutor, but the same is
denied being in violation of the three (3) day rule in filing written postponements. After
hearing the arguments coming from both the public prosecutor assigned to this Court
and counsel for the defense, the Court deems it proper to act on the urgency of the
matter prayed for by the said counsel.  Considering that the accused has been
languishing in jail since June, 2008 up to the present and to allow him to stay in jail for a
single minute, it is quite unreasonable and would violate his right to speedy trial.

WHEREFORE, finding the motion of the counsel for the accused to be based on grounds
that are meritorious, this Court pursuant to  x x  x the rule on speedy trial (RA 8433)
[should be "8493"] hereby orders this case dismissed for failure of the prosecution to
prosecute or nolle prosequi.[13]

Petitioners filed a motion for reconsideration, but the RTC denied the same per
Resolution dated March 16, 2009.

Hence, the present petition for certiorari, alleging that public respondent acted with
grave abuse of discretion amounting to lack or excess of jurisdiction in rashly and
precipitately dismissing the rape case against private respondent. Respondents counter
that there was no grave abuse committed by the trial court and setting aside the
dismissal of the rape case would put private respondent in double jeopardy.

The Court finds the petition bereft of merit.

Firstly, petitioners failed to observe the doctrine on hierarchy of courts.  In Garcia v.

Miro,[14] the Court, quoting Vergara, Sr. v. Suelto,[15] ruled thus:

The Supreme Court is a court of last resort, and must so remain if it is to

satisfactorily perform the functions assigned to it by the fundamental charter and
immemorial tradition. It cannot and should not be burdened with the task of dealing
with causes in the first instance. Its original jurisdiction to issue the so-called
extraordinary writs should be exercised only where absolutely necessary or where
serious and important reasons exist therefor. Hence, that jurisdiction should generally
be exercised relative to actions or proceedings before the Court of Appeals, or before
constitutional or other tribunals, bodies or agencies whose acts for some reason or
another are not controllable by the Court of Appeals. Where the issuance of an
extraordinary writ is also within the competence of the Court of Appeals or a Regional
Trial Court, it is in either of these courts that the specific action for the writ's
procurement must be presented. This is, and should continue, to be the policy in this
regard, a policy that courts and lawyers must strictly observe. [16] (Emphasis supplied.)

On this point alone, the petition is already dismissible.  However, on several occasions,
this Court found compelling reasons to relax the rule on observance on hierarchy of
courts.  In Pacoy v. Cajigal,[17] the Court opted not to strictly apply said doctrine, since
the issue involved is double jeopardy, considered to be one of the most fundamental
constitutional rights of an accused.  Hence, the Court also finds sufficient reason to relax
the rule in this case as it also involves the issue of double jeopardy, necessitating a look
into the merits of the petition.

Petitioners insist that the RTC dismissed the criminal case against private respondent
too hurriedly, despite the provision in Section 10 of the Speedy Trial Act of 1998
(Republic Act No. 8493), now incorporated in Section 3, Rule 119 of the Rules of Court,
to wit:

SEC. 3. 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:

xxxx

(5) Delay resulting from orders of inhibition, or proceedings relating to change of venue
of cases or transfer from other courts;

x x x x[18]

A careful reading of the above rule would show that the only delays that may be
excluded from the time limit within which trial must commence are those resulting
from proceedings concerning the accused.  The time involved in the proceedings in a
petition for transfer of venue can only be excluded from said time limit if it was the
accused who instituted the same. Hence, in this case, the time during which the petition
for transfer of venue filed by the private complainant is pending, cannot be excluded
from the time limit of thirty (30) days from receipt of the pre-trial order imposed in
Section 1, Rule 119 of the Rules of Court.

The records reveal that the 30-day time limit set by Section 1, Rule 119 of the Rules of
Court had, in fact, already been breached.  The private prosecutor received the Pre-trial
Order[19] dated November 24, 2008 on December 3, 2008, while the Provincial
Prosecutor received the same on December 2, 2008. [20]  This means that at the latest,
trial should have commenced by January 2, 2009, or if said date was a Sunday or
holiday, then on the very next business day.  Yet, because of the prosecution's failure to
appear at the December 12, 2008 hearing for the initial presentation of the
prosecution's evidence,  the RTC was constrained to reset the hearing to January 16,
2009, which is already beyond the 30-day time limit.  Nevertheless, the prosecution
again failed to appear at the January 16, 2009 hearing. Indeed, as aptly observed by the
RTC, petitioners showed recalcitrant behavior by obstinately refusing to comply with the
RTC's directives to commence presentation of their evidence.  Petitioners did not even
show proper courtesy to the court, by filing motions for cancellation of the hearings on
the very day of the hearing and not even bothering to appear on the date they set for
hearing on their motion.  As set forth in the narration of facts above, the prosecution
appeared to be intentionally delaying and trifling with court processes.

Petitioners are likewise mistaken in their notion that mere pendency of their  petition
for transfer of venue should interrupt proceedings before the trial court. Such situation
is akin to having a pending petition for certiorari with the higher courts.  In People v.
Hernandez,[21] the Court held that "delay resulting from extraordinary remedies against
interlocutory orders" must be read in harmony with Section 7, Rule 65 of the Rules of
Court which provides that the "[p]etition [under Rule 65] shall not interrupt the course
of the principal case unless a temporary restraining order or a writ of preliminary
injunction has been issued against the public respondent from further proceeding in
the case."[22] The trial court was then correct and acting well within its discretion when it
refused to grant petitioners' motions for postponement mainly because of the pendency
of their petition for transfer of venue.

The trial court cannot be faulted for refusing to countenance delays in the prosecution
of the case.  The Court's ruling in Tan v. People[23] is quite instructive, to wit:

An accused's right to "have a speedy, impartial, and public trial" is guaranteed in

criminal cases by Section 14 (2) of Article III of the Constitution. This right to a speedy
trial may be defined as one free from vexatious, capricious and oppressive delays, its
"salutary objective" being to assure that an innocent person may be free from the
anxiety and expense of a court litigation or, if otherwise, of having his guilt determined
within the shortest possible time compatible with the presentation and consideration of
whatsoever legitimate defense he may interpose.  Intimating historical perspective on
the evolution of the right to speedy trial, we reiterate the old legal maxim, "justice
delayed is justice denied." This oft-repeated adage requires the expeditious resolution
of disputes, much more so in criminal cases where an accused is constitutionally
guaranteed the right to a speedy trial.

Following the policies incorporated under the 1987 Constitution, Republic Act No. 8493,
otherwise known as "The Speedy Trial Act of 1998," was enacted, with Section 6 of said
act limiting the trial period to 180 days from the first day of trial.  Aware of problems
resulting in the clogging of court dockets, the Court implemented the law by issuing
Supreme Court Circular No. 38-98, which has been incorporated in the 2000 Rules of
Criminal Procedure, Section 2 of Rule 119.

In Corpuz v. Sandiganbayan, the Court had occasion to state -

The right of the accused to a speedy trial and to a speedy disposition of the case
against him was designed to prevent the oppression of the citizen by holding criminal
prosecution suspended over him for an indefinite time, and to prevent delays in the
administration of justice by mandating the courts to proceed with reasonable dispatch
in the trial of criminal cases. Such right to a speedy trial and a speedy disposition of a
case is violated only when the proceeding is attended by vexatious, capricious and
oppressive delays. The inquiry as to whether or not an accused has been denied such
right is not susceptible by precise qualification. The concept of a speedy disposition is a
relative term and must necessarily be a flexible concept.

While justice is administered with dispatch, the essential ingredient is orderly,

expeditious and not mere speed. It cannot be definitely said how long is too long in a
system where justice is supposed to be swift, but deliberate. It is consistent with delays
and depends upon circumstances. It secures rights to the accused, but it does not
preclude the rights of public justice. Also, it must be borne in mind that the rights given
to the accused by the Constitution and the Rules of Court are shields, not weapons;
hence, courts are to give meaning to that intent.

The Court emphasized in the same case that:

A balancing test of applying societal interests and the rights of the accused
necessarily compels the court to approach speedy trial cases on an ad hoc basis.

In determining whether the accused has been deprived of his right to a speedy
disposition of the case and to a speedy trial, four factors must be considered: (a) length
of delay; (b) the reason for the delay; (c) the defendant's assertion of his right; and (d)
prejudice to the defendant. x x x.

Closely related to the length of delay is the reason or justification of the State for such
delay. Different weights

should be assigned to different reasons or justifications invoked by the State. x x x.

Exhaustively explained in Corpuz v. Sandiganbayan, an accused's right to speedy trial is

deemed violated only when the proceeding is attended by vexatious, capricious, and
oppressive delays. In determining whether petitioner was deprived of this right, the
factors to consider and balance are the following: (a) duration of the delay; (b) reason
therefor; (c) assertion of the right or failure to assert it; and (d) prejudice caused by
such delay.

x x x x

We emphasize that in determining the right of an accused to speedy trial, courts are
required to do more than a mathematical computation of the number of
postponements of the scheduled hearings of the case.  A mere mathematical
reckoning of the time involved is clearly insufficient, and particular regard must be
given to the facts and circumstances peculiar to each case.[24]

Here, it must be emphasized that private respondent had already been deprived of his
liberty on two occasions. First, during the preliminary investigation before the MCTC,
when he was incarcerated from November 18, 2004 to March 16, 2005, or a period of
almost four months; then again, when an Information had already been issued and since
rape is a non-bailable offense, he was imprisoned beginning June 27, 2008 until the case
was dismissed on January 16, 2009, or a period of over 6 months.  Verily, there can be
no cavil that deprivation of liberty for any duration of time is quite oppressive.  Because
of private respondent's continued incarceration, any delay in trying the case would
cause him great prejudice.  Thus, it was absolutely vexatious and oppressive to delay the
trial in the subject criminal case to await the outcome of petitioners' petition for
transfer of venue, especially in this case where there is no temporary restraining order
or writ of preliminary injunction issued by a higher court against herein public
respondent from further proceeding in the case.

Hence, the Court does not find any grave abuse of discretion committed by the trial
court in dismissing the case against private respondent for violation of his constitutional
right to speedy trial.

WHEREFORE, the petition is DISMISSED. 

SO ORDERED.

EN BANC
[ G.R. Nos. 177857-58, January 24, 2012 ]
PHILIPPINE COCONUT, PRODUCERS FEDERATION, INC. (COCOFED),
MANUEL V. DEL ROSARIO, DOMINGO P. ESPINA, SALVADOR P.
BALLARES, JOSELITO A. MORALEDA, PAZ M. YASON, VICENTE A.
CADIZ, CESARIA DE LUNA TITULAR, AND RAYMUNDO C. DE VILLA,
PETITIONERS, VS. REPUBLIC OF THE PHILIPPINES, RESPONDENT,
WIGBERTO E. TAÑADA, OSCAR F. SANTOS, SURIGAO DEL SUR
FEDERATION OF AGRICULTURAL COOPERATIVES (SUFAC) AND
MORO FARMERS ASSOCIATION OF ZAMBOANGA DEL SUR (MOFAZS),
REPRESENTED BY ROMEO C. ROYANDOYAN, INTERVENORS.

[G.R. NO. 178193]

DANILO S. URSUA, PETITIONER, VS. REPUBLIC OF THE PHILIPPINES,

RESPONDENT,

DECISION

VELASCO JR., J.:

The Case

Cast against a similar backdrop, these consolidated petitions for review under Rule 45 of
the Rules of Court assail and seek to annul certain issuances of the Sandiganbayan in
its Civil Case No. 0033-A entitled, "Republic of the Philippines, Plaintiff, v. Eduardo M.
Cojuangco, Jr., et al., Defendants, COCOFED, et al., BALLARES, et al., Class Action
Movants," and Civil Case No. 0033-F entitled, "Republic of the Philippines, Plaintiff, v.
Eduardo M. Cojuangco, Jr., et al., Defendants."  Civil Case (CC) Nos. 0033-A and 0033-
F are the results of the splitting into eight (8) amended complaints of CC No. 0033
entitled, "Republic of the Philippines v. Eduardo Cojuangco, Jr., et al.," a suit for
recovery of ill-gotten wealth commenced by the Presidential Commission on Good
Government (PCGG), for the Republic of the Philippines (Republic), against Ferdinand
E. Marcos and several individuals, among them, Ma. Clara Lobregat (Lobregat) and
petitioner Danilo S. Ursua (Ursua). Lobregat and Ursua occupied, at one time or another,
directorial or top management positions in either the Philippine Coconut Producers
Federation, Inc. (COCOFED) or the Philippine Coconut Authority (PCA), or both.[1] 
Each of the eight (8) subdivided complaints correspondingly impleaded as defendants
only the alleged participants in the transaction/s subject of the suit, or who are averred as
owner/s of the assets involved.

The original complaint, CC No. 0033, as later amended to make the allegations more
specific, is described in Republic v. Sandiganbayan[2] (one of several ill-gotten suits of
the same title disposed of by the Court) as revolving around the provisional take over by
the PCGG of COCOFED, Cocomark, and Coconut Investment Company and their assets
and the sequestration of shares of stock in United Coconut Planters Bank (UCPB)
allegedly  owned by, among others, over a million coconut farmers,  and the six (6)
Coconut Industry Investment Fund (CIIF) corporations,[3] referred to in some pleadings as
CIIF oil mills and the fourteen (14) CIIF holding companies[4] (hereafter collectively
called "CIIF companies"), so-called for having been either organized, acquired and/or
funded as UCPB subsidiaries with the use of the CIIF levy. The basic complaint also
contained allegations about the alleged misuse of the coconut levy funds to buy out the
majority of the outstanding shares of stock of San Miguel Corporation (SMC).

More particularly, in G.R. Nos. 177857-58, class action petitioners COCOFED and a

group of purported coconut farmers and COCOFED members (hereinafter "COCOFED
et al." collectively)[5] seek the reversal of the following judgments and resolutions of the
anti-graft court insofar as these issuances are adverse to their interests:

1) Partial Summary Judgment[6] dated July 11, 2003, as reiterated in a resolution[7] of

December 28, 2004, denying COCOFED's motion for reconsideration, and the May 11,
2007 resolution denying COCOFED's motion to set case for trial and declaring the partial
summary judgment final and appealable,[8] all issued in Civil Case No. 0033-A; and 

2) Partial Summary Judgment[9] dated May 7, 2004, as also reiterated in a resolution[10] of

December 28, 2004, and the May 11, 2007 resolution[11] issued in Civil Case No. 0033-
F.  The December 28, 2004 resolution denied COCOFED's Class Action Omnibus
Motion therein praying to dismiss CC Case No. 0033-F on jurisdictional ground and
alternatively, reconsideration and to set case for trial. The May 11, 2007 resolution
declared the judgment final and appealable.

For convenience, the partial summary judgment (PSJ) rendered on July 11, 2003 in CC
No. 0033-A shall hereinafter be referred to as PSJ-A, and that issued on May 7, 2004
in CC 0033-F, as PSJ-F. PSJ-A and PSJ-F basically granted the Republic's separate
motions for summary judgment.

On June 5, 2007, the court a quo issued a Resolution in CC No. 0033-A, which modified
PSJ-A by ruling that no further trial is needed on the issue of ownership of the subject
properties.  Likewise, on May 11, 2007, the said court issued a Resolution in CC No.
0033-F amending PSJ-F in like manner.

On the other hand, petitioner Ursua, in G.R. No. 178193, limits his petition for review on
PSJ-A to the extent that it negates his claims over shares of stock in UCPB.

Tañada, et al. have intervened[12] in G.R. Nos. 177857-58 in support of the government's

case.

Another petition was filed and docketed as G.R. No. 180705. It involves questions
relating to Eduardo M. Cojuangco, Jr.'s (Cojuangco, Jr.'s) ownership of the UCPB shares,
which he allegedly received as option shares, and which is one of the issues raised in
PSJ-A.[13]  G.R. No. 180705 was consolidated with G.R. Nos. 177857-58 and 178193. 
On September 28, 2011, respondent Republic filed a Motion to Resolve G.R.
Nos. 177857-58 and 178193.[14]  On January 17, 2012, the Court issued a Resolution
deconsolidating G.R. Nos. 177857-58 and 178193 from G.R. No. 180705.  This Decision
is therefore separate and distinct from the decision to be rendered in G.R. No. 180705.

The Facts

The relevant facts, as culled from the records and as gathered from Decisions of the Court
in a batch of coco levy and illegal wealth cases, are:

In 1971, Republic Act No. (R.A.) 6260 was enacted creating the Coconut Investment
Company (CIC) to administer the Coconut Investment Fund (CIF), which, under
Section 8[15] thereof, was to be sourced from a   PhP 0.55 levy on the sale of every 100 kg.
of copra. Of the PhP 0.55 levy of which the copra seller was, or ought to be,
issued COCOFUND receipts, PhP 0.02 was placed at the disposition of COCOFED, the
national association of coconut producers declared by the Philippine Coconut
Administration (PHILCOA, now PCA[16]) as having the largest membership.[17]

The declaration of martial law in September 1972 saw the issuance of several presidential
decrees ("P.Ds.") purportedly designed to improve the coconut industry through the
collection and use of the coconut levy fund.  While coming generally from impositions
on the first sale of copra, the coconut levy fund came under various names, the different
establishing laws and the stated ostensible purpose for the exaction explaining the
differing denominations. Charged with the duty of collecting and administering the Fund
was PCA.[18] Like COCOFED with which it had a legal linkage,[19] the PCA, by statutory
provisions scattered in different coco levy decrees, had its share of the coco levy. [20]

The following were some of the issuances on the coco levy, its collection and utilization,
how the proceeds of the levy will be managed and by whom, and the purpose it was
supposed to serve:

1. P.D. No. 276 established the Coconut Consumers Stabilization Fund (CCSF) and
declared the proceeds of the CCSF levy as trust fund,[21] to be utilized to subsidize the
sale of coconut-based products, thus stabilizing the price of edible oil.[22]

2. P.D. No. 582 created the Coconut Industry Development Fund (CIDF) to finance the
operation of a hybrid coconut seed farm.

3. Then came P.D. No. 755 providing under its Section 1 the following:

It is hereby declared that the policy of the State is to provide readily available credit
facilities to the coconut farmers at a preferential rates; that this policy can be
expeditiously and efficiently realized by the implementation of the "Agreement for the
Acquisition of a Commercial Bank for the benefit of Coconut Farmers" executed by the
[PCA]...; and that the [PCA] is hereby authorized to distribute, for free, the shares of
stock of the bank it acquired to the coconut farmers....

Towards achieving the policy thus declared, P.D. No. 755, under its Section 2, authorized
PCA to utilize the CCSF and the CIDF collections to acquire a commercial bank
and deposit the CCSF levy collections in said bank, interest free, the deposit
withdrawable only when the bank has attained a certain level of sufficiency in its equity
capital. The same section also decreed that all levies PCA is authorized to collect shall
not be considered as special and/or fiduciary funds or form part of the general funds of
the government within the contemplation of P.D. No. 711.[23]

4. P.D. No. 961 codified the various laws relating to the development of coconut/palm oil
industries.

5. The relevant provisions of P.D. No. 961, as later amended by P.D. No. 1468
(Revised Coconut Industry Code), read:
 ARTICLE III

Levies

Section 1. Coconut Consumers Stabilization Fund Levy. -- The [PCA] is hereby

empowered to impose and collect ... the Coconut Consumers Stabilization Fund Levy ....

....

Section 5. Exemption. -- The [CCSF] and the [CIDF] as well as all disbursements as

herein authorized, shall not be construed ... as special and/or fiduciary funds, or as part
of the general funds of the national government within the contemplation of PD
711; ... the intention being that said Fund and the disbursements thereof as herein
authorized for the benefit of the coconut farmers shall be owned by them in their
private capacities: .... (Emphasis supplied.)

6. Letter of Instructions No. (LOI) 926, Series of 1979, made reference to the creation,

out of other coco levy funds, of the Coconut Industry Investment Fund (CIIF) in P.D.
No. 1468 and entrusted a portion of the CIIF levy to UCPB for investment, on behalf of
coconut farmers, in oil mills and other private corporations, with the following equity
ownership structure:[24]

Section 2. Organization of the Cooperative Endeavor. - The [UCPB], in its capacity as

the investment arm of the coconut farmers thru the [CIIF] ... is hereby directed to invest,
on behalf of the coconut farmers, such portion of the CIIF ... in private corporations ...
under the following guidelines:

a) The coconut farmers shall own or control at least ... (50%) of the outstanding voting
capital stock of the private corporation [acquired] thru the CIIF and/or corporation owned
or controlled by the farmers thru the CIIF .... (Words in bracket added.)

Through the years, a part of the coconut levy funds went directly or indirectly to various
projects and/or was converted into different assets or investments.[25] Of particular
relevance to this case was their use to acquire the First United Bank (FUB), later
renamed UCPB, and the acquisition by UCPB, through the CIIF companies, of a large
block of SMC shares. [26]

Apropos the intended acquisition of a commercial bank for the purpose stated earlier, it
would appear that FUB was the bank of choice   which the Pedro Cojuangco group
(collectively, "Pedro Cojuangco") had control of. The plan, then, was for PCA to buy all
of Pedro Cojuangco's shares in FUB. However, as later events unfolded, a simple direct
sale from the seller (Pedro) to PCA did not ensue as it was made to appear that
Cojuangco, Jr. had the exclusive option to acquire the former's FUB controlling interests.
Emerging from this elaborate, circuitous arrangement were two deeds; the first, simply
denominated as Agreement,[27] dated May 1975,[28] entered into by and between
Cojuangco, Jr., for and in his behalf and in behalf of "certain other buyers," and Pedro
Cojuangco, purportedly accorded Cojuangco, Jr. the option to buy 72.2% of FUB's
outstanding capital stock, or 137,866 shares (the "option shares," for brevity), at PhP 200
per share.

The second but related contract, dated May 25, 1975, was denominated as Agreement for
the Acquisition of a Commercial Bank for the Benefit of the Coconut Farmers of the
Philippines.[29]   It had PCA,[30] for itself and for the benefit of the coconut farmers,
purchase from Cojuangco, Jr. the shares of stock subject of the First Agreement for PhP
200 per share. As additional consideration for PCA's buy-out of what Cojuangco, Jr.
would later claim to be his exclusive and personal option,[31] it was stipulated that, from
PCA, Cojuangco, Jr. shall receive equity in FUB amounting to 10%, or 7.22%, of the
72.2%, or fully paid shares.

Apart from the aforementioned 72.2%, PCA purchased from other FUB shareholders
6,534 shares.

While the 64.98% portion of the option shares (72.2% - 7.22% = 64.98%) ostensibly
pertained to the farmers, the corresponding stock certificates supposedly representing the
farmers' equity were in the name of and delivered to PCA.[32] There were, however, shares
forming part of the aforesaid 64.98% portion, which ended up in the hands of non-
farmers.[33]  The remaining 27.8% of the FUB capital stock were not covered by any of
the agreements.

Under paragraph 8 of the second agreement, PCA agreed to expeditiously distribute the
FUB shares purchased to such "coconut farmers holding registered COCOFUND
receipts" on equitable basis.

As found by the Sandiganbayan, the PCA appropriated, out of its own fund, an amount
for the purchase of the said 72.2% equity, albeit it would later reimburse itself from
the coconut levy fund.[34]

As of June 30, 1975, the list of FUB stockholders shows PCA with 129,955 shares. [35]

Shortly after the execution of the PCA - Cojuangco, Jr. Agreement, President Marcos
issued, on July 29, 1975, P.D. No. 755 directing, as earlier narrated, PCA to use the
CCSF and CIDF to acquire a commercial bank to provide coco farmers with "readily
available credit facilities at preferential rate," and PCA "to distribute, for free," the bank
shares to coconut farmers.

Then came the 1986 EDSA event. One of the priorities of then President Corazon C.
Aquino's revolutionary government was the recovery of ill-gotten wealth reportedly
amassed by the Marcos family and close relatives, their nominees and associates.
Apropos thereto, she issued Executive Order Nos. (E.Os.) 1, 2 and 14, as amended by
E.O. 14-A, all Series of 1986.  E.O. 1 created the PCGG and provided it with the tools
and processes it may avail of in the recovery efforts;[36] E.O. No. 2 asserted that the ill-
gotten assets and properties come in the form of shares of stocks, etc.; while E.O. No. 14
conferred on the Sandiganbayan exclusive and original jurisdiction over ill-gotten wealth
cases, with the proviso that "technical rules of procedure and evidence shall not be
applied strictly" to the civil cases filed under the E.O. Pursuant to these issuances, the
PCGG issued numerous orders of sequestration, among which were those handed out, as
earlier mentioned, against shares of stock in UCPB purportedly owned by or registered in
the names of (a) more than a million coconut farmers and (b) the CIIF companies, 
including the SMC shares held by the CIIF companies. On July 31, 1987, the PCGG
instituted before the Sandiganbayan a recovery suit docketed thereat as CC No. 0033.

After the filing and subsequent amendments of the complaint in CC 0033, Lobregat,
COCOFED et al., and Ballares et al., purportedly representing over a million coconut
farmers, sought and were allowed to intervene.[37] Meanwhile, the following
incidents/events transpired:

1. On the postulate, inter alia, that its coco-farmer members own at least 51% of the
outstanding capital stock of UCPB, the CIIF companies, etc., COCOFED et al., on
November 29, 1989, filed Class Action Omnibus Motion praying for the lifting of the
orders of sequestration referred to above and for a chance to present evidence to prove the
coconut farmers' ownership of the UCPB and CIIF shares. The plea to present evidence
was denied;

2. Later, the Republic moved for and secured approval of a motion for separate trial
which paved the way for the subdivision of the causes of action in CC 0033, each
detailing how the assets subject thereof were acquired and the key roles the principal
played;

3. Civil Case 0033, pursuant to an order of the Sandiganbayan would be subdivided into
eight complaints, docketed as CC 0033-A to CC 0033-H.[38]

Lobregat, Ballares et al., COCOFED, et al., on the strength of their authority to intervene
in CC 0033, continued to participate in CC 0033-A where one of the issues raised was the
misuse of the names/identities of the over a million coconut farmers;[39]

4. On February 23, 2001, Lobregat, COCOFED, Ballares et al., filed a Class Action

Omnibus Motion to enjoin the PCGG from voting the sequestered UCPB shares and the
SMC shares registered in the names of the CIIF companies. The Sandiganbayan, by
Order of February 28, 2001, granted the motion, sending the Republic to come to this
Court on certiorari, docketed as G.R. Nos. 147062-64, to annul said order; and

5. By Decision of December 14, 2001, in G.R. Nos. 147062-64 (Republic v.

COCOFED), [40] the Court declared the coco levy funds as prima facie public funds. And
purchased as the sequestered UCPB shares were by such funds, beneficial ownership
thereon and the corollary voting rights prima facie pertain, according to the Court, to the
government.

The instant proceedings revolve around CC 0033-A (Re: Anomalous Purchase and Use
of [FUB] now [UCPB])[41] and CC 0033-F (Re: Acquisition of San Miguel Corporation
Shares of Stock), the first case pivoting mainly on the series of transactions culminating
in the alleged anomalous purchase of 72.2% of FUB's outstanding capital stock and the
transfer by PCA of a portion thereof to private individuals. COCOFED, et al. and
Ballares, et al. participated in CC No. 0033-A as class action movants.

Petitioners COCOFED et al.[42] and Ursua[43] narrate in their petitions how the farmers'

UCPB shares in question ended up in the possession of those as hereunder indicated:

1) The farmers' UCPB shares were originally registered in the name of PCA for the
eventual free distribution thereof to and registration in the individual names of the
coconut farmers in accordance with PD 755 and the IRR that PCA shall issue;

2) Pursuant to the stock distribution procedures set out in PCA Administrative Order No.
1, s. of 1975, (PCA AO 1),[44] farmers who had paid to the CIF under RA 6260 and
registered their COCOFUND (CIF) receipts with PCA were given their corresponding
UCPB stock certificates. As of June 1976, the cut-off date for the extended registration,
only 16 million worth of COCOFUND receipts were registered, leaving over 50 million
shares undistributed;

3) PCA would later pass Res. 074-78, s. of 1978, to allocate the 50 million undistributed
shares to (a) farmers who were already recipients thereof and (b) qualified farmers to be
identified by COCOFED after a national census.

4) As of May 1981, some 15.6 million shares were still held by and registered in the
name of COCOFED "in behalf of coconut farmers" for distribution immediately after the
completion of the national census, to all those determined by the PCA to
be bonafide coconut farmers, but who have not received the bank shares;[45] and

5) Prior to June 1986, a large number of coconut farmers opted to sell all/part of their
UCPB shares below their par value. This prompted the UCPB Board to authorize the
CIIF companies to buy these shares. Some 40.34 million common voting shares of
UCPB ended up with these CIIF companies albeit initially registered in the name of
UCPB.
On the other hand, the subject of CC 0033-F are two (2) blocks of  SMC shares of stock,
the first referring to shares purchased through  and registered in the name of the CIIF
holding companies. The purported ownership of the second block of SMC shares is for
the nonce irrelevant to the disposition of this case.  During the time material, the CIIF
block of SMC shares represented 27% of the outstanding capital stock of SMC.

Civil Case No. 0033-A

After the pre-trial, but before the Republic, as plaintiff a quo, could present, as it
committed to, a list of UCPB stockholders as of February 25, 1986,[46] among other
evidence, COCOFED, et al., on the premise that the sequestered farmers' UCPB shares
are not unlawfully acquired assets, filed in April 2001 their Class Action Motion for a
Separate Summary Judgment. In it, they prayed for a judgment dismissing the complaint
in CC 0033-A, for the reason that the over than a million unimpleaded coconut farmers
own the UCPB shares. In March 2002, they filed Class Action Motion for Partial
Separate Trial on the issue of whether said UCPB shares have legitimately become the
private property of the million coconut farmers.

Correlatively, the Republic, on the strength of the December 14, 2001 ruling in Republic
v. COCOFED[47] and on the argument, among others, that the claim of COCOFED and
Ballares et al. over the subject UCPB shares is based solely on the supposed
COCOFUND receipts issued for payment of the R.A. 6260 CIF levy, filed a Motion for
Partial Summary Judgment [RE: COCOFED, et al. and Ballares, et al.] dated April 22,
2002, praying that a summary judgment be rendered declaring:

a. That Section 2 of [PD] 755, Section 5, Article III of P.D. 961 and Section 5,
Article III of P.D. No. 1468 are unconstitutional;

b. That ... (CIF) payments under ... (R.A.) No. 6260 are not valid and legal bases for
ownership claims over UCPB shares; and

c. That COCOFED, et al., and Ballares, et al. have not legally and validly obtained
title over the subject UCPB shares.

After an exchange of pleadings, the Republic filed its sur-rejoinder praying that it be
conclusively held to be the true and absolute owner of the coconut levy funds and the
UCPB shares acquired therefrom.[48]

A joint hearing on the separate motions for summary judgment to determine what
material facts exist with or without controversy followed.[49] By Order[50] of March 11,
2003, the Sandiganbayan detailed, based on this Court's ruling in related cases, the
parties' manifestations made in open court and the pleadings and evidence on record, the
facts it found to be without substantial controversy, together with the admissions and/or
extent of the admission made by the parties respecting relevant facts, as follows:

As culled from the exhaustive discussions and manifestations of the parties in open court
of their respective pleadings and evidence on record, the facts which exist without any
substantial controversy are set forth hereunder, together with the admissions and/or the
extent or scope of the admissions made by the parties relating to the relevant facts:

1.  The late President Ferdinand E. Marcos was President ... for two terms . . . and, during
the second term, ... declared Martial Law through Proclamation No. 1081 dated
September 21, 1972.

2.  On January 17, 1973, [he] issued Proclamation No. 1102 announcing the ratification
of the 1973 Constitution.

3. From January 17, 1973 to April 7, 1981, [he] . . .exercised the powers and prerogative
of President under the 1935 Constitution and the powers and prerogative of President . . .
the 1973 Constitution.

[He] ...promulgated various [P.D.s], among which were P.D. No. 232, P.D. No. 276, P.D.
No. 414, P.D. No. 755, P.D. No. 961 and P.D. No. 1468.

4.  On April 17, 1981, amendments to the 1973 Constitution were effected and, on June
30, 1981, [he], after being elected President, "reassumed the title and exercised the
powers of the President until 25 February 1986."

5.  Defendants Maria Clara Lobregat and Jose R. Eleazar, Jr. were [PCA] Directors ...
during the period 1970 to 1986....

6.  Plaintiff admits the existence of the following agreements which are attached as
Annexes "A" and "B" to the Opposition dated October 10, 2002 of defendant Eduardo M.
Cojuangco, Jr. to the above-cited Motion for Partial Summary Judgment:

a)  "Agreement made and entered into this ______ day of  May, 1975 at Makati, Rizal,
Philippines, by and between:

PEDRO COJUANGCO, Filipino, x x x, for and in his own behalf and in behalf of certain
other stockholders of  First United Bank listed in Annex "A" attached hereto (hereinafter
collectively called the SELLERS);

- and -
EDUARDO COJUANGCO, JR., Filipino, x x x, represented in this act by his duly
authorized attorney-in-fact, EDGARDO J. ANGARA, for and in his own behalf and in
behalf of certain other buyers, (hereinafter collectively called the BUYERS)";

WITNESSETH:  That

WHEREAS, the SELLERS own of record and beneficially a total of 137,866 shares of
stock, with a par value of P100.00 each, of the common stock of the First United Bank
(the "Bank"), a commercial banking corporation existing under the laws of the
Philippines;

WHEREAS, the BUYERS desire to purchase, and the SELLERS are willing to sell, the
aforementioned shares of stock totaling 137,866 shares (hereinafter called the "Contract
Shares") owned by the SELLERS due to their special relationship to EDUARDO
COJUANGCO, JR.;

NOW, THEREFORE, for and in consideration of the premises and the mutual covenants
herein contained, the parties agree as follows:

1.  Sale and Purchase of Contract Shares

Subject to the terms and conditions of this Agreement, the SELLERS hereby sell, assign,
transfer and convey unto the BUYERS, and the BUYERS hereby purchase and acquire,
the Contract Shares free and clear of all liens and encumbrances thereon.

2.  Contract Price

The purchase price per share of the Contract Shares payable by the BUYERS is P200.00
or an aggregate price of P27,573,200.00 (the "Contract Price").

3.  Delivery of, and payment for, stock certificates

Upon the execution of this Agreement, (i) the SELLERS shall deliver to the
BUYERS the stock certificates representing the Contract Shares, free and clear of
all liens, encumbrances, obligations, liabilities and other burdens in favor of the
Bank or third parties, duly endorsed in blank or with stock powers sufficient to
transfer the shares to bearer; and (ii)  BUYERS shall deliver to the SELLERS
P27,511,295.50 representing the Contract Price less the amount of stock transfer
taxes payable by the SELLERS, which the BUYERS undertake to remit to the
appropriate authorities. (Emphasis added.)

4.  Representation and Warranties of Sellers

The SELLERS respectively and independently of each other represent and warrant that:

(a)  The SELLERS are the lawful owners of, with good marketable title to, the Contract
Shares and that (i) the certificates to be delivered pursuant thereto have been validly
issued and are fully paid and no-assessable; (ii) the Contract Shares are free and clear of
all liens, encumbrances, obligations, liabilities and other burdens in favor of the Bank or
third parties...

This representation shall survive the execution and delivery of this Agreement and the
consummation or transfer hereby contemplated.

(b)  The execution, delivery and performance of this Agreement by the SELLERS does
not conflict with or constitute any breach of any provision in any agreement to which
they are a party or by which they may be bound.

(c) They have complied with the condition set forth in Article X of the Amended Articles
of Incorporation of the Bank.

5.  Representation of BUYERS ....

6.  Implementation

The parties hereto hereby agree to execute or cause to be executed such documents and
instruments as may be required in order to carry out the intent and purpose of this
Agreement.

7.  Notices ....

IN WITNESS WHEREOF, the parties hereto have hereunto set their hands at the place
and on the date first above written.

PEDRO COJUANGCO EDUARDO COJUANGCO, JR.

(on his own behalf and in behalf of the other (on his own behalf and in behalf of the other
Sellers listed in Annex "A" hereof)(BUYERS) Buyers)
(SELLERS)

By:

EDGARDO J. ANGARA
Attorney-in-Fact

... ... ...

b)  "Agreement for the Acquisition of a Commercial Bank for the Benefit of the Coconut
Farmers of  the Philippines, made and entered into this 25th day of  May 1975 at Makati,
Rizal, Philippines, by and between:

EDUARDO M. COJUANGCO, JR., x x x,  hereinafter referred to as the SELLER;

- and -

PHILIPPINE COCONUT AUTHORITY, a public corporation created by Presidential

Decree No. 232, as amended, for itself and for the benefit of the coconut farmers of the
Philippines, (hereinafter called the BUYER)"

WITNESSETH:  That

WHEREAS, on May 17, 1975, the Philippine Coconut Producers Federation ("PCPF"),
through its Board of Directors, expressed the desire of the coconut farmers to own a
commercial bank which will be an effective instrument to solve the perennial credit
problems and, for that purpose, passed a resolution requesting the PCA to negotiate with
the SELLER for the transfer to the coconut farmers of the SELLER's option to buy the
First United Bank (the "Bank") under such terms and conditions as BUYER may deem to
be in the best interest of the coconut farmers and instructed Mrs. Maria Clara Lobregat to
convey such request to the BUYER;

WHEREAS, the PCPF further instructed Mrs. Maria Clara Lobregat to make
representations with the BUYER to utilize its funds to finance the purchase of the Bank;

WHEREAS, the SELLER has the exclusive and personal option to buy 144,400 shares
(the "Option Shares") of the Bank, constituting 72.2% of the present outstanding shares
of stock of the Bank, at the price of P200.00 per share, which option only the SELLER
can validly exercise;

WHEREAS, in response to the representations made by the coconut farmers, the BUYER
has requested the SELLER to exercise his personal option for the benefit of the coconut
farmers;

WHEREAS, the SELLER is willing to transfer the Option Shares to the BUYER at a
price equal to his option price of P200 per share;

WHEREAS, recognizing that ownership by the coconut farmers of a commercial bank is

a permanent solution to their perennial credit problems, that it will accelerate the growth
and development of the coconut industry and that the policy of the state which the
BUYER is required to implement is to achieve vertical integration thereof so that coconut
farmers will become participants in, and beneficiaries of, the request of PCPF that it
acquire a commercial bank to be owned by the coconut farmers and, appropriated, for
that purpose, the sum of P150 Million to enable the farmers to buy the Bank and
capitalize the Bank to such an extension as to be in a position to adopt a credit policy for
the coconut farmers at preferential rates;

WHEREAS, x x x the BUYER is willing to subscribe to additional shares ("Subscribed

Shares") and place the Bank in a more favorable financial position to extend loans and
credit facilities to coconut farmers at preferential rates;

NOW, THEREFORE, for and in consideration of the foregoing premises and the other
terms and conditions hereinafter contained, the parties hereby declare and affirm that
their principal contractual intent is (1) to ensure that the coconut farmers own at least
60% of the outstanding capital stock of the Bank; and (2) that the SELLER shall receive
compensation for exercising his personal and exclusive option to acquire the Option
Shares, for transferring such shares to the coconut farmers at the option price of P200 per
share, and for performing the management services required of him hereunder.

1.  To ensure that the transfer to the coconut farmers of the Option Shares is effected with
the least possible delay and to provide for the faithful performance of the obligations of
the parties hereunder, the parties hereby appoint the Philippine National Bank as their
escrow agent (the "Escrow Agent").

Upon execution of this Agreement, the BUYER shall deposit with the Escrow Agent such
amount as may be necessary to implement the terms of this Agreement....

2.  As promptly as practicable after execution of this Agreement, the SELLER shall
exercise his option to acquire the Option Share and SELLER shall immediately thereafter
deliver and turn over to the Escrow Agent such stock certificates as are herein provided
to be received from the existing stockholders of the Bank by virtue of the exercise on the
aforementioned option....

3.  To ensure the stability of the Bank and continuity of management and credit policies
to be adopted for the benefit of the coconut farmers, the parties undertake to cause the
stockholders and the Board of Directors of the Bank to authorize and approve a
management contract between the Bank and the SELLER under the following terms:

(a)  The management contract shall be for a period of five (5) years, renewable for
another five (5) years by mutual agreement of the SELLER and the Bank;

(b)  The SELLER shall be elected President and shall hold office at the pleasure of the
Board of Directors.  While serving in such capacity, he shall be entitled to such salaries
and emoluments as the Board of Directors may determine;
(c) The SELLER shall recruit and develop a professional management team to manage
and operate the Bank under the control and supervision of the Board of Directors of the
Bank;

(d)  The BUYER undertakes to cause three (3) persons designated by the SELLER to be
elected to the Board of Directors of the Bank;

(e)  The SELLER shall receive no compensation for managing the Bank, other than such
salaries or emoluments to which he may be entitled by virtue of the discharge of his
function and duties as President, provided ...  and

(f)  The management contract may be assigned to a management company owned and
controlled by the SELLER.

4.  As compensation for exercising his personal and exclusive option to acquire the
Option Shares and for transferring such shares to the coconut farmers, as well as for
performing the management services required of him, SELLER shall receive equity in the
Bank amounting, in the aggregate, to 95,304 fully paid shares in accordance with the
procedure set forth in paragraph 6 below;

5.  In order to comply with the Central Bank program for increased capitalization of
banks and to ensure that the Bank will be in a more favorable financial position to attain
its objective to extend to the coconut farmers loans and credit facilities, the BUYER
undertakes to subscribe to shares with an aggregate par value of P80,864,000 (the
"Subscribed Shares").  The obligation of the BUYER with respect to the Subscribed
Shares shall be as follows:

(a)  The BUYER undertakes to subscribe, for the benefit of the coconut farmers, to shares
with an aggregate par value of P15,884,000 from the present authorized but unissued
shares of the Bank; and

(b)  The BUYER undertakes to subscribe, for the benefit of the coconut farmers, to shares
with an aggregate par value of P64,980,000 from the increased capital stock of the Bank,
which subscriptions shall be deemed made upon the approval by the stockholders of the
increase of the authorized capital stock of the Bank from P50 Million to P140 Million.

The parties undertake to declare stock dividends of P8 Million out of the present
authorized but unissued capital stock of P30 Million.

6.  To carry into effect the agreement of the parties that the SELLER shall receive as his
compensation 95,304 shares:
(a)  ....

(b)  With respect to the Subscribed Shares, the BUYER undertakes, in order to prevent
the dilution of SELLER's equity position, that it shall cede over to the SELLER 64,980
fully-paid shares out of the Subscribed Shares.  Such undertaking shall be complied with
in the following manner: ....

7.  The parties further undertake that the Board of Directors and management of the Bank
shall establish and implement a loan policy for the Bank of making available for loans at
preferential rates of interest to the coconut farmers ....

8.  The BUYER shall expeditiously distribute from time to time the shares of the Bank,
that shall be held by it for the benefit of the coconut farmers of the Philippines under the
provisions of this Agreement, to such, coconut farmers holding registered COCOFUND
receipts on such equitable basis as may be determine by the BUYER in its sound
discretion.

9.  ....

10.  To ensure that not only existing but future coconut farmers shall be participants in
and beneficiaries of the credit policies, and shall be entitled to the benefit of loans and
credit facilities to be extended by the Bank to coconut farmers at preferential rates, the
shares held by the coconut farmers shall not be entitled to pre-emptive rights with respect
to the unissued portion of the authorized capital stock or any increase thereof.

11.  After the parties shall have acquired two-thirds (2/3) of the outstanding shares of the
Bank, the parties shall call a special stockholders' meeting of the Bank:

(a)  To classify the present authorized capital stock of P50,000,000 divided into 500,000
shares, with a par value of P100.00 per share into: 361,000 Class A shares, with an
aggregate par value of P36,100,000 and 139,000 Class B shares, with an aggregate par
value of P13,900,000.  All of the Option Shares constituting 72.2% of the outstanding
shares, shall be classified as Class A shares and the balance of the outstanding shares,
constituting 27.8% of the outstanding shares, as Class B shares;

(b)  To amend the articles of incorporation of the Bank to effect the following changes:

(i)  change of corporate name to  First United Coconut Bank;

(ii) replace the present provision restricting the transferability of the shares with a
limitation on ownership by any individual or entity to not more than 10% of the
outstanding shares of the Bank;
(iii)  provide that the holders of Class A shares shall not be entitled to pre-emptive rights
with respect to the unissued portion of the authorized capital stock or any increase
thereof; and

(iv)  provide that the holders of Class B shares shall be absolutely entitled to pre-emptive
rights, with respect to the unissued portion of Class B shares comprising part of the
authorized capital stock or any increase thereof, to subscribe to Class B shares in
proportion t the subscriptions of Class A shares, and to pay for their subscriptions to
Class B shares within a period of five (5) years from the call of the Board of Directors.

(c)  To increase the authorized capital stock of the Bank from P50 Million to P140
Million....;

(d)  To declare a stock dividend of P8 Million payable to the SELLER, the BUYER and
other stockholders of the Bank out of the present authorized but unissued capital stock of
P30 Million;

(e)  To amend the by-laws of the Bank accordingly; and

(f)  To authorize and approve the management contract provided in paragraph 2 above.

The parties agree that they shall vote their shares and take all the necessary corporate
action in order to carry into effect the foregoing provisions of this paragraph 11 ....

12.  It is the contemplation of the parties that the Bank shall achieve a financial and
equity position to be able to lend to the coconut farmers at preferential rates.

In order to achieve such objective, the parties shall cause the Bank to adopt a policy of
reinvestment, by way of stock dividends, of such percentage of the profits of the Bank as
may be necessary.

13.  The parties agree to execute or cause to be executed such documents and instruments
as may be required in order to carry out the intent and purpose of this Agreement.

IN WITNESS WHEREOF, ...

PHILIPPINE COCONUT AUTHORITY

(BUYER)

By:

EDUARDO COJUANGCO, JR.             MARIA CLARA L. LOBREGAT

             (SELLER)
 ... ...   ...

7.  Defendants Lobregat, et al. and COCOFED, et al. and Ballares, et al. admit that the ...
(PCA) was the "other buyers" represented by .... Cojuangco, Jr. in the May 1975
Agreement entered into between Pedro Cojuangco (on his own behalf and in behalf of
other sellers listed in Annex "A" of the agreement) and ... Cojuangco, Jr. (on his own
behalf and in behalf of the other buyers).  Defendant Cojuangco insists he was the "only
buyer" under the aforesaid Agreement.

8.  .....

9.  Defendants Lobregat, et al., and COCOFED, et al., and Ballares, et al. admit that in
addition to the 137,866 FUB shares of Pedro Cojuangco, et al. covered by the Agreement,
other FUB stockholders sold their shares to PCA such that the total number of FUB
shares purchased by PCA ... increased from 137,866 shares to 144,400 shares, the
OPTION SHARES referred to in the Agreement of May 25, 1975.  Defendant Cojuangco
did not make said admission as to the said 6,534 shares in excess of the 137,866 shares
covered by the Agreement with Pedro Cojuangco.

10.   Defendants Lobregat, et al. and COCOFED, et al. and Ballares, et al. admit that the
Agreement, described in Section 1 of  Presidential Decree (P.D.) No. 755 dated July 29,
1975 as the "Agreement for the Acquisition of a Commercial Bank for the Benefit of
Coconut Farmers" executed by the Philippine Coconut Authority" and incorporated in
Section 1 of P.D. No. 755 by reference, refers to the "AGREEMENT FOR THE
ACQUISITION OF A COMMERCIAL BANK FOR THE BENEFIT OF THE
COCONUT FARMERS OF THE PHILIPPINES" dated May 25, 1975 between
defendant Eduardo M. Cojuangco, Jr. and the [PCA] (Annex "B" for defendant
Cojuangco's OPPOSITION TO PLAINTIFF'S MOTION FOR PARTIAL SUMMARY
JUDGMENT [RE:  EDUARDO M. COJUANGCO, JR.] dated September 18, 2002).

Plaintiff refused to make the same admission.

11.   ... the Court takes judicial notice that P.D. No. 755 was published [in] ... volume 71
of the Official Gazette but the text of the agreement ... was not so published with P.D.
No. 755.

12.   Defendants Lobregat, et al. and COCOFED, et al. and Ballares, et al. admit that the
PCA used public funds, ... in the total amount of P150 million, to purchase the FUB
shares amounting to 72.2% of the authorized capital stock of the FUB, although the PCA
was later reimbursed from the coconut levy funds and that the PCA subscription in the
increased capitalization of the FUB, which was later renamed the ... (UCPB), came from
the said coconut levy funds....
13.   Pursuant to the May 25, 1975 Agreement, out of the 72.2% shares of the authorized
and the increased capital stock of the FUB (later UCPB), entirely paid for by PCA,
64.98% of the shares were placed in the name of the "PCA for the benefit of the coconut
farmers" and 7,22% were given to defendant Cojuangco. The remaining 27.8% shares of
stock in the FUB which later became the UCPB were not covered by the two (2)
agreements referred to in item no. 6, par. (a) and (b) above.

"There were shares forming part of the aforementioned 64.98% which were later sold or
transferred to non-coconut farmers.

14.   Under the May 27, 1975 Agreement, defendant Cojuangco's equity in the FUB (now
UCPB) was ten percent (10%) of the shares of stock acquired by the PCA for the benefit
of the coconut farmers.

15.   That the fully paid 95.304 shares of the FUB, later the UCPB, acquired by defendant
... Cojuangco, Jr. pursuant to the May 25, 1975 Agreement were paid for by the PCA in
accordance with the terms and conditions provided in the said Agreement.

16.   Defendants Lobregat, et al. and COCOFED, et al. and Ballares, et al. admit that the
affidavits of the coconut farmers (specifically, Exhibit "1-Farmer" to "70-Farmer")
uniformly state that:

a. they are coconut farmers who sold coconut products;

b. in the sale thereof, they received COCOFUND receipts pursuant to R.A. No. 6260;
c. they registered the said COCOFUND receipts; and
d. by virtue  thereof,  and under  R.A. No. 6260, P.D. Nos. 755, 961 and 1468, they
are allegedly entitled to the subject UCPB shares.

but subject to the following qualifications:

a. there were other coconut farmers who received UCPB shares although they did not
present said COCOFUND receipt because the PCA distributed the unclaimed
UCPB shares not only to those who already received their UCPB shares in
exchange for their COCOFUND receipts but also to the coconut farmers
determined by a national census conducted pursuant to PCA administrative
issuances;

b. [t]here were other affidavits executed by Lobregat, Eleazar, Ballares and Aldeguer
relative to the said distribution of the unclaimed UCPB shares; and

c. the coconut farmers claim the UCPB shares by virtue of their compliance not only
with the laws mentioned in item (d) above but also with the relevant issuances of
 the PCA such as, PCA Administrative Order No. 1, dated August 20, 1975 (Exh.
"298-Farmer"); PCA Resolution No. 033-78 dated February 16, 1978....

The plaintiff did not make any admission as to the foregoing qualifications.

17. Defendants Lobregat, et al. and COCOFED, et al. and Ballares, et al. claim that the
UCPB shares in question have legitimately become the private properties of the
1,405,366 coconut farmers solely on the basis of their having acquired said shares in
compliance with R.A. No. 6260, P.D. Nos. 755, 961 and 1468 and the administrative
issuances of the PCA cited above.

18.   .....

On July 11, 2003, the Sandiganbayan issued the assailed PSJ-A finding for the Republic,
the judgment accentuated by (a) the observation that COCOFED has all along
manifested  as representing over a million coconut farmers and (b) a declaration on the
issue of ownership of UCPB shares and the unconstitutionality of certain provisions of
P.D. No. 755 and its implementing regulations. On the matter of ownership in particular,
the anti-graft court declared that the 64.98% sequestered "Farmers' UCPB shares," plus
other shares paid by PCA are "conclusively" owned by the Republic. In its pertinent
parts, PSJ-A, resolving the separate motions for summary judgment in seriatim with
separate dispositive portions for each, reads:

WHEREFORE, in view of the foregoing, we rule as follows:

... ... ...

A. Re: CLASS ACTION MOTION FOR A SEPARATE SUMMARY JUDGMENT

dated April 11, 2001 filed by Defendant Maria Clara L. Lobregat, COCOFED, et al., and
Ballares, et al.

The Class Action Motion for Separate Summary Judgment dated April 11, 2001 filed by
defendant Maria Clara L. Lobregat, COCOFED, et al. and Ballares, et al., is hereby
DENIED for lack of merit.

B. Re: MOTION FOR PARTIAL SUMMARY JUDGMENT (RE: COCOFED, ET

AL. AND BALLARES, ET AL.) dated April 22, 2002 filed by Plaintiff.

1. a.  Section 1 of P.D. No. 755, taken in relation to Section 2 of the same P.D., is
unconstitutional: (i) for having allowed the use of the CCSF to benefit directly
private interest by the outright and unconditional grant of absolute ownership of
the FUB/UCPB shares paid for by PCA entirely with the CCSF to the undefined
 "coconut farmers", which negated or circumvented the national policy or public
purpose declared by P.D. No. 755 to accelerate the growth and development of the
coconut industry and achieve its vertical integration; and (ii) for having unduly
delegated legislative power to the PCA.

b. The implementing regulations issued by PCA, namely, Administrative Order

No. 1, Series of 1975 and Resolution No. 074-78 are likewise invalid for their
failure to see to it that the distribution of shares serve exclusively or at least
primarily or directly the aforementioned public purpose or national policy declared
by P.D. No. 755.
2. Section 2 of P.D. No. 755 which mandated that the coconut levy funds shall not be
considered special and/or fiduciary funds nor part of the general funds of the
national government and similar provisions of Sec. 5, Art. III, P.D. No. 961 and
Sec. 5, Art. III, P.D. No. 1468 contravene the provisions of the Constitution,
particularly, Art. IX (D), Sec. 2; and Article VI, Sec. 29 (3).
3. Lobregat, COCOFED, et al. and Ballares, et al. have not legally and validly
obtained title of ownership over the subject UCPB shares by virtue of P.D. No.
755, the Agreement dated May 25, 1975 between the PCA and defendant
Cojuangco, and PCA implementing rules, namely, Adm. Order No. 1, s. 1975 and
Resolution No. 074-78.
4. The so-called "Farmers' UCPB shares" covered by 64.98% of the UCPB shares of
stock, which formed part of the 72.2% of the shares of stock of the former FUB
and now of the UCPB, the entire consideration of which was charged by PCA to
the CCSF, are hereby declared conclusively owned by, the Plaintiff Republic of
the Philippines.

C. Re:  MOTION FOR PARTIAL SUMMARY JUDGMENT (RE: EDUARDO M.

COJUANGCO, JR.) dated September 18, 2002 filed by Plaintiff.

1. Sec. 1 of P.D. No. 755 did not validate the Agreement between PCA and
defendant Eduardo M. Cojuangco, Jr. dated May 25, 1975 nor did it give the
Agreement the binding force of a law because of the non-publication of the said
Agreement.
2. Regarding the questioned transfer of the shares of stock of FUB (later UCPB) by
PCA to defendant Cojuangco or the so-called "Cojuangco UCPB shares" which
cost the PCA more than Ten Million Pesos in CCSF in 1975, we declare, that the
transfer of the following FUB/UCPB shares to defendant Eduardo M. Cojuangco,
Jr. was not supported by valuable consideration, and therefore null and void:

a.  The 14,400 shares from the "Option Shares";

b. Additional Bank Shares Subscribed and Paid by PCA, consisting of:
 1. Fifteen Thousand Eight Hundred Eighty-Four (15,884) shares out of the
authorized but unissued shares of the bank, subscribed and paid by PCA;

2. Sixty Four Thousand Nine Hundred Eighty (64,980) shares of the increased
capital stock subscribed and paid by PCA; and

3. Stock dividends declared pursuant to paragraph 5 and paragraph 11 (iv) (d) of

the Agreement.

3. The above-mentioned shares of stock of the FUB/UCPB transferred to defendant

Cojuangco are hereby declared conclusively owned by the Republic of the
Philippines.
4. The UCPB shares of stock of the alleged fronts, nominees and dummies of
defendant Eduardo M. Cojuangco, Jr. which form part of the 72.2% shares of the
FUB/UCPB paid for by the PCA with public funds later charged to the coconut
levy funds, particularly the CCSF, belong to the plaintiff Republic of the
Philippines as their true and beneficial owner.

Let trial of this Civil Case proceed with respect to the issues which have not been
disposed of in this Partial Summary Judgment.  For this purpose, the plaintiff's Motion
Ad Cautelam to Present Additional Evidence dated March 28, 2001 is hereby
GRANTED.

From PSJ-A, Lobregat moved for reconsideration which COCOFED, et al. and Ballares,
et al. adopted. All these motions were denied in the extended assailed Resolution [51] of
December 28, 2004.

Civil Case No. 0033-F

Here, the Republic, after filing its pre-trial brief, interposed a Motion for Judgment on
the Pleadings and/or for [PSJ] (Re: Defendants CIIF Companies, 14 Holding Companies
and COCOFED, et al.) praying that, in light of the parties' submissions and the
supervening ruling in Republic v. COCOFED[52] which left certain facts beyond question,
a judgment issue:

1) Declaring Section 5 of Article III of P.D. No. 961 (Coconut Industry Code) and Section 5 of
Article III of P.D. No. 1468 (Revised Coconut Industry Code) to be unconstitutional;
2) Declaring that CIF payments under RA No. 6260 are not valid and legal bases for
ownership claims over the CIIF companies and, ultimately, the CIIF block of SMC shares;
and
3) Ordering the reconveyance of the CIIF companies, the 14 holding companies, and the 27%
CIIF block of San Miguel Corporation shares of stocks in favor of the government and
declaring the ownership thereof to belong to the government in trust for all the coconut
 farmers.

At this juncture, it may be stated that, vis-à-vis CC 0033-F, Gabay Foundation, Inc.
sought but was denied leave to intervene. But petitioners COCOFED, et al. moved and
were allowed to intervene[53] on the basis of their claim that COCOFED members
beneficially own the block of SMC shares held by the CIIF companies, at least 51% of
whose capitol stock such members own.  The claim, as the OSG explained, arose from
the interplay of the following: (a) COCOFED et al.'s alleged majority ownership of the
CIIF companies under Sections 9[54] and 10[55] of P.D. No. 1468, and (b) their alleged
entitlement to shares in the CIIF companies by virtue of their supposed registration of
COCOFUND receipts allegedly issued to COCOFED members upon payment of the
R.A. 6260 CIF levy.[56]

Just as in CC No. 0033-A, the Sandiganbayan also conducted a hearing in CC No. 0033-F
to determine facts that appeared without substantial controversy as culled from the
records and, by Order[57] of February 23, 2004, outlined those facts.

On May 7, 2004, the Sandiganbayan, in light of its ruling in CC No. 0033-A and
disposing of the issue on ownership of the CIIF oil and holding companies and their
entire block of subject SMC shares, issued the assailed PSJ-F also finding for the
Republic, the fallo of which pertinently reading:

WHEREFORE, in view of the foregoing, we hold that:

The Motion for Partial Summary Judgment (Re: Defendants CIIF Companies, 14

Holding Companies and Cocofed et al.) filed by Plaintiff is hereby GRANTED.
ACCORDINGLY, THE CIIF COMPANIES, namely:

1. Southern Luzon Coconut Oil Mills (SOLCOM);

2. Cagayan de Oro Oil Co., Inc. (CAGOIL);
3. Iligan Coconut Industries, Inc. (ILICOCO);
4. San Pablo Manufacturing Corp. (SPMC);
5. Granexport Manufacturing Corp. (GRANEX); and
6. Legaspi Oil Co., Inc. (LEGOIL),

AS WELL AS THE 14 HOLDING COMPANIES, NAMELY:

1. Soriano Shares, Inc.;

2. ACS Investors, Inc.;
3. Roxas Shares, Inc.;
4. Arc Investors, Inc.;
5. Toda Holdings, Inc.;
 6. AP Holdings, Inc.;
7. Fernandez Holdings, Inc.;
8. SMC Officers Corps, Inc.;
9. Te Deum Resources, Inc.;
10. Anglo Ventures, Inc.;
11. Randy Allied Ventures, Inc.;
12. Rock Steel Resources, Inc.;
13. Valhalla Properties Ltd., Inc.; and
14. First Meridian Development, Inc.

AND THE CIIF BLOCK OF SAN MIGUEL CORPORATION (SMC) SHARES OF

STOCK TOTALLING 33,133,266 SHARES AS OF 1983 ... ARE
DECLARED  OWNED BY THE GOVERNMENT IN TRUST FOR ALL THE
COCONUT FARMERS GOVERNMENT  AND ORDERDED RECONVEYED TO
THE GOVERNMENT.[58] (Emphasis and capitalization in the original; underscoring
added.)

Let the trial of this Civil Case proceed with respect to the issues which have not been
disposed of in this Partial Summary Judgment, including the determination of whether
the CIIF Block of SMC Shares adjudged to be owned by the Government represents 27%
of the issued and outstanding capital stock of SMC according to plaintiff or to 31.3% of
said capital stock according to COCOFED, et al and Ballares, et al.

SO ORDERED.

Expressly covered by the declaration and the reconveyance directive are "all dividends
declared, paid and issued thereon as well as any increments thereto arising from, but not
limited to, exercise of pre-emptive rights."

On May 26, 2004, COCOFED et al., filed an omnibus motion (to dismiss for lack of
subject matter jurisdiction or alternatively for reconsideration and to set case for trial),
but this motion was denied per the Sandiganbayan's Resolution[59] of December 28, 2004.

On May 11, 2007, in CC 0033-A, the Sandiganbayan issued a Resolution[60] denying

Lobregat's and COCOFED's separate motions to set the case for trial/hearing, noting that
there is no longer any point in proceeding to trial when the issue of their claim of
ownership of the sequestered UCPB shares and related sub-issues have already been
resolved in PSJ-A.

For ease of reference, PSJ-A and PSJ-F each originally decreed trial or further hearing on
issues yet to be disposed of. However, the Resolution[61] issued on June 5, 2007 in CC
0033-A and the Resolution[62] of May 11, 2007 rendered in CC 0033-F effectively
modified the underlying partial summary judgments by deleting that portions on the
necessity of further trial on the issue of ownership of (1) the sequestered UCPB
shares, (2) the CIIF block of SMC shares and (3) the CIIF companies. As the anti-
graft court stressed in both resolutions, the said issue of ownership has been finally
resolved in the corresponding PSJs.[63]

Hence, the instant petitions.

The Issues

COCOFED et al., in G.R. Nos. 177857-58, impute reversible error on the Sandiganbayan

for (a) assuming jurisdiction over CC Nos. 0033-A and 0033-F despite the Republic's
failure to establish below the jurisdictional facts, i.e., that the sequestered assets sought to
be recovered are ill-gotten in the context of E.O. Nos. 1, 2, 14 and 14-A; (b) declaring
certain provisions of coco levy issuances unconstitutional; and (c) denying the petitioners'
plea to prove that the sequestered assets belong to coconut farmers.  Specifically,
petitioners aver:

I. The Sandiganbayan gravely erred ... when it refused to acknowledge that it did not
have subject matter jurisdiction over the ill-gotten wealth cases because the respondent
Republic failed to prove, and did not even attempt to prove, the jurisdictional fact that the
sequestered assets constitute ill-gotten wealth of former President Marcos and
Cojuangco.  Being without subject matter jurisdiction over the ill-gotten wealth cases, a
defect previously pointed out and repeatedly assailed by COCOFED, et al., the assailed
PSJs and the assailed Resolutions are all null and void.

A. Insofar as the ill-gotten wealth cases are concerned, the Sandiganbayan's subject
matter jurisdiction is limited to the recovery of "ill-gotten wealth" as defined in Eos 1, 2,
14 and 14-A.  Consistent with that jurisdiction, the subdivided complaints in the ill-gotten
wealth cases expressly alleged that the sequestered assets constitutes "ill-gotten wealth"
of former President Marcos and Cojuangco, having been filed pursuant to, and in
connection with, Eos 1, 2, 14 and 14-A, the Sandiganbayan gravely erred, if not exceeded
its jurisdiction, when it refused to require the respondent Republic to prove the aforesaid
jurisdictional fact.

B. ....  Having no evidence on record to prove the said jurisdictional fact, the
Sandiganbayan gravely erred, if not grossly exceeded its statutory jurisdiction, when it
rendered the assailed PSJs instead of dismissing the ill-gotten wealth cases....

C. Under Section 1 of Rule 9 of the Rules of Court, lack of jurisdiction over the subject
matter may be raised at any stage of the proceedings....  In any event, in pursuing its
intervention in the ill-gotten wealth cases, COCOFED, et al precisely questioned the
Sandiganbayan's subject matter jurisdiction, asserted that the jurisdictional fact does not
exist, moved to dismiss the ill-gotten wealth cases and even prayed that the writs of
sequestration over the sequestered assets be lifted.  In concluding that those actions
constitute an "invocation" of its jurisdiction, the Sandiganbayan clearly acted
whimsically, capriciously and in grave abuse of its discretion.

II.  Through the assailed PSJs and the assailed Resolutions, the Sandiganbayan declared
certain provisions of the coconut levy laws as well as certain administrative issuances of
the PCA as unconstitutional.  In doing so, the Sandiganbayan erroneously employed, if
not grossly abused, its power of judicial review....

A.  ... the Sandiganbayan gravely erred, if not brazenly exceeded its statutory jurisdiction
and abused the judicial powers, when it concluded that the public purpose of certain
coconut levy laws was not evident, when it thereupon formulated its own public policies
and purposes for the coconut levy laws and at the same time disregarded the national
policies specifically prescribed therein.

B.  In ruling that "it is not clear or evident how the means employed by the [coconut levy]
laws" would "serve the avowed purpose of the law" or "can serve a public purpose", the
Sandiganbayan erroneously examined, determined and evaluated the wisdom of such
laws, a constitutional power within the exclusive province of the legislative department.

C.  The Sandiganbayan gravely erred in declaring Section 1 of PD 755, PCA [AO] 1 and
PCA Resolution No. 074-78 constitutionally infirm by reason of alleged but unproven
and unsubstantiated flaws in their implementation.

D.  The Sandiganbayan gravely erred in concluding that Section 1 of PD 755 constitutes
an undue delegation of legislative power insofar as it authorizes the PCA to promulgate
rules and regulations governing the distribution of the UCPB shares to the coconut
farmers. Rather, taken in their proper context, Section 1 of PD 755 was complete in itself,
[and] prescribed sufficient standards that circumscribed the discretion of the PCA....

More importantly, this Honorable Court has, on three (3) separate occasions,
rejected respondent Republic's motion to declare the coconut levy laws
unconstitutional. The Sandiganbayan gravely erred, if not acted in excess of its
jurisdiction, when it ignored the settled doctrines of law of the case and/or stare
decisis and granted respondent Republic's fourth attempt to declare the coconut levy laws
unconstitutional, despite fact that such declaration of unconstitutionality was not
necessary to resolve the ultimate issue of ownership involved in the ill-gotten wealth
cases.

III.  In rendering the assailed PSJs and thereafter refusing to proceed to trial on the
merits, on the mere say-so of the respondent Republic, the Sandiganbayan committed
gross and irreversible error, gravely abused its judicial discretion and flagrantly exceeded
its  jurisdiction as it effectively sanctioned the taking of COCOFED, et al.'s property by
the respondent Republic without due process of law and through retroactive application
of the declaration of unconstitutionality of the coconut levy laws, an act that is not only
illegal and violative of the settled Operative Fact Doctrine but, more importantly,
inequitable to the coconut farmers whose only possible mistake, offense or misfortune
was to follow the law.

A.  ....

1.  In the course of the almost twenty (20) years that the ill-gotten wealth cases were
pending, COCOFED, et al.  repeatedly asked to be allowed to present evidence to prove
that the true, actual and beneficial owners of the sequestered assets are the coconut
farmers and not  Cojuangco, an alleged "crony" of former President Marcos. The
Sandiganbayan grievously erred and clearly abused its judicial discretion when it
repeatedly and continuously denied COCOFED, et al.  the opportunity to present their
evidence to disprove the baseless allegations of the Ill-Gotten Wealth Cases that the
sequestered assets constitute ill-gotten wealth of Cojuangco and of former President
Marcos, an error that undeniably and illegally deprived COCOFED, et al of their
constitutional right to be heard.

2.  The Sandiganbayan erroneously concluded that the Assailed PSJs and Assailed
Resolutions settled the ultimate issue of ownership of the Sequestered Assets and, more
importantly, resolved all factual and legal issues involved in the ill-gotten wealth cases. 
Rather, as there are triable issues still to be resolved, it was incumbent upon the
Sandiganbayan to receive evidence thereon and conduct trial on the merits.

3.  Having expressly ordered the parties to proceed to trial and thereafter decreeing that
trial is unnecessary as the Assailed PSJs were "final" and "appealable" judgments, the
Sandiganbayan acted whimsically, capriciously and contrary to the Rules of Court,
treated the parties in the ill-gotten wealth cases unfairly, disobeyed the dictate of this
Honorable Court and, worse, violated COCOFED, et al's right to due process and equal
protection of the laws.

B.  The Sandiganbayan gravely erred if not grossly abused its discretion when it
repeatedly disregarded, and outrightly refused to recognize, the operative facts that
existed as well as the rights that vested from the time the coconut levy laws were enacted
until their declaration of unconstitutionality in the assailed PSJs. As a result, the assailed
PSJs constitute a proscribed retroactive application of the declaration of
unconstitutionality, a taking of private property, and an impairment of vested rights of
ownership, all without due process of law.[64] Otherwise stated, the assailed PSJs and the
assailed Resolutions effectively penalized the coconut farmers whose only possible
mistake, offense or misfortune was to follow the laws that were then legal, valid and
constitutional.
IV.  The voluminous records of these ill-gotten wealth cases readily reveal the various
dilatory tactics respondent Republic resorted to.... As a result, despite the lapse of almost
twenty (20) years of litigation, the respondent  Republic has not been required to, and has
not even attempted to prove, the bases of its perjurious claim that the sequestered assets
constitute ill-gotten wealth of former President Marcos and his crony, Cojuangco.  In
tolerating respondent Republic's antics for almost twenty (20) years..., the Sandiganbayan
so glaringly departed from procedure and thereby flagrantly violated COCOFED, et al.'s
right to speedy trial.

In G.R. No. 178193, petitioner Ursua virtually imputes to the Sandiganbayan the same
errors attributed to it by petitioners in G.R. Nos. 177857-58.[65]  He replicates as follows:

The Sandiganbayan decided in a manner not in accord with the Rules of Court and settled
jurisprudence in rendering the questioned PSJ as final and appealable thereafter taking
the sequestered assets from their owners or record without presentation of any evidence,
thus, the questioned PSJ and the questioned Resolutions are all null and void.

A.  The Sandiganbayan's jurisdiction insofar as the ill-gotten wealth cases are concerned,
is limited to the recovery of "ill-gotten wealth" as defined in Executive Orders No. 1, 2,
14 and 14-A.

B.  The Sandiganbayan should have decided to dismiss the case or continue to receive
evidence instead of ruling against the constitutionality of some coconut levy laws and
PCA issuances because it could decide on other grounds available to it.

II

The Sandiganbayan gravely erred when it declared PD. 755, Section 1 and 2, Section 5,
Article 1 of PD 961, and Section 5 of Art. III of PD 1468 as well as administrative
issuances of the PCA as unconstitutional in effect, it abused it power of judicial review....

A.  The Sandiganbayan gravely erred in concluding that the purpose of PD 755 Section 1
and 2, Section 5, Article 1 of PD 961, and Section 5 of Art. III of PD 1468 is not evident. 
It then proceeded to formulated its own purpose thereby intruding into the wisdom of the
legislature in enacting [t]he law.

B.  The Sandiganbayan gravely erred in declaring Section 1 of PD 755, PCA [AO] No. 1
and PCA Resolution No. 074-78 unconstitutional due to alleged flaws in their
implementation.
C.  The Sandiganbayan gravely erred in concluding that Section 1 of PD No. 755
constitutes an undue delegation of legislative power insofar as it authorizes the PCA to
promulgate rules and regulations governing the distribution of the UCPB shares to the
coconut farmers. Section 1 of PD 755 was complete in itself, prescribed sufficient
standards that circumscribed the discretion of the PCA and merely authorized the PCA to
fill matters of detail an execution through promulgated rules and regulations.

III

The coconut levy laws, insofar as they allowed the PCA to promulgate rules and
regulations governing the distribution of the UCPB to the coconut farmers, do not
constitute an undue delegation of legislative power as they were complete in themselves
and prescribed sufficient standards that circumscribed the discretion of the PCA.

IV

Assuming ex-gratia argumenti that the coconut levy laws are unconstitutional, still, the
owners thereof cannot be deprived of their property without due process of law
considering that they have in good faith acquired vested rights over the sequestered
assets.

In sum, the instant petitions seek to question the decisions of the Sandiganbayan in both
CC Nos. 0033-A and 0033-F, along with the preliminary issues of objection.  We shall
address at the outset, (1) the common preliminary questions, including jurisdictional 
issue, followed by (2) the common primary contentious issues (i.e. constitutional
questions), and (3) the issues particular to each case.

The Court's Ruling

The Sandiganbayan has jurisdiction over the subject

matter ofthe subdivided amended complaints.

The primary issue, as petitioners COCOFED, et al. and Ursua put forward, boils down to
the Sandiganbayan's alleged lack of jurisdiction over the subject matter of the amended
complaints. Petitioners maintain that the jurisdictional facts necessary to acquire
jurisdiction over the subject matter in CC No. 0033-A have yet to be established. In fine,
the Republic, so petitioners claim, has failed to prove the ill-gotten nature of the
sequestered coconut farmers' UCPB shares.  Accordingly, the controversy is removed
from the subject matter jurisdiction of the Sandiganbayan and necessarily any decision
rendered on the merits, such as PSJ-A and PSJ-F, is void.
To petitioners, it behooves the Republic to prove the jurisdictional facts warranting the
Sandiganbayan's continued exercise of jurisdiction over ill-gotten wealth cases.
Citing Manila Electric Company [Meralco] v. Ortañez,[66] petitioners argue that the
jurisdiction of an adjudicatory tribunal exercising limited jurisdiction, like the
Sandiganbayan, "depends upon the facts of the case as proved at the trial and not merely
upon the allegation in the complaint."[67]  Cited too is PCGG v. Nepumuceno,[68] where the
Court held:

The determinations made by the PCGG at the time of issuing sequestration ... orders
cannot be considered as final determinations; that the properties or entities sequestered or
taken-over in fact constitute "ill-gotten wealth" according to [E.O.] No. 1 is a question
which can be finally determined only by a court - the Sandiganbayan. The PCGG has the
burden of proving before the Sandiganbayan that the assets it has sequestered or business
entity it has provisionally taken-over constitutes "ill-gotten wealth" within the meaning of
[E.O.] No. 1 and Article No. XVIII (26) of the 1987 Constitution.

Petitioners' above posture is without merit.

Justice Florenz D. Regalado explicates subject matter jurisdiction:

16.   Basic ... is the doctrine that the jurisdiction of a court over the subject-matter of an
action is conferred only by the Constitution or the law and that the Rules of Court yield to
substantive law, in this case, the Judiciary Act and B.P. Blg. 129, both as amended, and
of which jurisdiction is only a part. Jurisdiction ... cannot be acquired through, or waived,
enlarged or diminished by, any act or omission of the parties; neither can it be conferred
by the acquiescence of the court.... Jurisdiction must exist as a matter of law....
Consequently, questions of jurisdiction may be raised for the first time on appeal even if
such issue was not raised in the lower court....

17.   Nevertheless, in some case, the principle of estoppel by laches has been availed ... to
bar attacks on jurisdiction....[69]

It is, therefore, clear that jurisdiction over the subject matter is conferred by law. In turn,
the question on whether a given suit comes within the pale of a statutory conferment is
determined by the allegations in the complaint, regardless of whether or not the plaintiff
will be entitled at the end to recover upon all or some of the claims asserted therein. [70] 
We said as much in Magay v. Estiandan:[71]

[J]urisdiction over the subject matter is determined by the allegations of the complaint,
irrespective of whether or not the plaintiff is entitled to recover upon all or some of the
claims asserted therein-a matter that can be resolved only after and as a result of the trial. 
Nor may the jurisdiction of the court be made to depend upon the defenses set up in the
answer or upon the motion to dismiss, for, were we to be governed by such rule, the
question of jurisdiction could depend almost entirely upon the defendant.

Of the same tenor was what the Court wrote in Allied Domecq Philippines, Inc. v. Villon:
[72]

Jurisdiction over the subject matter is the power to hear and determine the general class
to which the proceedings in question belong. Jurisdiction over the subject matter is
conferred by law and not by the consent or acquiescence of any or all of the parties or by
erroneous belief of the court that it exists. Basic is the rule that jurisdiction over the
subject matter is determined by the cause or causes of action as alleged in the complaint.

The material averments in subdivided CC No. 0033-A and CC No. 0033-F included the
following:

12. Defendant Eduardo Cojuangco, Jr served as a public officer during the Marcos
administration....

13. Defendant Eduardo Cojuangco, Jr., taking advantage of his association, influence and
connection, acting in unlawful concert with the [Marcoses] and the individual defendants,
embarked upon devices, schemes and stratagems, including the use of defendant
corporations as fronts, to unjustly enrich themselves as the expense of the Plaintiff and
the Filipino people, such as when he -

a) manipulated, beginning the year 1975 with the active collaboration of Defendants ...,
Marai Clara Lobregat, Danilo Ursua [etc.], the purchase by the ... (PCA) of 72.2% of the
outstanding capital stock of the ... (FUB) which was subsequently converted into a
universal bank named ... (UCPB) through the use of  ... (CCSF) ... in a manner contrary to
law and to the specific purposes for which said coconut levy funds were imposed and
collected under P.D. 276 and under anomalous and sinister designs and circumstances, to
wit:

(i) Defendant Eduardo Cojuangco, Jr. coveted the coconut levy funds as a cheap,
lucrative and risk-free source of funds with which to exercise his private option to buy
the controlling interest in FUB....

(ii) to legitimize a posteriori his highly anomalous and irregular use and diversion of
government funds to advance his own private and commercial interests ... Defendant
Eduardo Cojuangco, Jr.  caused the issuance  ... of PD 755 (a) declaring that the coconut
levy funds shall not be considered special and fiduciary and trust funds ... conveniently
repealing for that purpose a series of previous decrees ... establishing the character  of the
coconut levy funds as special, fiduciary, trust and governments; (b) confirming the
agreement between ...Cojuangco and PCA on the purchase of FUB by incorporating by
reference said private commercial agreement in PD 755;

(iii) ....

(iv) To perpetuate his opportunity ... to build his economic empire, ... Cojuangco caused
the issuance of an unconstitutional decree (PD 1468) requiring the deposit of all coconut
levy funds with UCPB interest free to the prejudice of the government and finally

(v) Having fully established himself as the undisputed "coconut king" with unlimited
powers to deal with the coconut levy funds, the stage was now set for Defendant Eduardo
Cojuangco, Jr. to launch his predatory forays into almost all aspects of Philippine activity
namely .... oil mills.

(vi) In gross violation of their fiduciary positions and in contravention of the goal to
create a bank for coconut farmers of the country, the capital stock of UCPB as of
February 25, 1986 was actually held by the defendants, their lawyers, factotum and
business associates, thereby finally gaining control of the UCPB by misusing the names
and identities of the so-called "more than one million coconut farmers."

(b) created and/or funded with the use of coconut levy funds various corporations, such
as ... (COCOFED) ... with the active collaboration and participation of Defendants Juan
Ponce Enrile, Maria Clara Lobregat ... most of whom comprised the interlocking officers
and directors of said companies; dissipated, misused and/or misappropriated a substantial
part of said coco levy funds ... FINALLY GAIN OWNERSHIP AND CONTROL OF
THE UNITED COCONUT PLANTERS BANK BY MISUSING THE NAMES
AND/OR IDENTIFIES OF THE SO-CALLLED "MORE THAN ONE MILLION
COCONUT FARNMERS;

(c) misappropriated, misused and dissipated P840 million of the ... (CIDF) levy funds
deposited with the National Development Corporation (NIDC) as administrator -trustee
of said funds and later with UCPB, of which Defendant Eduardo Cojuangco, Jr. was the
Chief Executive Officer....

(d) established and caused to be funded with coconut levy fundfs, with the active
collaboration of Defendants Ferdinand E. Marcos through the issuance of LOI 926 and of
[other] defendants ... the United Coconut Oil Mills, Inc., a corporation controlled by
Defendant Eduardo Cojuangco, Jr. and bought sixteen (16) certain competing oil mills at
exorbitant prices ... then mothballed them....

... ... ...

(i) misused coconut levy funds to buy majority of the outstanding shares of stock of San
Miguel Corporation....
 ... ... ...

14. Defendants Eduardo Cojuangco, Jr. ... of the Angara Concepcion Cruz Regala and
Abello law offices (ACCRA) plotted, devised, schemed, conspired and confederated with
each other  in setting up, through the use of the coconut levy funds the financial and
corporate structures that led to the establishment of UCPB UNICOM [etc.] and more than
twenty other coconut levy funded corporations including the acquisition of [SMC] shares 
and its institutionalization through presidential directives of the coconut monopoly....

... ... ...

16. The acts of Defendants, singly or collectively, and /or in unlawful concert with one
another, constitute gross abuse of official position and authority, flagrant breach of public
trust and fiduciary obligations, brazen abuse of right and power, unjust enrichment,
violation of the Constitution and laws ... to the grave and irreparable damage of the
Plaintiff and the Filipino people.

CC No. 0033-F

12.  Defendant Eduardo Cojuangco, Jr., served as a public officer during the Marcos
administration....

13.  Having fully established himself as the undisputed "coconut king" with unlimited
powers to deal with the coconut levy funds, the stage was now set for ... Cojuangco, Jr. to
launch his predatory forays into almost all aspects of Philippine economic activity
namely ... oil mills ....

14.  Defendant Eduardo Cojuangco, Jr., taking undue advantage of his association,
influence, and connection, acting in unlawful concert with Defendants Ferdinand E.
Marcos and Imelda R. Marcos, and the individual defendants, embarked upon devices,
schemes and stratagems, including the use of defendant corporations as fronts, to unjustly
enrich themselves at the expense of Plaintiff and the Filipino people....

(a) Having control over the coconut levy, Defendant Eduardo M. Cojuangco invested the
funds in diverse activities, such as the various businesses SMC was engaged in....;

...   ... ...

(c) Later that year [1983], Cojuangco also acquired the Soriano stocks through a series of
complicated and secret agreements, a key feature of which was a "voting trust agreement"
that stipulated that Andres, Jr. or his heir would proxy over the vote of the shares owned
by Soriano and Cojuangco....
 ...   ... ...

(g) All together, Cojuangco purchased 33 million shares of the SMC through the ... 14
holding companies

...   ... ...

3.1. The same fourteen companies were in turn owned by the ... six (6) so-called CIIF
Companies....

(h) Defendant Corporations are but "shell" corporations owned by interlocking

shareholders who have previously admitted that they are just "nominee stockholders"
who do not have any proprietary interest over the shares in their names.... [L]awyers of
the Angara Abello Concepcion Regala & Cruz (ACCRA) Law offices, the previous
counsel who incorporated said corporations, prove that they were merely nominee
stockholders thereof.

(l) These companies, which ACCRA Law Offices organized for Defendant Cojuangco to
be able to control more than 60% of SMC shares, were funded by institutions which
depended upon the coconut levy such as the UCPB, UNICOM, ... (COCOLIFE), among
others. Cojuangco and his ACCRA lawyers used the funds from 6 large coconut oil mills
and 10 copra trading companies to borrow money from the UCPB and purchase these
holding companies and the SMC stocks.  Cojuangco used $ 150 million from the coconut
levy, broken down as follows:

Amount (in million) Source Purpose

$ 22.26 Oil Mills equity in holding
Companies
$ 65.6 Oil Mills loan to holding Companies
$ 61.2 UCPB loan to holding
Companies [164]

The entire amount, therefore, came from the coconut levy, some passing through the
Unicom Oil mills, others directly from the UCPB.

(m) With his entry into the said Company, it began to get favors from the Marcos
government, significantly the lowering of the excise taxes ... on beer, one of the main
products of SMC.

15.  Defendants ... plotted, devised, schemed, conspired and confederated with each other
in setting up, through the use of coconut levy funds, the financial and corporate
framework and structures that led to the establishment of UCPB, [etc.], and more than
twenty other coconut levy-funded corporations, including the acquisition of [SMC]
shares and its institutionalization through presidential directives of the coconut
monopoly....

16.  The acts of Defendants, singly or collectively, and/or in unlawful concert with one
another, constitute gross abuse of official position and authority, flagrant breach of public
trust and fiduciary obligations, brazen abuse of right and power, unjust enrichment,
violation of the constitution and laws of the Republic of the Philippines, to the grave and
irreparable damage of Plaintiff and the Filipino people.[73]

Judging from the allegations of the defendants' illegal acts thereat made, it is fairly
obvious that both CC Nos. 0033-A and CC 0033-F partake, in the context of EO Nos. 1,
2 and 14, series of 1986, the nature of ill-gotten wealth suits. Both deal with the recovery
of sequestered shares, property or business enterprises claimed, as alleged in the
corresponding basic complaints, to be ill-gotten assets of President Marcos, his cronies
and nominees and acquired by taking undue advantage of relationships or influence
and/or through or as a result of improper use, conversion or diversion of government
funds or property. Recovery of these assets--determined as shall hereinafter be discussed
as prima facie ill-gotten--falls within the unquestionable jurisdiction of the
Sandiganbayan.[74]

P.D. No. 1606, as amended by R.A. 7975 and E.O. No. 14, Series of 1986, vests the
Sandiganbayan with, among others, original jurisdiction over civil and criminal cases
instituted pursuant to and in connection with E.O. Nos. 1, 2, 14 and 14-A. Correlatively,
the PCGG Rules and Regulations defines the term "Ill-Gotten Wealth" as "any asset,
property, business enterprise or material possession of persons within the purview of
[E.O.] Nos. 1 and 2, acquired by them directly, or indirectly thru dummies, nominees,
agents, subordinates and/or business associates by any of the following means or
similar schemes":

(1) Through misappropriation, conversion, misuse or malversation of public funds or

raids on the public treasury;

(2) ....;

(3) By the illegal or fraudulent conveyance or disposition of assets belonging to the

government or any of its subdivisions, agencies or instrumentalities or government-
owned or controlled corporations;

(4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity
or any other form of interest or participation in any business enterprise or undertaking;

(5) Through the establishment of agricultural, industrial or commercial monopolies or

other combination and/or by the issuance, promulgation and/or implementation of
decrees and orders intended to benefit particular persons or special interests; and

(6) By taking undue advantage of official position, authority, relationship or influence for
personal gain or benefit.[75] (Emphasis supplied)

Section 2(a) of E.O. No. 1 charged the PCGG with the task of assisting the President in
"[T]he recovery of all ill-gotten wealth accumulated by former ... [President] Marcos,
his immediate family, relatives, subordinates and close associates ... including the
takeover or sequestration of all business enterprises and entities owned or controlled by
them, during his administration, directly or through nominees, by taking undue
advantage of their public office and/or using their powers, authority, influence,
connections or relationship." Complementing the aforesaid Section 2(a) is Section 1 of
E.O. No. 2 decreeing the freezing of all assets "in which the [Marcoses] their close
relatives, subordinates, business associates, dummies, agents or nominees have any
interest or participation."

The Republic's averments in the amended complaints, particularly those detailing the
alleged wrongful acts of the defendants, sufficiently reveal that the subject matter thereof
comprises the recovery by the Government of ill-gotten wealth acquired by then
President Marcos, his cronies or their associates and dummies through the unlawful,
improper utilization or diversion of coconut levy funds aided by P.D. No. 755 and other
sister decrees. President Marcos himself issued these decrees in a brazen bid to legalize
what amounts to private taking of the said public funds.

Petitioners COCOFED et al. and Ursua, however, would insist that the Republic has
failed to prove the jurisdiction facts: that the sequestered assets indeed constitute ill-
gotten wealth as averred in the amended subdivided complaints.

This contention is incorrect.

There was no actual need for Republic, as plaintiff a quo, to adduce evidence to show
that the Sandiganbayan has jurisdiction over the subject matter of the complaints as it
leaned on the averments in the initiatory pleadings to make visible the jurisdiction of the
Sandiganbayan over the ill-gotten wealth complaints.  As previously discussed, a perusal
of the allegations easily reveals the sufficiency of the statement of matters disclosing the
claim of the government against the coco levy funds and the assets acquired directly or
indirectly through said funds as ill-gotten wealth.  Moreover, the Court finds no rule that
directs the plaintiff to first prove the subject matter jurisdiction of the court before which
the complaint is filed.  Rather, such burden falls on the shoulders of defendant in the
hearing of a motion to dismiss anchored on said ground or a preliminary hearing thereon
when such ground is alleged in the answer.

COCOFED et al. and Ursua's reliance on Manila Electric Company [Meralco] v.

Ortanez[76] is misplaced, there being a total factual dissimilarity between that and the case
at bar.  Meralco involved a labor dispute before the Court of Industrial Relations (CIR)
requiring the interpretation of a collective bargaining agreement to determine which
between a regular court and CIR has jurisdiction. There, it was held that in case of doubt,
the case may not be dismissed for failure to state a cause of action as jurisdiction of CIR
is not merely based on the allegations of the complaint but must be proved during the trial
of the case.  The factual milieu of Meralco shows that the said procedural holding is
peculiar to the CIR.  Thus, it is not and could not be a precedent to the cases at bar.

Even PCGG v. Nepomuceno[77] is not on all fours with the cases at bench, the issue
therein being whether the regional trial court has jurisdiction over the PCGG and
sequestered properties, vis-à-vis the present cases, which involve an issue concerning the
Sandiganbayan's jurisdiction.  Like in Meralco, the holding in Nepomuceno is not
determinative of the outcome of the cases at bar.

While the 1964 Meralco and the Nepomuceno cases are inapplicable, the Court's ruling

in Tijam v. Sibonhonoy[78] is the leading case on estoppel relating to jurisdiction. 
In Tijam, the Court expressed displeasure on "the undesirable practice of a party
submitting his case for decision and then accepting judgment, only if favorable, and then
attacking it for lack of jurisdiction, when adverse."

Considering the antecedents of CC Nos. 0033-A and 0033-F, COCOFED, Lobregat,

Ballares, et al. and Ursua are already precluded from assailing the jurisdiction of the
Sandiganbayan.  Remember that the COCOFED and the Lobregat group were not
originally impleaded as defendants in CC No. 0033.  They later asked and were allowed
by the Sandiganbayan to intervene. If they really believe then that the Sandiganbayan is
without jurisdiction over the subject matter of the complaint in question, then why
intervene in the first place? They could have sat idly by and let the proceedings continue
and would not have been affected by the outcome of the case as they can challenge the
jurisdiction of the Sandiganbayan when the time for implementation of the flawed
decision comes.  More importantly, the decision in the case will have no effect on them
since they were not impleaded as indispensable parties. After all, the joinder of all
indispensable parties to a suit is not only mandatory, but jurisdictional as well.[79]   By
their intervention, which the Sandiganbayan allowed per its resolution dated September
30, 1991, COCOFED and Ursua have clearly manifested their desire to submit to the
jurisdiction of the Sandiganbayan and seek relief from said court. Thereafter, they filed
numerous pleadings in the subdivided complaints seeking relief and actively participated
in numerous proceedings.  Among the pleadings thus filed are the Oppositions to the
Motion for Intervention interposed by the Pambansang Koalisyon ng mga Samahang
Magsasaka at Manggagawa sa Niyogan and Gabay ng Mundo sa Kaunlaran Foundation,
Inc., a Class Action Omnibus Motion to enjoin the PCGG from voting the SMC shares
dated February 23, 2001 (granted by Sandiganbayan) and the Class Action Motion for a
Separate Summary Judgment dated April 11, 2001.  By these acts, COCOFED et al. are
now legally estopped from asserting the Sandiganbayn's want of jurisdiction, if that be
the case, over the subject matter of the complaint as they have voluntarily yielded to the
jurisdiction of the Sandiganbayan. Estoppel has now barred the challenge on
Sandiganbayan's jurisdiction.

The ensuing excerpts from Macahilig v. Heirs of Magalit[80] are instructive:

We cannot allow her to attack its jurisdiction simply because it rendered a Decision
prejudicial to her position.  Participation in all stages of a case before a trial court
effectively estops a party from challenging its jurisdiction.  One cannot belatedly reject or
repudiate its decision after voluntarily submitting to its jurisdiction, just to secure
affirmative relief against one's opponent or after failing to obtain such relief.  If, by deed
or conduct, a party has induced another to act in a particular manner, estoppel effectively
bars the former from adopting an inconsistent position, attitude or course of conduct that
thereby causes loss or injury to the latter.

Lest it be overlooked, this Court has already decided that the sequestered shares
are prima facie ill-gotten wealth rendering the issue of the validity of their sequestration
and of the jurisdiction of the Sandiganbayan over the case beyond doubt. In the case
of COCOFED v. PCGG,[81] We stated that:

It is of course not for this Court to pass upon the factual issues thus raised. That function
pertains to the Sandiganbayan in the first instance. For purposes of this proceeding, all
that the Court needs to determine is whether or not there is prima facie justification for
the sequestration ordered by the PCGG. The Court is satisfied that there is. The cited
incidents, given the public character of the coconut levy funds, place petitioners
COCOFED and its leaders and officials, at least prima facie, squarely within the
purview of Executive Orders Nos. 1, 2 and 14, as construed and applied
in BASECO, to wit:

"1. that ill-gotten properties (were) amassed by the leaders and supporters of the previous
regime;

"a. more particularly, that `(i)ll-gotten wealth was accumulated by ... Marcos, his
immediate family, relatives, subordinates and close associates, .... (and) business
enterprises and entities (came to be) owned or controlled by them, during ... (the Marcos)
administration, directly or through nominees, by taking undue advantage of their public
office and using their powers, authority, influence, connections or relationships';

"b. otherwise stated, that `there are assets and properties purportedly pertaining to [the
Marcoses], their close relatives, subordinates, business associates, dummies, agents or
nominees which had been or were acquired by them directly or indirectly, through or as
a result of the improper or illegal use of funds or properties owned by the
Government ...or any of its branches, instrumentalities, enterprises, banks or financial
institutions, or by taking undue advantage of their office, authority, influence,
connections or relationship, resulting in their unjust enrichment ....;

... ... ...

2. The petitioners' claim that the assets acquired with the coconut levy funds are privately
owned by the coconut farmers is founded on certain provisions of law, to wit [Sec. 7, RA
6260 and Sec. 5, Art. III, PD 1468]... (Words in bracket added; italics in the original).

In their attempt to dismiss the amended complaints in question, petitioners asseverate that
(1) the coconut farmers cannot be considered as "subordinates, close and/or business
associates, dummies, agents and nominees" of Cojuangco, Jr. or the Marcoses, and (2)
the sequestered shares were not illegally acquired nor acquired "through or as result of
improper or illegal use or conversion of funds belonging to the Government." While not
saying so explicitly, petitioners are doubtless conveying the idea that wealth, however
acquired, would not be considered "ill-gotten" in the context of EO 1, 2 and 14, s. of
1986, absent proof that the recipient or end possessor thereof is outside  the Marcos'
circle of friends, associates, cronies or nominees.

We are not convinced.

As may be noted, E.O. 1 and 2 advert to President Marcos, or his associates' nominees. 
In its most common signification, the term "nominee" refers to one who is designated to
act for another usually in a limited way; [82] a person in whose name a stock or bond
certificate is registered but who is not the actual owner thereof is considered a
nominee."[83]  Corpus Juris Secundum describes a nominee as one:

... designated to act for another as his representative in a rather limited sense. It has no
connotation, however, other than that of acting for another, in representation of another or
as the grantee of another. In its commonly accepted meaning the term connoted the
delegation of authority to the nominee in a representative or nominal capacity only, and
does not connote the transfer or assignment to the nominee of any property in, or
ownership of, the rights of the person nominating him.[84]

So, the next question that comes to the fore is: would the term "nominee" include the
more than one million coconut farmers alleged to be the recipients of the UCPB shares?

Guided by the foregoing definitions, the query must be answered in the affirmative if
only to give life to those executive issuances aimed at ensuring the recovery of ill-gotten
wealth.  It is basic, almost elementary, that:
Laws must receive a sensible interpretation to promote the ends for which they are
enacted. They should be so given reasonable and practical construction as will give life to
them, if it can be done without doing violence to reason. Conversely, a law should not be
so construed as to allow the doing of an act which is prohibited by law, not so interpreted
as to afford an opportunity to defeat compliance with its terms, create an inconsistency,
or contravene the plain words of the law. Interpretatio fienda est ut res magis valeat
quam pereat or that interpretation as will give the thing efficacy is to be adopted.[85]

E.O. 1, 2, 14 and 14-A, it bears to stress, were issued precisely to effect the recovery of
ill-gotten assets amassed by the Marcoses, their associates, subordinates and cronies, or
through their nominees. Be that as it may, it stands to reason that persons listed as
associated with the Marcoses[86] refer to those in possession of such ill-gotten wealth but
holding the same in behalf of the actual, albeit undisclosed owner, to prevent discovery
and consequently recovery. Certainly, it is well-nigh inconceivable that ill-gotten assets
would be distributed to and left in the hands of individuals or entities with obvious
traceable connections to Mr. Marcos and his cronies. The Court can take, as it has in fact
taken, judicial notice of schemes and machinations that have been put in place to keep ill-
gotten assets under wraps. These would include the setting up of layers after layers of
shell or dummy, but controlled, corporations[87] or manipulated instruments calculated to
confuse if not altogether mislead would-be investigators from recovering wealth
deceitfully amassed at the expense of the people or simply the fruits thereof. Transferring
the illegal assets to third parties not readily perceived as Marcos cronies would be
another. So it was that in PCGG v. Pena, the Court, describing the rule of Marcos as a
"well entrenched plundering regime of twenty years," noted the magnitude of the past
regime's organized pillage and the ingenuity of the plunderers and pillagers with the
assistance of experts and the best legal minds in the market.[88]

Hence, to give full effect to E.O. 1, 2 and 14, s. of 1986, the term "nominee," as used in
the above issuances, must be taken to mean to include any person or group of persons,
natural or juridical, in whose name government funds or assets were transferred to by
Pres. Marcos, his cronies or his associates. To this characterization must include what the
Sandiganbayan considered the "unidentified" coconut farmers, more than a million of
faceless and nameless coconut farmers, the alleged beneficiaries of the distributed
UCPB shares, who, under the terms of Sec. 10 of PCA A.O. No. 1, s. of 1975, were
required, upon the delivery of their respective stock certificates, to execute an
irrevocable proxy in favor of the Bank's manager. There is thus ample truth to the
observations - "[That] the PCA provided this condition only indicates that the PCA had
no intention to constitute the coconut farmer UCPB stockholder as a bona fide
stockholder;" that the 1.5 million registered farmer-stockholders were "mere nominal
stockholders."[89]

From the foregoing, the challenge on the Sandiganbayan's subject matter jurisdiction at
bar must fail.
 II

Petitioners COCOFED et al. were not

deprived of their right to be heard.

As a procedural issue, COCOFED, et al. and Ursua next contend that in the course of
almost 20 years that the cases have been with the anti-graft court, they have repeatedly
sought leave to adduce evidence (prior to respondent's complete presentation of evidence)
to prove the coco farmers'  actual and beneficial ownership of the sequestered shares. 
The Sandiganbayan, however, had repeatedly and continuously disallowed such requests,
thus depriving them of their constitutional right to be heard.

This contention is untenable, their demand to adduce evidence being disallowable on the
ground of prematurity.

The records reveal that the Republic, after adducing its evidence in CC No. 0033-A,
subsequently filed a Motion Ad Cautelam for Leave to Present Additional Evidence dated
March 28, 2001. This motion remained unresolved at the time the Republic interposed
its Motion for Partial Summary Judgment.  The Sandiganbayan granted the later motion
and accordingly rendered the Partial Summary Judgment, effectively preempting the
presentation of evidence by the defendants in said case (herein petitioners COCOFED
and Ursua).

Section 5, Rule 30 the Rules of Court clearly sets out the order of presenting evidence:

SEC. 5. Order of trial.--Subject to the provisions of section 2 of Rule 31, and unless the
court for special reasons otherwise directs, the trial shall be limited to the issues stated in
the pre-trial order and shall proceed as follows:

(a) The plaintiff shall adduce evidence in support of his complaint;

(b) The defendant shall then adduce evidence in support of his defense,
counterclaim, cross-claim and third-party complaint;

...   ... ...

(g) Upon admission of the evidence, the case shall be deemed submitted for decision,
unless the court directs the parties to argue or to submit their respective memoranda or
any further pleadings.

If several defendants or third-party defendants, and so forth. having separate defenses

appear by different counsel, the court shall determine the relative order of presentation of
their evidence. (Emphasis supplied.)
Evidently, for the orderly administration of justice, the plaintiff shall first adduce
evidence in support of his complaint and after the formal offer of evidence and the ruling
thereon, then comes the turn of defendant under Section 3 (b) to adduce evidence in
support of his defense, counterclaim, cross-claim and third party complaint, if any. 
Deviation from such order of trial is purely discretionary upon the trial court, in this case,
the Sandiganbayan, which cannot be questioned by the parties unless the vitiating
element of grave abuse of discretion supervenes.  Thus, the right of COCOFED to present
evidence on the main case had not yet ripened. And the rendition of the partial summary
judgments overtook their right to present evidence on their defenses.

It cannot be stressed enough that the Republic as well as herein petitioners were well
within their rights to move, as they in fact separately did, for a partial summary judgment.
Summary judgment may be allowed where, save for the amount of damages, there is, as
shown by affidavits and like evidentiary documents, no genuine issue as to any material
fact and the moving party is entitled to a judgment as a matter of law. A "genuine issue",
as distinguished from one that is fictitious, contrived and set up in bad faith, means an
issue of fact that calls for the presentation of evidence.[90]  Summary or accelerated
judgment, therefore, is a procedural technique aimed at weeding out sham claims or
defenses at an early stage of the litigation.[91]  Sections 1, 2 and 4 of Rule 35 of the Rules
of Court on Summary Judgment, respectively provide:

SECTION 1. Summary judgment for claimant.--A party seeking to recover upon a claim,
counterclaim, or cross-claim ... may, at any time after the pleading in answer thereto has
been served, move with supporting affidavits, depositions or admissions for a summary
judgment in his favor upon all or any part thereof.

SEC. 2. Summary judgment for defending party.--A party against whom a claim,
counterclaim or cross-claim is asserted ... is sought may, at any time, move with
supporting affidavits, depositions or admissions for a summary judgment in his favor as
to all or any part thereof.

SEC. 4. Case not fully adjudicated on motion.--If on motion under this Rule, judgment is
not rendered upon the whole case or for all the reliefs sought and a trial is necessary, the
court at the hearing of the motion, by examining the pleadings and the evidence before it
and by interrogating counsel shall ascertain what material facts exist without substantial
controversy and what are actually and in good faith controverted. It shall thereupon make
an order specifying the facts that appear without substantial controversy, including the
extent to which the amount of damages or other relief is not in controversy, and directing
such further proceedings in the action as are just. The facts so specified shall be deemed
established, and the trial shall be conducted on the controverted facts accordingly.

Clearly, petitioner COCOFED's right to be heard had not been violated by the mere
issuance of PSJ-A and PSJ-F before they can adduce their evidence.

As it were, petitioners COCOFED et al. were able to present documentary evidence in

conjunction with its "Class Action Omnibus Motion" dated February 23, 2001 where they
appended around four hundred (400) documents including affidavits of alleged farmers.
These petitioners manifested that said documents comprise their evidence to prove the
farmers' ownership of the UCPB shares, which were distributed in accordance with valid
and existing laws.[92]

Lastly, COCOFED et al. even filed their own Motion for Separate Summary Judgment,
an event reflective of their admission that there are no more factual issues left to be
determined at the level of the Sandiganbayan.  This act of filing a motion for summary
judgment is a judicial admission against COCOFED under Section 26, Rule 130 which
declares that the "act, declaration or omission of a party as to a relevant fact may be given
in evidence against him."

Viewed in this light, the Court has to reject petitioners' self-serving allegations about
being deprived the right to adduce evidence.

III
The right to speedy trial was not violated.

This brings to the fore the alleged violation of petitioners' right to a speedy trial and
speedy disposition of the case. In support of their contention, petitioners cite Licaros v.
Sandiganbayan,[93] where the Court dismissed the case pending before the Sandiganbayan
for violation of the accused's right to a speedy trial.

It must be clarified right off that the right to a speedy disposition of case and the
accused's right to a speedy trial are distinct, albeit kindred, guarantees, the most obvious
difference being that a speedy disposition of cases, as provided in Article III, Section 16
of the Constitution, obtains regardless of the nature of the case:

Section 16. All persons shall have the right to a speedy disposition of their cases before
all judicial, quasi-judicial, or administrative bodies.

In fine, the right to a speedy trial is available only to an accused and is a peculiarly
criminal law concept, while the broader right to a speedy disposition of cases may be
tapped in any proceedings conducted by state agencies. Thus, in Licaros the Court
dismissed the criminal case against the accused due to the palpable transgression of his
right to a speedy trial.

In the instant case, the appropriate right involved is the right to a speedy disposition of
cases, the recovery of ill-gotten wealth being a civil suit.
Nonetheless, the Court has had the occasion to dismiss several cases owing to the
infringement of a party's right to a speedy disposition of cases.[94] Dismissal of the case
for violation of this right is the general rule.   Bernat v. The Honorable Sandiganbayan
(5th Division)[95] expounds on the extent of the right to a speedy disposition of cases as
follows:

Section 16 of Article III of the Constitution guarantees the right of all persons to a
"speedy disposition of their cases." Nevertheless, this right is deemed violated only when
the proceedings are attended by vexatious, capricious and oppressive delays.  Moreover,
the determination of whether the delays are of said nature is relative and cannot be based
on a mere mathematical reckoning of time. Particular regard must be taken of the facts
and circumstances peculiar to each case. As a guideline, the Court in Dela Peña v.
Sandiganbayan mentioned certain factors that should be considered and balanced,
namely: 1) length of delay; 2) reasons for the delay; 3) assertion or failure to assert such
right by the accused; and 4) prejudice caused by the delay.

... ... ...

While this Court recognizes the right to speedy disposition quite distinctly from the right
to a speedy trial, and although this Court has always zealously espoused protection from
oppressive and vexatious delays not attributable to the party involved, at the same time,
we hold that a party's individual rights should not work against and preclude the people's
equally important right to public justice. In the instant case, three people died as a result
of the crash of the airplane that the accused was flying. It appears to us that the delay in
the disposition of the case prejudiced not just the accused but the people as well. Since
the accused has completely failed to assert his right seasonably and inasmuch as the
respondent judge was not in a position to dispose of the case on the merits... we hold it
proper and equitable to give the parties fair opportunity to obtain ... substantial justice in
the premises.

The more recent case of Tello v. People[96] laid stress to the restrictive dimension to the
right to speedy disposition of cases, i.e., it is lost unless seasonably invoked:

In Bernat ..., the Court denied petitioner's claim of denial of his right to a speedy
disposition of cases considering that [he] ... chose to remain silent for eight years before
complaining of the delay in the disposition of his case. The Court ruled that petitioner
failed to seasonably assert his right and he merely sat and waited from the time his case
was submitted for resolution. In this case, petitioner similarly failed to assert his right to a
speedy disposition of his case.... He only invoked his right to a speedy disposition of
cases after [his conviction].... Petitioner's silence may be considered as a waiver of his
right.
An examination of the petitioners' arguments and the cited indicia of delay would reveal
the absence of any allegation that petitioners moved before the Sandiganbayan for the
dismissal of the case on account of vexatious, capricious and oppressive delays that
attended the proceedings. Following Tello, petitioners are deemed to have waived their
right to a speedy disposition of the case. Moreover, delays, if any, prejudiced the
Republic as well. What is more, the alleged breach of the right in question was not raised
below.  As a matter of settled jurisprudence, but subject to equally settled exception, an
issue not raised before the trial court cannot be raised for the first time on appeal. [97]  The
sporting idea forbidding one from pulling surprises underpins this rule. For these reasons,
the instant case cannot be dismissed for the alleged violation of petitioners' right to a
speedy disposition of the case.

IV
Sections 1 and 2 of P.D. No. 755, Article III, Section 5 of P.D. No. 961 and Article
III, Section 5 of P.D. No. 1468, are unconstitutional.

The Court may pass upon the

constitutionality of P.D. Nos.
755, 961 and 1468.

Petitioners COCOFED et al. and Ursua uniformly scored the Sandiganbayan for abusing
its power of judicial review and wrongly encroaching into the exclusive domain of
Congress   when it declared certain provisions of the coconut levy laws and PCA
administrative issuances as unconstitutional.

We are not persuaded.

It is basic that courts will not delve into matters of constitutionality unless unavoidable,
when the question of constitutionality is the very lis mota of the case, meaning, that the
case cannot be legally resolved unless the constitutional issue raised is determined. This
rule finds anchorage on the presumptive constitutionality of every enactment. Withal, to
justify the nullification of a statute, there must be a clear and unequivocal breach of the
Constitution. A doubtful or speculative infringement would simply not suffice.[98]

Just as basic is the precept that lower courts are not precluded from resolving, whenever
warranted, constitutional questions, subject only to review by this Court.

To Us, the present controversy cannot be peremptorily resolved without going into the
constitutionality of P.D. Nos. 755, 961 and 1468 in particular.  For petitioners
COCOFED et al. and Ballares et al. predicate their claim over the sequestered shares and
necessarily their cause on laws and martial law issuances assailed by the Republic on
constitutional grounds. Indeed, as aptly observed by the Solicitor General, this case is for
the recovery of shares grounded on the invalidity of certain enactments, which in turn is
rooted in the shares being public in character, purchased as they were by funds raised by
the taxing and/or a mix of taxing and police powers of the state.[99] As may be recalled,
P.D. No. 755, under the policy-declaring provision, authorized the distribution of UCPB
shares of stock free to coconut farmers. On the other hand, Section 2 of P.D. No. 755,
hereunder quoted below, effectively authorized the PCA to utilize portions of the CCSF
to pay the financial commitment of the farmers to acquire UCPB and to deposit portions
of the CCSF levies with UCPB interest free. And as there also provided, the CCSF, CIDF
and like levies that PCA is authorized to collect shall be considered as non-special or
fiduciary funds to be transferred to the general fund of the Government, meaning they
shall be deemed private funds.

Section 2 of P.D. No. 755 reads:

Section 2. Financial Assistance. -- To enable the coconut farmers to comply with their
contractual obligations under the aforesaid Agreement, the [PCA] is hereby directed to
draw and utilize the collections under the [CCSF] authorized to be levied by [PD]
No. 232, as amended, to pay for the financial commitments of the coconut farmers
under the said agreement and, except for [PCA's]  budgetary requirements  ..., all
collections under the [CCSF] Levy and (50%) of the collections under the [CIDF] shall
be deposited, interest free, with the said bank of the coconut farmers and such deposits
shall not be withdrawn until the ... the bank has sufficient equity capital ...; and since the
operations, and activities of the [PCA] are all in accord with the present social economic
plans and programs of the Government, all collections and levies which the [PCA] is
authorized to levy and collect such as but not limited to the [CCS Levy] and the
[CIDF] ... shall not be considered or construed, under any law or regulation, special
and/or fiduciary funds and do not form part of the general funds of the national
government within the contemplation of [P.D.] No. 711. (Emphasis supplied)

A similar provision can also be found in Article III, Section 5 of P.D. No. 961 and Article
III, Section 5 of P.D. No. 1468, which We shall later discuss in turn:

P.D. No. 961

Section 5. Exemptions.  The Coconut Consumers Stabilization Fund and the Coconut

Industry Development Fund as well as all disbursements of said funds for the
benefit of the coconut farmers as herein authorized shall not be construed or
interpreted, under any law or regulation, as special and/or fiduciary funds, or as
part of the general funds of the national government within the contemplation of P.D.
No. 711; nor as a subsidy, donation, levy, government funded investment, or government
share within the contemplation of P.D. 898, the intention being that said Fund and the
disbursements thereof as herein authorized for the benefit of the coconut farmers
shall be owned by them in their own private capacities.[100]  (Emphasis Ours)

P.D. No. 1468

Section 5. Exemptions. The [CCSF] and the [CIDF] as well as all disbursement as

herein authorized, shall not be construed or interpreted, under nay law or
regulation, as special and/or fiduciary funds, or as part of the general funds of the
national government within the contemplation of PD 711; nor as subsidy, donation, levy
government funded investment, or government share within the contemplation of PD
898, the intention being that said Fund and the disbursements thereof as herein
authorized for the benefit of the coconut farmers shall be owned by them in their
private capacities....[101]  (Emphasis Ours.)

In other words, the relevant provisions of P.D. Nos. 755, as well as those of P.D. Nos.
961 and 1468, could have been the only plausible means by which close to a purported
million and a half coconut farmers could have acquired the said shares of stock. It has,
therefore, become necessary to determine the validity of the authorizing law, which made
the stock transfer and acquisitions possible.

To reiterate, it is of crucial importance to determine the validity of P.D. Nos. 755, 961
and 1468 in light of the constitutional proscription against the use of special funds save
for the purpose it was established. Otherwise, petitioners' claim of legitimate private
ownership over UCPB shares and indirectly over SMC shares held by UCPB's
subsidiaries will have no leg to stand on, P.D. No. 755 being the only law authorizing the
distribution of the SMC and UCPB shares of stock to coconut farmers, and with the
aforementioned provisions actually stating and holding that the coco levy fund shall not
be considered as a special - not even general - fund, but shall be owned by the farmers in
their private capacities.[102]

The Sandiganbayan's ensuing ratiocination on the need to pass upon constitutional issues
the Republic raised below commends itself for concurrence:

This Court is convinced of the imperative need to pass upon the issues of constitutionality
raised by Plaintiff.  The issue of constitutionality of the provisions of P.D. No. 755 and
the laws related thereto goes to the very core of Plaintiff's causes of action and
defenses thereto.  It will serve the best interest of justice to define this early the legal
framework within which this case shall be heard and tried, taking into account the
admission of the parties and the established facts, particularly those relating to the main
substance of the defense of Lobregat, COCOFED, et al. and Ballares, et al., which is
anchored on the laws being assailed by Plaintiff on constitutional grounds.

... ... ...

The Court is also mindful that lower courts are admonished to observe a becoming
modesty in examining constitutional questions, but that they are nonetheless not
prevented from resolving the same whenever warranted, subject only to review by the
highest tribunal (Ynot v. Intermediate Appellate Court).

... ... ...

It is true that, as a general rule, the question of constitutionality must be raised at the
earliest opportunity.  The Honorable Supreme Court ... has clearly stated that the general
rule admits of exceptions, thus:
... ... ...

`For courts will pass upon a constitutional question only when presented before it in bona
fide cases for determination, and the fact that the question has not been raised before is
not a valid reason for refusing to allow it to be raised later.... It has been held that the
determination of a constitutional question is necessary whenever it is essential to the
decision of the case ... as where the right of a party is founded solely on a statute, the
validity of which is attacked.'

In the case now before us, the allegations of the Subdivided Complaint are consistent
with those in the subject Motion, and they sufficiently raise the issue of constitutionality
of the provisions of laws in question.  The Third Amended Complaint (Subdivided)
states:

`(ii) to legitimize a posteriori his highly anomalous and irregular use and diversion of
government funds to advance his own private and commercial interests,  ... Cojuangco,
Jr. caused the issuance ... of PD 755 (a) declaring that the coconut levy funds shall not be
considered special and fiduciary and trusts funds and do not form part of the general
funds of the National Government, conveniently repealing for that purpose a series of
coconut levy funds as special, fiduciary, trust and government funds....

... ... ...

`(iv) To perpetuate his opportunity to deal with and make use the coconut levy funds to
build his economic empire, Cojuangco, Jr. caused the issuance by Defendant Ferdinand
E. Marcos of an unconstitutional decree (PD 1468) requiring the deposit of all coconut
levy funds with UCPB, interest free, to the prejudice of the government.'

The above-quoted allegations in the Third Amended Complaint (Subdivided) already

question the "legitimacy" of the exercise by former President Marcos of his legislative
authority when he issued P.D. Nos. 755 and 1468.  The provision of Sec. 5, Art. III of
P.D. 961 is substantially similar to the provisions of the aforesaid two [PDs].  P.D. No.
755 allegedly legitimized the "highly anomalous and irregular use and diversion of
government funds to advance his [defendant Cojuangco's] own private and commercial
interest."  The issuance of the said [PD] which has the force and effect of a law can only
be assailed on constitutional grounds.  The merits of the grounds adverted to in the
allegations of the Third Amended Complaint (Subdivided) can only be resolved by this
Court by testing the questioned [PDs], which are considered part of the laws of the
land....

As early as June 20, 1989, this Court in its Resolution expressed this Court's
understanding of the import of the allegations of the complaint, as follows:

"It is likewise alleged in the Complaint that in order to legitimize the diversion of funds,
defendant Ferdinand E. Marcos issued the Presidential Decrees referred to by the
movants.  This is then the core of Plaintiff's complaint:  that, insofar as the coconut
levy is concerned, these decrees had been enacted as tools for the acquisition of ill-
gotten wealth for specific favored individuals.

"Even if Plaintiff may not have said so effectively, the complaint in fact disputes the
legitimacy, and, if one pleases, the constitutionality of such enactments....

"The issue is validly raised on the face of the complaint and defendants must respond to
it."

Since ... the question of constitutionality ... may be raised even on appeal if the
determination of such a question is essential to the decision of the case, we find more
reason to resolve this constitutional question at this stage of the proceedings, where the
defense is grounded solely on the very laws the constitutionality of which are being
questioned and where the evidence of the defendants would seek mainly to prove their
faithful and good faith compliance with the said laws and their implementing rules and
regulations.[103] (Emphasis added.)

The Court's rulings in COCOFED v. PCGG

and Republic v. Sandiganbayan, as law of the
case, are speciously invoked.

To thwart the ruling on the constitutionality of P.D. Nos. 755, 961 and 1468, petitioners
would sneak in the argument that the Court has, in three separate instances, upheld the
validity, and thumbed down the Republic's challenge to the constitutionality, of said laws
imposing the different coconut levies and prescribing the uses of the fund collected. The
separate actions of the Court, petitioners add, would conclude the Sandiganbayan on the
issue of constitutionality of said issuances, following the law-of-the-case principle.
Petitioners allege:
Otherwise stated, the decision of this Honorable Court in the COCOFED Case overruling
the strict public fund theory espoused by the Respondent Republic, upholding the
propriety of the laws imposing the collections of the different Coconut Levies and
expressly allowing COCOFED, et al., to prove that the Sequestered Assets have
legitimately become their private properties had become final and immutable.[104]

Petitioners are mistaken.

Yu v. Yu,[105] as effectively reiterated in Vios v. Pantangco,[106] defines and explains the

ramifications of the law of the case principle as follows:

Law of the case has been defined as the opinion delivered on a former appeal. It is a term
applied to an established rule that when an appellate court passes on a question and
remands the case to the lower court for further proceedings, the question there settled
becomes the law of the case upon subsequent appeal. It means that whatever is once
irrevocably established as the controlling legal rule or decision between the same parties
in the same case continues to be the law of the case, ... so long as the facts on which such
decision was predicated continue to be the facts of the case before the court.

Otherwise put, the principle means that questions of law that have been previously raised
and disposed of in the proceedings shall be controlling in succeeding instances where the
same legal question is raised, provided that the facts on which the legal issue was
predicated continue to be the facts of the case before the court.  Guided by this definition,
the law of the case principle cannot provide petitioners any comfort. We shall explain
why.

In the first instance, petitioners cite COCOFED v. PCGG.[107]  There, respondent PCGG

questioned the validity of the coconut levy laws based on the limits of the state's taxing
and police power, as may be deduced from the ensuing observations of the Court:

.... Indeed, the Solicitor General suggests quite strongly that the laws operating or
purporting to convert the coconut levy funds into private funds, are a transgression of the
basic limitations for the licit exercise of the state's taxing and police powers, and that
certain provisions of said laws are merely clever stratagems to keep away government
audit in order to facilitate misappropriation of the funds in question.

The utilization and proper management of the coconut levy funds, [to acquire shares of
stocks for coconut farmers and workers] raised as they were by the State's police and
taxing power are certainly the concern of the Government.... The coconut levy funds are
clearly affected with public interest. Until it is demonstrated satisfactorily that they have
legitimately become private funds, they must prima facie be accounted subject to
measures prescribed in EO Nos. 1, 2, and 14 to prevent their concealment, dissipation,
etc....[108] [Words in bracket added.]
The issue, therefore, in COCOFED v. PCGG turns on the legality of the transfer of the
shares of stock bought with the coconut levy funds to coconut farmers. This must be
distinguished with the issues in the instant case of whether P.D. No. 755 violated Section
29, paragraph 3 of Article VI of the 1987 Constitution as well as to whether P.D. No. 755
constitutes undue delegation of legislative power. Clearly, the issues in both sets of cases
are so different as to preclude the application of the law of the case rule.

The second and third instances that petitioners draw attention to refer to the rulings
in Republic  v. Sandiganbayan, where the Court by Resolution of December 13, 1994, as
reiterated in another resolution dated March 26, 1996, resolved to deny the separate
motions of the Republic to resolve legal questions on the character of the coconut levy
funds, more particularly to declare as unconstitutional (a) coconut levies collected
pursuant to various issuances as public funds and (b)  Article III, Section 5 of P.D. No.
1468.

Prescinding from the foregoing considerations, petitioners would state: "Having filed at
least three (3) motions ... seeking, among others, to declare certain provisions of the
Coconut Levy Laws unconstitutional and having been rebuffed all three times by this
Court," the Republic - and necessarily Sandiganbayan - "should have followed as [they
were] legally bound by this ... Court's prior determination" on that above issue of
constitutionality under the doctrine of Law of the Case.

Petitioners are wrong.  The Court merely declined to pass upon the constitutionality of
the coconut levy laws or some of their provisions. It did not declare that the UCPB shares
acquired with the use of coconut levy funds have legitimately become private.

The coconut levy funds are in the nature

of taxes and can only be used for public
purpose.  Consequently, they cannot be
used to purchase shares of stocks to be
given for free to private individuals.

Indeed, We have hitherto discussed, the coconut levy was imposed in the exercise of the
State's inherent power of taxation.  As We wrote in Republic v. COCOFED:[109]

Indeed, coconut levy funds partake of the nature of taxes, which, in general, are
enforced proportional contributions from persons and properties, exacted by the State by
virtue of its sovereignty for the support of government and for all public needs.

Based on its definition, a tax has three elements, namely: a) it is an enforced proportional
contribution from persons and properties; b) it is imposed by the State by virtue of its
sovereignty; and c) it is levied for the support of the government.  The coconut levy funds
fall squarely into these elements for the following reasons:

(a) They were generated by virtue of statutory enactments imposed on the coconut
farmers requiring the payment of prescribed amounts.  Thus, PD No. 276, which created
the Coconut Consumer[s] Stabilization Fund (CCSF), mandated the following:

"a. A levy, initially, of P15.00 per 100 kilograms of copra resecada or its equivalent in
other coconut products, shall be imposed on every first sale, in accordance with the
mechanics established under RA 6260, effective at the start of business hours on August
10, 1973.

"The proceeds from the levy shall be deposited with the Philippine National Bank or any
other government bank to the account of the Coconut Consumers Stabilization Fund, as a
separate trust fund which shall not form part of the general fund of the government."

The coco levies were further clarified in amendatory laws, specifically PD No. 961 and
PD No. 1468 - in this wise:

"The Authority (PCA) is hereby empowered to impose and collect a levy, to be known as
the Coconut Consumers Stabilization Fund Levy, on every one hundred kilos of copra
resecada, or its equivalent ... delivered to, and/or purchased by, copra exporters, oil
millers, desiccators and other end-users of copra or its equivalent in other coconut
products.  The levy shall be paid by such copra exporters, oil millers, desiccators and
other end-users of copra or its equivalent in other coconut products under such rules
and regulations as the Authority may prescribe.  Until otherwise prescribed by the
Authority, the current levy being collected shall be continued."

Like other tax measures, they were not voluntary payments or donations by the people. 
They were enforced contributions exacted on pain of penal sanctions, as provided under
PD No. 276:

"3. Any person or firm who violates any provision of this Decree or the rules and
regulations promulgated thereunder, shall, in addition to penalties already prescribed
under existing administrative and special law, pay a fine of not less than P2,500 or more
than P10,000, or suffer cancellation of licenses to operate, or both, at the discretion of the
Court."

Such penalties were later amended thus: ....

(b) The coconut levies were imposed pursuant to the laws enacted by the proper
legislative authorities of the State.  Indeed, the CCSF was collected under PD No. 276...."

(c) They were clearly imposed for a public purpose.  There is absolutely no question
that they were collected to advance the government's avowed policy of protecting
the coconut industry.  This Court takes judicial notice of the fact that the coconut
industry is one of the great economic pillars of our nation, and coconuts and their
byproducts occupy a leading position among the country's export products....

Taxation is done not merely to raise revenues to support the government, but also to
provide means for the rehabilitation and the stabilization of a threatened industry,
which is so affected with public interest as to be within the police power of the State....

Even if the money is allocated for a special purpose and raised by special means, it is
still public in character....  In Cocofed v. PCGG, the Court observed that certain
agencies or enterprises "were organized and financed with revenues derived from coconut
levies imposed under a succession of law of the late dictatorship ... with deposed
Ferdinand Marcos and his cronies as the suspected authors and chief beneficiaries of the
resulting coconut industry monopoly."  The Court continued: "....  It cannot be denied
that the coconut industry is one of the major industries supporting the national
economy.  It is, therefore, the State's concern to make it a strong and secure source not
only of the livelihood of a significant segment of the population, but also of export
earnings the sustained growth of which is one of the imperatives of economic
stability.[110]  (Emphasis Ours)
We have ruled time and again that taxes are imposed only for a public purpose. [111] "They
cannot be used for purely private purposes or for the exclusive benefit of private
persons."[112]  When a law imposes taxes or levies from the public, with the intent to give
undue benefit or advantage to private persons, or the promotion of private enterprises,
that law cannot be said to satisfy the requirement of public purpose.[113]  In Gaston v.
Republic Planters Bank, the petitioning sugar producers, sugarcane planters and millers
sought the distribution of the shares of stock of the Republic Planters Bank, alleging that
they are the true beneficial owners thereof.[114]  In that case, the investment, i.e., the
purchase of the said bank, was funded by the deduction of PhP 1.00 per picul from the
sugar proceeds of the sugar producers pursuant to P.D. No. 388.[115]  In ruling against the
petitioners, the Court held that to rule in their favor would contravene the general
principle that revenues received from the imposition of taxes or levies "cannot be used for
purely private purposes or for the exclusive benefit of private persons."[116]  The Court
amply reasoned that the Stabilization Fund must "be utilized for the benefit of the entire
sugar industry, and all its components, stabilization of the domestic market including
foreign market, the industry being of vital importance to the country's economy and to
national interest."[117]

Similarly in this case, the coconut levy funds were sourced from forced exactions decreed
under P.D. Nos. 232, 276 and 582, among others,[118] with the end-goal of developing the
entire coconut industry.[119]  Clearly, to hold therefore, even by law, that the revenues
received from the imposition of the coconut levies be used purely for private purposes to
be owned by private individuals in their private capacity and for their benefit, would
contravene the rationale behind  the imposition of  taxes or levies.

Needless to stress, courts do not, as they cannot, allow by judicial fiat the conversion of
special funds into a private fund for the benefit of private individuals.  In the same vein,
We cannot subscribe to the idea of what appears to be an indirect - if not exactly direct -
conversion of special funds into private funds, i.e., by using special funds to purchase
shares of stocks, which in turn would be distributed for free to private individuals.  Even
if these private individuals belong to, or are a part of the coconut industry, the free
distribution of shares of stocks purchased with special public funds to them, nevertheless
cannot be justified.  The ratio in Gaston,[120] as expressed below, applies mutatis
mutandis to this case:

The stabilization fees in question are levied by the State ... for a special purpose - that of
"financing the growth and development of the sugar industry and all its components,
stabilization of the domestic market including the foreign market."  The fact that the
State has taken possession of moneys pursuant to law is sufficient to constitute them
as state funds even though they are held for a special purpose....

That the fees were collected from sugar producers,[etc.], and that the funds were
channeled to the purchase of shares of stock in respondent Bank do not convert the
funds into a trust fund for their benefit nor make them the beneficial owners of the
shares so purchased.  It is but rational that the fees be collected from them since it is
also they who are benefited from the expenditure of the funds derived from it. ....[121] 
(Emphasis Ours.)

In this case, the coconut levy funds were being exacted from copra exporters, oil millers,
desiccators and other end-users of copra or its equivalent in other coconut products. [122] 
Likewise so, the funds here were channeled to the purchase of the shares of stock in
UCPB. Drawing a clear parallelism between Gaston and this case, the fact that the
coconut levy funds were collected from the persons or entities in the coconut industry,
among others, does not and cannot entitle them to be beneficial owners of the subject
funds - or more bluntly, owners thereof in their private capacity. Parenthetically, the said
private individuals cannot own the UCPB shares of stocks so purchased using the said
special funds of the government.[123]

Coconut levy funds are special

public funds of the government. 

Plainly enough, the coconut levy funds are public funds.  We have ruled in Republic v.
COCOFED that the coconut levy funds are not only affected with public interest; they
are prima facie public funds.[124]  In fact, this pronouncement that the levies are
government funds was admitted and recognized by respondents, COCOFED, et al., in
G.R. No. 147062-64.[125]  And more importantly, in the same decision, We clearly
explained exactly what kind of government fund the coconut levies are.  We were
categorical in saying that coconut levies are treated as special funds by the very laws
which created them:

Finally and tellingly, the very laws governing the coconut levies recognize their public
character.  Thus, the third Whereas clause of PD No. 276 treats them as special funds
for a specific public purpose.  Furthermore, PD No. 711 transferred to the general
funds of the State all existing special and fiduciary funds including the CCSF.  On
the other hand, PD No. 1234 specifically declared the CCSF as a special fund for a
special purpose, which should be treated as a special account in the National
Treasury.[126]  (Emphasis Ours.)

If only to stress the point, P.D. No. 1234 expressly stated that coconut levies are special
funds to be remitted to the Treasury in the General Fund of the State, but treated as
Special Accounts:

Section 1. All income and collections for Special or Fiduciary Funds authorized by law

shall be remitted to the Treasury and treated as Special Accounts in the General
Fund, including the following:

(a) [PCA] Development Fund, including all income derived therefrom under Sections 13
and 14 of [RA] No. 1145; Coconut Investments Fund under Section 8 of [RA] No. 6260,
including earnings, profits, proceeds and interests derived therefrom; Coconut
Consumers Stabilization Funds under Section 3-A of PD No. 232, as inserted by Section
3 of P.D. No. 232, as inserted by Section 2 of P.D. No. 583; and all other fees accruing
to the [PCA] under the provisions of Section 19 of [RA] No. 1365, in accordance with
Section 2 of P.D. No. 755 and all other income accruing to the [PCA] under existing
laws.[127]  (Emphasis Ours)

Moreover, the Court, in Gaston, stated the observation that the character of a stabilization
fund as a special fund "is emphasized by the fact that the funds are deposited in the
Philippine National Bank [PNB] and not in the Philippine Treasury, moneys from which
may be paid out only in pursuance of an appropriation made by law."[128]  Similarly in this
case, Sec.1 (a) of P.D. No. 276 states that the proceeds from the coconut levy shall be
deposited with the PNB, then a government bank, or any other government bank under
the account of the CCSF, as a separate trust fund, which shall not form part of the
government's general fund.[129]  And even assuming arguendo that the coconut levy funds
were transferred to the general fund pursuant to P.D. No. 1234, it was with the specific
directive that the same be treated as special accounts in the general fund.[130]

The coconut levy funds can only be used  

for the special purpose and the balance
thereof should revert back to the general
fund. Consequently, their subsequent
reclassification as a private fund to be
owned by private individuals in their
private capacities under P.D. Nos. 755,
961 and 1468 are unconstitutional.

To recapitulate, Article VI, Section 29 (3) of the 1987 Constitution, restating a general
principle on taxation, enjoins the disbursement of a special fund in accordance with the
special purpose for which it was collected, the balance, if there be any, after the purpose
has been fulfilled or is no longer forthcoming, to be transferred to the general funds of the
government, thus:

Section 29(3)....

(3)  All money collected on any tax levied for a special purpose shall be treated as a
special fund and paid out for such purpose only.  If the purpose for which a special
fund was created has been fulfilled or abandoned, the balance, if any, shall be transferred
to the general funds of the Government. (Emphasis Ours)

Correlatively, Section 2 of P.D. No. 755 clearly states that:

Section 2. Financial Assistance. To enable the coconut farmers to comply with their
contractual obligations under the aforesaid Agreement, the [PCA] is hereby directed to
draw and utilize the collections under the Coconut Consumers Stabilization Fund
[CCSF] authorized to be levied by [P.D.] 232, as amended, to pay for the financial
commitments of the coconut farmers under the said agreement.... and the Coconut
Industry Development Fund as prescribed by Presidential Decree No. 582 shall not be
considered or construed, under any law or regulation, special and/or fiduciary funds
and do not form part of the general funds of the national government within the
contemplation of Presidential Decree No. 711. (Emphasis Ours)

Likewise, as discussed supra, Article III, Section 5 of both P.D. Nos. 961 and 1468
provides that the CCSF shall not be construed by any law as a special and/or trust fund,
the stated intention being that actual ownership of the said fund shall pertain to coconut
farmers in their private capacities.[131]  Thus, in order to determine whether the relevant
provisions of P.D. Nos. 755, 961 and 1468 complied with Article VI, Section 29 (3) of
the 1987 Constitution, a look at the public policy or the purpose for which the CCSF levy
was imposed is necessary.

The CCSF was established by virtue of P.D. No. 276 wherein it is stated that:

WHEREAS, an escalating crisis brought about by an abnormal situation in the world

market for fats and oils has resulted in supply and price dislocations in the domestic
market for coconut-based goods, and has created hardships for consumers thereof;
WHEREAS, the representatives of the coconut industry ... have proposed the
implementation of an industry-financed stabilization scheme which will permit socialized
pricing of coconut-based commodities;

WHEREAS, it is the policy of the State to promote the welfare and economic well-
being of the consuming public;
....

1. In addition to its powers granted under [P.D.] No. 232, the [PCA] is hereby authorized
to formulate and immediately implement a stabilization scheme for coconut-based
consumer goods, along the following general guidelines:

(a) ....The proceeds of the levy shall be deposited with the Philippine National Bank or
any other government bank to the account of the CCSF as a separate trust fund....

(b) The Fund shall be utilized to subsidize the sale of coconut-based products at prices
set by the Price Control Council....:

....
As couched, P.D. No. 276 created and exacted the CCSF "to advance the government's
avowed policy of protecting the coconut industry."[132]  Evidently, the CCSF was
originally set up as a special fund to support consumer purchases of coconut products. To
put it a bit differently, the protection of the entire coconut industry, and even more
importantly, for the consuming public provides the rationale for the creation of the
coconut levy fund.  There can be no quibbling then that the  foregoing provisions of P.D.
No. 276 intended the fund created and set up therein  not especially for the coconut
farmers but for the entire coconut industry, albeit the improvement of the industry would
doubtless  redound to the benefit of the farmers.  Upon the foregoing perspective, the
following provisions of P.D. Nos. 755, 961 and 1468 insofar as they declared, as the case
may be, that: "[the coconut levy] fund and the disbursements thereof [shall be] authorized
for the benefit of the coconut farmers and shall be owned by them in their private
capacities;"[133] or the coconut levy fund shall not be construed by any law to be a special
and/or fiduciary fund, and do not therefore form part of the general fund of the national
government later on;[134] or the UCPB shares acquired using the coconut levy fund shall
be distributed to the coconut farmers for free,[135] violated the special public  purpose for
which the CCSF was established.

In sum, not only were the challenged presidential issuances   unconstitutional for
decreeing the  distribution of the shares of stock for free to the coconut farmers and,
therefore, negating the public purpose declared by P.D. No. 276, i.e., to stabilize the price
of edible oil[136] and to protect the coconut industry.[137]  They likewise reclassified, nay
treated, the coconut levy fund as private fund to be disbursed and/or invested for the
benefit of private individuals in their private capacities, contrary to the original purpose
for which the fund was created.  To compound the situation, the offending provisions
effectively removed the coconut levy fund away from the cavil of public funds which
normally can be paid out only pursuant to an appropriation made by law.[138]  The
conversion of public funds into private assets was illegally allowed, in fact mandated, by
these provisions.  Clearly therefore, the pertinent provisions of P.D. Nos. 755, 961 and
1468 are unconstitutional for violating Article VI, Section 29 (3) of the Constitution.  In
this context, the distribution by PCA of the UCPB shares purchased by means of the
coconut levy fund - a special fund of the government - to the coconut farmers, is
therefore void.

We quote with approval the Sandiganbayan's reasons for declaring the provisions of P.D.
Nos. 755, 961 and 1468 as unconstitutional:

It is now settled, in view of the ruling in Republic v. COCOFED, et al., supra, that

"Coconut levy funds are raised with the use of the police and taxing powers of the State;"
that "they are levies imposed by the State for the benefit of the coconut industry and its
farmers" and that "they were clearly imposed for a public purpose." This public purpose
is explained in the said case, as follows:

.... c) They were clearly imposed for a public purpose.  There is absolutely no question
that they were colleted to advance the government's avowed policy of protecting the
coconut industry....

"Taxation is done not merely to raise revenues to support the government, but also to
provide means for the rehabilitation and the stabilization of a threatened industry, which
is so affected with public interest as to be within the police power of the State, as held in
Caltex Philippines v. COA and Osmeña v. Orbos.

... ... ...

The avowed public purpose for the disbursement of the CCSF is contained in the
perambulatory clauses and Section 1 of P.D. No. 755.  The imperativeness of enunciating
the public purpose of the expenditure of funds raised through taxation is underscored in
the case of Pascual v. The Secretary of Public Works and Communications, et al, supra,
which held:

"As regards the legal feasibility of appropriating public funds for a private purpose the
principle according to Ruling Case Law, is this:

`It is a general rule that the legislature is without power to appropriate public revenue for
anything but a public purpose ... it is the essential character of the direct object of the
expenditure which must determine its validity as justifying a tax, and not the magnitude
of the interests to be affected nor the degree to which the general advantage of the
community, and thus the public welfare may be ultimately benefited by their promotion. 
Incidental advantage to the public or to the state, which results from the promotion of
private interests and the prosperity of private enterprises or business, does not justify their
aid by the use of public money.' 25 R.L.C. pp. 398-400)

"The rule is set forth in Corpus Juris Secundum in the following language:
... ... ...

`The test of the constitutionality of a statute requiring the use of public funds is whether
the statute is designed to promote the public interests, as opposed to the furtherance of the
advantage of individuals, although each advantage to individuals might incidentally serve
the public....' (81 C.J.S. p. 1147)

"Needless to say, this Court is fully in accord with the foregoing views....  Besides,
reflecting as they do, the established jurisprudence in the United States, after whose
constitutional system ours has been patterned, said views and jurisprudence are, likewise,
part and parcel of our own constitutional law."

The gift of funds raised by the exercise of the taxing powers of the State which were
converted into shares of stock in a private corporation, slated for free distribution to the
coconut farmers, can only be accorded constitutional sanction if it will directly serve the
public purpose declared by law....[139]

Section 1 of P.D. No. 755, as well as PCA

Administrative Order No. 1, Series of
1975 (PCA AO 1), and Resolution No.  
074-75, are invalid delegations of
legislative power.

Petitioners argue that the anti-graft court erred in declaring Section 1 of PD 755, PCA
Administrative Order No. 1 and PCA Resolution No. 074-78 constitutionally infirm by
reason of alleged but unproven and unsubstantiated flaws in their implementation.
Additionally, they explain that said court erred in concluding that Section 1 of PD No.
755 constitutes an undue delegation of legislative power insofar as it authorizes the PCA
to promulgate rules and regulations governing the distribution of the UCPB shares to the
farmers.

These propositions are meritless.

The assailed PSJ-A noted the operational distribution nightmare faced by PCA and the
mode of distribution of UCPB shares set in motion by that agency left much room for
diversion.  Wrote the Sandiganbayan:

The actual distribution of the bank shares was admittedly an enormous operational
problem which resulted in the failure of the intended beneficiaries to receive their shares
of stocks in the bank, as shown by the rules and regulations, issued by the PCA, without
adequate guidelines being provided to it by P.D. No. 755.  PCA Administrative Order
No. 1, Series of 1975 (August 20, 1975), "Rules and Regulations Governing the
Distribution of Shares of Stock of the Bank Authorized to be Acquired Pursuant to PCA
Board Resolution No. 246-75", quoted hereunder discloses how the undistributed shares
of stocks due to anonymous coconut farmers or payors of the coconut levy fees were
authorized to be distributed to existing shareholders of the Bank:

"Section 9. Fractional and Undistributed Shares - Fractional shares and shares which
remain undistributed ... shall be distributed to all the coconut farmers who have qualified
and received equity in the Bank and shall be apportioned among them, as far as
practicable, in proportion to their equity in relation to the number of undistributed equity
and such further rules and regulations as may hereafter be promulgated.'

The foregoing PCA issuance was further amended by Resolution No. 074-78, still citing
the same problem of distribution of the bank shares....:

... ... ...

Thus, when 51,200,806 shares in the bank remained undistributed, the PCA deemed it
proper to give a "bonanza" to coconut farmers who already got their bank shares, by
giving them an additional share for each share owned by them and by converting their
fractional shares into full shares.  The rest of the shares were then transferred to a private
organization, the COCOFED, for distribution to those determined to be "bona fide
coconut farmers" who had "not received shares of stock of the Bank."  ....

The PCA thus assumed, due to lack of adequate guidelines set by P.D. No. 755, that it
had complete authority to define who are the coconut farmers and to decide as to
who among the coconut farmers shall be given the gift of bank shares; how many
shares shall be given to them, and what basis it shall use to determine the amount of
shares to be distributed for free to the coconut farmers.  In other words, P.D. No. 755 fails
the completeness test which renders it constitutionally infirm.

Regarding the second requisite of standard, it is settled that legislative standard need not
be expressed....

We observed, however, that the PCA [AO] No. 1, Series of 1975 and PCA Rules and
Regulations 074-78, did not take into consideration the accomplishment of the public
purpose or the national standard/policy of P.D. No. 755 which is directly to accelerate the
development and growth of the coconut industry and as a consequence thereof, to make
the coconut farmers "participants in and beneficiaries" of such growth and development.
The said PCA issuances did nothing more than provide guidelines as to whom the UCPB
shares were to be distributed and how many bank shares shall be allotted to the
beneficiaries. There was no mention of how the distributed shares shall be used to
achieve exclusively or at least directly or primarily the aim or public purpose enunciated
by P.D. No. 755.  The numerical or quantitative distribution of shares contemplated by
the PCA regulations which is a condition for the validly of said administrative
issuances.  There was a reversal of priorities.  The narrow private interests prevailed
over the laudable objectives of the law....   However, under the May 25, 1975
agreement implemented by the PCA issuances, the PCA acquired only 64.98% of the
shares of the bank and even the shares covering the said 64.98% were later on transferred
to non-coconut farmers."

The distribution for free of the shares of stock of the CIIF Companies is tainted with the
above-mentioned constitutional infirmities of the PCA administrative issuances.  In view
of the foregoing, we cannot consider the provision of P.D. No. 961 and P.D. No. 1468
and the implementing regulations issued by the PCA as valid legal basis to hold that
assets acquired with public funds have legitimately become private
properties." [140] (Emphasis added.)

P.D. No. 755 involves an invalid delegation of legislative power, a concept discussed
in Soriano v. Laguardia,[141] citing the following excerpts from Edu v. Ericta:

It is a fundamental ... that Congress may not delegate its legislative power....  What
cannot be delegated is the authority ... to make laws and to alter and repeal them; the test
is the completeness of the statute in all its term and provisions when it leaves the hands of
the legislature. To determine whether or not there is an undue delegation of legislative
power, the inquiry must be directed to the scope and definiteness of the measure
enacted. The legislature does not abdicate its functions when it describes what job
must be done, who is to do it, and what is the scope of his authority....

To avoid the taint of unlawful delegation, there must be a standard, which implies at the
very least that the legislature itself determines matters of principle and lays down
fundamental policy. Otherwise, the charge of complete abdication may be hard to
repel. A standard thus defines legislative policy, marks its limits, maps out its
boundaries and specifies the public agency to apply it. It indicates the circumstances
under which the legislative command is to be effected. It is the criterion by which
legislative purpose may be carried out. Thereafter, the executive or administrative office
designated may in pursuance of the above guidelines promulgate supplemental rules and
regulations.[142] (Emphasis supplied)
Jurisprudence is consistent as regards the two tests, which must be complied with to
determine the existence of a valid delegation of legislative power. In Abakada Guro
Party List, et al. v. Purisima,[143] We reiterated the discussion, to wit:

Two tests determine the validity of delegation of legislative power: (1) the completeness
test and (2) the sufficient standard test. A law is complete when it sets forth therein the
policy to be executed, carried out or implemented by the delegate. It lays down a
sufficient standard when it provides adequate guidelines or limitations in the law to
map out the boundaries of the delegate's authority and prevent the delegation from
running riot. To be sufficient, the standard must specify the limits of the delegate's
authority, announce the legislative policy and identify the conditions under which it
is to be implemented.

In the instant case, the requisite standards or criteria are absent in P.D. No. 755. As may
be noted, the decree authorizes the PCA to distribute to coconut farmers, for free, the
shares of stocks of UCPB and to pay from the CCSF levy the financial commitments of
the coconut farmers under the Agreement for the acquisition of such bank. Yet, the
decree does not even state who are to be considered as coconut farmers. Would, say, one
who plants a single coconut tree be already considered a coconut farmer and, therefore,
entitled to own UCPB shares?  If so, how many shares shall be given to him?  The
definition of a coconut farmer and the basis as to the number of shares a farmer is entitled
to receive for free  are  important variables to be determined by law and cannot be left to
the discretion of the implementing agency.

Moreover, P.D. No. 755 did not identify or delineate any clear condition as to how the
disposition of the UCPB shares or their conversion into private ownership will redound to
the advancement of the national policy declared under it.  To recall, P.D. No. 755 seeks
to "accelerate the growth and development of the coconut industry and achieve a vertical
integration thereof so that coconut farmers will become participants in, and beneficiaries
of, such growth and development."[144]  The Sandiganbayan is correct in its observation
and ruling that the said law gratuitously gave away public funds to private individuals,
and converted them exclusively into private property without any restriction as to its use
that would reflect the avowed national policy or public purpose.  Conversely, the private
individuals to whom the UCPB shares were transferred are free to dispose of them by
sale or any other mode from the moment of their acquisition.  In fact and true enough, the
Sandiganbayan categorically stated in its Order dated March 11, 2003, [145] that out of the
72.2% shares and increased capital stock of the FUB (later UCPB) allegedly covered by
the May 25, 1975 Agreement,[146] entirely paid for by PCA, 7.22% were given to
Cojuangco and the remaining 64.98%, which were originally held by PCA for the benefit
of the coconut farmers, were later sold or transferred to non-coconut farmers. [147]  Even
the proposed rewording of the factual allegations of Lobregat, COCOFED, et al. and
Ballares, et al., reveals that indeed, P.D. No. 755 did not provide for any guideline,
standard, condition or restriction by which the said shares shall be distributed to the
coconut farmers that would ensure that the same will be undertaken to accelerate the
growth and development of the coconut industry pursuant to its national policy.  The
proposed rewording of admissions reads:

There were shares forming part of the aforementioned 64.98% which were, after their
distribution, for free, to the coconut farmers as required by P.D. No. 755, sold or
transferred respectively by individual coconut farmers who were then the registered
stockholders of those UCPB shares to non-coconut farmers.[148]

Clearly, P.D. No. 755, insofar as it grants PCA a veritable carte blanche to distribute to
coconut farmers UCPB shares at the level it may determine, as well as the full disposition
of such shares to private individuals in their private capacity without any conditions or
restrictions that would advance the law's national policy or public purpose, present a case
of undue delegation of legislative power. As such, there is even no need to discuss the
validity of the administrative orders and resolutions of PCA implementing P.D. No. 755.
Water cannot rise higher than its source.

Even so, PCA AO 1 and PCA Resolution No. 078-74, are in themselves, infirm under the
undue delegation of legislative powers.  Particularly, Section 9 of PCA AO I provides:

SECTION 9.  Fractional and Undistributed Shares - Fractional shares and shares which
remain undistributed as a consequence of the failure of the coconut farmers to register
their COCOFUND receipts or the destruction of the COCOFUND receipts or the
registration of COCOFUND receipts in the name of an unqualified individual, after the
final distribution is made on the basis of the consolidated IBM registration Report as of
March 31, 1976 shall be distributed to all the coconut farmers who have qualified and
received equity in the Bank and shall be appointed among them, as far as practicable, in
proportion to their equity in relation to the number of undistributed equity and such
further rules and regulations as may hereafter be promulgated.

The foregoing provision directs and authorizes the distribution of fractional and
undistributed shares as a consequence of the failure of the coconut farmers with Coco
Fund receipts to register them, even without a clear mandate or instruction on the same in
any pertinent existing law.  PCA Resolution No. 078-74 had a similar provision, albeit
providing more detailed information.  The said Resolution identified 51,200,806 shares of
the bank that remained undistributed and PCA devised its own rules as to how these
undistributed and fractional shares shall be disposed of, notwithstanding the dearth as to
the standards or parameters in the laws which it sought to implement.

Eventually, what happened was that, as correctly pointed out by the Sandiganbayan, the
PCA gave a "bonanza" to supposed coconut farmers who already got their bank shares,
by giving them extra shares according to the rules established - on its own - by the PCA
under PCA AO 1 and Resolution No. 078-74.  Because of the lack of adequate guidelines
under P.D. No. 755 as to how the shares were supposed to be distributed to the coconut
farmers, the PCA thus assumed that it could decide for itself how these shares will be
distributed.  This obviously paved the way to playing favorites, if not allowing outright
shenanigans.  In this regard, this poser raised in the Court's February 16, 1993 Resolution
in G.R. No. 96073 is as relevant then as it is now: "How is it that shares of stocks in such
entities which was organized and financed by revenues derived from coconut levy funds
which were imbued with public interest ended up in private hands who are not farmers or
beneficiaries; and whether or not the holders of said stock, who in one way or another
had had some part in the collection, administration, disbursement or other disposition of
the coconut levy funds were qualified to acquire stock in the corporations formed and
operated from these funds." [149]

Likewise, the said PCA issuances did not take note of the national policy or public
purpose for which the coconut levy funds were imposed under P.D. No. 755, i.e. the
acceleration of the growth and development of the entire coconut industry, and the
achievement of a vertical integration thereof that could make the coconut farmers
participants in, and beneficiaries of, such growth and development.[150]  Instead, the PCA
prioritized the coconut farmers themselves by fully disposing of the bank shares, totally
disregarding the national policy for which the funds were created.  This is clearly an
undue delegation of legislative powers.

With this pronouncement, there is hardly any need to establish that the sequestered assets
are ill-gotten wealth. The documentary evidence, the P.D.s and Agreements, prove that
the transfer of the shares to the more than one million of supposed coconut farmers was
tainted with illegality.

Article III, Section 5 of P.D. No. 961 and

Article III, Section 5 of P.D. No. 1468
 
violate Article IX (D) (2) of the 1987
Constitution.

Article III, Section 5 of P.D. No. 961 explicitly takes away the coconut levy funds from
the coffer of the public funds, or, to be precise, privatized revenues derived from the coco
levy.  Particularly, the aforesaid Section 5 provides:

Section 5.  Exemptions.  The Coconut Consumers Stabilization Fund and the Coconut

Industry Development fund as well as all disbursements of said funds for the benefit of
the coconut farmers as herein authorized shall not be construed or interpreted, under
any law or regulation, as special and/or fiduciary funds, or as part of the general funds
of the national government within the contemplation of P.D. No. 711; nor as a subsidy,
donation, levy, government funded investment, or government share within the
contemplation of P.D. 898 the intention being that said Fund and the disbursements
thereof as herein authorized for the benefit of the coconut farmers shall be owned in
their own private capacity.[151] (Emphasis Ours)

The same provision is carried over in Article III, Section 5 of P.D. No. 1468, the Revised
Coconut Industry Code:

These identical provisions of P.D. Nos. 961 and 1468 likewise violate Article IX (D),
Section 2(1) of the Constitution, defining the powers and functions of the Commission on
Audit ("COA") as a constitutional commission:

Sec. 2. (1) The Commission on Audit shall have the power, authority, and duty to
examine, audit, and settle all accounts pertaining to the revenue and receipts of, and
expenditures or uses of funds and property, owned or held in trust by, or pertaining to,
the Government, or any of its subdivisions, agencies, or instrumentalities, including
government-owned and controlled corporations with original charters, and on a post-audit
basis: (a) constitutional bodies, commissions and offices that have been granted fiscal
autonomy under this Constitution; (b) autonomous state colleges and universities; (c)
other government-owned or controlled corporations and their subsidiaries;.[152] (Emphasis
Ours)

A similar provision was likewise previously found in Article XII (D), Section 2 (1) of the
1973 Constitution, thus:

Section 2. The Commission on Audit shall have the following powers and functions:

(1) Examine, audit, and settle, in accordance with law and regulations, all accounts
pertaining to the revenues and receipts of, and expenditures or uses of funds and
property, owned or held in trust by, or pertaining to, the Government, or any of its
subdivisions, agencies, or instrumentalities, including government-owned and controlled
corporations; keep the general accounts of the government and, for such period as may be
provided by law, preserve the vouchers pertaining thereto; and promulgate accounting
and auditing rules and regulations including those for the prevention of irregular,
unnecessary, excessive, or extravagant expenditures or use of funds and property. [153] 
(Emphasis Ours)

The Constitution, by express provision, vests the COA with the responsibility for State
audit.[154]  As an independent supreme State auditor, its audit jurisdiction cannot be
undermined by any law.  Indeed, under Article IX (D), Section 3 of the 1987
Constitution, "[n]o law shall be passed exempting any entity of the Government or its
subsidiary in any guise whatever, or any investment of public funds, from the
jurisdiction of the Commission on Audit."[155]  Following the mandate of the COA and the
parameters set forth by the foregoing provisions, it is clear that it has jurisdiction over the
coconut levy funds, being special public funds.  Conversely, the COA has the power,
authority and duty to examine, audit and settle all accounts pertaining to the coconut levy
funds and, consequently, to the UCPB shares purchased using the said funds.  However,
declaring the said funds as partaking the nature of private funds, ergo subject to private
appropriation, removes them from the coffer of the public funds of the government, and
consequently renders them impervious to the COA audit jurisdiction.  Clearly, the
pertinent provisions of P.D. Nos. 961 and 1468 divest the COA of its constitutionally-
mandated function and undermine its constitutional independence.

The assailed purchase of UCPB shares of stocks using the coconut levy funds presents a
classic example of an investment of public funds.  The conversion of these special public
funds into private funds by allowing private individuals to own them in their private
capacities is something else.  It effectively deprives the COA of its constitutionally-
invested power to audit and settle such accounts.  The conversion of the said shares
purchased using special public funds into pure and exclusive private ownership has taken,
or will completely take away the said funds from the boundaries with which the COA has
jurisdiction.  Obviously, the COA is without audit jurisdiction over the receipt or
disbursement of private property. Accordingly, Article III, Section 5 of both P.D. Nos.
961 and 1468 must be struck down for being unconstitutional, be they assayed against
Section 2(1), Article XII (D) of the 1973 Constitution or its counterpart provision in the
1987 Constitution.

The Court, however, takes note of the dispositive portion of PSJ-A, which states that: [156]

...   ...   ...

2.  Section 2 of P.D. No. 755 which mandated that the coconut levy funds shall not be
considered special and/or fiduciary funds nor part of the general funds of the national
government and similar provisions of Sec. 3, Art. III, P.D. 961 and Sec. 5, Art. III,
P.D. 1468 contravene the provisions of the Constitution, particularly, Art. IX (D), Sec. 2;
and Article VI, Sec. 29 (3). (Emphasis Ours)

...   ...   ...

However, a careful reading of the discussion in PSJ-A reveals that it is Section 5 of

Article III of P.D. No. 961 and not Section 3 of said decree, which is at issue, and which
was therefore held to be contrary to the Constitution.  The dispositive portion of the said
PSJ should therefore be corrected to reflect the proper provision that was declared as
unconstitutional, which is Section 5 of Article III of P.D. No. 961 and not Section 3
thereof.
 V
The CIIF Companies and the CIIF Block
of SMC shares are public funds/assets

From the foregoing discussions, it is fairly established that the coconut levy funds are
special public funds. Consequently, any property purchased by means of the coconut levy
funds should likewise be treated as public funds or public property, subject to burdens
and restrictions attached by law to such property.

In this case, the 6 CIIF Oil Mills were acquired by the UCPB using coconut levy funds.
[157]
  On the other hand, the 14 CIIF holding companies are wholly owned subsidiaries of
the CIIF Oil Mills.[158]  Conversely, these companies were acquired using or whose
capitalization comes from the coconut levy funds.  However, as in the case of UCPB,
UCPB itself distributed a part of its investments in the CIIF oil mills to coconut farmers,
and retained a part thereof as administrator.[159]  The portion distributed to the supposed
coconut farmers followed the procedure outlined in PCA Resolution No. 033-78.[160]  And
as the administrator of the CIIF holding companies, the UCPB authorized the acquisition
of the SMC shares.[161]  In fact, these companies were formed or organized solely for the
purpose of holding the SMC shares.[162]  As found by the Sandiganbayan, the 14 CIIF
holding companies used borrowed funds from the UCPB to acquire the SMC shares in
the aggregate amount of P1.656 Billion.[163]

Since the CIIF companies and the CIIF block of SMC shares were acquired using
coconut levy funds - funds, which have been established to be public in character - it goes
without saying that these acquired corporations and assets ought to be regarded and
treated as government assets.  Being government properties, they are accordingly owned
by the Government, for the coconut industry pursuant to currently existing laws.[164]

It may be conceded hypothetically, as COCOFED et al. urge, that the 14 CIIF holding

companies acquired the SMC shares in question using advances from the CIIF companies
and from UCPB loans. But there can be no gainsaying that the same advances and UCPB
loans are public in character, constituting as they do assets of the 14 holding companies,
which in turn are wholly-owned subsidiaries of the 6 CIIF Oil Mills. And these oil mills
were organized, capitalized and/or financed using coconut levy funds.  In net effect, the
CIIF block of SMC shares are simply the fruits of the coconut levy funds acquired at the
expense of the coconut industry. In Republic v. COCOFED,[165] the en banc Court,
speaking through Justice (later Chief Justice) Artemio Panganiban, stated:  "Because the
subject UCPB shares were acquired with government funds, the government becomes
their prima facie beneficial and true owner."  By parity of reasoning,  the adverted block
of SMC shares, acquired as they were with government funds, belong to the government
as, at the very least, their beneficial and true owner.
We thus affirm the decision of the Sandiganbayan on this point.  But as We have earlier
discussed, reiterating our holding in Republic v. COCOFED, the State's avowed policy or
purpose in creating the coconut levy fund is for the development of the entire coconut
industry, which is one of the major industries that promotes sustained economic stability,
and not merely the livelihood of a significant segment of the population.[166] 
Accordingly, We sustain the ruling of the Sandiganbayan in CC No. 0033-F that the CIIF
companies and the CIIF block of SMC shares are public funds necessary owned by the
Government.  We, however, modify the same in the following wise: These shares shall
belong to the Government, which shall be used only for the benefit of the coconut
farmers and for the development of the coconut industry.

Sandiganbayan did not err in ruling that

PCA  (AO)  No. 1,   Series  of 1975  and
PCA  rules  and regulations  074-78  did
not comply with the  national  standard
or policy of P.D. No. 755.

According to the petitioners, the Sandiganbayan has identified the national policy sought
to be enhanced by and expressed under Section 1 in relation to Section 2 of P.D. No. 755.
Yet, so petitioners argue, that court, with grave abuse of discretion, disregarded such
policy and thereafter, ruled that Section 1 in relation to Section 2 of P.D. No. 755 is
unconstitutional as the decree failed to promote the purpose for which it was enacted in
the first place.

We are not persuaded. The relevant assailed portion of PSJ-A states:

We observe, however, that the PCA [AO] No. 1, Series of 1975 and PCA Rules and
Regulations 074-78, did not take into consideration the accomplishment of the public
purpose or the national standard/policy of P.D. No. 755 which is directly to accelerate the
development and growth of the coconut industry and as a consequence thereof, to make
the coconut farmers "participants in and beneficiaries" of such growth and
development....

It is a basic legal precept that courts do not look into the wisdom of the laws passed. The
principle of separation of powers demands this hands-off attitude from the
judiciary.  Saguiguit v. People[167] teaches why:

... [W]hat the petitioner asks is for the Court to delve into the policy behind or wisdom of
a statute, ... which, under the doctrine of separation of powers, it cannot do,.... Even with
the best of motives, the Court can only interpret and apply the law and cannot, despite
doubts about its wisdom, amend or repeal it. Courts of justice have no right to encroach
on the prerogatives of lawmakers, as long as it has not been shown that they have acted
with grave abuse of discretion. And while the judiciary may interpret laws and evaluate
them for constitutional soundness and to strike them down if they are proven to be infirm,
this solemn power and duty do not include the discretion to correct by reading into the
law what is not written therein.

We reproduce the policy-declaring provision of P.D. No. 755, thus:

Section 1. Declaration of National Policy. -- It is hereby declared that the policy of the
State is to provide readily available credit facilities to the coconut farmers at preferential
rates; that this policy can be ... efficiently realized by the implementation of the
"Agreement for the Acquisition of a Commercial Bank for the benefit of the
Coconut Farmers" executed by the [PCA], the terms of which "Agreement" are
hereby incorporated by reference; and that the [PCA] is hereby authorized to
distribute, for free, the shares of stock of the bank it acquired to the coconut farmers
under such rules and regulations it may promulgate.

P.D. No. 755 having stated in no uncertain terms that the national policy of providing
cheap credit facilities to coconut farmers shall be achieved with the acquisition of a
commercial bank, the Court is without discretion to rule on the wisdom of such an
undertaking. It is abundantly clear, however, that the Sandiganbayan did not look into the
policy behind, or the wisdom of, P.D. No. 755. In context, it did no more than to inquire
whether the purpose defined in P.D. No. 755 and for which the coco levy fund was
established would be carried out, obviously having in mind the (a) dictum that the power
to tax should only be exercised for a public purpose and (b) command of Section 29,
paragraph 3 of Article VI of the 1987 Constitution that:

(3) All money collected on any tax levied for a special purpose shall be treated as a
special fund and paid out for such purpose only. If the purpose for which a special fund
was created has been fulfilled or abandoned, the balance, if any, shall be transferred to
the general funds of the Government. (Emphasis supplied)

For the above reason, the above-assailed action of the Sandiganbayan was well within the
scope of its sound discretion and mandate.

Moreover, petitioners impute on the anti-graft court the commission of grave abuse of
discretion for going into the validity of and in declaring the coco levy laws as
unconstitutional, when there were still factual issues to be resolved in a full blown trial as
directed by this Court.[168]

Petitioners COCOFED and the farmer representatives miss the point. They acknowledged
that their alleged ownership of the sequestered shares in UCPB and SMC is predicated on
the coco levy decrees. Thus, the legality and propriety of their ownership of these
valuable assets are directly related to and must be assayed against the constitutionality of
those presidential decrees. This is a primordial issue, which must be determined to
address the validity of the rest of petitioners' claims of ownership. Verily, the
Sandiganbayan did not commit grave abuse of discretion, a phrase which, in the abstract,
denotes the idea of capricious or whimsical exercise of judgment or the exercise of power
in an arbitrary or despotic manner by reason of passion or personal hostility as to be
equivalent to having acted without jurisdiction.[169]

The Operative Fact Doctrine does not apply

Petitioners assert that the Sandiganbayan's refusal to recognize the vested rights
purportedly created under the coconut levy laws constitutes taking of private property
without due process of law.  They reason out that to accord retroactive application to a
declaration of unconstitutionality would be unfair inasmuch as such approach would
penalize the farmers who merely obeyed then valid laws.

This contention is specious.

In Yap v. Thenamaris Ship's Management,[170] the Operative Fact Doctrine was discussed

in that:

As a general rule, an unconstitutional act is not a law; it confers no rights; it imposes no

duties; it affords no protection; it creates no office; it is inoperative as if it has not been
passed at all. The general rule is supported by Article 7 of the Civil Code, which
provides:

Art. 7. Laws are repealed only by subsequent ones, and their violation or non-observance
shall not be excused by disuse or custom or practice to the contrary.

The doctrine of operative fact serves as an exception to the aforementioned general rule.
In Planters Products, Inc. v. Fertiphil Corporation, we held:

The doctrine of operative fact, as an exception to the general rule, only applies as a
matter of equity and fair play. It nullifies the effects of an unconstitutional law by
recognizing that the existence of a statute prior to a determination of unconstitutionality
is an operative fact and may have consequences which cannot always be ignored. The
past cannot always be erased by a new judicial declaration.

The doctrine is applicable when a declaration of unconstitutionality will impose an undue

burden on those who have relied on the invalid law. Thus, it was applied to a criminal
case when a declaration of unconstitutionality would put the accused in double jeopardy
or would put in limbo the acts done by a municipality in reliance upon a law creating it.
[171]

In that case, this Court further held that the Operative Fact Doctrine will not be applied as
an exception when to rule otherwise would be iniquitous and would send a wrong signal
that an act may be justified when based on an unconstitutional provision of law. [172]

The Court had the following disquisition on the concept of the Operative Fact Doctrine in
the case of Chavez v. National Housing Authority:[173]

The "operative fact" doctrine is embodied in De Agbayani v. Court of Appeals, wherein it
is stated that a legislative or executive act, prior to its being declared as unconstitutional
by the courts, is valid and must be complied with, thus:

As the new Civil Code puts it: "When the courts declare a law to be inconsistent with the
Constitution, the former shall be void and the latter shall govern. Administrative or
executive acts, orders and regulations shall be valid only when they are not contrary to
the laws of the Constitution."  It is understandable why it should be so, the Constitution
being supreme and paramount. Any legislative or executive act contrary to its terms
cannot survive.

Such a view has support in logic and possesses the merit of simplicity.  It may not
however be sufficiently realistic.  It does not admit of doubt that prior to the declaration
of nullity such challenged legislative or executive act must have been in force and had to
be complied with.  This is so as until after the judiciary, in an appropriate case, declares
its invalidity, it is entitled to obedience and respect.  Parties may have acted under it and
may have changed their positions.  What could be more fitting than that in a subsequent
litigation regard be had to what has been done while such legislative or executive act was
in operation and presumed to be valid in all respects.  It is now accepted as a doctrine that
prior to its being nullified, its existence as a fact must be reckoned with.  This is merely
to reflect awareness that precisely because the judiciary is the governmental organ which
has the final say on whether or not a legislative or executive measure is valid, a period of
time may have elapsed before it can exercise the power of judicial review that may lead
to a declaration of nullity.  It would be to deprive the law of its quality of fairness and
justice then, if there be no recognition of what had transpired prior to such adjudication.

In the language of an American Supreme Court decision: "The actual existence of a

statute, prior to such a determination [of unconstitutionality], is an operative fact and may
have consequences which cannot justly be ignored.  The past cannot always be erased by
a new judicial declaration.  The effect of the subsequent ruling as to invalidity may have
to be considered in various aspects, with respect to particular relations, individual and
corporate, and particular conduct, private and official." This language has been quoted
with approval in a resolution in Araneta v. Hill and the decision in Manila Motor Co.,
Inc. v. Flores.  An even more recent instance is the opinion of Justice Zaldivar speaking
for the Court in Fernandez v. Cuerva and Co. (Emphasis supplied.)
The principle was further explicated in the case of Rieta v. People of the Philippines,
thus:

In similar situations in the past this Court had taken the pragmatic and realistic course set
forth in Chicot County Drainage District vs. Baxter Bank to wit:

The courts below have proceeded on the theory that the Act of Congress, having been
found to be unconstitutional, was not a law; that it was inoperative, conferring no rights
and imposing no duties, and hence affording no basis for the challenged decree.... It is
quite clear, however, that such broad statements as to the effect of a determination of
unconstitutionality must be taken with qualifications.  The actual existence of a statute,
prior to [the determination of its invalidity], is an operative fact and may have
consequences which cannot justly be ignored.  The past cannot always be erased by a
new judicial declaration.  The effect of the subsequent ruling as to invalidity may have to
be considered in various aspects -with respect to particular conduct, private and official. 
Questions of rights claimed to have become vested, of status, of prior determinations
deemed to have finality and acted upon accordingly, of public policy in the light of the
nature both of the statute and of its previous application, demand examination.  These
questions are among the most difficult of those which have engaged the attention of
courts, state and federal, and it is manifest from numerous decisions that an all-inclusive
statement of a principle of absolute retroactive invalidity cannot be justified.

Moreover, the Court ruled in Chavez that:

Furthermore, when petitioner filed the instant case against respondents on August 5,
2004, the JVAs were already terminated by virtue of the MOA between the NHA and
RBI. The respondents had no reason to think that their agreements were unconstitutional
or even questionable, as in fact, the concurrent acts of the executive department lent
validity to the implementation of the Project. The SMDRP agreements have produced
vested rights in favor of the slum dwellers, the buyers of reclaimed land who were issued
titles over said land, and the agencies and investors who made investments in the project
or who bought SMPPCs. These properties and rights cannot be disturbed or questioned
after the passage of around ten (10) years from the start of the SMDRP implementation.
Evidently, the "operative fact" principle has set in. The titles to the lands in the hands of
the buyers can no longer be invalidated.[174]

In the case at bar, the Court rules that the dictates of justice, fairness and equity do not
support the claim of the alleged farmer-owners that their ownership of the UCPB shares
should be respected. Our  reasons:

1. Said farmers or alleged claimants do not have any legal right to own the UCPB shares
distributed to them.  It was not successfully refuted that said claimants were issued
receipts under R.A. 6260 for the payment of the levy that went into the Coconut
Investment Fund (CIF) upon which shares in the "Coconut Investment Company" will be
issued.  The Court upholds the finding of the Sandiganbayan that said investment
company is a different corporate entity from the United Coconut Planters Bank. This was
in fact admitted by petitioners during the April 17, 2001 oral arguments in G.R. Nos.
147062-64.[175]

The payments under R.A. 6260 cannot be equated with the payments under P.D. No. 276,
the first having been made as contributions to the Coconut Investment Fund while the
payments under P.D. No. 276 constituted the Coconut Consumers Stabilization Fund
("CCSF").  R.A. 6260 reads:

Section 2.  Declaration of Policy.  It is hereby declared to be the national policy to

accelerate the development of the coconut industry through the provision of adequate
medium and long-term financing for capital investment in the industry, by instituting a
Coconut Investment fund capitalized and administered by coconut farmers through a
Coconut Investment Company.[176]

P.D. No. 276 provides:

1.  In addition to its powers granted under Presidential Decree No. 232, the Philippine
Coconut Authority is hereby authorized to formulate and immediately implement a
stabilization scheme for coconut-based consumer goods, along the following general
guidelines:

(a) ....

The proceeds from the levy shall be deposited with the Philippine National Bank or any
other government bank to the account of the Coconut Consumers Stabilization Fund, as a
separate trust fund which shall not form part of the general fund of the government.

(b) The Fund shall be utilized to subsidize the sale of coconut-based products at prices set
by the Price Control Council, under rules and regulations to be promulgated by the
Philippine Consumers Stabilization Committee....[177]

The PCA, via Resolution No. 045-75 dated May 21, 1975, clarified the distinction
between the CIF levy payments under R.A. 6260 and the CCSF levy paid pursuant to 
P.D. 276, thusly:

It must be remembered that the receipts issued under R.A. No. 6260 were to be registered
in exchange for shares of stock in the Coconut Investment Company (CIC), which
obviously is a different corporate entity from UCPB.  This fact was admitted by
petitioners during the April 17, 2001 oral arguments in G.R. Nos. 147062-64.
In fact, while the CIF levy payments claimed to have been paid by petitioners were meant
for the CIC, the distribution of UCPB stock certificates to the coconut farmers, if at all,
were meant for the payors of the CCSF in proportion to the coconut farmer's CCSF
contributions pursuant to PCA Resolution No. 045-75 dated May 21, 1975:

RESOLVED, FURTHER, That the amount of ONE HUNDRED FIFTY MILLION

(P150,000,000.00) PESOS be appropriated and set aside from available funds of the PCA
to be utilized in payment for the shares of stock of such existing commercial bank and
that the Treasurer be instructed to disburse the said amount accordingly.

... ... ...

RESOLVED, FINALLY, That ... be directed to organize a team which shall prepare a list
of coconut farmers who have paid the levy and contributed to the [CCSF] and to prepare
a stock distribution plan to the end that the aforesaid coconut farmers shall receive
certificates of stock of such commercial bank in proportion to their contributions to the
Fund.

Unfortunately, the said resolution was never complied with in the distribution of the so-
called "farmers" UCPB shares.

The payments therefore under R.A. 6260 are not the same as those under P.D. No. 276.
The amounts of CIF contributions under R.A. 6260 which were collected starting 1971
are undeniably different from the CCSF levy under P.D. No. 276, which were collected
starting 1973.  The two (2) groups of claimants differ not only in identity but also in the
levy paid, the amount of produce and the time the government started the collection.

Thus, petitioners and the alleged farmers claiming them pursuant to R.A. 6260 do not
have any legal basis to own the UCPB shares distributed to them, assuming for a
moment the legal feasibility of transferring these shares paid from the R.A. 6260 levy to
private individuals.

2. To grant all the UCPB shares to petitioners and its alleged members would be
iniquitous and prejudicial to the remaining 4.6 million farmers who have not received any
UCPB shares when in fact they also made payments to either the CIF or the CCSF but
did not receive any receipt or who was not able to register their receipts or misplaced
them.

Section 1 of P.D. No. 755 which was declared unconstitutional cannot be considered to
be the legal basis for the transfer of the supposed private ownership of the UCPB shares
to petitioners who allegedly paid the same under R.A. 6260. The Solicitor General is
correct in concluding that such unauthorized grant to petitioners constitutes illegal
deprivation of property without due process of law.   Due process of law would mean that
the distribution of the UCPB shares should be made only to farmers who have paid the
contribution to the CCSF pursuant to P.D. No. 276, and not to those who paid pursuant to
R.A. 6260. What would have been the appropriate distribution scheme  was violated by
Section 1 of P.D. No. 755 when it required that the UCPB shares should be distributed to
coconut farmers without distinction - in fact, giving the PCA limitless power and free
hand, to determine who these farmers are, or would be.

We cannot sanction the award of the UCPB shares to petitioners who appear to represent
only 1.4 million members without any legal basis to the extreme prejudice of the other
4.6 million coconut farmers (Executive Order No. 747 fixed the number of coconut
farmers at 6 million in 1981).  Indeed, petitioners constitute only a small percentage of
the coconut farmers in the Philippines.  Thus, the Sandiganbayan correctly declared that
the UCPB shares are government assets in trust for the coconut farmers, which would be
more beneficial to all the coconut farmers instead of a very few dubious claimants;

3. The Sandiganbayan made the finding that due to enormous operational problems and
administrative complications, the intended beneficiaries of the UCPB shares were not
able to receive the shares due to them.  To reiterate what the anti-graft court said:

The actual distribution of the bank shares was admittedly an enormous operational
problem which resulted in the failure of the intended beneficiaries to receive their shares
of stocks in the bank, as shown by the rules and regulations, issued by the PCA, without
adequate guidelines being provided to it by P.D. No. 755.  PCA Administrative Order
No. 1, Series of 1975 (August 20, 1975), "Rules and Regulations Governing the
Distribution of Shares of Stock of the Bank Authorized to be Acquired Pursuant to PCA
Board Resolution No. 246-75", quoted hereunder discloses how the undistributed shares
of stocks due to anonymous coconut farmers or payors of the coconut levy fees were
authorized to be distributed to existing shareholders of the Bank:

"Section 9.  Fractional and Undistributed Shares - Fractional shares and shares which
remain undistributed as a consequence of the failure of the coconut farmers to register
their COCOFUND receipts or the destruction of the COCOFUND receipts or the
registration of the COCOFUND receipts in the name of an unqualified individual, after
the final distribution is made on the basis of the consolidated IBM registration Report as
of March 31, 1976 shall be distributed to all the coconut farmers who have qualified and
received equity in the Bank and shall be apportioned among them, as far as practicable, in
proportion to their equity in relation to the number of undistributed equity and such
further rules and regulations as may hereafter be promulgated.'

The foregoing PCA issuance was further amended by Resolution No. 074-78, still citing
the same problem of distribution of the bank shares.  This latter Resolution is quoted as
follows:

RESOLUTION NO. 074-78

AMENDMENT OF ADMINISTRATIVE ORDER

NO. 1, SERIES OF 1975, GOVERNING THE
DISTRIBUTION OF SHARES

WHEREAS, pursuant to PCA Board Resolution No. 246-75, the total par value of the
shares of stock of the Bank purchased by the PCA for the benefit of the coconut farmers
is P85,773,600.00 with a par value of P1.00 per share or equivalent to 85,773.600 shares;

WHEREAS, out of the 85,773,600 shares, a total of 34,572,794 shares have already been
distributed in accordance with Administrative Order No. 1, Series of 1975, to wit:

First Distribution  -      12,573,059

Second Distribution -   10,841,409
Third Distribution   -    11,158,326
                                   34,572,794

"WHEREAS, there is, therefore, a total of 51,200,806 shares still available for
distribution among the coconut farmers;

WHEREAS, it was determined by the PCA  Board, in consonance with the policy of the
state on the integration of the coconut industry, that the Bank shares must be widely
distributed as possible among the coconut farmers, for which purpose a national census of
coconut farmers was made through the Philippine Coconut Producers Federation
(COCOFED);

WHEREAS, to implement such determination of the PCA Board, there is a need to

accordingly amend Administrative Order No. 1, Series of 1975;

NOW, THEREFORE, BE IT RESOLVED, AS IT IS HEREBY RESOLVED, that the

remaining 51,200,806 shares of stock of the Bank authorized to be acquired pursuant to
the PCA Board Resolution No. 246-75 dated July 25, 1975 be distributed as follows:

(1)  All the coconut farmers who have received their shares in the equity of the Bank on
the basis of Section 8 of Administrative Order No. 1, Series of 1975, shall receive
additional share for each share presently owned by them;

(2)  Fractional shares shall be completed into full shares, and such full shares shall be
distributed among the coconut farmers who qualified for the corresponding fractional
shares;

(3)  The balance of the shares, after deducting those to be distributed in accordance with
(1) and (2) above, shall be transferred to COCOFED for distribution, immediately after
completion of the national census of coconut farmers prescribed under Resolution No.
033-78 of the PCA Board, to all those who are determined by the PCA Board to be bona
fide coconut farmers and have not received shares of stock of the Bank.  The shares shall
be equally determined among them on the basis of per capita.

RESOLVED, FURTHER, That the rules and regulations under Administrative Order No.
1, Series of 1975, which are inconsistent with this Administrative Order be, as they are
hereby, repealed and/or amended accordingly."

Thus, when 51,200,806 shares in the bank remained undistributed, the PCA deemed it
proper to give a "bonanza" to coconut farmers who already got their bank shares, by
giving them an additional share for each share owned by them and by converting their
fractional shares into full shares.  The rest of the shares were then transferred to a private
organization, the COCOFED, for distribution to those determined to be "bona fide
coconut farmers" who had "not received shares of stock of the Bank."  The distribution to
the latter was made on the basis of "per capita", meaning without regard to the
COCOFUND receipts. The PCA considered itself free to disregard the said receipts in the
distribution of the shares although they were considered by the May 25, 1975 Agreement
between the PCA and defendant Cojuangco (par. [8] of said Agreement) and by Sections
1, 3, 4, 6 and 9, PCA Administrative Order No. 1, Series of 1975 as the basis for the
distribution of shares.

The PCA thus assumed, due to lack of adequate guidelines set by P.D. No. 755, that it
had complete authority to define who are the coconut farmers and to decide as to who
among the coconut farmers shall be given the gift of bank shares; how many shares shall
be given to them, and what basis it shall use to determine the amount of shares to be
distributed for free to the coconut farmers.  In other words, P.D. No. 755 fails the
completeness test which renders it constitutionally infirm.

Due to numerous flaws in the distribution of the UCPB shares by PCA, it would be best
for the interest of all coconut farmers to revert the ownership of the UCBP shares to the
government for the entire coconut industry, which includes the farmers;

4. The Court also takes judicial cognizance of the fact that a number, if not all, of the
coconut farmers who sold copra did not get the receipts for the payment of the coconut
levy for the reason that the copra they produced were bought by traders or middlemen
who in turn sold the same to the coconut mills.  The reality on the ground is that it was
these traders who got the receipts and the corresponding UCPB shares.  In addition, some
uninformed coconut farmers who actually got the COCOFUND receipts, not appreciating
the importance and value of said receipts, have already sold said receipts to non-coconut
farmers, thereby depriving them of the benefits under the coconut levy laws. Ergo, the
coconut farmers are the ones who will not be benefited by the distribution of the UCPB
shares contrary to the policy behind the coconut levy laws.  The nullification of the
distribution of the UCPB shares and their transfer to the government for the coconut
industry will, therefore, ensure that the benefits to be deprived from the UCPB shares will
actually accrue to the intended beneficiaries - the genuine coconut farmers.

From the foregoing, it is highly inappropriate to apply the operative fact doctrine to the
UCPB shares.  Public funds, which were supposedly given utmost safeguard, were
haphazardly distributed to private individuals based on statutory provisions that are found
to be constitutionally infirm on not only one but on a variety of grounds.  Worse still, the
recipients of the UCPB shares may not actually be the intended beneficiaries of said
benefit.  Clearly, applying the Operative Fact Doctrine would not only be iniquitous but
would also serve injustice to the Government, to the coconut industry, and to the people,
who, whether willingly or unwillingly, contributed to the public funds, and therefore
expect that their Government would take utmost care of them and that they would be
used no less, than for public purpose.

We clarify that PSJ-A is subject of another petition for review interposed by Eduardo
Cojuangco, Jr., in G.R. No. 180705 entitled, Eduardo M. Cojuangco, Jr. v. Republic of
the Philippines, which shall be decided separately by this Court.  Said petition should
accordingly not be affected by this Decision save for determinatively legal issues directly
addressed herein.

WHEREFORE, the petitions in G.R. Nos. 177857-58 and 178793 are

hereby DENIED.  The Partial Summary Judgment dated July 11, 2003 in Civil Case No.
0033-A as reiterated with modification in Resolution dated June 5, 2007, as well as the
Partial Summary Judgment dated May 7, 2004 in Civil Case No. 0033-F, which was
effectively amended in Resolution dated May 11, 2007, are AFFIRMED with
modification, only with respect to those issues subject of the petitions in G.R.
Nos. 177857-58 and 178193.  However, the issues raised in G.R. No. 180705 in relation
to Partial Summary Judgment dated July 11, 2003 and Resolution dated June 5, 2007 in
Civil Case No. 0033-A, shall be decided by this Court in a separate decision.

The Partial Summary Judgment in Civil Case No. 0033-A dated July 11, 2003, is
hereby MODIFIED, and shall read as follows:

WHEREFORE, in view of the foregoing, We rule as follows:

SUMMARY OF THE COURT'S RULING.

A. Re: CLASS ACTION MOTION FOR A SEPARATE SUMMARY JUDGMENT
dated April 11, 2001 filed by Defendant Maria Clara L. Lobregat, COCOFED, et al., and
Ballares, et al.

The Class Action Motion for Separate Summary Judgment dated April 11, 2001 filed by
defendant Maria Clara L. Lobregat, COCOFED, et al. and Ballares, et al., is hereby
DENIED for lack of merit.

B. Re: MOTION FOR PARTIAL SUMMARY JUDGMENT (RE: COCOFED, ET

AL. AND BALLARES, ET AL.) dated April 22, 2002 filed by Plaintiff.

1. a.  The portion of Section 1 of P.D. No. 755, which reads:

...and that the Philippine Coconut Authority is hereby authorized to distribute, for
free, the shares of stock of the bank it acquired to the coconut farmers under such
rules and regulations it may promulgate.

taken in relation to Section 2 of the same P.D., is unconstitutional: (i) for having
allowed the use of the CCSF to benefit directly private interest by the outright and
unconditional grant of absolute ownership of the FUB/UCPB shares paid for by
PCA entirely with the CCSF to the undefined "coconut farmers", which negated or
circumvented the national policy or public purpose declared by P.D. No. 755 to
accelerate the growth and development of the coconut industry and achieve its
vertical integration; and (ii) for having unduly delegated legislative power to the
PCA.

b. The implementing regulations issued by PCA, namely, Administrative Order

No. 1, Series of 1975 and Resolution No. 074-78 are likewise invalid for their
failure to see to it that the distribution of shares serve exclusively or at least
primarily or directly the aforementioned public purpose or national policy declared
by P.D. No. 755.

2. Section 2 of P.D. No. 755 which mandated that the coconut levy funds shall not be
considered special and/or fiduciary funds nor part of the general funds of the
national government and similar provisions of Sec. 5, Art. III, P.D. No. 961 and
Sec. 5, Art. III, P.D. No. 1468 contravene the provisions of the Constitution,
particularly, Art. IX (D), Sec. 2; and Article VI, Sec. 29 (3).

3. Lobregat, COCOFED, et al. and Ballares, et al. have not legally and validly

obtained title of ownership over the subject UCPB shares by virtue of P.D. No.
755, the Agreement dated May 25, 1975 between the PCA and defendant
 Cojuangco, and PCA implementing rules, namely, Adm. Order No. 1, s. 1975 and
Resolution No. 074-78.

4. The so-called "Farmers' UCPB shares" covered by 64.98% of the UCPB shares of
stock, which formed part of the 72.2% of the shares of stock of the former FUB
and now of the UCPB, the entire consideration of which was charged by PCA to
the CCSF, are hereby declared conclusively owned by, the Plaintiff Republic of
the Philippines.

... ... ...

So ordered.

The Partial Summary Judgment in Civil Case No. 0033-F dated May 7, 2004, is
hereby MODIFIED, and shall read as follows:

WHEREFORE, the Motion for Execution of Partial summary judgment (re: CIIF
Block of Smc Shares of Stock) dated August 8, 2005 of the plaintiff is hereby denied for
lack of merit.  However, this Court orders the severance of this particular claim of
Plaintiff.  The Partial Summary Judgment dated May 7, 2004 is now considered a
separate final and appealable judgment with respect to the said CIIF Block of SMC
shares of stock.

The Partial Summary Judgment rendered on May 7, 2004 is modified by deleting the last
paragraph of the dispositive portion, which will now read, as follows:

Wherefore, in view of the foregoing, we hold that:

The Motion for Partial Summary Judgment (Re: Defendants CIIF Companies, 14 Holding
Companies and Cocofed, et al) filed by Plaintiff is hereby GRANTED.  Accordingly,
the CIIF Companies, namely:

1. Southern Luzon Coconut Oil Mills (SOLCOM);

2. Cagayan de Oro Oil Co., Inc. (CAGOIL);
3. Iligan Coconut Industries, Inc. (ILICOCO);
4. San Pablo Manufacturing Corp. (SPMC);
5. Granexport Manufacturing Corp. (GRANEX); and
6. Legaspi Oil Co., Inc. (LEGOIL),

As well as the 14 Holding Companies, namely:

1. Soriano Shares, Inc.;

2. ACS Investors, Inc.;
 3. Roxas Shares, Inc.;
4. Arc Investors; Inc.;
5. Toda Holdings, Inc.;
6. AP Holdings, Inc.;
7. Fernandez Holdings, Inc.;
8. SMC Officers Corps, Inc.;
9. Te Deum Resources, Inc.;
10. Anglo Ventures, Inc.;
11. Randy Allied Ventures, Inc.;
12. Rock Steel Resources, Inc.;
13. Valhalla Properties Ltd., Inc.; and
14. First Meridian Development, Inc.

AND THE CIIF BLOCK OF SAN MIGUEL CORPORATION (SMC) SHARES OF

STOCK TOTALING 33,133,266 SHARES AS OF 1983 TOGETHER WITH ALL
DIVIDENDS DECLARED, PAID AND ISSUED THEREON AS WELL AS ANY
INCREMENTS THERETO ARISING FROM, BUT NOT LIMITED TO,
EXERCISE OF PRE-EMPTIVE RIGHTS ARE DECLARED OWNED BY THE
GOVERNMENT TO BE USED ONLY FOR THE BENEFIT OF ALL COCONUT
FARMERS AND FOR THE DEVELOPMENT OF THE COCONUT INDUSTRY,
AND ORDERED RECONVEYED TO THE GOVERNMENT.

The Court affirms the Resolutions issued by the Sandiganbayan on June 5, 2007 in
civil case no. 0033-A and ON May 11, 2007 in civil case No. 0033-F, that there is no
more necessity of further trial with respect to the issue of ownership of (1) the
sequestered UCPB shares, (2) the CIIF block of SMC shares, and (3) the CIIF
companies. as they have finally been ADJUDICATED in the AFOREMENTIONED
PARTIAL SUMMARY JUDGMENTS DATED jULY 11, 2003 AND mAY 7, 2004. 

SO ORDERED.

[ G.R. No. 151258, February 01, 2012 ]

ARTEMIO VILLAREAL, PETITIONER, VS. PEOPLE OF THE
PHILIPPINES, RESPONDENT.

[G.R. NO. 154954]

PEOPLE OF THE PHILIPPINES, PETITIONER, VS. THE HONORABLE

COURT OF APPEALS, ANTONIO MARIANO ALMEDA, DALMACIO LIM,
JR., JUNEL ANTHONY AMA, ERNESTO JOSE MONTECILLO, VINCENT
 TECSON, ANTONIO GENERAL, SANTIAGO RANADA III, NELSON
VICTORINO, JAIME MARIA FLORES II, ZOSIMO MENDOZA, MICHAEL
MUSNGI, VICENTE VERDADERO, ETIENNE GUERRERO, JUDE
FERNANDEZ, AMANTE PURISIMA II, EULOGIO SABBAN, PERCIVAL
BRIGOLA, PAUL ANGELO SANTOS, JONAS KARL B. PEREZ, RENATO
BANTUG, JR., ADEL ABAS, JOSEPH LLEDO, AND RONAN DE GUZMAN,
RESPONDENTS.

[G.R. NO. 155101]

FIDELITO DIZON, PETITIONER, VS. PEOPLE OF THE PHILIPPINES,

RESPONDENT.

[G.R. NOS. 178057 & 178080]

GERARDA H. VILLA, PETITIONER, VS. MANUEL LORENZO ESCALONA

II, MARCUS JOEL CAPELLAN RAMOS, CRISANTO CRUZ SARUCA, JR.,
AND ANSELMO ADRIANO, RESPONDENTS.

DECISION

SERENO, J.:

The public outrage over the death of Leonardo "Lenny" Villa - the victim in this case - on
10 February 1991 led to a very strong clamor to put an end to hazing.[1] Due in large part
to the brave efforts of his mother, petitioner Gerarda Villa, groups were organized,
condemning his senseless and tragic death. This widespread condemnation prompted
Congress to enact a special law, which became effective in 1995, that would criminalize
hazing.[2] The intent of the law was to discourage members from making hazing a
requirement for joining their sorority, fraternity, organization, or association.[3] Moreover,
the law was meant to counteract the exculpatory implications of "consent" and "initial
innocent act" in the conduct of initiation rites by making the mere act of hazing
punishable or mala prohibita.[4]

Sadly, the Lenny Villa tragedy did not discourage hazing activities in the country.[5] 
Within a year of his death, six more cases of hazing-related deaths emerged - those of
Frederick Cahiyang of the University of Visayas in Cebu; Raul Camaligan of San Beda
College; Felipe Narne of Pamantasan ng Araullo in Cabanatuan City; Dennis Cenedoza
of the Cavite Naval Training Center; Joselito Mangga of the Philippine Merchant Marine
Institute; and Joselito Hernandez of the University of the Philippines in Baguio City. [6]
Although courts must not remain indifferent to public sentiments, in this case the general
condemnation of a hazing-related death, they are still bound to observe a fundamental
principle in our criminal justice system - "[N]o act constitutes a crime... unless it is made
so by law."[7] Nullum crimen, nulla poena sine lege. Even if an act is viewed by a large
section of the populace as immoral or injurious, it cannot be considered a crime, absent
any law prohibiting its commission. As interpreters of the law, judges are called upon to
set aside emotion, to resist being swayed by strong public sentiments, and to rule strictly
based on the elements of the offense and the facts allowed in evidence.

Before the Court are the consolidated cases docketed as G.R. No. 151258 (Villareal v.
People), G.R. No. 154954 (People v. Court of Appeals), G.R. No. 155101 (Dizon v.
People), and G.R. Nos. 178057 and 178080 (Villa v. Escalona).

Facts

The pertinent facts, as determined by the Court of Appeals (CA)[8] and the trial court,
[9]
 are as follows:

In February 1991, seven freshmen law students of the Ateneo de Manila University
School of Law signified their intention to join the Aquila Legis Juris Fraternity (Aquila
Fraternity). They were Caesar "Bogs" Asuncion, Samuel "Sam" Belleza, Bienvenido
"Bien" Marquez III, Roberto Francis "Bert" Navera, Geronimo "Randy" Recinto, Felix
Sy, Jr., and Leonardo "Lenny" Villa (neophytes).

On the night of 8 February 1991, the neophytes were met by some members of the Aquila
Fraternity (Aquilans) at the lobby of the Ateneo Law School. They all proceeded to
Rufo's Restaurant to have dinner. Afterwards, they went to the house of Michael Musngi,
also an Aquilan, who briefed the neophytes on what to expect during the initiation rites.
The latter were informed that there would be physical beatings, and that they could quit at
any time. Their initiation rites were scheduled to last for three days. After their "briefing,"
they were brought to the Almeda Compound in Caloocan City for the commencement of
their initiation.

Even before the neophytes got off the van, they had already received threats and insults
from the Aquilans. As soon as the neophytes alighted from the van and walked towards
the pelota court of the Almeda compound, some of the Aquilans delivered physical blows
to them. The neophytes were then subjected to traditional forms of Aquilan "initiation
rites." These rites included the "Indian Run," which required the neophytes to run a
gauntlet of two parallel rows of Aquilans, each row delivering blows to the neophytes;
the "Bicol Express," which obliged the neophytes to sit on the floor with their backs
against the wall and their legs outstretched while the Aquilans walked, jumped, or ran
over their legs; the "Rounds," in which the neophytes were held at the back of their pants
by the "auxiliaries" (the Aquilans charged with the duty of lending assistance to
neophytes during initiation rites), while the latter were being hit with fist blows on their
arms or with knee blows on their thighs by two Aquilans; and the "Auxies' Privilege
Round," in which the auxiliaries were given the opportunity to inflict physical pain on the
neophytes. During this time, the neophytes were also indoctrinated with the fraternity
principles. They survived their first day of initiation.

On the morning of their second day - 9 February 1991 - the neophytes were made to
present comic plays and to play rough basketball. They were also required to memorize
and recite the Aquila Fraternity's principles. Whenever they would give a wrong answer,
they would be hit on their arms or legs. Late in the afternoon, the Aquilans revived the
initiation rites proper and proceeded to torment them physically and psychologically. The
neophytes were subjected to the same manner of hazing that they endured on the first day
of initiation. After a few hours, the initiation for the day officially ended.

After a while, accused non-resident or alumni fraternity members[10] Fidelito Dizon

(Dizon) and Artemio Villareal (Villareal) demanded that the rites be reopened. The head
of initiation rites, Nelson Victorino (Victorino), initially refused. Upon the insistence of
Dizon and Villareal, however, he reopened the initiation rites. The fraternity members,
including Dizon and Villareal, then subjected the neophytes to "paddling" and to
additional rounds of physical pain. Lenny received several paddle blows, one of which
was so strong it sent him sprawling to the ground. The neophytes heard him complaining
of intense pain and difficulty in breathing. After their last session of physical beatings,
Lenny could no longer walk. He had to be carried by the auxiliaries to the carport. Again,
the initiation for the day was officially ended, and the neophytes started eating dinner.
They then slept at the carport.

After an hour of sleep, the neophytes were suddenly roused by Lenny's shivering and
incoherent mumblings. Initially, Villareal and Dizon dismissed these rumblings, as they
thought he was just overacting. When they realized, though, that Lenny was really feeling
cold, some of the Aquilans started helping him. They removed his clothes and helped him
through a sleeping bag to keep him warm. When his condition worsened, the Aquilans
rushed him to the hospital. Lenny was pronounced dead on arrival.

Consequently, a criminal case for homicide was filed against the following 35 Aquilans:

In Criminal Case No. C-38340(91)

1. Fidelito Dizon (Dizon)

2. Artemio Villareal (Villareal)
3. Efren de Leon (De Leon)
4. Vincent Tecson (Tecson)
5. Junel Anthony Ama (Ama)
6. Antonio Mariano Almeda (Almeda)
 7. Renato Bantug, Jr. (Bantug)
8. Nelson Victorino (Victorino)
9. Eulogio Sabban (Sabban)
10. Joseph Lledo (Lledo)
11. Etienne Guerrero (Guerrero)
12. Michael Musngi (Musngi)
13. Jonas Karl Perez (Perez)
14. Paul Angelo Santos (Santos)
15. Ronan de Guzman (De Guzman)
16. Antonio General (General)
17. Jaime Maria Flores II (Flores)
18. Dalmacio Lim, Jr. (Lim)
19. Ernesto Jose Montecillo (Montecillo)
20. Santiago Ranada III (Ranada)
21. Zosimo Mendoza (Mendoza)
22. Vicente Verdadero (Verdadero)
23. Amante Purisima II (Purisima)
24. Jude Fernandez (J. Fernandez)
25. Adel Abas (Abas)
26. Percival Brigola (Brigola)

In Criminal Case No. C-38340

1. Manuel Escalona II (Escalona)

2. Crisanto Saruca, Jr. (Saruca)
3. Anselmo Adriano (Adriano)
4. Marcus Joel Ramos (Ramos)
5. Reynaldo Concepcion (Concepcion)
6. Florentino Ampil (Ampil)
7. Enrico de Vera III (De Vera)
8. Stanley Fernandez (S. Fernandez)
9. Noel Cabangon (Cabangon)

Twenty-six of the accused Aquilans in Criminal Case No. C-38340(91) were jointly tried.
[11]
 On the other hand, the trial against the remaining nine accused in Criminal Case No.
C-38340 was held in abeyance due to certain matters that had to be resolved first. [12]

On 8 November 1993, the trial court rendered judgment in Criminal Case No. C-

38340(91), holding the 26 accused guilty beyond reasonable doubt of the crime of
homicide, penalized with reclusion temporal under Article 249 of the Revised Penal
Code.[13] A few weeks after the trial court rendered its judgment, or on 29 November
1993, Criminal Case No. C-38340 against the remaining nine accused commenced anew.
[14]

On 10 January 2002, the CA in (CA-G.R. No. 15520)[15] set aside the finding of

conspiracy by the trial court in Criminal Case No. C-38340(91) and modified the
criminal liability of each of the accused according to individual participation.
Accused De Leon had by then passed away, so the following Decision applied only to the
remaining 25 accused, viz:

1. Nineteen of the accused-appellants - Victorino, Sabban, Lledo, Guerrero,

Musngi, Perez, De Guzman, Santos, General, Flores, Lim, Montecillo, Ranada,
Mendoza, Verdadero, Purisima, Fernandez, Abas, and Brigola (Victorino et al.) -
were acquitted, as their individual guilt was not established by proof beyond
reasonable doubt.

2. Four of the accused-appellants - Vincent Tecson, Junel Anthony Ama, Antonio

Mariano Almeda, and Renato Bantug, Jr. (Tecson et al.) - were found guilty of the
crime of slight physical injuries and sentenced to 20 days of arresto menor. They
were also ordered to jointly pay the heirs of the victim the sum of ?30,000 as
indemnity.

3. Two of the accused-appellants - Fidelito Dizon and Artemio Villareal - were

found guilty beyond reasonable doubt of the crime of homicide under Article 249
of the Revised Penal Code. Having found no mitigating or aggravating
circumstance, the CA sentenced them to an indeterminate sentence of 10 years
of prision mayor to 17 years of reclusion temporal. They were also ordered to
indemnify, jointly and severally, the heirs of Lenny Villa in the sum of P50,000
and to pay the additional amount of P1,000,000 by way of moral damages.

On 5 August 2002, the trial court in Criminal Case No. 38340 dismissed the charge
against accused Concepcion on the ground of violation of his right to speedy trial.
[16]
 Meanwhile, on different dates between the years 2003 and 2005, the trial court denied
the respective Motions to Dismiss of accused Escalona, Ramos, Saruca, and Adriano.
[17]
 On 25 October 2006, the CA in CA-G.R. SP Nos. 89060 & 90153[18] reversed the trial
court's Orders and dismissed the criminal case against Escalona, Ramos, Saruca, and
Adriano on the basis of violation of their right to speedy trial.[19]

From the aforementioned Decisions, the five (5) consolidated Petitions were individually
brought before this Court.

G.R. No. 151258 - Villareal v. People

The instant case refers to accused Villareal's Petition for Review on Certiorari under
Rule 45. The Petition raises two reversible errors allegedly committed by the CA in its
Decision dated 10 January 2002 in CA-G.R. No. 15520 - first, denial of due process; and,
second, conviction absent proof beyond reasonable doubt.[20]

While the Petition was pending before this Court, counsel for petitioner Villareal filed a
Notice of Death of Party on 10 August 2011. According to the Notice, petitioner Villareal
died on 13 March 2011. Counsel thus asserts that the subject matter of the Petition
previously filed by petitioner does not survive the death of the accused.

G.R. No. 155101 - Dizon v. People

Accused Dizon filed a Rule 45 Petition for Review on Certiorari, questioning the CA's
Decision dated 10 January 2002 and Resolution dated 30 August 2002 in CA-G.R. No.
15520.[21] Petitioner sets forth two main issues - first, that he was denied due process
when the CA sustained the trial court's forfeiture of his right to present evidence; and,
second, that he was deprived of due process when the CA did not apply to him the same
"ratio decidendi that served as basis of acquittal of the other accused."[22]

As regards the first issue, the trial court made a ruling, which forfeited Dizon's right to
present evidence during trial. The trial court expected Dizon to present evidence on an
earlier date since a co-accused, Antonio General, no longer presented separate evidence
during trial. According to Dizon, his right should not have been considered as waived
because he was justified in asking for a postponement. He argues that he did not ask for a
resetting of any of the hearing dates and in fact insisted that he was ready to present
evidence on the original pre-assigned schedule, and not on an earlier hearing date.

Regarding the second issue, petitioner contends that he should have likewise been
acquitted, like the other accused, since his acts were also part of the traditional initiation
rites and were not tainted by evil motives.[23] He claims that the additional paddling
session was part of the official activity of the fraternity. He also points out that one of the
neophytes admitted that the chairperson of the initiation rites "decided that [Lenny] was
fit enough to undergo the initiation so Mr. Villareal proceeded to do the
paddling...."[24] Further, petitioner echoes the argument of the Solicitor General that "the
individual blows inflicted by Dizon and Villareal could not have resulted in Lenny's
death."[25] The Solicitor General purportedly averred that, "on the contrary, Dr. Arizala
testified that the injuries suffered by Lenny could not be considered fatal if taken
individually, but if taken collectively, the result is the violent death of the victim." [26]

Petitioner then counters the finding of the CA that he was motivated by ill will. He claims
that Lenny's father could not have stolen the parking space of Dizon's father, since the
latter did not have a car, and their fathers did not work in the same place or office.
Revenge for the loss of the parking space was the alleged ill motive of Dizon. According
to petitioner, his utterances regarding a stolen parking space were only part of the
"psychological initiation." He then cites the testimony of Lenny's co-neophyte - witness
Marquez - who admitted knowing "it was not true and that he was just making it up...." [27]

Further, petitioner argues that his alleged motivation of ill will was negated by his show
of concern for Villa after the initiation rites. Dizon alludes to the testimony of one of the
neophytes, who mentioned that the former had kicked the leg of the neophyte and told
him to switch places with Lenny to prevent the latter's chills. When the chills did not
stop, Dizon, together with Victorino, helped Lenny through a sleeping bag and made him
sit on a chair. According to petitioner, his alleged ill motivation is contradicted by his
manifestation of compassion and concern for the victim's well-being.

G.R. No. 154954 - People v. Court of Appeals

This Petition for Certiorari under Rule 65 seeks the reversal of the CA's Decision dated
10 January 2002 and Resolution dated 30 August 2002 in CA-G.R. No. 15520, insofar as
it acquitted 19 (Victorino et al.) and convicted 4 (Tecson et al.) of the accused Aquilans
of the lesser crime of slight physical injuries.[28] According to the Solicitor General, the
CA erred in holding that there could have been no conspiracy to commit hazing, as
hazing or fraternity initiation had not yet been criminalized at the time Lenny died.

In the alternative, petitioner claims that the ruling of the trial court should have been
upheld, inasmuch as it found that there was conspiracy to inflict physical injuries on
Lenny. Since the injuries led to the victim's death, petitioner posits that the accused
Aquilans are criminally liable for the resulting crime of homicide, pursuant to Article 4 of
the Revised Penal Code.[29] The said article provides: "Criminal liability shall be
incurred... [b]y any person committing a felony (delito) although the wrongful act done
be different from that which he intended."

Petitioner also argues that the rule on double jeopardy is inapplicable. According to the
Solicitor General, the CA acted with grave abuse of discretion, amounting to lack or
excess of jurisdiction, in setting aside the trial court's finding of conspiracy and in ruling
that the criminal liability of
all the accused must be based on their individual participation in the commission of the
crime.

G.R. Nos. 178057 and 178080 - Villa v. Escalona

Petitioner Villa filed the instant Petition for Review on Certiorari, praying for the
reversal of the CA's Decision dated 25 October 2006 and Resolution dated 17 May 2007
in CA-G.R. S.P. Nos. 89060 and 90153.[30] The Petition involves the dismissal of the
criminal charge filed against Escalona, Ramos, Saruca, and Adriano.

Due to "several pending incidents," the trial court ordered a separate trial for accused
Escalona, Saruca, Adriano, Ramos, Ampil, Concepcion, De Vera, S. Fernandez, and
Cabangon (Criminal Case No. C-38340) to commence after proceedings against the 26
other accused in Criminal Case No. C-38340(91) shall have terminated. On 8 November
1993, the trial court found the 26 accused guilty beyond reasonable doubt. As a result, the
proceedings in Criminal Case No. C-38340 involving the nine other co-accused
recommenced on 29 November 1993. For "various reasons," the initial trial of the case
did not commence until 28 March 2005, or almost 12 years after the arraignment of the
nine accused.

Petitioner Villa assails the CA's dismissal of the criminal case involving 4 of the 9
accused, namely, Escalona, Ramos, Saruca, and Adriano. She argues that the accused
failed to assert their right to speedy trial within a reasonable period of time. She also
points out that the prosecution cannot be faulted for the delay, as the original records and
the required evidence were not at its disposal, but were still in the appellate court.

We resolve herein the various issues that we group into five.

ISSUES

1. Whether the forfeiture of petitioner Dizon's right to present evidence constitutes

denial of due process;

2. Whether the CA committed grave abuse of discretion, amounting to lack or excess

of jurisdiction when it dismissed the case against Escalona, Ramos, Saruca, and
Adriano for violation of the right of the accused to speedy trial;

3. Whether the CA committed grave abuse of discretion, amounting to lack or excess

of jurisdiction, when it set aside the finding of conspiracy by the trial court and
adjudicated the liability of each accused according to individual participation;

4. Whether accused Dizon is guilty of homicide; and

5. Whether the CA committed grave abuse of discretion when it pronounced Tecson,

Ama, Almeda, and Bantug guilty only of slight physical injuries.

DISCUSSION

Resolution on Preliminary Matters

G.R. No. 151258 - Villareal v. People

In a Notice dated 26 September 2011 and while the Petition was pending resolution, this
Court took note of counsel for petitioner's Notice of Death of Party.

According to Article 89(1) of the Revised Penal Code, criminal liability for personal
penalties is totally extinguished by the death of the convict. In contrast, criminal liability
for pecuniary penalties is extinguished if the offender dies prior to final judgment. The
term "personal penalties" refers to the service of personal or imprisonment penalties,
[31]
 while the term "pecuniary penalties" (las pecuniarias) refers to fines and costs,
[32]
 including civil liability predicated on the criminal offense complained of (i.e., civil
liability ex delicto).[33] However, civil liability based on a source of obligation other than
the delict survives the death of the accused and is recoverable through a separate civil
action.[34]

Thus, we hold that the death of petitioner Villareal extinguished his criminal liability for
both personal and pecuniary penalties, including his civil liability directly arising from
the delict complained of. Consequently, his Petition is hereby dismissed, and the criminal
case against him deemed closed and terminated.

G.R. No. 155101 (Dizon v. People)

In an Order dated 28 July 1993, the trial court set the dates for the reception of evidence
for accused-petitioner Dizon on the 8th, 15th, and 22nd of September; and the 5th and 12 of
October 1993.[35] The Order likewise stated that "it will not entertain any postponement
and that all the accused who have not yet presented their respective evidence should be
ready at all times down the line, with their evidence on all said dates. Failure on their part
to present evidence when required shall therefore be construed as waiver to present
evidence."[36]

However, on 19 August 1993, counsel for another accused manifested in open court that
his client - Antonio General - would no longer present separate evidence. Instead, the
counsel would adopt the testimonial evidence of the other accused who had already
testified.[37] Because of this development and pursuant to the trial court's Order that the
parties "should be ready at all times down the line," the trial court expected Dizon to
present evidence on the next trial date - 25 August 1993 - instead of his originally
assigned dates. The original dates were supposed to start two weeks later, or on 8
September 1993.[38] Counsel for accused Dizon was not able to present evidence on the
accelerated date. To address the situation, counsel filed a Constancia on 25 August 1993,
alleging that he had to appear in a previously scheduled case, and that he would be ready
to present evidence on the dates originally assigned to his clients.[39] The trial court denied
the Manifestation on the same date and treated the Constancia as a motion for
postponement, in violation of the three-day-notice rule under the Rules of Court.
[40]
 Consequently, the trial court ruled that the failure of Dizon to present evidence
amounted to a waiver of that right.[41]
Accused-petitioner Dizon thus argues that he was deprived of due process of law when
the trial court forfeited his right to present evidence. According to him, the postponement
of the 25 August 1993 hearing should have been considered justified, since his original
pre-assigned trial dates were not supposed to start until 8 September 1993, when he was
scheduled to present evidence. He posits that he was ready to present evidence on the
dates assigned to him. He also points out that he did not ask for a resetting of any of the
said hearing dates; that he in fact insisted on being allowed to present evidence on the
dates fixed by the trial court. Thus, he contends that the trial court erred in accelerating
the schedule of presentation of evidence, thereby invalidating the finding of his guilt.

The right of the accused to present evidence is guaranteed by no less than the
Constitution itself.[42] Article III, Section 14(2) thereof, provides that "in all criminal
prosecutions, the accused ... shall enjoy the right to be heard by himself and
counsel..." This constitutional right includes the right to present evidence in one's
defense,[43] as well as the right to be present and defend oneself in person at every stage of
the proceedings.[44]

In Crisostomo v. Sandiganbayan,[45] the Sandiganbayan set the hearing of the defense's

presentation of evidence for 21, 22 and 23 June 1995. The 21 June 1995 hearing was
cancelled due to "lack of quorum in the regular membership" of the Sandiganbayan's
Second Division and upon the agreement of the parties. The hearing was reset for the
next day, 22 June 1995, but Crisostomo and his counsel failed to attend. The
Sandiganbayan, on the very same day, issued an Order directing the issuance of a warrant
for the arrest of Crisostomo and the confiscation of his surety bond. The Order further
declared that he had waived his right to present evidence because of his nonappearance at
"yesterday's and today's scheduled hearings." In ruling against the Order, we held thus:

Under Section 2(c), Rule 114 and Section 1(c), Rule 115 of the Rules of
Court, Crisostomo's non-appearance during the 22 June 1995 trial was merely a
waiver of his right to be present for trial on such date only and not for the
succeeding trial dates...

x x x    x x x    x x x

Moreover, Crisostomo's absence on the 22 June 1995 hearing should not have been

deemed as a waiver of his right to present evidence. While constitutional rights may be
waived, such waiver must be clear and must be coupled with an actual intention to
relinquish the right. Crisostomo did not voluntarily waive in person or even through his
counsel the right to present evidence. The Sandiganbayan imposed the waiver due to the
agreement of the prosecution, Calingayan, and Calingayan's counsel.

In criminal cases where the imposable penalty may be death, as in the present case,
the court is called upon to see to it that the accused is personally made aware of the
consequences of a waiver of the right to present evidence. In fact, it is not enough
that the accused is simply warned of the consequences of another failure to attend
the succeeding hearings. The court must first explain to the accused personally in clear
terms the exact nature and consequences of a waiver. Crisostomo was not even
forewarned. The Sandiganbayan simply went ahead to deprive Crisostomo of his right to
present evidence without even allowing Crisostomo to explain his absence on the 22 June
1995 hearing.

Clearly, the waiver of the right to present evidence in a criminal case involving a

grave penalty is not assumed and taken lightly. The presence of the accused and his
counsel is indispensable so that the court could personally conduct a searching inquiry
into the waiver x x x.[46] (Emphasis supplied)

The trial court should not have deemed the failure of petitioner to present evidence on 25
August 1993 as a waiver of his right to present evidence. On the contrary, it should have
considered the excuse of counsel justified, especially since counsel for another accused -
General - had made a last-minute adoption of testimonial evidence that freed up the
succeeding trial dates; and since Dizon was not scheduled to testify until two weeks later.
At any rate, the trial court pre-assigned five hearing dates for the reception of evidence. If
it really wanted to impose its Order strictly, the most it could have done was to forfeit one
out of the five days set for Dizon's testimonial evidence. Stripping the accused of all his
pre-assigned trial dates constitutes a patent denial of the constitutionally guaranteed right
to due process.

Nevertheless, as in the case of an improvident guilty plea, an invalid waiver of the right
to present evidence and be heard does not per se work to vacate a finding of guilt in the
criminal case or to enforce an automatic remand of the case to the trial court. [47] In People
v. Bodoso, we ruled that where facts have adequately been represented in a criminal case,
and no procedural unfairness or irregularity has prejudiced either the prosecution or the
defense as a result of the invalid waiver, the rule is that a guilty verdict may nevertheless
be upheld if the judgment is supported beyond reasonable doubt by the evidence on
record.[48]

We do not see any material inadequacy in the relevant facts on record to resolve the case
at bar. Neither can we see any "procedural unfairness or irregularity" that would
substantially prejudice either the prosecution or the defense as a result of the invalid
waiver. In fact, the arguments set forth by accused Dizon in his Petition corroborate the
material facts relevant to decide the matter. Instead, what he is really contesting in his
Petition is the application of the law to the facts by the trial court and the CA. Petitioner
Dizon admits direct participation in the hazing of Lenny Villa by alleging in his Petition
that "all actions of the petitioner were part of the traditional rites," and that "the alleged
extension of the initiation rites was not outside the official activity of the
fraternity."[49] He even argues that "Dizon did not request for the extension and he
participated only after the activity was sanctioned."[50]

For one reason or another, the case has been passed or turned over from one judge or
justice to another - at the trial court, at the CA, and even at the Supreme Court.
Remanding the case for the reception of the evidence of petitioner Dizon would only
inflict further injustice on the parties. This case has been going on for almost two
decades. Its resolution is long overdue. Since the key facts necessary to decide the case
have already been determined, we shall proceed to decide it.

G.R. Nos. 178057 and 178080 (Villa v. Escalona)

Petitioner Villa argues that the case against Escalona, Ramos, Saruca, and Adriano
should not have been dismissed, since they failed to assert their right to speedy trial
within a reasonable period of time. She points out that the accused failed to raise a protest
during the dormancy of the criminal case against them, and that they asserted their right
only after the trial court had dismissed the case against their co-accused Concepcion.
Petitioner also emphasizes that the trial court denied the respective Motions to Dismiss
filed by Saruca, Escalona, Ramos, and Adriano, because it found that "the prosecution
could not be faulted for the delay in the movement of this case when the original records
and the evidence it may require were not at its disposal as these were in the Court of
Appeals."[51]

The right of the accused to a speedy trial has been enshrined in Sections 14(2) and 16,
Article III of the 1987 Constitution.[52] This right requires that there be a trial free from
vexatious, capricious or oppressive delays.[53] The right is deemed violated when the
proceeding is attended with unjustified postponements of trial, or when a long period of
time is allowed to elapse without the case being tried and for no cause or justifiable
motive.[54] In determining the right of the accused to speedy trial, courts should do more
than a mathematical computation of the number of postponements of the scheduled
hearings of the case.[55] The conduct of both the prosecution and the defense must be
weighed.[56] Also to be considered are factors such as the length of delay, the assertion or
non-assertion of the right, and the prejudice wrought upon the defendant.[57]

We have consistently ruled in a long line of cases that a dismissal of the case pursuant to
the right of the accused to speedy trial is tantamount to acquittal.[58] As a consequence, an
appeal or a reconsideration of the dismissal would amount to a violation of the principle
of double jeopardy.[59] As we have previously discussed, however, where the dismissal of
the case is capricious, certiorari lies.[60] The rule on double jeopardy is not triggered when
a petition challenges the validity of the order of dismissal instead of the correctness
thereof.[61] Rather, grave abuse of discretion amounts to lack of jurisdiction, and lack of
jurisdiction prevents double jeopardy from attaching.[62]
We do not see grave abuse of discretion in the CA's dismissal of the case against accused
Escalona, Ramos, Saruca, and Adriano on the basis of the violation of their right to
speedy trial. The court held thus:

An examination of the procedural history of this case would reveal that the following
factors contributed to the slow progress of the proceedings in the case below:

x x x    x x x    x x x

5)   The fact that the records of the case were elevated to the Court of Appeals and the
prosecution's failure to comply with the order of the court a quo requiring them to secure
certified true copies of the same.

x x x    x x x    x x x

While we are prepared to concede that some of the foregoing factors that contributed to
the delay of the trial of the petitioners are justifiable, We nonetheless hold that their right
to speedy trial has been utterly violated in this case x x x.

x x x    x x x    x x x    

[T]he absence of the records in the trial court [was] due to the fact that the records of
the case were elevated to the Court of Appeals, and the prosecution's failure to
comply with the order of the court a quo requiring it to secure certified true copies
of the same. What is glaring from the records is the fact that as early as September 21,
1995, the court a quo already issued an Order requiring the prosecution, through the
Department of Justice, to secure the complete records of the case from the Court of
Appeals. The prosecution did not comply with the said Order as in fact, the same
directive was repeated by the court a quo in an Order dated December 27, 1995. Still,
there was no compliance on the part of the prosecution. It is not stated when such order
was complied with. It appears, however, that even until August 5, 2002, the said
records were still not at the disposal of the trial court because the lack of it was made
the basis of the said court in granting the motion to dismiss filed by co-accused
Concepcion x x x.

x x x    x x x    x x x

It is likewise noticeable that from December 27, 1995, until August 5, 2002, or for a
period of almost seven years, there was no action at all on the part of the court a
quo. Except for the pleadings filed by both the prosecution and the petitioners, the
latest of which was on January 29, 1996, followed by petitioner Saruca's motion to set
case for trial on August 17, 1998 which the court did not act upon, the case remained
dormant for a considerable length of time. This prolonged inactivity whatsoever is
precisely the kind of delay that the constitution frowns upon x x x.[63] (Emphasis supplied)

This Court points out that on 10 January 1992, the final amended Information was filed
against Escalona, Ramos, Saruca, Ampil, S. Fernandez, Adriano, Cabangon, Concepcion,
and De Vera.[64] On 29 November 1993, they were all arraigned.[65] Unfortunately, the
initial trial of the case did not commence until 28 March 2005 or almost 12 years after
arraignment.[66]

As illustrated in our ruling in Abardo v. Sandiganbayan, the unexplained interval or

inactivity of the Sandiganbayan for close to five years since the arraignment of the
accused amounts to an unreasonable delay in the disposition of cases - a clear violation of
the right of the accused to a speedy disposition of cases.[67] Thus, we held:

The delay in this case measures up to the unreasonableness of the delay in the disposition
of cases in Angchangco, Jr. vs. Ombudsman, where the Court found the delay of six
years by the Ombudsman in resolving the criminal complaints to be violative of the
constitutionally guaranteed right to a speedy disposition of cases; similarly, in Roque
vs. Office of the Ombudsman, where the Court held that the delay of almost six years
disregarded the Ombudsman's duty to act promptly on complaints before him; and
in Cervantes vs. Sandiganbayan, where the Court held that the Sandiganbayan gravely
abused its discretion in not quashing the information which was filed six years after
the initiatory complaint was filed and thereby depriving petitioner of his right to a
speedy disposition of the case. So it must be in the instant case, where the
reinvestigation by the Ombudsman has dragged on for a decade already.
[68]
 (Emphasis supplied)

From the foregoing principles, we affirm the ruling of the CA in CA-G.R. SP No. 89060
that accused Escalona et al.'s right to speedy trial was violated. Since there is nothing in
the records that would show that the subject of this Petition includes accused Ampil, S.
Fernandez, Cabangon, and De Vera, the effects of this ruling shall be limited to accused
Escalona, Ramos, Saruca, and Adriano.

G.R. No. 154954 (People v. Court of Appeals)

The rule on double jeopardy is one of the pillars of our criminal justice system. It dictates
that when a person is charged with an offense, and the case is terminated - either by
acquittal or conviction or in any other manner without the consent of the accused - the
accused cannot again be charged with the same or an identical offense. [69] This principle
is founded upon the law of reason, justice and conscience.[70] It is embodied in the civil
law maxim non bis in idem found in the common law of England and undoubtedly in
every system of jurisprudence.[71] It found expression in the Spanish Law, in the
Constitution of the United States, and in our own Constitution as one of the fundamental
rights of the citizen,[72] viz:

Article III - Bill of Rights

Section 21. No person shall be twice put in jeopardy of punishment for the same offense.
If an act is punished by a law and an ordinance, conviction or acquittal under either shall
constitute a bar to another prosecution for the same act.

Rule 117, Section 7 of the Rules of Court, which implements this particular constitutional
right, provides as follows:[73]

SEC. 7. Former conviction or acquittal; double jeopardy. -- When an accused has been
convicted or acquitted, or the case against him dismissed or otherwise terminated without
his express consent by a court of competent jurisdiction, upon a valid complaint or
information or other formal charge sufficient in form and substance to sustain a
conviction and after the accused had pleaded to the charge, the conviction or acquittal of
the accused or the dismissal of the case shall be a bar to another prosecution for the
offense charged, or for any attempt to commit the same or frustration thereof, or for any
offense which necessarily includes or is necessarily included in the offense charged in the
former complaint or information.

The rule on double jeopardy thus prohibits the state from appealing the judgment in order
to reverse the acquittal or to increase the penalty imposed either through a regular appeal
under Rule 41 of the Rules of Court or through an appeal by certiorari on pure questions
of law under Rule 45 of the same Rules.[74] The requisites for invoking double jeopardy
are the following: (a) there is a valid complaint or information; (b) it is filed before a
competent court; (c) the defendant pleaded to the charge; and (d) the defendant was
acquitted or convicted, or the case against him or her was dismissed or otherwise
terminated without the defendant's express consent.[75]

As we have reiterated in People v. Court of Appeals and Galicia, "[a] verdict of acquittal
is immediately final and a reexamination of the merits of such acquittal, even in the
appellate courts, will put the accused in jeopardy for the same offense. The finality-of-
acquittal doctrine has several avowed purposes. Primarily, it prevents the State from
using its criminal processes as an instrument of harassment to wear out the accused by a
multitude of cases with accumulated trials. It also serves the additional purpose of
precluding the State, following an acquittal, from successively retrying the defendant in
the hope of securing a conviction. And finally, it prevents the State, following conviction,
from retrying the defendant again in the hope of securing a greater penalty."[76] We further
stressed that "an acquitted defendant is entitled to the right of repose as a direct
consequence of the finality of his acquittal."[77]
This prohibition, however, is not absolute. The state may challenge the lower court's
acquittal of the accused or the imposition of a lower penalty on the latter in the following
recognized exceptions: (1) where the prosecution is deprived of a fair opportunity to
prosecute and prove its case, tantamount to a deprivation of due process;[78] (2) where
there is a finding of mistrial;[79] or (3) where there has been a grave abuse of discretion.[80]

The third instance refers to this Court's judicial power under Rule 65 to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government.[81] Here, the
party asking for the review must show the presence of a whimsical or capricious exercise
of judgment equivalent to lack of jurisdiction; a patent and gross abuse of discretion
amounting to an evasion of a positive duty or to a virtual refusal to perform a duty
imposed by law or to act in contemplation of law; an exercise of power in an arbitrary
and despotic manner by reason of passion and hostility;[82] or a blatant abuse of authority
to a point so grave and so severe as to deprive the court of its very power to dispense
justice.[83] In such an event, the accused cannot be considered to be at risk of double
jeopardy.[84]

The Solicitor General filed a Rule 65 Petition for Certiorari, which seeks the reversal of
(1) the acquittal of Victorino et al. and (2) the conviction of Tecson et al. for the lesser
crime of slight physical injuries, both on the basis of a misappreciation of facts and
evidence. According to the Petition, "the decision of the Court of Appeals is not in
accordance with law because private complainant and petitioner were denied due process
of law when the public respondent completely ignored the a) Position Paper x x x b) the
Motion for Partial Reconsideration x x x and c) the petitioner's Comment x x
x."[85] Allegedly, the CA ignored evidence when it adopted the theory of individual
responsibility; set aside the finding of conspiracy by the trial court; and failed to apply
Article 4 of the Revised Penal Code.[86] The Solicitor General also assails the finding that
the physical blows were inflicted only by Dizon and Villareal, as well as the appreciation
of Lenny Villa's consent to hazing.[87]

In our view, what the Petition seeks is that we reexamine, reassess, and reweigh the
probative value of the evidence presented by the parties.[88] In People v. Maquiling, we
held that grave abuse of discretion cannot be attributed to a court simply because it
allegedly misappreciated the facts and the evidence.[89] Mere errors of judgment are
correctible by an appeal or a petition for review under Rule 45 of the Rules of Court, and
not by an application for a writ of certiorari.[90] Therefore, pursuant to the rule on double
jeopardy, we are constrained to deny the Petition contra Victorino et al. - the 19 acquitted
fraternity members.

We, however, modify the assailed judgment as regards Tecson, Ama, Almeda, and
Bantug - the four fraternity members convicted of slight physical injuries.
Indeed, we have ruled in a line of cases that the rule on double jeopardy similarly applies
when the state seeks the imposition of a higher penalty against the accused. [91] We have
also recognized, however, that certiorari may be used to correct an abusive judgment
upon a clear demonstration that the lower court blatantly abused its authority to a point so
grave as to deprive it of its very power to dispense justice.[92] The present case is one of
those instances of grave abuse of discretion.

In imposing the penalty of slight physical injuries on Tecson, Ama, Almeda, and Bantug,
the CA reasoned thus:

Based on the medical findings, it would appear that with the exclusion of the fatal
wounds inflicted by the accused Dizon and Villareal, the injuries sustained by the
victim as a result of the physical punishment heaped on him were serious in nature.
However, by reason of the death of the victim, there can be no precise means to
determine the duration of the incapacity or the medical attendance required. To do
so, at this stage would be merely speculative. In a prosecution for this crime where the
category of the offense and the severity of the penalty depend on the period of illness or
incapacity for labor, the length of this period must likewise be proved beyond reasonable
doubt in much the same manner as the same act charged [People v. Codilla, CA-G.R. No.
4079-R, June 26, 1950]. And when proof of the said period is absent, the crime
committed should be deemed only as slight physical injuries [People v. De los Santos,
CA, 59 O.G. 4393, citing People v. Penesa, 81 Phil. 398]. As such, this Court is
constrained to rule that the injuries inflicted by the appellants, Tecson, Ama, Almeda and
Bantug, Jr., are only slight and not serious, in nature.[93] (Emphasis supplied and citations
included)

The appellate court relied on our ruling in People v. Penesa[94] in finding that the four
accused should be held guilty only of slight physical injuries. According to the CA,
because of "the death of the victim, there can be no precise means to determine the
duration of the incapacity or medical attendance required."[95] The reliance on Penesa was
utterly misplaced. A review of that case would reveal that the accused therein was guilty
merely of slight physical injuries, because the victim's injuries neither caused incapacity
for labor nor required medical attendance.[96] Furthermore, he did not die.[97] His injuries
were not even serious.[98] Since Penesa involved a case in which the victim allegedly
suffered physical injuries and not death, the ruling cited by the CA was patently
inapplicable.

On the contrary, the CA's ultimate conclusion that Tecson, Ama, Almeda, and Bantug
were liable merely for slight physical injuries grossly contradicts its own findings of fact.
According to the court, the four accused "were found to have inflicted more than the
usual punishment undertaken during such initiation rites on the person of Villa."[99] It
then adopted the NBI medico-legal officer's findings that the antecedent cause of Lenny
Villa's death was the "multiple traumatic injuries" he suffered from the initiation rites.
[100]
 Considering that the CA found that the "physical punishment heaped on [Lenny
Villa was] serious in nature,"[101] it was patently erroneous for the court to limit the
criminal liability to slight physical injuries, which is a light felony.

Article 4(1) of the Revised Penal Code dictates that the perpetrator shall be liable for the
consequences of an act, even if its result is different from that intended. Thus, once a
person is found to have committed an initial felonious act, such as the unlawful infliction
of physical injuries that results in the death of the victim, courts are required to
automatically apply the legal framework governing the destruction of life. This rule is
mandatory, and not subject to discretion.

The CA's application of the legal framework governing physical injuries - punished under
Articles 262 to 266 for intentional felonies and Article 365 for culpable felonies - is
therefore tantamount to a whimsical, capricious, and abusive exercise of judgment
amounting to lack of jurisdiction. According to the Revised Penal Code, the mandatory
and legally imposable penalty in case the victim dies should be based on the framework
governing the destruction of the life of a person, punished under Articles 246 to 261 for
intentional felonies and Article 365 for culpable felonies, and not under the
aforementioned provisions. We emphasize that these two types of felonies are distinct
from and legally inconsistent with each other, in that the accused cannot be held
criminally liable for physical injuries when actual death occurs.[102]

Attributing criminal liability solely to Villareal and Dizon - as if only their acts, in and of
themselves, caused the death of Lenny Villa - is contrary to the CA's own findings. From
proof that the death of the victim was the cumulative effect of the multiple injuries he
suffered,[103]  the only logical conclusion is that criminal responsibility should redound to
all those who have been proven to have directly participated in the infliction of physical
injuries on Lenny. The accumulation of bruising on his body caused him to suffer cardiac
arrest. Accordingly, we find that the CA committed grave abuse of discretion amounting
to lack or excess of jurisdiction in finding Tecson, Ama, Almeda, and Bantug criminally
liable for slight physical injuries. As an allowable exception to the rule on double
jeopardy, we therefore give due course to the Petition in G.R. No. 154954.

Resolution on Ultimate Findings

According to the trial court, although hazing was not (at the time) punishable as a crime,
the intentional infliction of physical injuries on Villa was nonetheless a felonious act
under Articles 263 to 266 of the Revised Penal Code. Thus, in ruling against the accused,
the court a quo found that pursuant to Article 4(1) of the Revised Penal Code, the
accused fraternity members were guilty of homicide, as it was the direct, natural and
logical consequence of the physical injuries they had intentionally inflicted.[104]

The CA modified the trial court's finding of criminal liability. It ruled that there could
have been no conspiracy since the neophytes, including Lenny Villa, had knowingly
consented to the conduct of hazing during their initiation rites. The accused fraternity
members, therefore, were liable only for the consequences of their individual acts.
Accordingly, 19 of the accused - Victorino et al. - were acquitted; 4 of them - Tecson et
al. - were found guilty of slight physical injuries; and the remaining 2 - Dizon and
Villareal - were found guilty of homicide.

The issue at hand does not concern a typical criminal case wherein the perpetrator clearly
commits a felony in order to take revenge upon, to gain advantage over, to harm
maliciously, or to get even with, the victim. Rather, the case involves an ex ante situation
in which a man - driven by his own desire to join a society of men - pledged to go
through physically and psychologically strenuous admission rituals, just so he could enter
the fraternity. Thus, in order to understand how our criminal laws apply to such situation
absent the Anti-Hazing Law, we deem it necessary to make a brief exposition on the
underlying concepts shaping intentional felonies, as well as on the nature of physical and
psychological initiations widely known as hazing.

Intentional Felony and Conspiracy

Our Revised Penal Code belongs to the classical school of thought.[105] The classical
theory posits that a human person is essentially a moral creature with an absolute free
will to choose between good and evil.[106] It asserts that one should only be adjudged or
held accountable for wrongful acts so long as free will appears unimpaired. [107] The basic
postulate of the classical penal system is that humans are rational and calculating beings
who guide their actions with reference to the principles of pleasure and pain. [108] They
refrain from criminal acts if threatened with punishment sufficient to cancel the hope of
possible gain or advantage in committing the crime.[109] Here, criminal liability is thus
based on the free will and moral blame of the actor.[110]  The identity of mens rea -
defined as a guilty mind, a guilty or wrongful purpose or criminal intent - is the
predominant consideration.[111] Thus, it is not enough to do what the law prohibits.[112] In
order for an intentional felony to exist, it is necessary that the act be committed by means
of dolo or "malice."[113]

The term "dolo" or "malice" is a complex idea involving the elements

of freedom, intelligence, and intent.[114] The first element, freedom, refers to an act done
with deliberation and with power to choose between two things.[115] The second
element, intelligence, concerns the ability to determine the morality of human acts, as
well as the capacity to distinguish between a licit and an illicit act. [116] The last
element, intent, involves an aim or a determination to do a certain act.[117]

The element of intent - on which this Court shall focus - is described as the state of mind
accompanying an act, especially a forbidden act.[118] It refers to the purpose of the mind
and the resolve with which a person proceeds.[119] It does not refer to mere will, for the
latter pertains to the act, while intent concerns the result of the act.[120] While motive is the
"moving power" that impels one to action for a definite result, intent is the "purpose" of
using a particular means to produce the result.[121] On the other hand, the term "felonious"
means, inter alia, malicious, villainous, and/or proceeding from an evil heart or purpose.
[122]
 With these elements taken together, the requirement of intent in intentional felony
must refer to malicious intent, which is a vicious and malevolent state of mind
accompanying a forbidden act. Stated otherwise, intentional felony requires the existence
of dolus malus - that the act or omission be done "willfully," "maliciously," "with
deliberate evil intent," and "with malice aforethought."[123] The maxim is actus non facit
reum, nisi mens sit rea - a crime is not committed if the mind of the person performing
the act complained of is innocent.[124] As is required of the other elements of a felony, the
existence of malicious intent must be proven beyond reasonable doubt.[125]

In turn, the existence of malicious intent is necessary in order for conspiracy to attach.
Article 8 of the Revised Penal Code - which provides that "conspiracy exists when two or
more persons come to an agreement concerning the commission of a felony and decide
to commit it" - is to be interpreted to refer only to felonies committed by means of dolo or
malice. The phrase "coming to an agreement" connotes the existence of a prefaced
"intent" to cause injury to another, an element present only in intentional felonies.  In
culpable felonies or criminal negligence, the injury inflicted on another is unintentional,
the wrong done being simply the result of an act performed without malice or criminal
design.[126] Here, a person performs an initial lawful deed; however, due to negligence,
imprudence, lack of foresight, or lack of skill, the deed results in a wrongful act.
[127]
 Verily, a deliberate intent to do an unlawful act, which is a requisite in conspiracy, is
inconsistent with the idea of a felony committed by means of culpa.[128]

The presence of an initial malicious intent to commit a felony is thus a vital ingredient in

establishing the commission of the intentional felony of homicide.[129] Being mala in se,
the felony of homicide requires the existence of malice or dolo[130] immediately before or
simultaneously with the infliction of injuries.[131] Intent to kill - or animus interficendi -
cannot and should not be inferred, unless there is proof beyond reasonable doubt of such
intent.[132] Furthermore, the victim's death must not have been the product of accident,
natural cause, or suicide.[133] If death resulted from an act executed without malice or
criminal intent - but with lack of foresight, carelessness, or negligence - the act must be
qualified as reckless or simple negligence or imprudence resulting in homicide. [134]

Hazing and other forms of initiation rites

The notion of hazing is not a recent development in our society.[135] It is said that,
throughout history, hazing in some form or another has been associated with
organizations ranging from military groups to indigenous tribes.[136] Some say that
elements of hazing can be traced back to the Middle Ages, during which new students
who enrolled in European universities worked as servants for upperclassmen. [137] It is
believed that the concept of hazing is rooted in ancient Greece,[138] where young men
recruited into the military were tested with pain or challenged to demonstrate the limits of
their loyalty and to prepare the recruits for battle.[139] Modern fraternities and sororities
espouse some connection to these values of ancient Greek civilization. [140] According to a
scholar, this concept lends historical legitimacy to a "tradition" or "ritual" whereby
prospective members are asked to prove their worthiness and loyalty to the organization
in which they seek to attain membership through hazing.[141]

Thus, it is said that in the Greek fraternity system, custom requires a student wishing to
join an organization to receive an invitation in order to be a neophyte for a particular
chapter.[142] The neophyte period is usually one to two semesters long.[143] During the
"program," neophytes are required to interview and to get to know the active members of
the chapter; to learn chapter history; to understand the principles of the organization; to
maintain a specified grade point average; to participate in the organization's activities;
and to show dignity and respect for their fellow neophytes, the organization, and its
active and alumni members.[144] Some chapters require the initiation activities for a recruit
to involve hazing acts during the entire neophyte stage.[145]

Hazing, as commonly understood, involves an initiation rite or ritual that serves as

prerequisite for admission to an organization.[146] In hazing, the "recruit," "pledge,"
"neophyte," "initiate," "applicant" - or any other term by which the organization may
refer to such a person - is generally placed in embarrassing or humiliating situations, like
being forced to do menial, silly, foolish, or other similar tasks or activities.[147] It
encompasses different forms of conduct that humiliate, degrade, abuse, or physically
endanger those who desire membership in the organization.[148] These acts usually involve
physical or psychological suffering or injury.[149]

The concept of initiation rites in the country is nothing new. In fact, more than a century
ago, our national hero - Andres Bonifacio - organized a secret society
named Kataastaasan Kagalanggalangang Katipunan ng mga Anak ng Bayan (The
Highest and Most Venerable Association of the Sons and Daughters of the Nation).
[150]
 The Katipunan, or KKK, started as a small confraternity believed to be inspired by
European Freemasonry, as well as by confraternities or sodalities approved by the
Catholic Church.[151] The Katipunan's ideology was brought home to each member
through the society's initiation ritual.[152] It is said that initiates were brought to  a dark
room, lit by a single point of illumination, and were asked a series of
questions to determine their fitness, loyalty, courage, and resolve. [153]  They were made to
go through vigorous trials such as "pagsuot sa isang lungga" or "[pagtalon] sa
balon." [154]  It would seem that they were also made to withstand the blow of
"pangherong bakal sa pisngi" and to endure a "matalas na punyal." [155]  As a final step in
the ritual, the neophyte Katipunero was made to sign membership papers with the his
own blood. [156]   
It is believed that the Greek fraternity system was transported by the Americans to the
Philippines in the late 19th century. As can be seen in the following instances, the manner
of hazing in the United States was jarringly similar to that inflicted by the Aquila
Fraternity on Lenny Villa.

Early in 1865, upperclassmen at West Point Academy forced the fourth classmen to do
exhausting physical exercises that sometimes resulted in permanent physical damage; to
eat or drink unpalatable foods; and in various ways to humiliate themselves. [157] In 1901,
General Douglas MacArthur got involved in a congressional investigation of hazing at
the academy during his second year at West Point.[158]

In Easler v. Hejaz Temple of Greenville, decided in 1985, the candidate-victim was

injured during the shriner's hazing event, which was part of the initiation ceremonies for
Hejaz membership.[159] The ritual involved what was known as the "mattress-rotating
barrel trick."[160] It required each candidate to slide down an eight to nine-foot-high metal 
board onto connected mattresses leading to a barrel, over which the candidate was
required to climb.[161] Members of Hejaz would stand on each side of the mattresses and
barrel and fun-paddle candidates en route to the barrel.[162]

In a video footage taken in 1991, U.S. Marine paratroopers in Camp Lejeune, North
Carolina, were seen performing a ceremony in which they pinned paratrooper jump
wings directly onto the neophyte paratroopers' chests.[163] The victims were shown
writhing and crying out in pain as others pounded the spiked medals through the shirts
and into the chests of the victims.[164]

In State v. Allen, decided in 1995, the Southeast Missouri State University chapter of
Kappa Alpha Psi invited male students to enter into a pledgeship program.[165] The
fraternity members subjected the pledges to repeated physical abuse including repeated,
open-hand strikes at the nape, the chest, and the back; caning of the bare soles of the feet
and buttocks; blows to the back with the use of a heavy book and a cookie sheet while the
pledges were on their hands and knees; various kicks and punches to the body; and "body
slamming," an activity in which active members of the fraternity lifted pledges up in the
air and dropped them to the ground.[166] The fraternity members then put the pledges
through a seven-station circle of physical abuse.[167]

In Ex Parte Barran, decided in 1998, the pledge-victim went through hazing by fraternity
members of the Kappa Alpha Order at the Auburn University in Alabama. [168] The hazing
included the following: (1) having to dig a ditch and jump into it after it had been filled
with water, urine, feces, dinner leftovers, and vomit; (2) receiving paddlings on the
buttocks; (3) being pushed and kicked, often onto walls or into pits and trash cans; (4)
eating foods like peppers, hot sauce, butter, and "yerks" (a mixture of hot sauce,
mayonnaise, butter, beans, and other items); (5) doing chores for the fraternity and its
members, such as cleaning the fraternity house and yard, being designated as driver, and
running errands; (6) appearing regularly at 2 a.m. "meetings," during which the pledges
would be hazed for a couple of hours; and (7) "running the gauntlet," during which the
pledges were pushed, kicked, and hit as they ran down a hallway and descended down a
flight of stairs.[169]

In Lloyd v. Alpha Phi Alpha Fraternity, decided in 1999, the victim - Sylvester Lloyd -
was accepted to pledge at the Cornell University chapter of the Alpha Phi Alpha
Fraternity.[170] He participated in initiation activities, which included various forms of
physical beatings and torture, psychological coercion and embarrassment.[171]

In Kenner v. Kappa Alpha Psi Fraternity, decided in 2002, the initiate-victim suffered
injuries from hazing activities during the fraternity's initiation rites.[172] Kenner and the
other initiates went through psychological and physical hazing, including being paddled
on the buttocks for more than 200 times.[173]

In Morton v. State, Marcus Jones - a university student in Florida - sought initiation into
the campus chapter of the Kappa Alpha Psi Fraternity during the 2005-06 academic year.
[174]
 The pledge's efforts to join the fraternity culminated in a series of initiation rituals
conducted in four nights. Jones, together with other candidates, was blindfolded, verbally
harassed, and caned on his face and buttocks.[175] In these rituals described as
"preliminaries," which lasted for two evenings, he received approximately 60 canings on
his buttocks.[176] During the last two days of the hazing, the rituals intensified.[177] The
pledges sustained roughly 210 cane strikes during the four-night initiation.[178] Jones and
several other candidates passed out.[179]

The purported raison d'être behind hazing practices is the proverbial "birth by fire,"

through which the pledge who has successfully withstood the hazing proves his or her
worth.[180] Some organizations even believe that hazing is the path to enlightenment. It is
said that this process enables the organization to establish unity among the pledges and,
hence, reinforces and ensures the future of the organization.[181] Alleged benefits of
joining include leadership opportunities; improved academic performance; higher self-
esteem; professional networking opportunities; and the esprit d'corp associated with
close, almost filial, friendship and common cause.[182]

Anti-Hazing laws in the U.S.

The first hazing statute in the U.S. appeared in 1874 in response to hazing in the military.
[183]
 The hazing of recruits and plebes in the armed services was so prevalent that
Congress prohibited all forms of military hazing, harmful or not.[184] It was not until 1901
that Illinois passed the first state anti-hazing law, criminalizing conduct "whereby any
one sustains an injury to his [or her] person therefrom."[185]

However, it was not until the 1980s and 1990s, due in large part to the efforts of
the Committee to Halt Useless College Killings and other similar organizations, that
states increasingly began to enact legislation prohibiting and/or criminalizing hazing.
[186]
 As of 2008, all but six states had enacted criminal or civil statutes proscribing hazing.
[187]
 Most anti-hazing laws in the U.S. treat hazing as a misdemeanor and carry relatively
light consequences for even the most severe situations.[188] Only a few states with anti-
hazing laws consider hazing as a felony in case death or great bodily harm occurs. [189]

Under the laws of Illinois, hazing is a Class A misdemeanor, except hazing that results in
death or great bodily harm, which is a Class 4 felony.[190] In a Class 4 felony, a sentence
of imprisonment shall be for a term of not less than one year and not more than three
years.[191] Indiana criminal law provides that a person who recklessly, knowingly, or
intentionally
performs hazing that results in serious bodily injury to a person commits criminal
recklessness, a Class D felony.[192]

The offense becomes a Class C felony if committed by means of a deadly weapon. [193] As
an element of a Class C felony - criminal recklessness - resulting in serious bodily injury,
death falls under the category of "serious bodily injury."[194] A person who commits a
Class C felony is imprisoned for a fixed term of between two (2) and eight (8) years, with
the advisory sentence being four (4) years.[195] Pursuant to Missouri law, hazing is a Class
A misdemeanor, unless the act creates a substantial risk to the life of the student or
prospective member, in which case it becomes a Class C felony. [196] A Class C felony
provides for an imprisonment term not to exceed seven years.[197]

In Texas, hazing that causes the death of another is a state jail felony. [198] An individual
adjudged guilty of a state jail felony is punished by confinement in a state jail for any
term of not more than two years or not less than 180 days.[199] Under Utah law, if hazing
results in serious bodily injury, the hazer is guilty of a third-degree felony.[200] A person
who has been convicted of a third-degree felony may be sentenced to imprisonment for a
term not to exceed five years.[201] West Virginia law provides that if the act of hazing
would otherwise be deemed a felony, the hazer may be found guilty thereof and subject
to penalties provided therefor.[202] In Wisconsin, a person is guilty of a Class G felony if
hazing results in the death of another.[203] A
Class G felony carries a fine not to exceed $25,000 or imprisonment not to exceed 10
years, or both.[204]

In certain states in the U.S., victims of hazing were left with limited remedies, as there
was no hazing statute.[205] This situation was exemplified in Ballou v. Sigma Nu General
Fraternity, wherein Barry Ballou's family resorted to a civil action for wrongful death,
since there was no anti-hazing statute in South Carolina until 1994.[206]

The existence of animus interficendi or intent

to kill not proven beyond reasonable doubt
The presence of an ex ante situation - in this case, fraternity initiation rites - does not
automatically amount to the absence of malicious intent or dolus malus. If it is proven
beyond reasonable doubt that the perpetrators were equipped with a guilty mind -
whether or not there is a contextual background or factual premise - they are still
criminally liable for intentional felony.

The trial court, the CA, and the Solicitor General are all in agreement that - with the
exception of Villareal and Dizon - accused Tecson, Ama, Almeda, and Bantug did not
have the animus interficendi or intent to kill Lenny Villa or the other neophytes. We shall
no longer disturb this finding.

As regards Villareal and Dizon, the CA modified the Decision of the trial court and found
that the two accused had the animus interficendi or intent to kill Lenny Villa, not merely
to inflict physical injuries on him. It justified its finding of homicide against Dizon by
holding that he had apparently been motivated by ill will while beating up Villa. Dizon
kept repeating that his father's parking space had been stolen by the victim's father. [207] As
to Villareal, the court said that the accused suspected the family of Bienvenido Marquez,
one of the neophytes, to have had a hand in the death of Villareal's brother. [208] The CA
then ruled as follows:

The two had their own axes to grind against Villa and Marquez. It was very clear that
they acted with evil and criminal intent. The evidence on this matter is unrebutted and so
for the death of Villa, appellants Dizon and Villareal must and should face the
consequence of their acts, that is, to be held liable for the crime of homicide.
[209]
 (Emphasis supplied)

We cannot subscribe to this conclusion.

The appellate court relied mainly on the testimony of Bienvenido Marquez to determine
the existence of animus interficendi. For a full appreciation of the context in which the
supposed utterances were made, the Court deems it necessary to reproduce the relevant
portions of witness Marquez's testimony:

Witness We were brought up into [Michael Musngi's] room and we were briefed as to what
to expect during the next three days and we were told the members of the
fraternity and their batch and we were also told about the fraternity song, sir.
xxxxxxxxx
Witness We were escorted out of [Michael Musngi's] house and we were made to ride a
van and we were brought to another place in Kalookan City which I later found to
be the place of Mariano Almeda, sir.
xxxxxxxxx
Witness Upon arrival, we were instructed to bow our head down and to link our arms and
then the driver of the van and other members of the Aquilans who were inside left
 us inside the van, sir.
xxxxxxxxx
Witness We heard voices shouted outside the van to the effect, "Villa akin ka,"
"Asuncion Patay ka" and the people outside pound the van, rock the van, sir.
Atty. Tadiar Will you please recall in what tone of voice and how strong a voice these remarks
uttered upon your arrival?
Witness Some were almost shouting, you could feel the sense of excitement in their voices,
sir.
xxxxxxxxx
Atty. Tadiar During all these times that the van was being rocked through and through, what
were the voices or utterances that you heard?
Witness "Villa akin ka," "Asuncion patay ka," "Recinto patay ka sa amin," etc., sir.
Atty. Tadiar And those utterances and threats, how long did they continue during the rocking
of the van which lasted for 5 minutes?
xxxxxxxxx
Witness Even after they rocked the van, we still kept on hearing voices, sir.
xxxxxxxxx
Atty. Tadiar During the time that this rounds [of physical beating] were being inflicted, was
there any utterances by anybody?
Witness Yes sir. Some were piercing, some were discouraging, and some were
encouraging others who were pounding and beating us, it was just like a
fiesta atmosphere, actually some of them enjoyed looking us being pounded, sir.
Atty. Tadiar Do you recall what were those voices that you heard?
Witness One particular utterance always said was, they asked us whether "matigas pa yan,
kayang-kaya pa niyan."
Atty. Tadiar Do you know who in particular uttered those particular words that you quote?
Witness I cannot particularly point to because there were utterances simultaneously, I
could not really pin point who uttered those words, sir.
xxxxxxxxx
Atty. Tadiar Were there any utterances that you heard during the conduct of this Bicol
Express?
Witness Yes, sir I heard utterances.
Atty. Tadiar Will you please recall to this Honorable Court what were the utterances that you
remember?
Witness For example, one person particularly Boyet Dizon stepped on my thigh, he
would say that and I quote "ito, yung pamilya nito ay pinapatay yung
kapatid ko," so that would in turn sort of justifying him in inflicting more serious
pain on me. So instead of just walking, he would jump on my thighs and
then after on was Lenny Villa. He was saying to the effect that "this guy, his
father stole the parking space of my father," sir. So, that's why he inflicted
more pain on Villa and that went on, sir.
Atty. Tadiar And you were referring to which particular accused?
Witness Boyet Dizon, sir.
Atty. Tadiar When Boyet Dizon at that particular time was accusing you of having your family
have his brother killed, what was your response?
Witness Of course, I knew sir that it was not true and that he was just making it up
 sir. So he said that I knew nothing of that incident. However, he just in fact after
the Bicol Express, he kept on uttering those words/statements so that it would in
turn justify him and to give me harder blows, sir.
xxxxxxxxx
Atty. Tadiar You mentioned about Dizon in particular mentioning that Lenny Villa's
father stole the parking space allotted for his father, do you recall who were
within hearing distance when that utterance was made?
Witness Yes, sir. All of the neophytes heard that utterance, sir.
xxxxxxxxx
Witness There were different times made this accusation so there were different people
who heard from time to time, sir.
xxxxxxxxx
Atty. Tadiar Can you tell the Honorable Court when was the next accusation against Lenny
Villa's father was made?
Witness When we were line up against the wall, Boyet Dizon came near to us and when
Lenny Villa's turn, I heard him uttered those statements, sir.
Atty. Tadiar What happened after he made this accusation to Lenny Villa's father?
Witness He continued to inflict blows on Lenny Villa.
Atty. Tadiar How were those blows inflicted?
Witness There were slaps and he knelt on Lenny Villa's thighs and sometime he stand up
and he kicked his thighs and sometimes jumped at it, sir.
xxxxxxxxx
Atty. Tadiar We would go on to the second day but not right now. You mentioned also
that accusations made by Dizon "you or your family had his brother killed,"
can you inform this Honorable Court what exactly were the accusations that
were charged against you while inflicting blows upon you in particular?
Witness While he was inflicting blows upon me, he told me in particular if I knew that his
family who had his brother killed, and he said that his brother was an NPA, sir
so I knew that it was just a story that he made up and I said that I knew
nothing about it and he continued inflicting blows on me, sir. And another
incident was when a talk was being given, Dizon was on another part of the pelota
court and I was sort of looking and we saw that he was drinking beer, and he said
and I quote: "Marquez, Marquez, ano ang tinitingin-tingin mo diyan, ikaw
yung pamilya mo ang nagpapatay sa aking kapatid, yari ka sa akin," sir.
Atty. Tadiar What else?
Witness That's all, sir.
Atty. Tadiar And on that first night of February 8, 1991, did ever a doctor or a physician came
around as promised to you earlier?
Witness No, sir.[210] (Emphasis supplied)

On cross-examination, witness Bienvenido Marquez testified thus:

Judge When you testified on direct examination Mr. Marquez, have you stated that there
Purisima was a briefing that was conducted immediately before your initiation as regards to
what to expect during the initiation, did I hear you right?
Witness Yes, sir.
Judge Who did the briefing?
Purisima
Witness Mr. Michael Musngi, sir and Nelson Victorino.
Judge Will you kindly tell the Honorable Court what they told you to expect during the
Purisima initiation?
Witness They told us at the time we would be brought to a particular place, we would be
mocked at, sir.
Judge So, you expected to be mocked at, ridiculed, humiliated etc., and the likes?
Purisima
Witness Yes, sir.
Judge You were also told beforehand that there would be physical contact?
Purisima
Witness Yes, sir at the briefing.
xxxxxxxxx
Witness Yes, sir, because they informed that we could immediately go back to school. All
the bruises would be limited to our arms and legs, sir. So, if we wear the regular
school uniforms like long sleeves, it would be covered actually so we have no
thinking that our face would be slapped, sir.
Judge So, you mean to say that beforehand that you would have bruises on your body
Purisima but that will be covered?
Witness Yes, sir.
JudgePurisim So, what kind of physical contact or implements that you expect that would create
a bruises to your body?
Witness At that point I am already sure that there would be hitting by a paddling or paddle,
sir.
xxxxxxxxx
Judge Now, will you admit Mr. Marquez that much of the initiation procedures is
Purisima psychological in nature?
Witness Combination, sir.[211] (Emphasis supplied)
xxxxxxxxx
Atty. Jimenez The initiation that was conducted did not consist only of physical initiation,
meaning body contact, is that correct?
Witness Yes, sir.
Atty. Jimenez Part of the initiation was the so-called psychological initiation, correct?
Witness Yes, sir.
Atty. Jimenez And this consisted of making you believe of things calculated to terrify you,
scare you, correct?
Witness Yes, sir.
Atty. Jimenez In other words, the initiating masters made belief situation intended to, I
repeat, terrify you, frighten you, scare you into perhaps quitting the
initiation, is this correct?
Witness Sometimes sir, yes.
Atty. Jimenez You said on direct that while Mr. Dizon was initiating you, he said or he was
supposed to have said according to you that your family were responsible for the
killing of his brother who was an NPA, do you remember saying that?
Witness Yes, sir.
Atty. Jimenez You also said in connection with that statement said to you by Dizon that you did
not believe him because that is not true, correct?
Witness Yes, sir.
Atty. Jimenez In other words, he was only psychologizing you perhaps, the purpose as I
have mentioned before, terrifying you, scaring you or frightening you into
quitting the initiation, this is correct?
Witness No, sir, perhaps it is one but the main reason, I think, why he was saying
those things was because he wanted to inflict injury.
Atty. Jimenez He did not tell that to you. That is your only perception, correct?
Witness No, sir, because at one point, while he was telling this to Villareal, he was hitting
me.
Atty. Jimenez But did you not say earlier that you [were] subjected to the same forms of
initiation by all the initiating masters? You said that earlier, right?
Witness Yes, sir.
Atty. Jimenez Are you saying also that the others who jumped on you or kicked you said
something similar as was told to you by Mr. Dizon?
Witness No, sir.
Atty. Jimenez But the fact remains that in the Bicol Express for instance, the masters would run
on your thighs, right?
Witness Yes, sir.
Atty. Jimenez This was the regular procedure that was followed by the initiating masters not
only on you but also on the other neophytes?
Witness Yes, sir.
Atty. Jimenez In other words, it is fair to say that whatever forms of initiation was
administered by one master, was also administered by one master on a
neophyte, was also administered by another master on the other neophyte,
this is correct?
Witness Yes, sir.[212] (Emphasis supplied)

According to the Solicitor General himself, the ill motives attributed by the CA to Dizon
and Villareal were "baseless,"[213] since the statements of the accused were "just part of
the psychological initiation calculated to instill fear on the part of the neophytes"; that
"[t]here is no element of truth in it as testified by Bienvenido Marquez"; and that the
"harsh words uttered by Petitioner and Villareal are part of `tradition' concurred and
accepted by all the fraternity members during their initiation rites."[214]

We agree with the Solicitor General.

The foregoing testimony of witness Marquez reveals a glaring mistake of substantial

proportion on the part of the CA - it mistook the utterances of Dizon for those of
Villareal. Such inaccuracy cannot be tolerated, especially because it was the CA's
primary basis for finding that Villarreal had the intent to kill Lenny Villa, thereby making
Villareal guilty of the intentional felony of homicide. To repeat, according to Bienvenido
Marquez's testimony, as reproduced above, it was Dizon who uttered both "accusations"
against Villa and Marquez; Villareal had no participation whatsoever in the specific
threats referred to by the CA. It was "Boyet Dizon [who] stepped on [Marquez's] thigh";
and who told witness Marquez, "[I]to, yung pamilya nito ay pinapatay yung kapatid ko."
It was also Dizon who jumped on Villa's thighs while saying, "[T]his guy, his father stole
the parking space of my father." With the testimony clarified, we find that the CA had no
basis for concluding the existence of intent to kill based solely thereon.

As to the existence of animus interficendi on the part of Dizon, we refer to the entire
factual milieu and contextual premise of the incident to fully appreciate and understand
the testimony of witness Marquez. At the outset, the neophytes were briefed that they
would be subjected to psychological pressure in order to scare them. They knew that they
would be mocked, ridiculed, and intimidated. They heard fraternity members shout,
"Patay ka, Recinto," "Yari ka, Recinto," "Villa, akin ka," "Asuncion, gulpi ka," "Putang
ina mo, Asuncion," "Putang ina nyo, patay kayo sa amin," or some other words to that
effect.[215] While beating the neophytes, Dizon accused Marquez of the death of the
former's purported NPA brother, and then blamed Lenny Villa's father for stealing the
parking space of Dizon's father. According to the Solicitor General, these statements,
including those of the accused Dizon, were all part of the psychological initiation
employed by the Aquila Fraternity.[216]

Thus, to our understanding, accused Dizon's way of inflicting psychological pressure was
through hurling make-believe accusations at the initiates. He concocted the fictitious
stories, so that he could "justify" giving the neophytes harder blows, all in the context of
fraternity initiation and role playing. Even one of the neophytes admitted that the
accusations were untrue and made-up.

The infliction of psychological pressure is not unusual in the conduct of hazing. In fact,
during the Senate deliberations on the then proposed Anti-Hazing Law, former Senator
Lina spoke as follows:

Senator Lina. -- so as to capture the intent that we conveyed during the period of
interpellations on why we included the phrase "or psychological pain and suffering."

x x x    x x x    x x x   

So that if no direct physical harm is inflicted upon the neophyte or the recruit but
the recruit or neophyte is made to undergo certain acts which I already described
yesterday, like playing the Russian roulette extensively to test the readiness and the
willingness of the neophyte or recruit to continue his desire to be a member of the
fraternity, sorority or similar organization or playing and putting a noose on the neck
of the neophyte or recruit, making the recruit or neophyte stand on the ledge of the fourth
floor of the building facing outside, asking him to jump outside after making him turn
around several times but the reality is that he will be made to jump towards the inside
portion of the building - these are the mental or psychological tests that are resorted to
by these organizations, sororities or fraternities. The doctors who appeared during the
public hearing testified that such acts can result in some mental aberration, that they can
even lead to psychosis, neurosis or insanity. This is what we want to prevent.
[217]
 (Emphasis supplied)

Thus, without proof beyond reasonable doubt, Dizon's behavior must not be
automatically viewed as evidence of a genuine, evil motivation to kill Lenny Villa.
Rather, it must be taken within the context of the fraternity's psychological initiation.
This Court points out that it was not even established whether the fathers of Dizon and
Villa really had any familiarity with each other as would lend credence to the veracity of
Dizon's threats. The testimony of Lenny's co-neophyte, Marquez, only confirmed this
view. According to Marquez, he "knew it was not true and that [Dizon] was just making
it up...."[218] Even the trial court did not give weight to the utterances of Dizon as
constituting intent to kill: "[T]he cumulative acts of all the accused were not directed
toward killing Villa, but merely to inflict physical harm as part of the fraternity initiation
rites x x x."[219] The Solicitor General shares the same view.

Verily, we cannot sustain the CA in finding the accused Dizon guilty of homicide under
Article 249 of the Revised Penal Code on the basis of the existence of intent to
kill. Animus interficendi cannot and should not be inferred unless there is proof beyond
reasonable doubt of such intent.[220] Instead, we adopt and reinstate the finding of the
trial court in part, insofar as it ruled that none of the fraternity members had the
specific intent to kill Lenny Villa.[221]

The existence of animus iniuriandi or malicious intent

to injure not proven beyond reasonable doubt

The Solicitor General argues, instead, that there was an intent to inflict physical injuries
on Lenny Villa. Echoing the Decision of the trial court, the Solicitor General then posits
that since all of the accused fraternity members conspired to inflict physical injuries on
Lenny Villa and death ensued, all of them should be liable for the crime of homicide
pursuant to Article 4(1) of the Revised Penal Code.

In order to be found guilty of any of the felonious acts under Articles 262 to 266 of the
Revised Penal Code,[222] the employment of physical injuries must be coupled with dolus
malus. As an act that is mala in se, the existence of malicious intent is fundamental, since
injury arises from the mental state of the wrongdoer - iniuria ex affectu facientis
consistat. If there is no criminal intent, the accused cannot be found guilty of an
intentional felony. Thus, in case of physical injuries under the Revised Penal Code, there
must be a specific animus iniuriandi or malicious intention to do wrong against the
physical integrity or well-being of a person, so as to incapacitate and deprive the victim
of certain bodily functions. Without proof beyond reasonable doubt of the
required animus iniuriandi, the overt act of inflicting physical injuries per se merely
satisfies the elements of freedom and intelligence in an intentional felony. The
commission of the act does not, in itself, make a man guilty unless his intentions are. [223]

Thus, we have ruled in a number of instances[224] that the mere infliction of physical

injuries, absent malicious intent, does not make a person automatically liable for an
intentional felony. In Bagajo v. People,[225] the accused teacher, using a bamboo stick,
whipped one of her students behind her legs and thighs as a form of discipline. The
student suffered lesions and bruises from the corporal punishment. In reversing the trial
court's finding of criminal liability for slight physical injuries, this Court stated thus:
"Independently of any civil or administrative responsibility ... [w]e are persuaded that she
did not do what she had done with criminal intent ... the means she actually used was
moderate and that she was not motivated by ill-will, hatred or any malevolent intent."
Considering the applicable laws, we then ruled that "as a matter of law, petitioner did not
incur any criminal liability for her act of whipping her pupil." In People v. Carmen,
[226]
 the accused members of the religious group known as the Missionaries of Our Lady
of Fatima - under the guise of a "ritual or treatment" - plunged the head of the victim into
a barrel of water, banged his head against a bench, pounded his chest with fists, and
stabbed him on the side with a kitchen knife, in order to cure him of "nervous
breakdown" by expelling through those means the bad spirits possessing him. The
collective acts of the group caused the death of the victim. Since malicious intent was not
proven, we reversed the trial court's finding of liability for murder under Article 4 of the
Revised Penal Code and instead ruled that the accused should be held criminally liable
for reckless imprudence resulting in homicide under Article 365 thereof.

Indeed, the threshold question is whether the accused's initial acts of inflicting physical
pain on the neophytes were attended by animus iniuriandi amounting to a felonious act
punishable under the Revised Penal Code, thereby making it subject to Article 4(1)
thereof. In People v. Regato, we ruled that malicious intent must be judged by the action,
conduct, and external acts of the accused.[227] What persons do is the best index of their
intention.[228] We have also ruled that the method employed, the kind of weapon used, and
the parts of the body on which the injury was inflicted may be determinative of the intent
of the perpetrator.[229] The Court shall thus examine the whole contextual background
surrounding the death of Lenny Villa.

Lenny died during Aquila's fraternity initiation rites. The night before the commencement
of the rites, they were briefed on what to expect. They were told that there would be
physical beatings, that the whole event would last for three days, and that they could quit
anytime. On their first night, they were subjected to "traditional" initiation rites, including
the "Indian Run," "Bicol Express," "Rounds," and the "Auxies' Privilege Round." The
beatings were predominantly directed at the neophytes' arms and legs.

In the morning of their second day of initiation, they were made to present comic plays
and to play rough basketball. They were also required to memorize and recite the Aquila
Fraternity's principles. Late in the afternoon, they were once again subjected to
"traditional" initiation rituals. When the rituals were officially reopened on the insistence
of Dizon and Villareal, the neophytes were subjected to another "traditional" ritual -
paddling by the fraternity.

During the whole initiation rites, auxiliaries were assigned to the neophytes. The
auxiliaries protected the neophytes by functioning as human barriers and shielding them
from those who were designated to inflict physical and psychological pain on the
initiates.[230] It was their regular duty to stop foul or excessive physical blows; to help the
neophytes to "pump" their legs in order that their blood would circulate; to facilitate a rest
interval after every physical activity or "round"; to serve food and water; to tell jokes; to
coach the initiates; and to give them whatever they needed.

These rituals were performed with Lenny's consent.[231] A few days before the "rites," he
asked both his parents for permission to join the Aquila Fraternity.[232] His father knew
that Lenny would go through an initiation process and would be gone for three days.
[233]
 The CA found as follows:

It is worth pointing out that the neophytes willingly and voluntarily consented to

undergo physical initiation and hazing. As can be gleaned from the narration of facts,
they voluntarily agreed to join the initiation rites to become members of the Aquila Legis
Fraternity. Prior to the initiation, they were given briefings on what to expect. It is of
common knowledge that before admission in a fraternity, the neophytes will undergo a
rite of passage. Thus, they were made aware that traditional methods such as
mocking, psychological tests and physical punishment would take place. They knew
that the initiation would involve beatings and other forms of hazing. They were
also told of their right and opportunity to quit at any time they wanted to. In fact,
prosecution witness Navera testified that accused Tecson told him that "after a week, you
can already play basketball." Prosecution witness Marquez for his part, admitted that
he knew that the initiates would be hit "in the arms and legs," that a wooden paddle
would be used to hit them and that he expected bruises on his arms and legs....
Indeed, there can be no fraternity initiation without consenting neophytes.
[234]
 (Emphasis supplied)

Even after going through Aquila's grueling traditional rituals during the first day, Lenny
continued his participation and finished the second day of initiation.

Based on the foregoing contextual background, and absent further proof showing clear
malicious intent, we are constrained to rule that the specific animus iniuriandi was not
present in this case. Even if the specific acts of punching, kicking, paddling, and other
modes of inflicting physical pain were done voluntarily, freely, and with intelligence,
thereby satisfying the elements of freedom and intelligence in the felony of physical
injuries, the fundamental ingredient of criminal intent was not proven beyond reasonable
doubt. On the contrary, all that was proven was that the acts were done pursuant to
tradition. Although the additional "rounds" on the second night were held upon the
insistence of Villareal and Dizon, the initiations were officially reopened with the consent
of the head of the initiation rites; and the accused fraternity members still participated in
the rituals, including the paddling, which were performed pursuant to tradition. Other
than the paddle, no other "weapon" was used to inflict injuries on Lenny. The targeted
body parts were predominantly the legs and the arms. The designation of roles, including
the role of auxiliaries, which were assigned for the specific purpose of lending assistance
to and taking care of the neophytes during the initiation rites, further belied the presence
of malicious intent. All those who wished to join the fraternity went through the same
process of "traditional" initiation; there is no proof that Lenny Villa was specifically
targeted or given a different treatment. We stress that Congress itself recognized that
hazing is uniquely different from common crimes.[235] The totality of the circumstances
must therefore be taken into consideration.

The underlying context and motive in which the infliction of physical injuries was rooted
may also be determined by Lenny's continued participation in the initiation and consent
to the method used even after the first day. The following discussion of the framers of the
1995 Anti-Hazing Law is enlightening:

SENATOR GUINGONA. Most of these acts, if not all, are already punished under the
Revised Penal Code.

Senator Lina. That is correct, Mr. President.

SENATOR GUINGONA. If hazing is done at present and it results in death, the charge
would be murder or homicide.

Senator Lina. That is correct, Mr. President.

SENATOR GUINGONA. If it does not result in death, it may be frustrated homicide or

serious physical injuries.

SENATOR LINA. That is correct, Mr. President.

SENATOR GUINGONA. Or, if the person who commits sexual abuse does so it can be
penalized under rape or acts of lasciviousness.

SENATOR LINA. That is correct, Mr. President.

SENATOR GUINGONA. So, what is the rationale for making a new offense under this
definition of the crime of hazing?
SENATOR LINA. To discourage persons or group of persons either composing a
sorority, fraternity or any association from making this requirement of initiation that has
already resulted in these specific acts or results, Mr. President.

That is the main rationale. We want to send a strong signal across the land that no group
or association can require the act of physical initiation before a person can become a
member without being held criminally liable.

x x x    x x x    x x x

SENATOR GUINGONA. Yes, but what would be the rationale for that imposition?
Because the distinguished Sponsor has said that he is not punishing a mere organization,
he is not seeking the punishment of an initiation into a club or organization, he is seeking
the punishment of certain acts that resulted in death, et cetera as a result of hazing which
are already covered crimes.

The penalty is increased in one, because we would like to discourage hazing, abusive
hazing, but it may be a legitimate defense for invoking two or more charges or offenses,
because these very same acts are already punishable under the Revised Penal Code.

That is my difficulty, Mr. President.

SENATOR LINA. x x x

Another point, Mr. President, is this, and this is a very telling difference: When a person
or group of persons resort to hazing as a requirement for gaining entry into an
organization, the intent to commit a wrong is not visible or is not present, Mr.
President. Whereas, in these specific crimes, Mr. President, let us say there is death or
there is homicide, mutilation, if one files a case, then the intention to commit a wrong
has to be proven. But if the crime of hazing is the basis, what is important is the
result from the act of hazing.

To me, that is the basic difference and that is what will prevent or deter the sororities or
fraternities; that they should really shun this activity called "hazing." Because, initially,
these fraternities or sororities do not even consider having a neophyte killed or
maimed or that acts of lasciviousness are even committed initially, Mr. President.

So, what we want to discourage is the so-called initial innocent act. That is why there is
need to institute this kind of hazing. Ganiyan po ang nangyari. Ang fraternity o ang
sorority ay magre-recruit. Wala talaga silang intensiyong makamatay. Hindi ko na
babanggitin at buhay pa iyong kaso. Pero dito sa anim o pito na namatay nitong
nakaraang taon, walang intensiyong patayin talaga iyong neophyte. So, kung maghihintay
pa tayo, na saka lamang natin isasakdal ng murder kung namatay na, ay after the fact ho
iyon.  Pero, kung sasabihin natin sa mga kabataan na: "Huwag ninyong gagawin iyong
hazing. Iyan ay kasalanan at kung mamatay diyan, mataas ang penalty sa inyo."

x x x    x x x    x x x

SENATOR GUINGONA. I join the lofty motives, Mr. President, of the distinguished
Sponsor. But I am again disturbed by his statement that the prosecution does not have
to prove the intent that resulted in the death, that resulted in the serious physical
injuries, that resulted in the acts of lasciviousness or deranged mind. We do not have
to prove the willful intent of the accused in proving or establishing the crime of
hazing. This seems, to me, a novel situation where we create the special crime
without having to go into the intent, which is one of the basic elements of any crime.

If there is no intent, there is no crime. If the intent were merely to initiate, then
there is no offense. And even the distinguished Sponsor admits that the
organization, the intent to initiate, the intent to have a new society or a new club is,
per se, not punishable at all. What are punishable are the acts that lead to the result.
But if these results are not going to be proven by intent, but just because there was
hazing, I am afraid that it will disturb the basic concepts of the Revised Penal Code,
Mr. President.

SENATOR LINA. Mr. President, the act of hazing, precisely, is being criminalized

because in the context of what is happening in the sororities and fraternities, when
they conduct hazing, no one will admit that their intention is to maim or to kill. So,
we are already criminalizing the fact of inflicting physical pain. Mr. President, it is a
criminal act and we want it stopped, deterred, discouraged.

If that occurs, under this law, there is no necessity to prove that the masters intended to
kill or the masters intended to maim. What is important is the result of the act of hazing.
Otherwise, the masters or those who inflict the physical pain can easily escape
responsibility and say, "We did not have the intention to kill. This is part of our
initiation rites. This is normal. We do not have any intention to kill or maim."

This is the lusot, Mr. President. They might as well have been charged therefore with
the ordinary crime of homicide, mutilation, et cetera, where the prosecution will
have a difficulty proving the elements if they are separate offenses.

x x x    x x x    x x x

SENATOR GUINGONA. Mr. President, assuming there was a group that initiated and a
person died. The charge is murder. My question is: Under this bill if it becomes a law,
would the prosecution have to prove conspiracy or not anymore?
SENATOR LINA. Mr. President, if the person is present during hazing x x x

SENATOR GUINGONA. The persons are present. First, would the prosecution have to
prove conspiracy? Second, would the prosecution have to prove intent to kill or not?

SENATOR LINA. No more. As to the second question, Mr. President, if that occurs,
there is no need to prove intent to kill.

SENATOR GUINGONA. But the charge is murder.

SENATOR LINA. That is why I said that it should not be murder. It should be hazing,
Mr. President. [236] (Emphasis supplied)

During a discussion between Senator Biazon and Senator Lina on the issue of whether to
include sodomy as a punishable act under the Anti-Hazing Law, Senator Lina further
clarified thus:
SENATOR BIAZON. Mr. President, this Representation has no objection to the inclusion
of sodomy as one of the conditions resulting from hazing as necessary to be punished.
However, the act of sodomy can be committed by two persons with or without consent.

To make it clearer, what is being punished here is the commission of sodomy forced into
another individual by another individual. I move, Mr. President, that sodomy be modified
by the phrase "without consent" for purposes of this section.

SENATOR LINA. I am afraid, Mr. President, that if we qualify sodomy with the concept
that it is only going to aggravate the crime of hazing if it is done without consent will
change a lot of concepts here. Because the results from hazing aggravate the offense
with or without consent. In fact, when a person joins a fraternity, sorority, or any
association for that matter, it can be with or without the consent of the intended
victim. The fact that a person joins a sorority or fraternity with his consent does not
negate the crime of hazing.

This is a proposed law intended to protect the citizens from the malpractices that attend
initiation which may have been announced with or without physical infliction of pain or
injury, Mr. President. Regardless of whether there is announcement that there will be
physical hazing or whether there is none, and therefore, the neophyte is duped into
joining a fraternity is of no moment. What is important is that there is an infliction
of physical pain.

The bottom line of this law is that a citizen even has to be protected from himself if he
joins a fraternity, so that at a certain point in time, the State, the individual, or the
parents of the victim can run after the perpetrators of the crime, regardless of
whether or not there was consent on the part of the victim.
 x x x    x x x    x x x

SENATOR LINA. Mr. President, I understand the position taken by the distinguished
Gentleman from Cavite and Metro Manila. It is correct that society sometimes adopts
new mores, traditions, and practices.

In this bill, we are not going to encroach into the private proclivities of some individuals
when they do their acts in private as we do not take a peek into the private rooms of
couples. They can do their thing if they want to make love in ways that are not considered
acceptable by the mainstream of society. That is not something that the State should
prohibit.

But sodomy in this case is connected with hazing, Mr. President. Such that the act may
even be entered into with consent. It is not only sodomy. The infliction of pain may be
done with the consent of the neophyte. If the law is passed, that does not make the act
of hazing not punishable because the neophyte accepted the infliction of pain upon
himself.

If the victim suffers from serious physical injuries, but the initiator said, "Well, he
allowed it upon himself. He consented to it." So, if we allow that reasoning that
sodomy was done with the consent of the victim, then we would not have passed any
law at all. There will be no significance if we pass this bill, because it will always be a
defense that the victim allowed the infliction of pain or suffering. He accepted it as
part of the initiation rites.

But precisely, Mr. President that is one thing that we would want to prohibit. That the
defense of consent will not apply because the very act of inflicting physical pain or
psychological suffering is, by itself, a punishable act. The result of the act of hazing,
like death or physical injuries merely aggravates the act with higher penalties. But the
defense of consent is not going to nullify the criminal nature of the act.

So, if we accept the amendment that sodomy can only aggravate the offense if it is
committed without consent of the victim, then the whole foundation of this proposed
law will collapse.

SENATOR BIAZON. Thank you, Mr. President.

SENATOR LINA. Thank you very much.

The President. Is there any objection to the committee amendment? (Silence.) The Chair
hears none; the same is approved.[237]

(Emphasis supplied)
Realizing the implication of removing the state's burden to prove intent, Senator Lina, the
principal author of the Senate Bill, said:

I am very happy that the distinguished Minority Leader brought out the idea of intent or
whether there it is mala in se or mala prohibita. There can be a radical amendment if that
is the point that he wants to go to.

If we agree on the concept, then, maybe, we can just make this a special law on
hazing. We will not include this anymore under the Revised Penal Code. That is a
possibility. I will not foreclose that suggestion, Mr. President. [238](Emphasis supplied)

Thus, having in mind the potential conflict between the proposed law and the core
principle of mala in se adhered to under the Revised Penal Code, Congress did not simply
enact an amendment thereto. Instead, it created a special law on hazing, founded upon the
principle of mala prohibita. This dilemma faced by Congress is further proof of how the
nature of hazing - unique as against typical crimes - cast a cloud of doubt on whether
society considered the act as an inherently wrong conduct or mala in se at the time. It is
safe to presume that Lenny's parents would not have consented[239] to his participation in
Aquila Fraternity's initiation rites if the practice of hazing were considered by them
as mala in se.

Furthermore, in Vedaña v. Valencia (1998), we noted through Associate Justice (now

retired Chief Justice) Hilario Davide that "in our nation's very recent history, the people
have spoken, through Congress, to deem conduct constitutive of ... hazing, [an] act[]
previously considered harmless by custom, as criminal."[240] Although it may be
regarded as a simple obiter dictum, the statement nonetheless shows recognition that
hazing - or the conduct of initiation rites through physical and/or psychological suffering
- has not been traditionally criminalized. Prior to the 1995 Anti-Hazing Law, there was to
some extent a lacuna in the law; hazing was not clearly considered an intentional felony.
And when there is doubt on the interpretation of criminal laws, all must be resolved in
favor of the accused. In dubio pro reo.

For the foregoing reasons, and as a matter of law, the Court is constrained to rule against
the trial court's finding of malicious intent to inflict physical injuries on Lenny Villa,
there being no proof beyond reasonable doubt of the existence of malicious intent to
inflict physical injuries or animus iniuriandi as required in mala in se cases, considering
the contextual background of his death, the unique nature of hazing, and absent a law
prohibiting hazing.

The accused fraternity members guilty of

reckless imprudence resulting in homicide
The absence of malicious intent does not automatically mean, however, that the accused
fraternity members are ultimately devoid of criminal liability. The Revised Penal Code
also punishes felonies that are committed by means of fault (culpa). According to Article
3 thereof, there is fault when the wrongful act results from imprudence, negligence, lack
of foresight, or lack of skill.

Reckless imprudence or negligence consists of a voluntary act done without malice, from

which an immediate personal harm, injury or material damage results by reason of an
inexcusable lack of precaution or advertence on the part of the person committing it.
[241]
 In this case, the danger is visible and consciously appreciated by the actor. [242] In
contrast, simple imprudence or negligence comprises an act done without grave fault,
from which an injury or material damage ensues by reason of a mere lack of foresight or
skill.[243] Here, the threatened harm is not immediate, and the danger is not openly
visible. [244]

The test[245] for determining whether or not a person is negligent in doing an act is as

follows: Would a prudent man in the position of the person to whom negligence is
attributed foresee harm to the person injured as a reasonable consequence of the course
about to be pursued? If so, the law imposes on the doer the duty to take precaution
against the mischievous results of the act. Failure to do so constitutes negligence. [246]

As we held in Gaid v. People, for a person to avoid being charged with recklessness, the
degree of precaution and diligence required varies with the degree of the danger involved.
[247]
 If, on account of a certain line of conduct, the danger of causing harm to another
person is great, the individual who chooses to follow that particular course of conduct is
bound to be very careful, in order to prevent or avoid damage or injury.[248] In contrast, if
the danger is minor, not much care is required.[249] It is thus possible that there are
countless degrees of precaution or diligence that may be required of an individual, "from
a transitory glance of care to the most vigilant effort."[250] The duty of the person to
employ more or less degree of care will depend upon the circumstances of each particular
case.[251]

There was patent recklessness in the hazing of Lenny Villa.

According to the NBI medico-legal officer, Lenny died of cardiac failure secondary to
multiple traumatic injuries.[252] The officer explained that cardiac failure refers to the
failure of the heart to work as a pump and as part of the circulatory system due to the lack
of blood.[253] In the present case, the victim's heart could no longer work as a pumping
organ, because it was deprived of its requisite blood and oxygen.[254] The deprivation was
due to the "channeling" of the blood supply from the entire circulatory system - including
the heart, arteries, veins, venules, and capillaries - to the thigh, leg, and arm areas of
Lenny, thus causing the formation of multiple hematomas or blood clots.[255] The multiple
hematomas were wide, thick, and deep,[256] indicating that these could have resulted
mainly from injuries sustained by the victim from fist blows, knee blows, paddles, or the
like.[257] Repeated blows to those areas caused the blood to gradually ooze out of the
capillaries until the circulating blood became so markedly diminished as to produce
death. [258] The officer also found that the brain, liver, kidney, pancreas, intestines, and all
other organs seen in the abdominals, as well as the thoracic organ in the lungs, were pale
due to the lack of blood, which was redirected to the thighs and forearms.[259] It was
concluded that there was nothing in the heart that would indicate that the victim suffered
from a previous cardiac arrest or disease.[260]

The multiple hematomas or bruises found in Lenny Villa's arms and thighs, resulting
from repeated blows to those areas, caused the loss of blood from his vital organs and led
to his eventual death. These hematomas must be taken in the light of the hazing activities
performed on him by the Aquila Fraternity. According to the testimonies of the co-
neophytes of Lenny, they were punched, kicked, elbowed, kneed, stamped on; and hit
with different objects on their arms, legs, and thighs.[261] They were also "paddled" at the
back of their thighs or legs;[262] and slapped on their faces.[263] They were made to play
rough basketball.[264] Witness Marquez testified on Lenny, saying: "[T]inamaan daw sya
sa spine."[265] The NBI medico-legal officer explained that the death of the victim was the
cumulative effect of the multiple injuries suffered by the latter.[266] The relevant portion of
the testimony is as follows:

Atty. Doctor, there was, rather, it was your testimony on various cross examinations of
Tadiar defense counsels that the injuries that you have enumerated on the body of the
deceased Lenny Villa previously marked as Exhibit "G-1" to "G-14" individually by
themselves would not cause the death of the victim. The question I am going to
propound to you is what is the cumulative effect of all of these injuries marked from
Exhibit "G-1" to "G-14"?
Witness All together nothing in concert to cause to the demise of the victim. So, it is not fair for
us to isolate such injuries here because we are talking of the whole body. At the same
manner that as a car would not run minus one (1) wheel. No, the more humane in
human approach is to interpret all those injuries in whole and not in part.[267]

There is also evidence to show that some of the accused fraternity members were
drinking during the initiation rites.[268]

Consequently, the collective acts of the fraternity members were tantamount to

recklessness, which made the resulting death of Lenny a culpable felony. It must be
remembered that organizations owe to their initiates a duty of care not to cause them
injury in the process.[269] With the foregoing facts, we rule that the accused are guilty of
reckless imprudence resulting in homicide. Since the NBI medico-legal officer found that
the victim's death was the cumulative effect of the injuries suffered, criminal
responsibility redounds to all those who directly participated in and contributed to the
infliction of physical injuries.
It appears from the aforementioned facts that the incident may have been prevented, or at
least mitigated, had the alumni of Aquila Fraternity - accused Dizon and Villareal -
restrained themselves from insisting on reopening the initiation rites. Although this point
did not matter in the end, as records would show that the other fraternity members
participated in the reopened initiation rites - having in mind the concept of "seniority" in
fraternities - the implication of the presence of alumni should be seen as a point of review
in future legislation. We further note that some of the fraternity members were
intoxicated during Lenny's initiation rites. In this light, the Court submits to Congress, for
legislative consideration, the amendment of the Anti-Hazing Law to include the fact of
intoxication and the presence of non-resident or alumni fraternity members during hazing
as aggravating circumstances that would increase the applicable penalties.

It is truly astonishing how men would wittingly - or unwittingly -impose the misery of
hazing and employ appalling rituals in the name of brotherhood. There must be a better
way to establish "kinship." A neophyte admitted that he joined the fraternity to have more
friends and to avail himself of the benefits it offered, such as tips during bar
examinations.[270] Another initiate did not give up, because he feared being looked down
upon as a quitter, and because he felt he did not have a choice. [271] Thus, for Lenny Villa
and the other neophytes, joining the Aquila Fraternity entailed a leap in the dark. By
giving consent under the circumstances, they left their fates in the hands of the fraternity
members. Unfortunately, the hands to which lives were entrusted were barbaric as they
were reckless.

Our finding of criminal liability for the felony of reckless imprudence resulting in
homicide shall cover only accused Tecson, Ama, Almeda, Bantug, and Dizon. Had the
Anti-Hazing Law been in effect then, these five accused fraternity members would have
all been convicted of the crime of hazing punishable by reclusion perpetua (life
imprisonment).[272] Since there was no law prohibiting the act of hazing when Lenny died,
we are constrained to rule according to existing laws at the time of his death. The CA
found that the prosecution failed to prove, beyond reasonable doubt, Victorino et al.'s
individual participation in the infliction of physical injuries upon Lenny Villa.[273] As to
accused Villareal, his criminal liability was totally extinguished by the fact of his death,
pursuant to Article 89 of the Revised Penal Code.

Furthermore, our ruling herein shall be interpreted without prejudice to the applicability
of the Anti-Hazing Law to subsequent cases. Furthermore, the modification of criminal
liability from slight physical injuries to reckless imprudence resulting in
homicide shall apply only with respect to accused Almeda, Ama, Bantug, and Tecson.

The accused liable to pay damages

The CA awarded damages in favor of the heirs of Lenny Villa in the amounts of P50,000
as civil indemnity ex delicto and P1,000,000 as moral damages, to be jointly and
severally paid by accused Dizon and Villareal. It also awarded the amount of P30,000 as
indemnity to be jointly and severally paid by accused Almeda, Ama, Bantug, and Tecson.

Civil indemnity ex delicto is automatically awarded for the sole fact of death of the
victim.[274] In accordance with prevailing jurisprudence,[275] we sustain the CA's award of
indemnity in the amount of P50,000.

The heirs of the victim are entitled to actual or compensatory damages, including
expenses incurred in connection with the death of the victim, so long as the claim is
supported by tangible documents.[276] Though we are prepared to award actual damages,
the Court is prevented from granting them, since the records are bereft of any evidence to
show that actual expenses were incurred or proven during trial. Furthermore, in the
appeal, the Solicitor General does not interpose any claim for actual damages. [277]

The heirs of the deceased may recover moral damages for the grief suffered on account of
the victim's death.[278] This penalty is pursuant to Article 2206(3) of the Civil Code, which
provides that the "spouse, legitimate and illegitimate descendants and the ascendants of
the deceased may demand moral damages for mental anguish by reason of the death of
the deceased."[279] Thus, we hereby we affirm the CA's award of moral damages in the
amount of ?1,000,000.

WHEREFORE, the appealed Judgment in G.R. No. 155101 finding petitioner Fidelito
Dizon guilty of homicide is hereby MODIFIED and set aside IN PART. The appealed
Judgment in G.R. No. 154954 - finding Antonio Mariano Almeda, Junel Anthony Ama,
Renato Bantug, Jr., and Vincent Tecson guilty of the crime of slight physical injuries - is
also MODIFIED and set aside in part. Instead, Fidelito Dizon, Antonio Mariano
Almeda, Junel Anthony Ama, Renato Bantug, Jr., and Vincent Tecson are
found guilty beyond reasonable doubt of reckless imprudence resulting in homicide
defined and penalized under Article 365 in relation to Article 249 of the Revised Penal
Code. They are hereby sentenced to suffer an indeterminate prison term of four (4)
months and one (1) day of arresto mayor, as minimum, to four (4) years and two (2)
months of prision correccional, as maximum. In addition, accused are ORDERED jointly
and severally to pay the heirs of Lenny Villa civil indemnity ex delicto in the amount of ?
50,000, and moral damages in the amount of ?1,000,000, plus legal interest on all
damages awarded at the rate of 12% from the date of the finality of this Decision until
satisfaction.[280] Costs de oficio.

The appealed Judgment in G.R. No. 154954, acquitting Victorino et al., is

hereby affirmed. The appealed Judgments in G.R. Nos. 178057 & 178080, dismissing
the criminal case filed against Escalona, Ramos, Saruca, and Adriano, are
likewise affirmed. Finally, pursuant to Article 89(1) of the Revised Penal Code, the
Petition in G.R. No. 151258 is hereby dismissed, and the criminal case against Artemio
Villareal deemed closed and TERMINATED.

Let copies of this Decision be furnished to the Senate President and the Speaker of the
House of Representatives for possible consideration of the amendment of the Anti-
Hazing Law to include the fact of intoxication and the presence of non-resident or alumni
fraternity members during hazing as aggravating circumstances that would increase the
applicable penalties.

SO ORDERED.

EN BANC

A.M. No. 07–9–454–RTC, March 18, 2014

RE: JUDICIAL AUDIT CONDUCTED IN THE REGIONAL TRIAL COURT,

BRANCH20,CAGAYAN DE ORO CITY, MISAMIS ORIENTAL.

A.M. No. 05–2–108–RTC

REQUEST OF JUDGE GREGORIO D. PANTANOSAS, JR., REGIONAL TRIAL COURT,

BRANCH20, CAGAYANDE ORO CITY, FOR EXTENSION OF TIME TO DECIDE
CRIMINAL CASES NOS. 92–1935 & 26 OTHERS.

DECISION

PER CURIAM:

A Judge who fails to decide cases and related matters within the periods prescribed by
law is guilty of gross inefficiency, and may be punished with dismissal from the service
even for the first offense, unless he has been meanwhile separated from the service, in
which instance he may be imposed the stiffest of fines. For falsely rendering certificates
of service to the effect that he did not have any unresolved cases and matters pending
in his court’s docket, he is also guilty of dishonesty, another act of gross misconduct,
for which he should be sanctioned with dismissal from the service even for the first
offense. But his intervening separation from the service leaves the only proper penalty
to be the forfeiture of his entire retirement benefits, except his earned leaves.

Antecedents

A.M. No. 07–9–454–RTC

From February 21 to February 24, 2005, an Audit Team dispatched by the Office of the
Court Administrator (OCA) conducted a judicial audit of Branch 20 of the Regional Trial
Court in Cagayan de Oro City, presided by respondent Judge Gregorio D. Pantanosas,
Jr. The report of the Audit Team revealed that as of the audit dates, Branch 20 had a
total caseload of 599 cases consisting of256 criminal cases and 343 civil cases. 1

Of the 256 criminal cases, the Audit Team found that: (a) Branch 20 failed to take any
action on three criminal cases from the time of their filing; (b) no further action or
setting was taken in 41 criminal cases; (c) 14 criminal cases had pending incidents
already submitted for resolution but remained unresolved despite the lapse of the
reglementary period to resolve; and (d) 28 criminal cases submitted for decision
remained unresolved despite the lapse of the reglementary period to decide.

As to the 343 civil cases, the Audit Team uncovered that: (a) no action was taken on 11
cases from the time of their filing; (b) no further action or setting was taken in 54 cases
for a considerable length of time; (c) 75 cases had pending incidents that remained
unresolved despite the lapse of the reglementary period to resolve; and (d) 56 cases
submitted for decision remained unresolved despite the lapse of the reglementary
period to decide.

The Audit Team discovered that: (a) Branch 20 ordered the forfeiture of the bonds of
the accused in 10 criminal cases; (b) the latest Monthly Report of Cases submitted by
Branch 20 to the Court Management Office was that for January 2004; despite
reminders, the Presiding Judge failed to submit the required monthly reports; (c) no
certificates of arraignment were attached to the records of criminal cases where the
accused had entered a plea; (d) the criminal and civil docket books were not updated;
and (e) the stenographic notes in Criminal Case No. 4819 entitled People v. Obita, et
al., an appealed case for theft, were not transcribed because of the demise of court
stenographer Josephine Casino and the retirement of court stenographer Valerio Piscos
of the Municipal Circuit Trial Court in Jasaan.

Based on the audit report, then Deputy Court Administrator Christopher Lock issued a
memorandum directing Judge Pantanosas, Jr. to:2
1. Take appropriate action on the cases without any action taken from the time of their
filing, as well as those cases without further setting or action for a considerable length
of time;

2. Resolve within the reglementary period the pending incidents in the criminal and civil
cases, and submit copies of the resolutions to the OCAD within 10 days from their
resolution;

3. Explain within ten days from notice his failure to resolve the pending incidents in 14
criminal and 75 civil cases within the reglementary period, and resolve the same and
submit copies of the resolutions to the OCAD within ten days from their resolution;

4. Decide within the reglementary period the civil and criminal cases submitted for
decision and submit copies of the decisions to the OCAD within ten days from their
rendition;

5. Explain within ten days from notice his failure to decide within the reglementary
period the 28 criminal cases and 56 civil cases mentioned in the audit report.

6. Take appropriate action on all untranscribed stenographic notes of all cases

particularly those submitted for decision; and

7. Explain within fifteen days from receipt his failure to submit the required Monthly
Report of Cases starting from February 2004 up to April 11, 2005 and submit the same
within 30 days from receipt, otherwise, the Office will Recommend to the Chief Justice
the withholding of his salaries pending compliance with the said administrative circular.
Another memorandum was sent to Atty. Taumaturgo U. Macabinlar, the Branch Clerk of
Court of Branch 20, ordering him to:

1. Apprise the Acting Presiding Judge from time to time of cases submitted for
resolution/decision and those cases that require immediate action;

2. Attach the corresponding Certificate of Arraignment on all criminal case folders

where the accused has entered a plea, duly signed by both the accused and
his/her counsel;

3. Order and Supervise the updating of the criminal and civil docket books;

4. Explain within fifteen (15) days from receipt his failure to submit the required
Monthly Report of Cases starting from February 2004 up to the present pursuant
to Administrative Circular No. 4–2004 dated 4 February 2004 which states that
the Monthly Report of cases must be filed with, or sent by registered mail to the
Supreme Court on or before the tenth (10th) calendar day of the succeeding
month and SUBMIT the same within 30 days from receipt, otherwise, the Office
will Recommend to the Chief Justice the withholding of his salaries pending full
compliance with the said administrative circular; and

5. Inform this Court, through the Court Management Office, within fifteen days
from receipt whether the judgment on the bond on the 10 criminal cases
mentioned above had been duly executed and submit copies of the order and
writ of execution and report of satisfaction of judgment thereon. 3

Another memorandum was issued directing Jean Hernandez and Jacqueline Astique,
Clerks–in–Charge of the criminal and civil docket books, respectively, to update the
entries in their respective docket books and to submit their compliance within sixty
days from notice, with a warning that continued failure to do so would be dealt with
more severely.4

In his compliance,5 Judge Pantanosas, Jr. explained that he had failed to decide or

resolve the cases within the reglementary period for the following reasons:
(a) Criminal Case Nos. 948, 1863, 3418 and 1396, and Civil Case Nos. 3673, 3672 and 13 other
cases had incomplete transcripts of stenographic notes (TSN); and the stenographers
concerned had already retired from the service and their whereabouts were unknown;
(b) Criminal Case No. 2208 was an inherited case submitted for decision before then Judge
Alejandro Velez;
(c) He was granted an extension of 90 days in 13 criminal cases and 11 civil cases pursuant to
the Resolution promulgated on March 30, 2005 in A.M. No. 05–2–108–RTC;6
(d) 27 civil cases had no Commissioner’s Report.
As to the delayed submission of the Monthly Reports of Cases, Judge Pantanosas, Jr.
explained that the person in charge had inadvertently overlooked its timely submission,
but that the report was already submitted to the proper office of the OCA on April 14,
2005. He pleaded for leniency for his delayed resolution of cases due to his heavy
caseload.
Atty. Macabinlar also submitted his compliance,7 in which he stated that the delay in the
submission of monthly reports of cases had been caused by the difficulty of using the
new form; and that he had failed to remind the clerks–in–charge of the civil and
criminal cases to prepare their reports on time due to the volume of work as well as
due to inadvertence. He apologized for the delay and reported the latest action of the
court regarding the criminal cases with forfeited bonds.

Hernandez and Astique did not submit any compliance.

The OCA did not consider the foregoing explanations as sufficient compliance with its
directives. Hence, it issued a second set of memoranda dated May 5, 2006 8 reiterating
the instructions of the first memorandum.

In compliance with the second memorandum, Judge Pantanosas, Jr. informed the OCA
by letter dated September 1, 2006 that he had rendered his decisions in 18 cases;
resolved the pending incidents or motions in 63 cases; and acted on 52 cases having no
further actions or settings after the lapse of a considerable period of time, and on eight
cases with no initial action since the time of filing. 9

In separate letters dated August 15, 2006 and January 12, 2007, 10 Atty. Macabinlar
informed the OCA that: (a) he already apprised Judge Pantanosas, Jr. of the cases
submitted for decision, the cases with pending matters or incidents for resolution, and
the cases requiring immediate action; (b) he already attached the required certificates
of arraignment to the records after the accused were arraigned; (c) he already updated
the submission of the Monthly Reports of Cases by submitting such report for the
month of November 2006; and (d) he also submitted the copy of the latest order of the
court concerning the list of cases with forfeited bonds.

Hernandez and Astique submitted their respective letters–compliance dated August 22,
2006 and January 26, 2007,11 stating that they had already updated the docket books
assigned to them immediately upon receipt of the first memorandum but that they had
failed to notify the OCA; and that they apologized for the delay of their responses. The
letters–compliance were supported by certifications dated August 22, 2006 and January
26, 2007 issued by Atty. Macabinlar.12

Accordingly, the OCA treated the matter concerning Hernandez and Astique as closed
and terminated due to their having complied with its directives.

On February 20, 2007, the OCA issued a third memorandum directing Judge
Pantanosas, Jr. and Atty. Macabinlar to fully comply with the directives of the previous
memoranda.13

Judge Pantanosas, Jr. and Atty. Macabinlar submitted their third

compliance.14 Nevertheless, Judge Pantanosas, Jr. still did not take appropriate action
on a criminal case and on four civil cases with no initial actions from the time of their
filing; to further act in two criminal and 22 civil cases; to resolve motions and incidents
in four criminal and 24 civil cases; and to decide 17 criminal and 31 civil cases.
Summarized hereunder are the cases decided, resolved or appropriately acted upon by
Judge Pantanosas, Jr., to wit:15
First 2nd 3rd Total no. of cases which
Status/Stage of Memo. Complia Memo Complia Memo Complia remain
Proceedings 04/04/ nce 05/02/ nce 02/20/ nce undecided/unresolved/u
05 06 07 nacted
Submitted for
9016 None 90 18 72 12 60
Decision
Submitted for
10317 None 103 63 40 13 27
Resolution
No further
action/setting/proce 95 None 95 52 43 12 31
eding
No initial action
14 None 14 8 6 1 5
taken
Of the three memoranda requiring Judge Pantanosas, Jr. to comply, he submitted the
appropriate compliance only after receiving the second and third memoranda.

Results/Findings of the Follow–Up Audit

On January 24–26, 2007, the Second Audit Team conducted a followup audit, and made
the following findings:18
(a) The total number of cases submitted for decision was reduced from 124 to 115 cases;
(b) The total number of cases with pending matter or incident for resolution was reduced from
106 to 100 cases; and
(c) The total number of cases with no further action/setting/proceeding was reduced from 101
to 100 cases;
(d) 39 cases referred to the Branch Clerk of Court for ex parte hearing had no Commissioner’s
Report.19
(e) There were five criminal cases that were either in the pre trial or trial stage, or were already
submitted for decision without conducting an arraignment of the accused.20
Of the 115 cases that Judge Pantanosas, Jr. left undecided: (a) 60 were found to be
submitted for decision by the First Audit Team; (b) 19 were considered inherited cases;
(c) some of the inherited cases had no transcripts of stenographic notes; and (d) 39
had no Commissioner’s Reports. Of the 100 cases with pending matters or incidents for
resolution, the First Audit Team found 25 of them unresolved.

Despite prior directives from the OCA, Judge Pantanosas, Jr. did not take proper action
on the cases with untranscribed stenographic notes, particularly those already
submitted for decision.

The Second Audit Team further found that there were more motions or pending
incidents that had remained unresolved despite the lapse of the reglementary period;
and that there were more cases that had remained unacted upon despite the lapse of a
considerable length of time.21

Status after Judge Pantanosas' Resignation

On March 29, 2007, Judge Pantanosas, Jr. filed his certificate of candidacy for the
position of Vice Governor of the Province of Misamis Oriental, and was thereby deemed
automatically resigned from the Judiciary. As of the date of his resignation, all of the
cases submitted for decision and all of the cases with pending matters or incidents for
resolution were already beyond the reglementary period to decide or resolve.

Clearly, prior to his resignation, Judge Pantanosas, Jr. did not: (a) decide 115 cases;
(b) resolve pending matters or incidents in 100 cases; (c) appropriately act on 100
cases with no further action or setting after the lapse of a considerable length of time;
(d) appropriately act on 45 criminal cases with warrants of arrest but without return of
service; and (e) appropriately act on five criminal cases that had proceeded to pre–trial
or trial proper without conducting an arraignment of the accused. 22

A.M. No. 05–2–108–RTC

On January 20, 2005, or a month prior to the first judicial audit, Judge Pantanosas, Jr.
filed in the Office of then Senior Deputy Court Administrator Zenaida N. Elepaño a
request for an extension of 90 days within which to decide 14 criminal cases and 11
civil cases that had been submitted for decision as early as in the period from October
2001 until October 2004.23 His request was docketed as Administrative Matter No. 05–
2–108–RTC.

Pursuant to the OCA’s recommendation, 24 the Court resolved on March 30, 2005 to:25
a) NOTE the said letter of Judge Gregorio D. Pantanosas, Jr.;

b) GRANT Judge Pantanosas, Jr. a period of ninety (90) days from receipt of notice
hereof within which to decide Criminal Cases Nos. 92–1935, 93–2417, 94–448, 94–936,
95–541, 95–620, 96–114, 96–582, 96–583, 97–585, 97–586, 97–13116, 97–1646,
99–893, 00–973, 99–1003, and Civil Cases Nos. 93–605, 92–009, 00–051, 20–017,
91–398, 98–553, 98–652, 95–515, 00–124, 99–557 and 98–266;

c) REMIND Judge Pantanosas, Jr. to state the ground/s for his request for extension of
time to decide cases;

d) DIRECT Judge Pantanosas, Jr. to EXPLAIN within ten (10) days from receipt of notice
why the abovementioned cases which have been submitted for decision as early as
October 2001 were not resolved within the reglementary period; and why Criminal
Cases Nos. 95–541 and 97–1646 as well as Civil Cases Nos. 98–553 and 00–124 were
not reflected in the “List of Cases submitted for decision but not yet decided at the end
of the month” ;

e) DIRECT Judge Pantanosas, Jr. to SUBMIT to the Court, through the Office of the
Court Administrator, a copy each of his decisions in the aforementioned cases within
five (5) days from rendition thereof;

f) DIRECT Atty. Taumaturgo U. Macabinlar, Branch Clerk of Court, Regional Trial Court,
Branch 20, Cagayan de Oro City to EXPLAIN within ten ( 10) days from receipt of notice
why Criminal Cases Nos. 95–541 and 97–1646 as well as Civil Cases Nos. 98–553 and
00–124 were not reflected in the monthly report of cases particularly from January
2004 and the prior months, as among the cases yet to be decided.
In his explanation,26 Atty. Macabinlar wrote: (a) that in Criminal Case No. 95–541,
Branch 20 had issued an order on August 2, 200227 directing the stenographers to
transcribe their notes and to attach the transcripts to the records; that it was only on
February 20, 2004 when the case was ordered submitted for decision upon the
submission of the stenographic notes; and that the case was reported as submitted for
decision only in the monthly report for February, 2004; (b) that Criminal Case No. 97–
1646 was reported as submitted for decision only in the monthly report of August 30,
2004, because the Private Prosecutor submitted his memorandum only on July 30,
2004;28 (c) that Civil Case No. 98–553 was the incorrect docket number of the case
pending decision; that the correct docket number was Civil Case No. 98–533; that
Judge Pantanosas, Jr. had erroneously indicated the docket number in his request for a
90–day extension to resolve several civil and criminal cases; that Civil Case No. 98–533
was included in the April 2002 monthly report among the cases submitted for decision;
and (d) that Civil Case No. 2000–124 was already reflected in the monthly report as of
May, 2003, but was inadvertently reported as Civil Case No. 2000–120; he would
rectify the error in the February 2004 report.

On his part, Atty. Macabinlar begged the indulgence of the Court for his inadvertence in
reporting the incorrect docket numbers, and promised to double–check the docket
numbers of all cases reported in the monthly reports in order to avoid similar mistakes
in the future.

In his explanation,29 Judge Pantanosas, Jr. stated that he did not resolve the cases
submitted for decision because of his heavy case load, which included the cases
inherited from the former presiding judge consisting of more than 150 cases submitted
for decision.

On June 27, 2005, the Court resolved to refer this administrative matter to the OCA for
evaluation, report and recommendation. 30

Pursuant to the OCA’s recommendation, 31 the Court consolidated Administrative Matter

No. 05–2–108–RTC with A.M. No. 07–9–454–RTC on November 26, 2007 because the
cases subject of Judge Pantanosas, Jr.’s request for extension to decide were also
among the cases subject of the judicial audit and physical inventory conducted on
Branch 20 for the past two years.32

On February 4, 2008, Atty. Macabinlar submitted to the OCA copies of the

Commissioner’s Reports33 in the 14 cases that had been referred to him for ex
parte hearing.34 He declared that he no longer needed to submit the Commissioner’s
Reports in four land registration cases cited in the OCA’s directive 35 because said cases
had already been decided.36 Thus, he still failed to fully comply with the directive to
him, because he did not submit his report on the remaining 21 cases referred to him
for ex parte hearing. He apologized for his inadvertence and explained that he had
failed to promptly submit the Commissioner’s Reports because the records of the cases
had been placed in the archives after the ex parte hearings.

The OCA’s Recommendation

In his memorandum dated August 15, 2007,37 Court Administrator Lock recommended
as follows:38
1. Judge Gregorio G. Pantanosas, Jr., former Presiding Judge, Regional Trial Court, Branch 20,
Cagayan De Oro City, be found GUl LTY of gross inefficiency and gross misconduct and
that he be imposed a FINE in an amount equivalent to the salary and benefits for six (6)
months to be deducted from the retirement benefits due him;
xxxx
4. Atty. Taumaturgo U. Macabinlar, Branch Clerk of Court, RTC, Branch 20, Cagayan de Oro
City, be:
(a) Found GUILTY of inefficiency and incompetence and that he be imposed a penalty of
SUSPENSION from office for three (3) months with a STERN WARNING that a
repetition of similar act in the future shall be severely dealt with;
(b) DIRECTED to: (1) EXPLAIN in writing within fifteen (15) days from receipt of
notice why he failed to submit the Commissioner’s Report in the 39 cases listed under
Table 6 above; (2) to SUBMIT the Commissioner’s Report in the 39 cases listed under
Table 6 above within thirty (30) days from receipt of notice and to furnish the
Honorable Court through this Office a copy of the said report, immediately upon his
assumption to office after service of suspension;
(c) RELIEVED from being appointed as Commissioner to receive ex–parte evidence until
the submission of all Commissioner’s Report in all cases where he was deputized as
such.
The OCA found that Judge Pantanosas, Jr.’s failure to decide cases within the
reglementary period constituted gross inefficiency that should be sanctioned; that
despite the prior request for extension of time to decide some of the pending cases,
Judge Pantanosas, Jr. still did not resolve them within the extended period; and that
Judge Pantanosas, Jr. also did not take appropriate action to secure the transcripts of
stenographic notes in some of the inherited cases.

Aside from gross inefficiency, the OCA found Judge Pantanosas, Jr. guilty of dishonesty
amounting to gross misconduct for continuing to collect his salary and other benefits
based on false certificates of service that did not reflect the actual number of his
undecided cases. A careful reading of his certificates of service 39 for the months of
January 2007 to March 2007, and from February 2006 to December 2006 revealed that
he stated therein that he had only around 37 to 41 undecided cases, when he was
aware that he had 60 undecided cases during such periods of time because he had
failed to fully comply with the memoranda of the OCA dated April 4, 2005, May 2, 2006
and February 20, 2007.

The OCA concluded that pursuant to Administrative Circular No. 04–2004 dated
February 4, 2004, the monthly reports of cases must be filed with or sent by registered
mail to the Supreme Court on or before the 10 th calendar day of the succeeding month;
that Atty. Macabinlar had been consistently late in the submission of monthly reports of
cases; that his lapses in the timely submission of monthly reports of cases and his
failure to fully implement the writs of execution of forfeited bonds in some criminal
cases had amounted to inefficiency and incompetence in the performance of his official
duties; that under Civil Service Rules, inefficiency and incompetence in the performance
of official duty was a grave offense with an imposable penalty of suspension of six
months and one day to one year for the first offense, and dismissal from the service for
the second offense.

However, the OCA considered Atty. Macabinlar’s partial compliance with the directives
to him, and the fact that this was his first offense as mitigating; and recommended as
penalty his suspension from office for three months with a stern warning that a
repetition of similar acts would be severely dealt with.

Due to the Second Audit Team’s finding that he had not submitted the Commissioner’s
Reports in 39 cases where he had received evidence ex–parte as commissioner (which
by then had already been reduced to 21 cases), Atty. Macabinlar should be required to
submit the reports and to explain why he had not submitted them despite the lapse of a
considerable time. In the meantime that he was preparing and completing the
submission of all he Commissioner’s Reports, he should not be deputized as
commissioner to receive evidence ex parte.

The OCA’s Modified Recommendation

On April 11, 2008, Court Administrator Elepaño modified the OCA’s recommendations,
as follows:

1. Judge Gregorio G. Pantanosas, Jr. former Presiding Judge, Regional Trial Court,
Branch 20, Cagayan De Oro City be found Guilty of gross inefficiency and gross
misconduct and that he be FINED an amount equivalent to his salary and
benefits (including SAJJ, RATA, JDF and Extraordinary Allowance) for six (6)
months to be deducted from the retirement benefits due him to serve as a
strong deterrent to judges who may wish to thwart the coercive powers of this
Court by filing a certificate of candidacy; and

2. Atty. Taumaturgo U. Macabinlar, Branch Clerk of Court, RTC, Branch 20,

Cagayan de Oro City, be found GUILTY of inefficiency and incompetence and
FINED the amount of FIFTY THOUSAND PESOS (P50,000.00) with a STERN
WARNING that a repetition of similar act in the future shall be dealt with more
severely. It is likewise recommended that he be RELIEVED from being appointed
as Commissioner to receive ex parte evidence until the submission of
Comissioner’s Report in all cases where he was deputized as such.

Ruling

The Court agrees with the findings of the OCA.

Liability of Judge Pantanosas, Jr.

The speedy disposition of cases in our courts is a primary aim of the Judiciary, so that
the ends of justice may not be compromised and the Judiciary will be true to its
commitment to provide litigants their constitutional right to a speedy trial and a speedy
disposition of their cases.40 The Code of Judicial Conduct mandates that a judge
administers justice impartially and without delay.41 Under the New Code of Judicial
Conduct for the Philippine Judiciary,42 a judge is obliged to perform all judicial duties,
including the delivery of reserved decisions, efficiently, fairly and with reasonable
promptness.43 To comply with his obligation, he must display such interest in his office
which stops not at the minimum of the day’s labors fixed by law, and which ceases not
at the expiration of official seasons, but which proceeds diligently on holidays and by
artificial light and even into vacation periods. Only thereby can he do his part in the
great work of speeding up the administration of justice and rehabilitating the Judiciary
in the estimation of the people.44 Any unjustified failure to decide a case within the
reglementary period constitutes gross inefficiency that deserves the imposition of the
proper administrative sanctions. Hence, decision–making is his primordial and most
important duty as a member of the Bench.

Based on the audit reports of the OCA’s Audit Teams, Judge Pantanosas, Jr. did not live
up to these tenets. Accordingly, he was administratively liable for gross inefficiency.

Yet, Judge Pantanosas, Jr. seeks to avoid liability by attributing part of the delay in
deciding the pending cases to the absence of the transcripts of stenographic notes.

The excuse interposed by Judge Pantanosas, Jr. is unacceptable. The Court has ruled
in Office of the Court Administrator v. Judge Aquino 45 that the incompleteness of the
transcripts of stenographic notes was not a valid reason for not deciding cases within
the extended period granted by the Court, for, precisely, judges have been instructed
to take notes of the salient portions of their hearings, and to proceed in the preparation
of their decisions without waiting for the transcripts. 46 To let judges await the
transcription of the stenographic notes before they could render their decisions would
cause undue delays because judges could then easily find justifications for failing to
comply with the mandatory period to decide cases. Verily, the proper and efficient
management of his court is the responsibility of every presiding judge – he alone is
directly responsible for the proper discharge of official functions. 47

Judge Pantanosas, Jr. could not also cite the incompleteness of the TSNs as an excuse
for not deciding the cases inherited from a predecessor judge. This is because it was
entirely within his power as the incumbent presiding judge to compel the stenographic
reporters concerned to complete their transcripts, or face sanctions. He could have also
resorted to other ways of seeing to the reproduction of testimonies should the
incompleteness ever prevent the performance of his primary responsibility to resolve
the cases. But it is clear to us that he did not exert his best effort towards that end.
Consequently, he had no one else to blame but himself.

Under Rule 140 of the Rules of Court, as amended, undue delay in rendering a decision
is classified as a less serious charge that carries with it the penalty of suspension from
office without salary and other benefits for not less than one nor more than three
months, or a fine of more than P10,000.00 but not exceeding P20,000.00. However,
the offense of Judge Pantanosas, Jr. did not involve only a single but several
unrendered decisions. Hence, his offense was a compounded one worthy of the highest
sanction.

We are much dismayed to uncover that in addition to his gross inefficiency, Judge
Pantanosas, Jr. was guilty of a grave misconduct pursuant to Section 8, Rule 140 of
the Rules of Court, as amended,48 by submitting false certificates of service in which he
certified that he did not have any unresolved cases and matters pending in his court’s
docket. Thereby, he defrauded the Government. The certificates of service were not
only the means to ensure his paycheck but were also the instruments by which the
Court could fulfill the constitutional mandate of the people’s right to a speedy
disposition of cases. His dishonesty – because it badly reflected on his integrity as a
member of the Judiciary and seriously undermined his service to our country and
people – merited for him the very high penalty of suspension without pay for a period
of six months, similar to what the Court prescribed for a judge who did not timely
decide an election protest for eight months and submitted false certificates of service,
in addition to being found guilty of habitual absenteeism. 49

This is not the first time that Judge Pantanosas, Jr. is administratively sanctioned.
In Uy v. Judge Pantanosas, Jr.,50 the Court already declared him guilty of gross
inefficiency for the undue delay in the resolution of Civil Case No. 2002–241, 51 and fined
him P10,000.00 with a warning that a repetition of a similar act would be dealt with
more severely.

Given all the circumstances, Judge Pantanosas, Jr. was guilty of two grave offenses of
compounded gross inefficiency and dishonesty. With the aggravating circumstance of
his having been already severely sanctioned for the similar offense of failure to decide a
case within the reglementary period, the highest penalty is warranted. That penalty
would be dismissal from the service had he still been in the active service. But the filing
on March 29, 2007 of his certificate of candidacy to run for public office automatically
deemed him resigned from the service. Accordingly, the Court sanctions him properly
by forfeiting all his retirement benefits, except earned leave credits.

Liability of Atty. Macabinlar

The Court adopts the recommendation of the OCA finding Atty. Macabinlar guilty of
gross inefficiency and incompetence. Branch Clerks of Court are officers who perform
vital functions in the prompt and efficient administration of justice. Their office is at the
core of the adjudicative and administrative orders, processes and concerns. One of their
most important responsibilities is to conduct monthly physical inventory of cases. It is
also their duty to assist in the proper management of the calendar of the court and in
all matters that do not involve discretion or judgment that is the exclusive province of
their judges. As such, they are required to be persons of competence, honesty and
probity, and are not permitted to be lackadaisical on the job. 52

This finding against Atty. Macabinlar serves to underscore the value of a Branch Clerk
of Court like him in the organization of the Regional Trial Courts. Atty. Macabinlar did
not tender any satisfactory explanation for his consistent failure to promptly submit the
monthly report of cases, and for his failure to timely accomplish the Commissioner’s
Reports in the 39 cases assigned to him for ex parte reception of evidence. He is
administratively liable. He ought to recognize that the great responsibility of ensuring
that delays in the disposition of cases be kept to a minimum rested not only on the
judge but also on him as the Branch Clerk of Court. 53

The modified recommendation by then Court Administrator Elepaño for the imposition
of a P50,000.00 fine is too harsh, however, for it would in effect require Atty.
Macabinlar to continue rendering service as the Branch Clerk of Court without
compensation until he would have fully paid the fine out of his salary. The fact that the
offense was the first for him is a mitigating circumstance in his favor. As such, his
suspension of one month without pay, plus a severe warning against a repetition, is
sufficient.

WHEREFORE, the Court: chanRoblesvirtualLawlibrary

1. FINDS Judge GREGORIO D. P ANTANOSAS, JR., retired Presiding Judge of Branch

20 of the Regional Trial Court in Cagayan de Oro City, GUILTY of TWO COUNTS OF
GROSS MISCONDUCT; and DECLARES his retirement benefits FORFEITED, without
prejudice to the payment to him of any balance of his earned leave credits; and

2. PRONOUNCES Atty. TAUMATURGO U. MACABINLAR, Branch Clerk of Court,

Branch 20 of the Regional Trial Court in Cagayan de Oro GUILTY of INEFFICIENCY
AND INCOMPETENCE, and SUSPENDS him from office for one month without pay
with a STERN WARNING that a repetition of the offense or similar acts shall be dealt
with more severely.

After the service of his suspension, ATTY. MACABINLAR shall submit the

Commissioner’s Reports respecting the 21 remaining cases enumerated under Table 6
of OCA Memorandum dated April 11, 2008, and to furnish the Office of the Court
Administrator with copies of the Commissioner’s Reports immediately upon his re–
assumption of office following the service of his suspension. He shall be disqualified
from serving as a Commissioner to receive evidence ex parte until the submission of all
Commissioner’s Reports in the cases for which he had been so authorized to receive
evidence.

SO ORDERED.

EN BANC
[ G.R. No. 189171, June 03, 2014 ]
EDILBERTO L. BARCELONA, PETITIONER, VS. DAN JOEL LIM AND
RICHARD TAN, RESPONDENTS.

DECISION

SERENO, C.J.:

This case involves a Petition for Review on Certiorari[1] filed under Rule 45 of the 1997
Rules of Civil Procedure, praying for the reversal of the Decision[2] of the Court of
Appeals (CA) dated 26 September 2008, and its subsequent Resolution[3] dated 26 August
2009. Both dismissed the Petition for Review[4] filed by Edilberto L. Barcelona
(petitioner) for lack of merit.

The CA affirmed the Civil Service Commission (CSC) Resolutions dated 18 December
2006[5] and 28 August 2007,[6] which in turn affirmed the Order dated 27 September 2000
issued by the Chairperson of the National Labor Relations Commission (NLRC), Roy V.
Señeres (Chairperson Señeres or simply Chairperson). The Order barred petitioner, who
was then the officer-in-charge of the Public Assistance Center of the NLRC, from
entering its premises a month before the Efficiency and Integrity Board (Board) could
investigate the administrative case for dishonesty and grave misconduct filed against him.

The records disclose that on 14 August 2000, respondent businessman Dan Joel Lim
(Lim), the owner of Top Gun Billiards, filed a Sinumpaang Salaysay (sworn statement)
with the Criminal Intelligence Division of the National Bureau of Investigation (NBI).
Lim claimed as follows: (1) his employees, Arnel E. Ditan and Pilipino Ubante, were
influenced by petitioner to file a labor complaint against Lim;[7] and (2) petitioner, then an
NLRC officer, demanded ?20,000 for the settlement of the labor case filed against Lim.
On the strength of this sworn statement, the NBI organized an entrapment operation
against petitioner.

On 16 August 2000, Lim informed the NBI that petitioner would drop by Top Gun
Billiards around seven o’clock in the evening, expecting to receive the ?20,000 petitioner
was demanding from him; otherwise, petitioner would order that Top Gun Billiards be
closed. After Lim handed him the marked bills, petitioner began counting them. The
latter was arrested by the NBI right when he was about to put the money in his bag.

After being duly informed of his constitutional rights, petitioner was brought to the NBI
office where he was booked, photographed, and fingerprinted. Thereafter, he underwent
ultraviolet light examination. The Certification dated 16 August 2000 of the NBI-
Forensic Chemistry Division stated that his hands “showed the presence [of] Yellow
Fluorescent Specks and Smudges,”[8] and that “[s]imilar examinations made on the
money bills showed the presence of yellow fluorescent specks and smudges x x x.”[9]

In a letter to the City Prosecutor of Manila, NBI Director Federico M. Opinion, Jr.
recommended the prosecution of petitioner for robbery under Article 293 of the Revised
Penal Code (RPC) and violation of Republic Act No. (R.A.) 3019 or the Anti-Graft and
Corrupt Practices Act. The NBI filed the Complaint.  Finding probable cause, the City
Prosecutor filed with the Regional Trial Court (RTC) of Manila on 18 August 2000 an
Information against petitioner for the crime of robbery.

It was further discovered that while the inquest papers were being prepared by the NBI,
Richard Tan (Tan), owner of Tai Hing Glass Supply, had filed a similar extortion
Complaint against petitioner. The latter supposedly asked him to pay ?15,000 in
exchange for the settlement of a fabricated case.[10]

Reports of the circumstances leading to the arrest and filing of the Complaints against
petitioner were submitted by Tan and Lim to Chairperson Señeres. On 17 August 2000,
copies of the documentary evidence[11] against petitioner were likewise endorsed to the
Chairperson.[12]

Finding a prima facie case against petitioner, Chairperson Señeres issued Administrative

Order No. 9-02 Series of 2000 on 1 September 2000, formally charging him with
dishonesty and grave misconduct. The Order created a panel (the Board) to look into the
present case; require petitioner to file an answer to the charges; conduct an investigation;
and thereafter submit its report/recommendation.[13] The Order also placed petitioner
under a 90-day preventive suspension upon receipt thereof.

The Board issued a Summons dated 19 September 2000 directing petitioner to answer the
charges against him. Both the Order and the Summons were served on him, but he
refused to receive them.[14] He never filed an Answer.

Lim, Tan, and the NBI agents involved in the entrapment operations appeared at the
preliminary investigation conducted by the Board on 28 September 2000 in order to
confirm their accusations against petitioner.

On 23 October 2000, the Board conducted a hearing attended by petitioner with three of
his lawyers. He manifested therein that he was not subjecting himself to its jurisdiction.
[15]
 Thus, he left without receiving copies of the Order and other documents pertinent to
the case.[16]

The Board resolved the administrative case ex parte. It found that petitioner had been
caught red-handed in the entrapment operation. His guilt having been substantially
established,[17] the Board in its 31 October 2000 Report/Recommendation[18] found him
guilty of dishonesty and grave misconduct. Upon approval of this recommendation by
NLRC Chairperson Señeres on 14 November 2000, petitioner was dismissed from
service.

A copy of the Board’s Decision was received by petitioner on 22 November 2000.  On 1

December 2000, he filed a Motion for Extension of Time Within Which to File the
Proper Responsive Pleading, but it was denied.[19]

Petitioner appealed to the CSC. In his Appeal Memorandum,[20] he presented his side of
the story. He claimed to have visited Lim’s establishment to play billiards every now and
then. Before going home, he would supposedly drop by the place, which was a mere 5- to
10-minute tricycle ride away from where he lived.[21] When Lim’s employees discovered
that petitioner worked for the NLRC, they told him of their employer’s labor law
violations.[22] Thus, petitioner assisted them in filing a case against Lim and later
scheduled the case for a conference on 10 August 2000.

Two days before the scheduled conference, petitioner was informed by one of the
employees that Lim wanted to speak with him.  Lim supposedly offered petitioner money
to drop the labor case filed against the former.  According to petitioner, this offer was
“flatly rejected.”[23]

The next day, when petitioner went to Lim’s establishment to play billiards, a billiard
hustler by the name of Abel Batirzal (hustler) informed him that Lim required everyone
playing in the establishment to lay a wager on the games they played.[24] Since he
“abhorred” gambling, petitioner decided to discourage the hustler by raising the amount
the latter proposed.[25]

Petitioner lost to the hustler. As the former was about to leave the establishment, he
discovered that his cellular phone and pack of Philip Morris cigarettes were no longer
where he left them. The security guard on duty informed him that a certain Ian Gumban
had stolen the items.[26]

Petitioner went straight to the Western Police District Station and filed a Complaint for
theft, billiard hustling, syndicated gambling, swindling, and violation of city ordinances
against Lim and three of the latter’s employees or friends.[27]

A day after the foregoing incident, or on 10 August 2000, neither Lim nor his employees
appeared at the scheduled conference. On the evening of the same day, petitioner went to
Lim’s establishment to check on the employees. There they told him to consider their
Complaint withdrawn, since Lim had already decided to settle the case with them.
Accordingly, the case was dropped from the NLRC’s calendar. [28]

Petitioner claims that on 16 August 2000, the day of the alleged entrapment, he received
a call from Lim. The person who had stolen petitioner’s cellphone was supposedly
willing to return it at seven that evening at Lim’s billiards hall.[29]

When petitioner arrived, he saw Lim and one of the latter’s employees. Lim approached
petitioner and informed him that the thief could no longer return the phone. The thief had
allegedly decided to just pay the value of the phone and entrust the money to Lim. The
latter tried to give the money to petitioner and urged him to count it, as the former was
not sure how much the thief had given. Petitioner supposedly refused to receive and
count the cash and, instead, insisted that Lim arrange a meeting with the thief. [30]

Because petitioner would not take the money, Lim inserted the wad of cash into the open
pocket of the former’s shoulder bag.[31] Just when petitioner was about to pull out the
money and throw it back to Lim, the NBI agents appeared and arrested petitioner who
recalls the incident as follows:

x x x [W]hile trying to retrieve the unduly incriminating wad of money to throw it back
to Mr. Lim, about five or seven burly men accosted petitioner without properly
identifying themselves and with strong-arm tactics, hand-cuffed him  over his vehement
protestations. One of the burly men even pointed his gun at petitioner’s face as he and his
companions wrestled petitioner to a car. x x x.[32]

With respect to Tan, petitioner claims that the latter never demanded or received any sum
of money from him. Allegedly, Tan was only displeased with petitioner’s active
assistance to one of Tan’s aggrieved employees.[33]

Petitioner further claims that even before Chairperson Señeres formally charged him with
dishonesty and grave misconduct, the former had already filed an urgent request for an
emergency leave of absence because of the alarming threats being made against him and
the members of his family.[34]

Petitioner asked the CSC to nullify the 27 September 2000 Order of Chairperson Señeres.
The Order barred petitioner from entering the NLRC premises a month before the hearing
conducted by the Board. He then questioned its impartiality.  As proof of his allegation,
he made much of the fact that the Board denied his Motion for Extension of Time Within
Which to File a Proper Responsive Pleading.[35]

Six years after petitioner had filed his Appeal Memorandum, the CSC dismissed it. The
dispositive portion of its Resolution[36] dated 18 December 2006 reads:

WHEREFORE, the appeal of Edilberto S. (sic) Barcelona is hereby DISMISSED.

Accordingly, the Decision dated November 14, 2000 of Roy R. Seneres, [Chairperson,]
(NLRC) finding him guilty of Dishonesty and Grave Misconduct and imposing upon him
the penalty of dismissal from the service with the accessory penalties of disqualification
from re-entering government service, forfeiture of retirement benefits and bar from taking
any civil service examinations  is hereby AFFIRMED.[37]

Petitioner filed a Motion for Reconsideration on 15 January 2007.[38] He questioned the

validity of his dismissal by asserting that before its implementation, the NLRC had the
legal duty of obtaining its confirmation by the Department of Labor and Employment
(Labor) Secretary.[39]

On 28 August 2007,  petitioner’s Motion for Reconsideration was denied by the CSC
through a Resolution.[40]

Petitioner filed a Petition for Review, but it was dismissed by the CA in the assailed
Decision dated 26 September 2008.[41]

A Motion for Reconsideration with Motion for Voluntary Inhibition of Honorable Justice
Vicente S.E. Veloso (Justice Veloso)[42] was then filed by petitioner. The latter cited the
following reasons for the prayer for inhibition:
1)  Honorable Justice Veloso was a Commissioner of public respondent NLRC at the
time of the subject incident; and

2)  The undersigned counsel, eldest son of petitioner, just recently resigned from the law
firm where the daughter of Justice Veloso is working.[43]

Justice Veloso, in a Resolution[44] dated 27 February 2009, stated that while the grounds
invoked by petitioner did not constitute valid bases for an inhibition, the former would
voluntarily inhibit “to assuage petitioner in whatever fears he may have” over the CA’s
handling of the Motion for Reconsideration.

Thereafter, the CA issued the assailed Resolution[45] dated 26 August 2009 denying

petitioner’s Motion for Reconsideration. In spite of his voluntary inhibition, Justice
Veloso still signed the herein questioned Resolution to signify his concurrence.

Hence, this Petition praying for the reversal of the Decision and Resolution of the
appellate court and the dismissal of the administrative Complaint filed against petitioner.
[46]

This Court required respondents Lim and Tan to file their respective Comments, but
neither of them complied. Since copies of the Resolution ordering them to Comment
were personally served upon them, the Court resolved to consider them to have waived
their right to comment on the Petition.[47]

Petitioner comes before this Court raising the following arguments:

1. The CA  decided a question of substance “not in accord with the applicable law
and jurisprudence” when it:

a. Denied petitioner’s Motion for Reconsideration with the participation of

Justice Veloso, who had earlier voluntarily inhibited himself from the case.

b. Ruled that petitioner was not denied due process of law in spite of
overwhelming proof that the NLRC chairperson failed to act with
impartiality in deciding petitioner’s case.

c. Ruled that petitioner’s appeal to the CSC had not been filed on time, even
though the commission itself did not question the timeliness of that.

d. Ruled that the findings of the CSC were supported by evidence.

 2. The CA, like the CSC, failed to address all the issues presented by petitioner when
it chose to keep silent on the following issues:

a. The denial of the right of petitioner to the speedy disposition of his case;
and

b. The failure of the disciplining authority to obtain the confirmation by the

Department head of the former’s decision to dismiss petitioner from
service.[48]

We reduce the issues to the following:

Whether petitioner was denied due process of law;

II

Whether the factual findings of the CSC are supported by evidence;

III

Whether the CA had the authority to review matters not assigned by the parties as issues;

IV

Whether the right of petitioner to the speedy disposition of his case has been violated by
the CSC; and

Whether the NLRC violated the Civil Service Rules provision, which allows the
execution of a penalty of removal decreed by a bureau or office head, pending appeal
thereof to the CSC, only when the penalty has been confirmed by the Secretary of the
department concerned.

Petitioner was not denied due process of law.

Petitioner claims he was denied due process of law due to the partiality of Chairperson
Señeres, the Board, the CSC, and the CA.

Considering the many complaints of petitioner, we deem it best to present an exhaustive

outline of his entire evidence therefor.  Below are several circumstances he cites to prove
that he was not afforded the right to be heard by an independent and impartial tribunal.

According to petitioner, Chairperson Señeres served not only as the former’s accuser, but
also as judge and executioner.[49] The Chairperson’s partiality was supposedly
demonstrated by the following acts:

1. On 10 November 2000, petitioner and his two sons allegedly approached and
asked Chairperson Señeres why he was persecuting petitioner. The Chairperson
supposedly replied: “Wala akong pakialam. Pasensya kayo. Tapos na ang tatay
ninyo!”[50]

2. Chairperson Señeres issued defamatory press releases to the media announcing the
preventive suspension of petitioner and depicting the latter as a corrupt
government official. The Chairperson allegedly took advantage of the situation of
petitioner in support of the former’s then prospective political career, to wit:

x x x [A]t the expense of petitioner, [he] took advantage of the opportunity to

project himself as a graft buster to further his sagging political career and burning
senatorial ambitions by immediately issuing press releases and causing the
malicious publication of the petitioner’s preventive suspension without affording
the latter due process of law.[51]

3. Lim never filed a written complaint against petitioner as required by Section 8 of

the Civil Service Rules and, consequently, the latter was not given the chance to
file a counter-affidavit or comment on the written Complaint as mandated by
Section 11 of the Civil Service Rules.

4. No preliminary investigation was conducted as required by Section 12 of the Civil

Service Rules.

5. Chairperson Señeres failed to serve the formal charge to petitioner in accordance

with Section 16 of the Uniform Rules on Administrative Cases in the Civil Service
(Civil Service Rules).[52]

6. The Order dated 1 September 2000, which immediately placed petitioner under a
90-day preventive suspension, supposedly violated the requirement in Section 19
of the Civil Service Rules that an order of preventive suspension be issued only
upon service of the formal charge.

7. The Board created by Señeres to investigate the case denied the Motion for
Extension of Time filed by petitioner, in order to ensure that the latter would no
longer be able to return to work.
As for the Board, its “lack of and glaring absence of impartiality and objectivity” was
supposedly shown by the following:[53]

1. A substantial portion of the Report/Recommendation of the Board shows that it

delved into petitioner’s expression of protest against the Chairperson’s unfair
treatment, and thereby reinforced petitioner’s apprehension that the case would not
be resolved on its merits.

2. The denial of petitioner’s Motion for Extension of Time Within Which to File the
Proper Responsive Pleading dated 1 December 2000 was allegedly unjust and
groundless.

With respect to the CSC, petitioner claims that it “curiously amended” Section 43(2) of
the Civil Service Rules only three weeks after he had filed his Motion for
Reconsideration of the Resolution denying his appeal.[54]

Lastly, petitioner bewails the supposed haphazard manner in which the CA disposed of
his claim that he had been denied due process of law. He claimed that it simply dismissed
the issue through a one-sentence ruling, which reads:

On the alleged failure of the NLRC to observe impartiality, suffice it to say that petitioner
failed to present proof to substantiate his self-serving allegations.[55]

In the eyes of petitioner, it would appear that every agency of the government that had a
hand in this case was, at his expense, either motivated by personal bias or driven by the
desire to advance its members’ political or professional careers in the government.

Petitioner’s claims are without merit.

Contrary to the assertions of petitioner, Chairperson Señeres did not act as the former’s
accuser, judge and executioner.[56] To be clear, the accusers of petitioner were Lim and
Tan, while his judge was an independent Board formed to investigate his case. This Court
is aware that the Board only had the power to recommend, and that that latter’s
recommendation was still subject to the approval of the Chairperson. Still, petitioner
cannot claim that he was denied due process on this basis alone, because the remedy to
appeal to the proper administrative body—the CSC in this case—was still made available
to him.

Petitioner claims that Sections 8, 11, 12, 16, and 19 of the Civil Service Rules were
violated by Chairperson Señeres. Petitioner misses the point that strict compliance with
the rules of procedure in administrative cases is not required by law. Administrative rules
of procedure should be construed liberally in order to promote their object as well as to
assist the parties in obtaining a just, speedy and inexpensive determination of their
respective claims and defenses.[57]

This Court finds that both Chairperson Señeres and the Board essentially complied with
the procedure laid down in the Civil Service Rules. Where due process is present, the
administrative decision is generally sustained.[58]

The claim of petitioner that he was denied due process is negated by the circumstances of
the case at bar.

The Report/Recommendation of the Board shows that both complainant and respondent
were given the opportunity to be heard by the Board and to adduce their respective sets of
evidence, which were duly considered and taken into account in its Decision.

Petitioner insists that Lim never filed a written complaint against him as required by
Section 8 of the Civil Service Rules. Petitioner further complains that he was not given
the chance to file a counter affidavit, a right provided by Section 11 of the Civil Service
Rules. The records disclose, however, that reports leading to his arrest and the filing of
the Complaint against him were submitted by Tan and Lim to the Chairperson of the
NLRC. On the basis of the sworn statements supporting the criminal Complaint against
petitioner, Chairperson Señeres found a prima facie case against him and issued the Order
formally charging him with dishonesty and grave misconduct.

Furthermore, the Board gave petitioner the chance to answer the charges against him
when it issued its 19 September 2000 Summons for that very purpose. He does not deny
that he was served a copy of the Summons, but that he refused to receive it. It was his
choice not to file an answer. After he decided to waive this right, we cannot now allow
him to claim that he has been deprived of the right to air his side through an answer or a
counter-affidavit.

Petitioner further claims that Chairperson Señeres violated Section 12 of the Civil Service
Rules when the latter dispensed with the requirement of conducting a preliminary
investigation. It is important to note that this preliminary investigation required by
Section 12 of the Civil Service Rules is not the same as that required in criminal cases.
Section 12 defines a preliminary investigation of administrative cases in the Civil Service
as an “ex parte examination of records and documents submitted by the complainant and
the person complained of, as well as documents readily available from other government
offices.” Petitioner presents no evidence to prove that either Chairperson Señeres or the
Board failed to examine these records. In fact, the records show that, on 28 September
2000, Lim and Tan appeared in the preliminary investigation conducted by the Board to
confirm their sworn statements and the criminal cases they had filed against petitioner.
That he submitted no documents for consideration in the preliminary investigation was
his choice.

According to petitioner, no formal charge was ever filed against him as mandated by
Section 16 of the Civil Service Rules. He now claims that Chairperson Señeres had no
right to place him under preventive suspension, because Section 19 of the Civil Service
Rules requires that a formal charge be served on petitioner before an order of preventive
suspension may be issued. The provision reads:

SECTION 19. Preventive Suspension. — Upon petition of the complainant or motu

proprio, the proper disciplining authority may issue an order of preventive suspension
upon service of the Formal Charge, or immediately thereafter to any subordinate officer
or employee under his authority pending an investigation, if the charge involves:
a. dishonesty;

b. oppression;

c. grave misconduct;

d. neglect in the performance of duty; or

e. If there are reasons to believe that the respondent is guilty of charges which would
warrant his removal from the service.
An order of preventive suspension may be issued to temporarily remove the respondent
from the scene of his misfeasance or malfeasance and to preclude the possibility of
exerting undue influence or pressure on the witnesses against him or tampering of
documentary evidence on file with his Office.

In lieu of preventive suspension, for the same purpose, the proper disciplining authority
or head of office, may reassign respondent to other units of the agency during the formal
hearings.

In this case, the Order was the formal charge. It was served on petitioner, but he refused
to receive it. He claims that on 27 September 2000, or a month before the hearing
conducted by the Board, Chairperson Señeres barred him from entering the NLRC
premises. Petitioner was thereby denied access to evidence and witnesses that could
support his case.[59] But, as revealed by Section 19, Chairperson Señeres had the right to
issue an Order of preventive suspension pending investigation by the Board, because
petitioner was being charged with dishonesty and grave misconduct.

Moreover, the Order of Chairperson Señeres preventing petitioner from entering the
latter’s office was also valid under Section 19. This Order was meant to preclude
petitioner from possibly exerting undue influence or pressure on the witnesses against
him or to prevent him from tampering with documentary evidence on file with his office.
This preventive measure is sanctioned by law.

As established by the facts, petitioner was given the opportunity to be heard and to
adduce his evidence. This opportunity was enough for one to comply with the
requirements of due process in an administrative case.  The formalities usually attendant
in court hearings need not be present in an administrative investigation, as long as the
parties are heard and given the opportunity to adduce their respective sets of evidence. [60]

As regards the charge of lack of impartiality, we agree with the CA’s pronouncement that
petitioner failed to substantiate his self-serving allegations.  Mere suspicion of partiality
does not suffice.[61]

Chairperson Señeres released statements to the media regarding the case of petitioner and
allegedly told him and his children that the Chairperson did not care about their woes.
Assuming this allegation to be true, it did not necessarily mean that Chairperson Señeres
was incapable of deciding the case without bias. These acts did not satisfactorily prove
the claim that in order to promote and further his political ambitions, he took advantage
of petitioner’s situation. As the NLRC Chairperson, he had the duty to answer the
questions of the media on the status of the cases against graft and corrupt practices
involving government officials under his commission. Furthermore, his statements to
petitioner and the latter’s family are not sufficient for this Court to believe that every one
of his acts, in relation to the case of petitioner, was meant to ensure the latter’s downfall
at whatever cost.

Similarly, the denial of petitioner’s Motion for Extension of Time, does not prove that the
tribunal failed to be impartial.

Petitioner is banking on one incident in which his Motion was denied. The denial in
itself, without any extrinsic evidence to establish bias, does not prove that he was denied
his right to be judged by an impartial and independent tribunal. While petitioner had the
right to file a Motion for Extension of Time, he did not have the right to expect that the
Motion would be granted. Absent any proof that the denial of this motion was made in
grave abuse of discretion amounting to lack or excess of jurisdiction, the Court will not
interfere with the pronouncement of the quasi-judicial body.

Lastly, the CSC has the power and the authority to amend the Civil Service Rules
whenever it deems the amendment necessary. The insinuation of petitioner that this
change was made for the sole purpose of hurting his appeal is a mere product of his
imagination. The CSC is under no obligation to review all the cases before it and, on the
basis thereof, decide whether or not to amend its internal rules.

We note, though, that the authority of the CSC to amend the rules does not give it the
authority to apply the new provision retroactively. The consequence of an illegal
retroactive application of a provision is discussed below.

The finding of the CSC that

petitioner is guilty of dishonesty and
grave misconduct is supported by the
evidence.

With respect to the sufficiency of the evidence supporting the factual findings of the
CSC, the CA ruled as follows:

Finally, it is well-settled that findings of fact of quasi-judicial agencies such as the Civil
Service Commission are generally accorded respect and even finality by this Court and
the Supreme Court, if supported by substantial evidence, in recognition of their expertise
on the specific matters under their consideration.[62]

Petitioner now claims that the CA did not even bother to discuss his allegation that the
findings of the CSC were not supported by evidence.[63] Unimpressed by the CA 
Resolution, he is now asking this Court to review the factual findings of the CSC.

Believing that the CSC found him guilty based on the Sinumpaang Salaysay executed by
Lim before the NBI, petitioner insists that this piece of evidence is insufficient to support
the CSC’s conclusions.[64] He claims that there is no specific allegation in the sworn
statement of Lim whether petitioner demanded money from the former; “who set the
alleged August 16, 2000 meeting at Mr. Lim’s billiard center; how it was agreed; and
what was the purpose of that meeting.”[65]

Petitioner casts doubt on the veracity of the statements of Lim, who supposedly filed a
report against him with the NBI a few days after filing a theft Complaint against him.
[66]
 According to petitioner, Lim should not be believed, because all of the latter’s
allegations are fueled only by vengefulness.

After claiming that Lim’s statement should not be trusted because of “ill-
motive,”[67] petitioner now questions the motives of the CSC and the NBI.

Anent the reliance of the CSC on the Sinumpaang Salaysay, petitioner decries:

To an unprejudiced, reasonable mind, the statement of Mr. Lim is not sufficient evidence
to pin down petitioner for such a serious offense as Dishonesty and Grave Misconduct.
The NLRC read more into the document and put words into the mouth of Mr. Lim.

Unfortunately, the CSC blindly affirmed the NLRC’s findings just to dispose of the case
after unreasonably sitting on it for more than six (6) long years.[68]
With respect to the NBI agents, petitioner harps on their eagerness to believe Lim’s
Complaint without even bothering to investigate. Petitioner explains his point:

[T]he NBI agents who conducted the alleged entrapment operation were motivated by the
desire to record an “accomplishment” and to obtain “commendatory results” due to the
highly competitive police function and law enforcement activities.”[69]

We affirm the CA’s findings.

First, except for his accusations, petitioner presents no proof that the CSC “blindly”
affirmed the NLRC’s ruling just to get rid of the case. A reading of the Resolutions of the
CSC reveals otherwise. They thoroughly discussed the factual circumstances surrounding
this case, the evidence, and why and how the conclusion was reached. In order to
overcome the validity of these Resolutions, petitioner must present evidence to prove that
the evidence relied on by the CSC was unsubstantial.

In attempting to prove that the evidence presented was insufficient to prove his guilt,
petitioner asks this Court to focus on the inadequacy of Lim’s Sinumpaang
Salaysay. Contrary to these assertions, however, the following pieces of evidence—in
addition to Lim’s sworn statement—were considered by the CSC in resolving petitioner’s
appeal:

1. The sworn statement of Tan, who appeared in the preliminary investigation

conducted by the Board to confirm that he had filed a similar extortion Complaint
against petitioner;[70]

2. The Report and the evidence presented by NBI Special Investigator  Marvin E. de
Jemil, who appeared before the Board to confirm the contents of his Report,
findings, and evidence against petitioner in support of the administrative charges
filed against the latter; and

3. The statement of the arresting officers who apprehended petitioner in the

entrapment operation, and who also appeared in the continuing investigation to
affirm the contents of their Joint Affidavit of Arrest.[71]

Factual findings of administrative bodies like the CSC are binding on this Court, unless
these findings are not supported by substantial evidence.[72] In this case, we rule that the
findings of fact and conclusions of the CSC have passed the test of substantiality. It is
sufficient that administrative findings of fact are supported by the evidence on record; or,
stated negatively, it is sufficient that findings of fact are not shown to be unsupported by
evidence.[73] The absence of substantial evidence is not shown by stressing that there is
contrary evidence on record, whether direct or circumstantial.[74]

All the pieces of evidence presented before the CSC point to the guilt of petitioner.
Several persons, both private individuals and law enforcers, came forward to testify and
present evidence to prove the allegations against him.  In fact, each testimony
corroborated the testimonies of the others, effectively allowing the CSC to form a
complete picture of the incidents that led to the ultimate act of extortion.

As defined in the landmark case Ang Tibay v. Court of Industrial Relations,[75] all that is

needed to support an administrative finding of fact is substantial evidence, which is
defined as "such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion." The evidence presented in the present case is more than enough to
support the conclusion reached.

Where the findings of fact of a quasi-judicial body are supported by substantial evidence,
these findings are conclusive and binding on the appellate court.[76] Thus, the CA did not
err in ruling that the CSC had committed no error in finding that petitioner was guilty of
dishonesty and grave misconduct.

In the case at bar, petitioner accuses the NBI agents of being driven by “ill-motive.” In
the absence of credible evidence, the presumption of regularity in the performance of
their duties prevails over his unsubstantiated and self-serving assertions, to wit:

Between the naked assertions of accused-appellant and the story recounted by the
NARCOM agents, jurisprudence dictates that the latter is to be given more weight. Aside
from having in his favor the presumption of regular performance of duty, we find as the
court a quo did that the testimony of Lt. Cantos is more credible, being fully and
convincingly corroborated, as opposed to that of accused-appellant. Besides, no improper
motive to falsely accuse appellant could be imputed to him. In the absence of proof of
such motive to falsely impute a serious crime against appellant, the presumption of
regularity in the performance of official duty as well as the findings of the trial court on
the credibility of witnesses must prevail over the self-serving and uncorroborated claim
of having been "framed up."[77]

This rule holds true for the present case. Not only do the NBI agents have in their favor
the presumption of regularity in the performance of their duties; their statements are
credible and corroborated as well. After being caught red-handed, petitioner needs
extrinsic evidence to back up his allegations to prove that the NBI agents had an ulterior
motive to falsely impute the crime to him.

The appellate court has the authority

to review matters that the parties have not
specifically raised or assigned as error.
Petitioner questions the propriety of the following pronouncement of the CA:

We likewise note that petitioner’s appeal to the CSC was made beyond the reglementary
period. Admittedly, petitioner received the Decision of the NLRC on 22 November 2000.
Petitioner’s motion for extension of time within which to file the proper responsive
pleading filed on 1 December 2000 did not stop the running of the period for its finality,
and the Notice of Appeal and Appeal Memorandum were filed only on 27 December
2000 or one (1) month and five (5) days from receipt of the Decision. Petitioner
erroneously counted the period within which to appeal from the date he received the
Order denying his motion for extension to file his responsive pleading.[78]

While petitioner does not deny that his appeal to the CSC was filed beyond the
reglementary period, he argues that the timeliness of his appeal has never been an issue.
He thus claims that only the issues raised by the parties may be resolved by the Court.

Petitioner is mistaken. An appeal throws the entire case open for review, viz:

[A]n appeal, once accepted by this Court, throws the entire case open to review, and that
this Court has the authority to review matters not specifically raised or assigned as error
by the parties, if their consideration is necessary in arriving at a just resolution of the
case.[79]

Petitioner adds that the CA erred in applying technical rules strictly. According to him, if
its strict application of the rules would tend to frustrate rather than promote justice, it is
within this Court’s power to suspend the rules or except a particular case from their
operation.[80]

We agree with petitioner’s claim that rules of procedure are established to secure
substantial justice, and that technical requirements may be dispensed with in meritorious
cases. However, we do not see how the CA, in deciding the case at bar, could have
overlooked this policy. Although it took notice of the failure of petitioner to file his
appeal with the CSC on time, and perhaps used this failure as a supporting argument, it
did not dismiss the Petition on that sole ground. In fact, a perusal of the CA Decision now
in question will reveal that the appellate court took cognizance of the case and adequately
discussed the pertinent issues raised by petitioner.

No violation of the right of petitioner

to the speedy disposition of his case.

Petitioner filed his Notice of Appeal and Appeal Memorandum with the CSC on 27
December 2000,[81] but it only issued its Resolution on 18 December 2006.
According to petitioner, he sees no justifiable reason for the six-year delay in the
resolution of his appeal before the CSC.[82] He is now asking this Court to “rectify” the
wrong committed against him and his family by absolving him of the administrative
charges.[83]

Section 16, Rule III of the 1987 Philippine Constitution, reads:

Sec. 16. All persons shall have the right to a speedy disposition of their cases before all
judicial, quasi-judicial, or administrative bodies.

The right to a speedy disposition of cases is guaranteed by the Constitution.  The concept
of speedy disposition is flexible. The fact that it took the CSC six years to resolve the
appeal of petitioner does not, by itself, automatically prove that he was denied his right to
the speedy disposition of his case. After all, a mere mathematical reckoning of the time
involved is not sufficient, as the facts and circumstances peculiar to the case must also be
considered.[84]

Caballero v. Alfonso, Jr.,[85] laid down the guidelines for determining the applicability of
Section 16, Rule III, to wit:

In the determination of whether or not the right to a "speedy trial" has been violated,
certain factors may be considered and balanced against each other. These are length of
delay, reason for the delay, assertion of the right or failure to assert it, and prejudice
caused by the delay. x x x.

The CSC maintains that “[p]etitioner failed to assert such right before the proceedings in
the CSC and, even assuming that there was delay in resolution of his appeal before the
CSC, no prejudice was caused to him.”[86]

Petitioner, on the other hand, insists that the fact that he made several telephone calls to
inquire about the status of his appeal[87] and sent to the Commissioner of the CSC a letter
dated 2 March 2001, informing the latter that the case had been “forwarded to CSC-Main
without action of CSC-NCR,”[88] sufficiently proves that he did not fail to assert his right.

On this particular point, we have to agree with the CSC that “the alleged telephone calls
made by petitioner are self-serving and lack corroborative evidence.”[89] Since there is no
way of ascertaining whether or not he actually made these phone calls, this allegation
cannot be given any probative value.

As to the letter petitioner allegedly sent to CSC Commissioner Jose Erestain, Jr., it is
apparent from the face of the letter that there is no indication at all that the intended
recipient actually received it.
The right to a speedy trial, as well as other rights conferred by the Constitution or statute,
may be waived except when otherwise expressly provided by law. One’s right to the
speedy disposition of his case must therefore be asserted. [90] Due to the failure of
petitioner to assert this right, he is considered to have waived it.

The NLRC did not violate the rule

against the execution of a penalty
of removal pending appeal to the CSC.

According to petitioner, when he filed his Motion for Reconsideration with the CSC on
15 January 2007, Section 43 of Rule III of the Civil Service Rules provided that a penalty
of removal from government service could not be executed pending appeal, unless the
Department Secretary concerned confirmed the imposition of the penalty,[91] viz:

SECTION 43. Filing of Appeals. — Decisions of heads of departments, agencies,

provinces, cities, municipalities and other instrumentalities imposing a penalty exceeding
thirty (30) days suspension or fine in an amount exceeding thirty days salary, may be
appealed to the Commission Proper within a period of fifteen (15) days from receipt
thereof.

In case the decision rendered by a bureau or office head is appealable to the Commission,
the same may be initially appealed to the department head and finally to the Commission
Proper. Pending appeal, the same shall be executory except where the penalty is
removal, in which case the same shall be executory only after confirmation by the
Secretary concerned.

A notice of appeal including the appeal memorandum shall be filed with the appellate
authority, copy furnished the disciplining office. The latter shall submit the records of the
case, which shall be systematically and chronologically arranged, paged and securely
bound to prevent loss, with its comment, within fifteen (15) days, to the appellate
authority. (Emphasis supplied)

However, on 7 February 2007, the CSC issued Resolution No.  07-0244,[92] which

amended the aforementioned provision of the Civil Service Rules. The pertinent portion
of the CSC Resolution reads:

Section 43. Filing of Appeals. — Decisions of heads of department, agencies, provinces,

cities, municipalities and other instrumentalities imposing a penalty exceeding thirty (30)
days suspension or fine in an amount exceeding thirty days salary, may be appealed to the
Commission Proper within a period of fifteen (15) days from receipt thereof.

In case the decision rendered by a bureau or office head is appealable to the Commission,
the same may be initially appealed to the department head and finally to the Commission
Proper. Pending appeal, the same shall be executory except where the penalty is removal,
in which case the same shall be executory only after confirmation by the Secretary
concerned.

Unless otherwise provided by law, the decision of the head of an attached agency
imposing a penalty exceeding thirty (30) days suspension or fine in an amount
exceeding thirty days' salary, demotion in rank or salary or transfer, removal or
dismissal from office is appealable directly to the Commission Proper within a
period of fifteen (15) days from receipt thereof. Pending appeal, the penalty imposed
shall be executory, including the penalty of removal from the service without need
for the confirmation by the department secretary to which the agency is attached.

A notice of appeal including the appeal memorandum shall be filed with the appellate
authority, copy furnished the disciplining office. The later shall submit the records of the
case, which shall be systematically and chronologically arranged, paged and securely
bound to prevent loss, with its comment, within fifteen (15) days, to the appellate
authority. (Emphasis in the original)

It appears that Section 43 of the Civil Service Rules is self-contradicting. While the
second paragraph provides that a penalty of removal “shall be executory only after
confirmation by the Secretary concerned,” the third paragraph states: “Pending appeal,
the penalty imposed shall be executory, including the penalty of removal from the service
without need for the confirmation by the department secretary to which the agency is
attached.” The CSC should look into the implication and/or consequence of its
amendment of the rules and should clarify how the newly enacted paragraph can operate,
without conflict, with the reenacted provisions of the old Section 43.

In any case, even if we were to assume that the new rules now declare that a penalty of
removal shall be executory pending appeal, without need for confirmation by the
secretary of the Department to which the agency is attached, this rule cannot and should
not be applied to petitioner’s case.

Resolution No. 07-0244 became effective 15 days after 21 March 2007, the day it was
published, or a few months before the CSC denied petitioner’s Motion for
Reconsideration.

This Court cannot declare that the amendment of the Civil Service Rules while the case
of petitioner was pending proves the lack of impartiality on the CSC’s part as petitioner
claims. However, it can and does now declare that the CSC had no right to retroactively
apply the amended provision to petitioner’s case.

Laws shall have no retroactive effect, unless the contrary is provided. [93] When petitioner
was dismissed, the old Section 43 of the Civil Service Rules was still in effect. The
aforecited provision clearly states that the penalty of removal is not executory, pending
appeal, unless the penalty is confirmed by Secretary of the Department where the
dismissed employee works.

Petitioner now claims that because the penalty of dismissal imposed by Commissioner
Señeres was never confirmed by the Secretary of Labor, it could not have been executed
while his appeal to the CSC was ongoing; thus, he should have been allowed to continue
to work and receive his salary.[94]

We agree.

After a thorough review of the records of this case, however, the Court is convinced that
petitioner was never actually barred from returning to work after the 90-day period
lapsed. The records disclose that he made no attempt to return to work after the expiration
of the suspension period. Thus, he was never prevented from returning to work—he just
chose not to go back.

There is no question that 90-day preventive suspension was issued in accordance with
law. The moment this period expired, petitioner was automatically reinstated in the
service. This rule is clear in Section 20 of the Civil Service Rules, which reads thus:

SECTION 20. Duration of Preventive Suspension. — When the administrative case

against an officer or employee under preventive suspension is not finally decided by the
disciplining authority within the period of ninety (90) days after the date of his preventive
suspension, unless otherwise provided by special law, he shall be automatically reinstated
in the service; provided that, when the delay in the disposition of the case is due to the
fault, negligence or petition of the respondent, the period of delay should not be included
in the counting of the 90 calendar days period of preventive suspension. Provided further
that should the respondent be on Maternity/Paternity leave, said preventive suspension
shall be deferred or interrupted until such time that said leave has been fully enjoyed.

Petitioner refused to receive the Order dated 1 September 2001 implementing his 90-day
preventive suspension. He was allowed to go to work until 27 September 2000—the day
he was supposedly barred from entering the office. Thus, his actual suspension from
work began on the latter date and expired 90 days thereafter, specifically on 25 December
2000.

By virtue of Section 20 of the Civil Service Rules, petitioner was automatically reinstated
on 26 December 2000—the day after the preventive suspension period expired. Since he
never attempted to resume the performance of his duties after the expiration of the
preventive suspension, he cannot now claim that the penalty of removal was executed,
pending his appeal to the CSC, without the confirmation of the Secretary of Labor. Had it
been shown that he was prevented from returning to his post after the expiration of the
legally sanctioned preventive suspension, he would have been entitled to the payment of
his back salaries from the moment the suspension expired up to the time his dismissal
would have been implemented.

That he has never rendered any service to government that would authorize him to collect
backwages is beyond cavil. He was never prevented from returning to work after his
suspension, thus he is not entitled to any back salary.

With respect the 90-day suspension period, the Civil Service Rules do not state whether
an employee placed under preventive suspension is entitled to back salaries for the period
of suspension. However, in Gloria v. Court of Appeals,[95] we ruled that an employee has
no right to compensation for preventive suspension pending investigation, even if the
employee is exonerated from the charges. Although a statutory provision was used to
justify the ruling therein, we also explained the principle behind the law, to wit:

The principle governing entitlement to salary during suspension is cogently stated in

Floyd R. Mechem’s A Treatise on the Law of Public Offices and Officers as follows:

Section 864. Officer not entitled to Salary during Suspension from Office. — An

officer who has been lawfully suspended from his office is not entitled to compensation
for the period during which he was so suspended, even though it be subsequently
determined that the cause for which he was suspended was insufficient. The reason given
is “that salary and perquisites are the reward of express or implied services, and therefore
cannot belong to one who could not lawfully perform such services.”

Thus, it is not enough that an employee is exonerated of the charges against him. In
addition, his suspension must be unjustified. x x x.

The preventive suspension of civil service employees charged with dishonesty,

oppression or grave misconduct, or neglect of duty is authorized by the Civil Service
Law. It cannot, therefore, be considered "unjustified," even if later the charges are
dismissed so as to justify the payment of salaries to the employee concerned. It is one of
those sacrifices which holding a public office requires for the public good. For this
reason, it is limited to ninety (90) days unless the delay in the conclusion of the
investigation is due to the employee concerned. After that period, even if the
investigation is not finished, the law provides that the employee shall be automatically
reinstated.[96] (Emphasis in the original)

The same logic applies to the present case.

As regards the participation of Justice Veloso in the CA’s deliberation on the Motion for
Reconsideration after he had deliberately declared that he would voluntarily inhibit
himself from hearing the case, this Court is of the opinion that the propriety of his act is
best threshed out in an administrative case held for that purpose—one in which he can
file his comment and explain his side.

Lastly, considering the gravity of the offense committed by petitioner, the Office of the
Ombudsman should be directed to immediately investigate the matter and, if it thereafter
finds it necessary, to file the appropriate criminal charges against him.

WHEREFORE, the instant Petition is DENIED. The Court of Appeals Decision dated
26 September 2008 and its Resolution dated 26 August 2009 in CA-G.R. SP No. 100595,
as well as the Resolutions of the Civil Service Commission dated 18 December 2006 and
28 August 2007 are AFFIRMED.

The Office of the Ombudsman is hereby DIRECTED to immediately investigate the

criminal allegations described in this Decision, and if it finds appropriate, to file the
necessary criminal charges against the petitioner.

SO ORDERED.

FIRST DIVISION
[ G.R. Nos. 235801-02, January 19, 2018 ]
NESTOR A. IBARRA V. HON. AMPARO M. CABOTAJE-TANG, HON.
SARAH JANE T. FERNANDEZ AND HON. BERNELITO R. FERNANDEZ,
IN THEIR OFFICIAL CAPACITIES AS PRESIDING JUSTICE AND
MEMBERS OF THE SANDIGANBAYAN, SPECIAL THIRD DIVISION, AND
THE PEOPLE OF THE PHILIPPINES

Sirs and Mesdames:

Please   take   notice   that  the Court, First  Division, issued a Resolution
dated January 19, 2018 which reads as follows:

"G.R. Nos. 235801-02 (Nestor A. Ibarra v. Hon. Amparo M. Cabotaje-Tang, Hon. Sarah

Jane T. Fernandez and Hon. Bernelito R. Fernandez, in their official capacities as
Presiding Justice and Members of the Sandiganbayan, Special Third Division, and the
People of the Philippines). -The Court resolves to DISMISS the petition
and AFFIRM the assailed Resolutions dated July 27, 2017 and November 17, 2017
issued by the Sandiganbayan in Criminal Case Nos. SB-16-CRM-1287-1288 for
petitioner's failure to show that they were issued with grave abuse of discretion
amounting to lack or excess of jurisdiction.
Like any other right conferred by the Constitution or statute, except when otherwise
expressly so provided, the speedy trial right may be waived. Petitioner failed to
seasonably raise the right to speedy trial, which precludes him from relying thereon
as a ground to dismiss the case. He did not raise the issue of inordinate delay in the
conduct of the preliminary investigation before the Office of the Ombudsman, but
raised it for the first time after the Information was filed with the Sandiganbayan.
He is thus deemed to have impliedly accepted such delay by not asserting the right
to a speedy disposition of his case at the earliest possible opportunity, and waived
the right to question the same.

Furthermore, the right to a speedy trial and a speedy disposition of a case is violated
only when the proceeding is attended by vexatious, capricious, and oppressive
delays, which is not present in this case, Trial against petitioner should thus
continue. Significantly, the State, like any other litigant, is entitled to its day in
court, and to a reasonable opportunity to present its case.

SO ORDERED."
SECOND DIVISION
[ G.R. No. 230657, March 14, 2018 ]
ANGELITO MAGNO, PETITIONER, VS. PEOPLE PHILIPPINES, OF THE
REPRESENTED BY THE OFFICE OF THE OMBUDSMAN THROUGH THE
OFFICE OF THE SPECIAL PROSECUTOR, RESPONDENT.

DECISION

PERLAS-BERNABE, J.:

Before the Court is a petition for review on certiorari[1] filed by petitioner Angelito

Magno (petitioner) assailing the Decision[2] dated September 16, 2016 and the
Resolution[3] dated February 15, 2017 of the Sandiganbayan (SB) in SB-15-SCA-0001,
which nullified and set aside the Orders dated September 30, 2013 [4] and November 28,
2014[5] of the Regional Trial Court of Mandaue City, Branch 56 (RTC) in Crim. Case No.
DU-10123, and found that petitioner's right to speedy trial was not violated.

The Facts
On May 14, 2003, an Information[6] was filed before the RTC charging, inter alia,
petitioner (who was then serving as Investigative Agent IV of the National Bureau of
Investigation) with Multiple Frustrated Murder and Double Attempted Murder. [7] After
arraignment, petitioner objected to the formal appearance of one Atty. Adelino Sitoy
(Atty. Sitoy), who intended to act as a private prosecutor for and in behalf of the Office
of the Ombudsman (Ombudsman). In the Orders dated September 25, 2003 and
October 1, 2003, the RTC ruled that only the Ombudsman may prosecute the instant
case, to the exclusion of any other entity/person other than those authorized under
Republic Act No. 6770.[8] The Ombudsman and Atty. Sitoy questioned the RTC's aforesaid
Orders to the Court of Appeals (CA), which, in a Decision dated September 26, 2005,
ruled that the private prosecutor may prosecute the case and appear for the People of
the Philippines in collaboration with any lawyer deputized by the Ombudsman.
Eventually, the matter reached the Court,[9] which nullified the CA's pronouncements on
the ground of lack of jurisdiction, ratiocinating that the Ombudsman and Atty. Sitoy
should have sought recourse from the SB instead (Private Prosecutor Case). [10]

While the Private Prosecutor Case was still pending before the CA, the latter court
issued a temporary restraining order (TRO), and thereafter, a preliminary injunction
enjoining the RTC from implementing its Orders dated September 25, 2003 and October
1, 2003. This notwithstanding and upon motion by the prosecution, the CA clarified in a
Resolution dated January 19, 2005 that the injunctive writs do not operate to enjoin the
proceedings in Crim. Case No. DU-10123, provided that it is conducted in the presence
of the private prosecutor. Thus, the prosecution moved to set the case for trial and
started presenting one of its witnesses on March 29, 2005. In the course of the
prosecution's presentation of witnesses, the RTC sustained petitioner's objection on the
admissibility of one of the witness's testimony, prompting the prosecution to elevate
the matter to the SB (Objection Case). Initially, the SB issued a sixty (60)-day TRO
enjoining the RTC from proceeding with Crim. Case No. DU-10123. In a Decision dated
February 12, 2007, the SB dismissed the Objection Case.[11]

Meanwhile and after the expiration of the TRO in the Objection Case, petitioner filed
on March 16, 2006 a Motion to Set Case for Continuous Hearing before the RTC,
invoking his right to speedy trial. In an Order dated June 16, 2006, the RTC granted
petitioner's motion, and accordingly, set the hearing on September 1, 2006. [12] The
prosecution moved for reconsideration[13] but the same was denied in an Order dated
August 18, 2006.[14] Thus, under threat of being cited in contempt, the prosecution
continued its presentation of witnesses on September 1, 2006. Such presentation
continued all the way until June 7, 2007 when the prosecution requested to reset the
hearing to August 16, 2007 due to the handling prosecutor's illness. However, it appears
that from such postponement until around early 2010, no hearings were conducted in
the case. In fact, records show that there were only two (2) incidents during that time,
namely: (a) petitioner's Motion for Substitution of Bond and Cancellation of Annotation
which was resolved on October 9, 2009; and (b) Philippine Charter Insurance
Corporation's Motion to Release a vehicle involved in a case which was resolved on
December 9, 2013.[15]

In view of the foregoing, petitioner moved for the continuation of the trial, the hearing
of which was set on April 22, 2010, which was further reset to September 2, 2010. At
the September 2, 2010 hearing, only petitioner's counsel appeared. Thus, on September
17, 2010, petitioner filed a Motion to Dismiss[16] on the ground of violation of his right to
speedy trial. In such motion, petitioner not only pointed out the various postponements
and cancellations of hearings by the prosecution from the filing of the information until
2007, but also highlighted the hibernation of the case from 2007 until his Motion to Set
Case for Hearing filed in April 2010. For its part, the prosecution filed an Opposition [17] to
petitioner's motion, and at the same time, prayed that it be allowed to present further
evidence.[18]

The RTC Ruling

In an Order[19] dated September 30, 2013, the RTC granted petitioner's motion to dismiss
on the ground of violation of the latter's right to speedy trial. [20] It found that Crim. Case
No. DU-10123 had already been pending for thirteen (13) years and yet, remained
unresolved. In particular, the RTC pointed out that from 2007 onwards, the case has
ceased to move forward due to the inaction of the State. [21]

The prosecution moved for reconsideration,[22] which was, however, denied in an

Order[23] dated November 28, 2014. Aggrieved, the prosecution filed a petition
for certiorari[24] before the SB.

The SB Ruling
In a Decision[25] dated September 16, 2016, the SB set aside the RTC ruling and,
accordingly, ordered the reinstatement of Crim. Case No. DU- 10123 and for the RTC to
conduct further proceedings immediately.[26] It held that the RTC gravely abused its
discretion in ruling that petitioner's right to speedy trial has been violated, pointing out
that both the prosecution and petitioner contributed to the delays in the case. In this
regard, the SB opined that it is equally the responsibility of both the prosecution and the
defense to move for the continuation of the trial.[27]

Petitioner moved for reconsideration[28] but the same was denied in a

Resolution[29] dated February 15, 2017; hence, this petition.

The Issue Before the Court

The issue for the Court's resolution is whether or not the SB correctly ascribed grave
abuse on the part of the RTC when the latter court found that petitioner's right to
speedy trial has been violated.

The Court's Ruling

The petition is meritorious.

Preliminarily, the Court points out the distinct approach in dealing with Rule 45 petitions
for review on certiorari that seek to review a ruling of a lower court, such as the SB,
regarding a Rule 65 petition for certiorari. In a Rule 45 review, the Court examines the
correctness of the SB ruling in contrast with the review of jurisdictional errors under
Rule 65. Furthermore, Rule 45 limits the review to questions of law. In ruling for legal
correctness, the Court must view the SB ruling in the same context that the petition
for certiorari was presented to the latter court. Hence, the Court has to examine the SB
ruling from the prism of whether or not it correctly determined the presence or absence
of grave abuse of discretion in the assailed ruling, i.e., that of the RTC.[30]

Grave abuse of discretion is the capricious and whimsical exercise of judgment. It is the
exercise of a power in an arbitrary manner. It must be so patent or gross as to amount
to an evasion of a positive duty or to a virtual refusal to perform a duty enjoined or to
act at all in contemplation of law. Case law provides that grave abuse of discretion exists
when the act is: (a) done contrary to the Constitution, the law or jurisprudence; or (b)
executed whimsically, capriciously or arbitrarily out of malice, ill will or personal bias. [31]

Guided by the foregoing considerations, the Court finds that the CA erred in ascribing
grave abuse of discretion on the part of the RTC. As will be explained hereunder, the
RTC ruling finding that petitioner's right to speedy trial has been violated finds support
in prevailing law and jurisprudence.

An accused's right to "have a speedy, impartial, and public trial" is guaranteed in

criminal cases by Section 14 (2), Article III of the 1987 Constitution. "This right to a
speedy trial may be defined as one free from vexatious, capricious and oppressive
delays, its 'salutary objective' being to assure that an innocent person may be free from
the anxiety and expense of a court litigation or, if otherwise, of having his guilt
determined within the shortest possible time compatible with the presentation and
consideration of whatsoever legitimate defense he may interpose. Intimating historical
perspective on the evolution of the right to speedy trial, the old legal maxim, 'justice
delayed is justice denied' must be reiterated. This oft-repeated adage requires the
expeditious resolution of disputes, much more so in criminal cases where an accused is
constitutionally guaranteed the right to a speedy trial."[32] In Tan v. People,[33] the Court
made a thorough discussion on the matter, to wit:
The right of the accused to a speedy trial and to a speedy disposition of the case
against him was designed to prevent the oppression of the citizen by holding criminal
prosecution suspended over him for an indefinite time, and to prevent delays in the
administration of justice by mandating the courts to proceed with reasonable dispatch
in the trial of criminal cases. Such right to a speedy trial and a speedy disposition of a
case is violated only when the proceeding is attended by vexatious, capricious and
oppressive delays. The inquiry as to whether or not an accused has been denied such
right is not susceptible by precise qualification. The concept of a speedy disposition is
a relative term and must necessarily be a flexible concept.

While justice is administered with dispatch, the essential ingredient is orderly,

expeditious and not mere speed. It cannot be definitely said how long is too long in a
system where justice is supposed to be swift, but deliberate. It is consistent with delays
and depends upon circumstances. It secures rights to the accused, but it does not
preclude the rights of public justice. Also, it must be borne in mind that the rights given
to the accused by the Constitution and the Rules of Court are shields, not weapons;
hence, courts are to give meaning to that intent.

x x x x

A balancing test of applying societal interests and the rights of the accused necessarily
compels the court to approach speedy trial cases on an ad hoc basis.

In determining whether the accused has been deprived of his right to a speedy
disposition of the case and to a speedy trial, four factors must be considered: ( a)
length of delay; (b) the reason for the delay; (c) the defendant's assertion of his right;
and (d) Prejudice to the defendant.  x x x.

Closely related to the length of delay is the reason or justification of the State for such
delay. Different weights should be assigned to different reasons or justifications invoked
by the State. x x x.[34] (Emphases and underscoring supplied)
Thus, the right to speedy trial (as well as the right to speedy disposition of cases)
should be understood as a relative or flexible concept such that a mere mathematical
reckoning of the time involved would not be sufficient. Pertinently, this right is deemed
violated only when the proceedings are attended by vexatious, capricious, and
oppressive delays; or when unjustified postponements of the trial are asked for and
secured; or even without justifiable motive, a long period of time is allowed to elapse
without the party having his case tried. Hence, in the determination of whether the
defendant has been denied such right, the following factors may be considered and
balanced: (a) the length of delay; (b) the reasons for the delay; (c) the assertion or
failure to assert such right by the accused; and (d) the prejudice caused by the delay. [35]

Examining the incidents of this case vis-a-vis the aforesaid jurisprudential parameters in
determining the existence of violation of such right, the Court holds that petitioner's
right to speedy trial had been violated.

First, more than a decade has elapsed from the time the Information in Crim. Case No.
DU-10123 was filed on May 14, 2003, until the RTC promulgated its Orders dated
September 30, 2013 and November 28, 2014 dismissing the case on the ground of
violation of petitioner's right to speedy trial. Notably, when the RTC dismissed the case,
the prosecution has yet to complete the presentation of its evidence in chief.

Second, for the purpose of determining whether or not a violation of petitioner's right
to speedy trial indeed exists, the Court deems it appropriate to highlight two (2) distinct
periods, namely: (a) the period from the filing of the information on May 14, 2003 until
June 7, 2007 when the prosecution requested to reset the hearing due to the handling
prosecutor's illness (First Period); and (b) from June 7, 2007 until September 17, 2010
when petitioner finally filed a Motion to Dismiss on the ground of violation of his right to
speedy trial (Second Period).

As may be gleaned from the records, the numerous delays and postponements that
occurred during the First Period were excusable, as Crim. Case No. DU-10123 was
plagued with various incidents that reached the higher courts, i.e., the Private
Prosecutor and Objection Cases, which even issued TROs and/or preliminary injunctions
that undeniably contributed to the hampering of the proceedings before the RTC.

On the other hand, the very long delay that occurred during the Second Period largely
remains unjustified. Records reveal after trial was postponed on June 7, 2007 and reset
to August 16, 2007, there is no showing that the August 16, 2007 setting or any hearing
thereafter actually took place. During this time, it appears that the prosecution never
lifted a finger to keep the proceedings in Crim. Case No. DU-10123 from stalling. Worse,
despite the fact that two (2) incidents were raised in this case during the Second
Period[36] which would have alerted the prosecution as to the long, drawn-out pendency
of this case, the latter remained indifferent in pursuing the case and never pushed for
the continuation of trial.

Third, petitioner was not remiss in asserting his right to speedy trial. Records show that
during the First Period and after the TROs and/or injunctions issued by the higher courts
enjoining the proceedings on the main were already dissolved, petitioner filed on March
16, 2006 a Motion to Set Case for Continuous Hearing, already invoking such right.[37] In
fact, this directly resulted in the Court ordering the prosecution to continue with the
presentation of its witnesses. Unfortunately, the case progress bogged down once again
after the prosecution asked for a postponement of the June 7, 2007 hearing, and
thereafter, failed to move forward with the proceedings. In fact, the prosecution only
moved to continue the presentation of its evidence after petitioner moved to dismiss
the case on the ground of violation of his right to speedy trial.

Fourth, the Court recognizes the prejudice caused to petitioner by the lengthy and
unjustified delay in Crim. Case No. DU-10123. To stress, the right to speedy trial is not
merely hinged towards the objective of spurring dispatch in the administration of justice
but also to prevent the oppression of the citizen by holding a criminal prosecution
suspended over him for an indefinite time. As already adverted to, the "salutary
objective" of this right is to assure that an innocent person may be free from the anxiety
and expense of litigation or, if otherwise, of having his guilt determined within the
shortest possible time compatible with the presentation and consideration of
whatsoever legitimate defense he may interpose. In Coscolluela v. Sandiganbayan,
[38]
 the Court stated that the tactical disadvantages as well as the looming unrest brought
by this lengthy and unjustified passage of time should be weighed against the State and
in favor of the individual, viz.:
Prejudice should be assessed in the light of the interest of the defendant that the
speedy trial was designed to protect, namely: to prevent oppressive pre-trial
incarceration; to minimize anxiety and concerns of the accused to trial; and to limit the
possibility that his defense will be impaired. Of these, the most serious is the last,
because the inability of a defendant adequately to prepare his case skews the fairness
of the entire system. There is also prejudice if the defense witnesses are unable to
recall accurately the events of the distant past. Even if the accused is not imprisoned
prior to trial, he is still disadvantaged by restraints on his liberty and by living under a
cloud of anxiety, suspicion and often, hostility. His financial resources may be drained,
his association is curtailed, and he is subjected to public obloquy.

Delay is a two-edge sword. It is the government that bears the burden of proving its
case beyond reasonable doubt. The passage of time may make it difficult or impossible
for the government to carry its burden. The Constitution and the Rules do not require
impossibilities or extraordinary efforts, diligence or exertion from courts or the
prosecutor, nor contemplate that such right shall deprive the State of a reasonable
opportunity of fairly prosecuting criminals. As held in Williams v. United States, for the
government to sustain its right to try the accused despite a delay, it must show two
things: (a) that the accused suffered no serious prejudice beyond that which ensued
from the ordinary and inevitable delay; and (b) that there was no more delay than is
reasonably attributable to the ordinary processes of justice.
Closely related to the length of delay is the reason or justification of the State for such
delay. Different weights should be assigned to different reasons or justifications invoked
by the State. For instance, a deliberate attempt to delay the trial in order to hamper or
prejudice the defense should be weighted heavily against the State. Also, it is improper
for the prosecutor to intentionally delay to gain some tactical advantage over the
defendant or to harass or prejudice him. On the other hand, the heavy case load of the
prosecution or a missing witness should be weighted less heavily against the State.
[39]
 (Emphasis and underscoring supplied)
Thus, in view of the unjustified length of time miring the resolution of Crim. Case
No. DU-10123 as well as the concomitant prejudice that the delay in this case has
caused, the Court concludes that petitioner's right to speedy trial had been violated. As
such, the RTC did not gravely abuse its discretion in ordering the dismissal of Crim. Case
No. DU-10123 on this ground. While this pronouncement should, as a matter of course,
result in the acquittal of petitioner that would bar his further prosecution for the same
offense,[40] it does not necessarily follow that he is entirely exculpated from any civil
liability, assuming that the same is proven in a subsequent case which the private
complainant/s may opt to pursue. [41]

WHEREFORE, the petition is GRANTED. The Decision dated September 16, 2016 and the
Resolution dated February 15, 2017 of the Sandiganbayan in SB-15-SCA-0001 are
hereby NULLIFIED and SET ASIDE. The Orders dated September 30, 2013 and November
28, 2014 of the Regional Trial Court of Mandaue City, Branch 56 in Crim. Case No. DU-
10123 are REINSTATED. Accordingly, Crim. Case No. DU-10123 is DISMISSED on the
ground of violation of the accused's right to speedy trial, without prejudice to any civil
action which the private complainant/s may file against him.

Let a copy of this Decision be furnished the Secretary of Justice for his information and
guidance.

SO ORDERED.

SECOND DIVISION
[ G.R. No. 242445, November 12, 2018 ]
RODOLFO G. MENDOZA V. PEOPLE OF THE PHILIPPINES AND UNITED
PACIFIC CAPITAL CORPORATION

Sirs/Mesdames:

Please take notice that the Court, Second Division, issued a Resolution dated  12 November 2018  which
reads as follows:

G.R. No. 242445 (Rodolfo G. Mendoza v. People of the Philippines and United Pacific

Capital Corporation)

After a judicious study of the case, the Court resolves to DENY the instant
[1] [2]
petition  and AFFIRM the January 26, 2018 Decision  and the October 3, 2018
[3]
Resolution  of the Court of Appeals (CA) in CA-G.R. SP No. 148119 for failure of
petitioner Rodolfo G. Mendoza (petitioner) to sufficiently show that the CA
committed any reversible error in annulling and setting aside the February 22, 2016
[4] [5]
Decision  and the June 30, 2016 Order  of the Regional Trial Court of Makati
City, Branch 142, which dismissed the petition for certiorari under Rule 65 filed by
public respondent People of the Philippines (respondent) to assail the November 26,
[6]
2014 Order  of the Metropolitan Trial Court of Makati City, Branch 62 (MeTC),
dismissing the case against petitioner for failure to prosecute and violation of his
right to speedy trial.

As correctly ruled by the CA, "a dismissal grounded on the denial of the right of the
accused to speedy trial has the effect of acquittal that would bar the further
[7]
prosecution of the accused for the same offense."  Thus, the November 26, 2014
Order of the MeTC grounded on the denial of petitioner's right to speedy trial is a
[8]
final order that is not appealable and is immediately executory.  However, the
remedy of certiorari may be availed of to prove that the MeTC committed grave
abuse of discretion amounting to lack or excess of jurisdiction in issuing the order of
[9]
dismissal,  which obtains in this case. Indubitably, there were only three (3)
instances when the prosecution's prayer for the resetting of the scheduled hearings
were granted, all of which were justified without any objection on the part of
petitioner or his counsel.10 Accordingly, there was no violation of petitioner's right
to speedy trial and the criminal case against him was correctly ordered to be
reinstated.
 
SO ORDERED. (REYES, J., JR., J., designated Additional Member per Special
 Order No. 2587 dated August 28, 2018.)
FIRST DIVISION
[ G.R. No. L-30104, July 25, 1973 ]
HON. GREGORIO N. GARCIA, JUDGE OF THE 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.

DECISION

FERNANDO, J.:

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 Cabo 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 Cabo 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 late date, said respondents Calo and
Carbonnel had not objected to - or 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 any 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
writs 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."[15] He 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 constitution in 1776."[17] Later it was embodied in the Sixth Amendment
of the Federal Constitution ratified in 1791.[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 that 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 appropriately 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.

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.
RESOLUTION
MENDOZA, J.:
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 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.
 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.1âwphi1.nêt
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.
What follows is the opinion of the majority.lawphil.net
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.1awphil.net 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 courts in 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 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.
Thus, many important purposes for preserving the record of the trial 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 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 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.
SO ORDERED.

G.R. No. L-54558 May 22, 1987

EDUARDO B. OLAGUER, OTHONIEL V. JIMENEZ, ESTER MISA-JIMENEZ, CARLOS
LAZARO, REYNALDO MACLANG, MAGDALENA DE LOS SANTOS-MACLANG, TEODORICO
N. DIESMOS, RENE J. MARCIANO, DANILO R. DE OCAMPO, VICTORIANO C. AMADO
and MAC ACERON, petitioners,
vs.
MILITARY COMMISSION NO. 34, THE TRIAL COUNSEL OF MILITARY COMMISSION NO.
34, and THE MINISTER OF NATIONAL DEFENSE, respondents.
No. L-69882 May 22, 1987
EDUARDO OLAGUER, OTHONIEL JIMENEZ, REYNALDO MACLANG and ESTER
MISA-JIMENEZ, petitioners,
vs.
THE CHIEF OF STAFF, AFP, MILITARY COMMISSION NO. 34, JUDGE ADVOCATE
GENERAL, AFP, MINISTER OF NATIONAL DEFENSE and THE DIRECTOR OF
PRISONS, respondents.
Sabino Padilla, Jr. and Jose B. Puerto for petitioner Othoniel Jimenez.
 Fulgencio Factoran for petitioners Maclang and Magdalena de los Santos-
Maclang
Rene Saguisag for petitioner Mac Aceron.
Joaquin Misa for petitioner Ester Misa-Jimenez.
Jejomar Binay for petitioners Reynaldo Maclang and Magdalena de los Santos-
Maclang.
Jaime Villanueua for petitioner Danilo R. de Ocampo.
Joker P. Arroyo, Lorenzo M. Tanada and Rene Sarmiento for petitioners Eduardo
Olaguer and Othoniel Jimenez.
Wigberto Tanada for petitioners Olaguer and Maclang

GANCAYCO, J.:
Filed with this Court are two Petitions wherein the fundamental question is
whether or not a military tribunal has the jurisdiction to try civilians while the civil
courts are open and functioning. The two Petitions have been consolidated inasmuch as
the issues raised therein are interrelated.
On December 24, 1979, the herein petitioners Eduardo B. Olaguer, Othoniel V.
Jimenez, Ester Misa-Jimenez, Carlos Lazaro, Reynaldo Maclang, Magdalena De Los
Santos Maclang, Teodorico N. Diesmos, Rene J. Marciano, Danilo R. De Ocampo and
Victoriano C. Amado were arrested by the military authorities. They were all initially
detained at Camp Crame in Quezon City. They were subsequently transferred to the
detention center at Camp Bagong Diwa in Bicutan except for petitioner Olaguer who
remained in detention at Camp Crame. Petitioner Mac Aceron voluntarily surrendered
to the authorities sometime in June, 1980 and was, thereafter, also incarcerated at
Camp Bagong Diwa. All of the petitioners are civilians.
On May 30, 1980, the petitioners were charged for subversion 1 upon the
recommendation of the respondent Judge Advocate General and the approval of the
respondent Minister of National Defense.2 The case was designated as Criminal Case No.
MC-34-1.
On June 13. 1980, the respondent Chief of Staff of the Armed Forces of the
Philippines 3 created the respondent Military Commission No 34 to try tile criminal case
filed against the petitioners. 4 On July 30, 1980, an amended charge sheet was filed for
seven (7) offenses, namely: (1) unlawful possession of explosives and incendiary devices;
(2) conspiracy to assassinate President, and Mrs. Marcos; (3) conspiracy to assassinate
cabinet members Juan Ponce Enrile, Francisco Tatad and Vicente Paterno; (4) conspiracy
to assassinate Messrs. Arturo Tangco, Jose Roño and Onofre Corpus; (5) arson of nine
buildings; (6) attempted murder of Messrs. Leonardo Perez, Teodoro Valencia and
Generals Romeo Espino and Fabian Ver; and (7) conspiracy and proposal to commit
rebellion, and inciting to rebellion. 5 Sometime thereafter, trial ensued.
In the course of the proceedings, particularly on August 19, 1980, the petitioners
went to this Court and filed the instant Petition for prohibition and habeas
corpus." 6 They sought to enjoin the respondent Military Commission No. 34 from
proceeding with the trial of their case. They likewise sought their release from detention
by way of a writ of habeas corpus. The thrust of their arguments is that military
commissions have no jurisdiction to try civilians for offenses alleged to have been
committed during the period of martial law. They also maintain that the proceedings
before the respondent Military Commission No. 34 are in gross violation of their
constitutional right to due process of law.
On September 23, 1980, the respondents filed their Answer to the Petition. 7 On
November 20, 1980, the petitioners submmitted their reply to the Answer. 8 In a Motion
filed with this Court on July 25, 1981, petitioner Olaguer requested that the Petition be
considered withdrawn as far as he is concerned. 9 In the Resolution of this Court dated
July 30, 1981, the said prayer was granted." 10 On August 31, 1984, the respondents
filed a Rejoinder to the Reply submitted by the petitioners. 11
On December 4, 1984, pending the resolution of the Petition, the respondent
Military Commission No. 34 passed sentence convicting the petitioners and imposed
upon them the penalty of death by electrocution. Thus, on February 14, 1985,
petitioners Olaguer, Maclang and Othoniel and Ester Jimenez went to this Court and
filed the other instant Petition, this time for habeas corpus, certiorari, prohibition
and mandamus. They also sought the issuance of a writ of preliminary injunction. 12 The
respondents named in the Petition are the Chief of Staff of the Armed Forces of the
Philippines, Military Commission No. 34, the Judge Advocate General, the Minister of
National Defense and the Director of the Bureau of Prisons.
In sum, the second Petition seeks to enjoin the said respondents from taking any
further action on the case against the petitioners, and from implementing the judgment
of conviction rendered by the respondent Military Commission No. 34 for the reason
that the same is null and void. The petitioners also seek the return of all property taken
from them by the respondents concerned. Their other arguments in the earlier Petition
are stressed anew.
 On August 9, 1985, the respondents filed their Answer to the Petition. 13 On
September 12, 1985, this Court issued a temporary restraining order enjoining the
respondents from executing the Decision of the respondent Military Commission No.
34 14 On February 18, 1986, the petitioners submitted an extensive Brief. 15 Thereafter,
and in due time, the cases were submitted for decision.
In resolving these two Petitions, We have taken into account several supervening
events which have occurred hitherto, to wit —
(1) On January 17, 1981, President Ferdinand E. Marcos issued Proclamation No.
2045 officially lifting martial law in the Philippines. The same Proclamation revoked
General Order No. 8 (creating military tribunals) and directed that "the military tribunals
created pursuant thereto are hereby dissolved upon final determination of case's
pending therein which may not be transferred to the civil courts without irreparable
prejudice to the state in view of the rules on double jeopardy, or other circumstances
which render prosecution of the cases difficult, if not impossible."; and
(2) Petitioner Ester Misa-Jimenez was granted provisional liberty in January,
1981. On the other hand, petitioners Eduardo Olaguer and Othoniel Jimenez obtained
provisional liberty on January 23, 1986. 16 The rest of the petitioners have been
released sometime before or after President Corazon C. Aquino assumed office in
February, 1986.
The sole issue in habeas corpus proceedings is detention. 17 When the release of
the persons in whose behalf the application for a writ of habeas corpus was filed is
effected, the Petition for the issuance of the writ becomes moot and
academic. 18 Inasmuch as the herein petitioners have been released from their
confinement in military detention centers, the instant Petitions for the issuance of a writ
of habeas corpus should be dismissed for having become moot and academic.
We come now to the other matters raised in the two Petitions. The main issue
raised by the petitioners is whether or not military commissions or tribunals have the
jurisdiction to try civilians for offenses allegedly committed during martial law when civil
courts are open and functioning.
The petitioners maintain that military commissions or tribunals do not have such
jurisdiction and that the proceedings before the respondent Military Commission No. 34
are in gross violation of their constitutional right to due process of law. The
respondents, however, contend otherwise.
The issue on the jurisdiction of military commissions or tribunals to try civilians
for offenses allegedly committed before, and more particularly during a period of
martial law, as well as the other issues raised by the petitioners, have been ruled upon
by a divided Supreme Court in Aquino, Jr. v. Military Commission No. 2. 19 The pertinent
portions of the main opinion of the Court are as follows —
We hold that the respondent Military Commission No. 2 has been lawfully
constituted and validly vested with jurisdiction to hear the cases against civilians,
including the petitioner.
l. The Court has previously declared that the proclamation of Martial Law ... on
September 21, 1972, ... is valid and constitutional and that its continuance is justified by
the danger posed to the public safety. 20
2. To preserve the safety of the nation in times of national peril, the President of
the Philippines necessarily possesses broad authority compatible with the imperative
requirements of the emergency. On the basis of this, he has authorized in General Order
No. 8 . . . the Chief of Staff, Armed Forces of the Philippines, to create military tribunals
to try and decide cases "of military personnel and such other cases as may be referred
to them." In General Order No. 12 ... , the military tribunals were vested with
jurisdiction "exclusive of the civil courts," among others, over crimes against public
order, violations of the Anti-Subversion Act, violations of the laws on firearms, and other
crimes which, in the face of the emergency, are directly related to the quelling of the
rebellion and preservation of the safety and security of the Republic. ... These measures
he had the authority to promulgate, since this Court recognized that the incumbent
President (President Marcos), under paragraphs 1 and 2 of Section 3 of Article XVII of
the new (1973) Constitution, had the authority to "promulgate proclamations, orders
and decrees during the period of martial law essential to the security and preservation
of the Republic, to the defense of the political and social liberties of the people and to
the institution of reforms to prevent the resurgence of the rebellion or insurrection or
secession or the threat thereof ... " 21
3. Petitioner nevertheless insists that he being a civilian, his trial by military
commission deprives him of his right to due process, since in his view the due process
guaranteed by the Constitution to persons accused of "ordinary" crimes means judicial
process. This argument ignores the reality of the rebellion and the existence of martial
law. It is, of course, essential that in a martial law situation, the martial law
administrator must have ample and sufficient means to quell the rebellion and restore
civil order. Prompt and effective trial and punishment of offenders have been
considered as necessary in a state of martial law, as a mere power of detention may be
wholly inadequate for the exigency.22 " ... martial law ... creates an exception to the
general rule of exclusive subjection to the civil jurisdiction, and renders offenses against
the law of war, as well as those of a civil character, triable, ... by military
tribunals. 23 "Public danger warrants the substitution of executive process for judicial
process." 24 . ... "The immunity of civilians from military jurisdiction must, however, give
way in areas governed by martial law. When it is absolutely imperative for public safety,
legal processes can be superseded and military tribunals authorized to exercise the
jurisdiction normally vested in courts. 25 . ..."
xxx xxx xxx
5. ... The guarantee of due process is not a guarantee of any particular form of
tribunal in criminal cases. A military tribunal of competent jurisdiction, accusation in due
form, notice and opportunity to defend and trial before an impartial tribunal,
adequately meet the due process requirement. Due process of law does not necessarily
mean a judicial proceeding in the regular courts. 26 ...
This ruling has been affirmed, although not unanimously, in at least six other
cases, to wit: Gumaua v.Espino, 27 Buscayno v. Enrile, 28 Sison v. Enrile, 29 Luneta v.
Special Military Commission No. 1, 30 Ocampo v. Military Commission No.
25, 31 and Buscayno v. Military Commission Nos. 1, 2, 6 and 25.  32
These rulings notwithstanding, the petitioners anchor their argument on their
prayer that the ruling in Aquino, Jr. be appraised anew and abandoned or modified
accordingly. After a thorough deliberation on the matter, We find cogent basis for re-
examining the same.
Some recent pronouncements of this Court could be considered as attempts to
either abandon or modify the ruling in Aquino, Jr.
In De Guzman v. Hon. Leopando, et al., 33 an officer of the Armed Forces of the
Philippines and several other persons were charged with Serious Illegal Detention
before the Court of First Instance of Maguindanao sometime in October, 1982. The
military officer sought to effect the transfer of the case against him to the General Court
Martial for trial pursuant to the provisions of Presidential Decree No. 1850. The trial
court disallowed such transfer for the reason that the said Decree is unconstitutional
inasmuch as it violates the due process and equal protection clauses of the Constitution,
as well as the constitutional provisions on social justice, the speedy disposition of cases,
the republican form of government, the integrity and independence of the judiciary, and
the supremacy of civilian authority over the military,
When the matter was elevated to this Court by way of a Petition for certiorari,
prohibition and mandamus, the Court decided that a ruling on the constitutional issues
raised was not necessary. With the view that practical and procedural difficulties will
result from the transfer sought, this Court resolved to dismiss the Petition for lack of
merit.
In Animas v. The Minister of National Defense, 34 a military officer and several
civilians were charged with murder alleged to have been committed sometime in
November, 1971. All of the said accused were recommended for prosecution before a
military tribunal. in the course of the proceedings, the said accused went to this Court
on a Petition for certiorari and challenged the jurisdiction of the military tribunal over
their case. The petitioners contended that General Order No. 59 upon which the
jurisdiction of the military tribunal is anchored refers only to the crime of illegal
possession of firearms and explosives in relation to other crimes committed with a
political complexion. They stressed that the alleged murder was devoid of any political
complexion.
This Court, speaking through Mr. Justice Hugo E. Gutierrez, Jr., ordered the
transfer of the criminal proceedings to the civil courts after noting that with martial law
having been lifted in the country in 1981, all cases pending before the military tribunals
should, as a general rule, be transferred to the civil courts. The Court was also of the
view that the crime alleged to have been committed did not have any political
complexion. We quote the pertinent portions of the Decision of the Court, to wit —
Inspite or because of the ambiguous nature of ... civilian takeover of jurisdiction
was concerned and notwithstanding the shilly-shallying and vacillation characteristic of
its implementation, this Court relied on the enunciated policy of normalization in
upholding the primacy of civil courts. This policy meant that as many cases as possible
involving civilians being tried by military tribunals as could be transferred to civil courts
should be turned over immediately. In case of doubt, the presumption was in favor of
civil courts always trying civilian accused.
xxx xxx xxx
The crime for which the petitioners were charged was committed ... long before
the proclamation of martial law. ... Now that it is already late 1986, and martial law is a
thing of the past, hopefully never more to return, there is no more reason why a murder
committed in 1971 should still be retained, at this time, by a military tribunal.
We agree with the dissenting views of then Justice, now Chief Justice Claudio
Teehankee 35 and Madame Justice Cecilia Munoz Palma 36 in Aquino, Jr. in so far as they
hold that military commissions or tribunals have no jurisdiction to try civilians for
alleged offenses when the civil courts are open and functioning.
 Due process of law demands that in all criminal prosecutions (where the accused
stands to lose either his life or his liberty), the accused shall be entitled to, among
others, a trial. 37 The trial contemplated by the due process clause of the Constitution, in
relation to the Charter as a whole, is a trial by judicial process, not by executive or
military process. Military commissions or tribunals, by whatever name they are called,
are not courts within the Philippine judicial system. As explained by Justice Teehankee in
his separate dissenting opinion-
... Civilians like (the) petitioner placed on trial for civil offenses under general law
are entitled to trial by judicial process, not by executive or military process.
Judicial power is vested by the Constitution exclusively in the Supreme Court and
in such inferior courts as are duly established by law. Judicial power exists only in the
courts, which have "exclusive power to hear and determine those matters which affect
the life or liberty or property of a citizen. 38
Since we are not enemy-occupied territory nor are we under a military
government and even on the premise that martial law continues in force, the military
tribunals cannot try and exercise jurisdiction over civilians for civil offenses committed
by them which are properly cognizable by the civil courts that have remained open and
have been regularly functioning.39 ...
And in Toth v. Quarles,40 the U.S. Supreme Court furtherstressed that the
assertion of military authority over civilians cannot rest on the President's power as
Commander-in-Chief or on any theory of martial law.
xxx xxx xxx
The U.S. Supreme Court aptly pointed out ... , in ruling that discharged army
veterans (estimated to number more than 22.5 million) could not be rendered "helpless
before some latter-day revival of old military charges" and subjected to military trials for
offenses committed while they were in the military service prior to their discharge, that
"the presiding officer at a court martial is not a judge whose objectivity and
independence are protected by tenure and undiminished salary and nurtured by the
judicial tradition, but is a military law officer. Substantially different rules of evidence
and procedure apply in military trials. Apart from these differences, the suggestion of
the possibility of influence on the actions of the court martial by the officer who
convenes it, selects its members and the counsel on both sides, and who usually has
direct command authority over its members is a pervasive one in military law, despite
strenuous efforts to eliminate the danger."
 The late Justice Black ... added that (A) Court-Martial is not yet an independent
instrument of justice but remains to a significant degree a specialized part of the over-all
mechanism by which military discipline is preserved," and that ex-servicemen should be
given "the benefits of a civilian court trial when they are actually civilians ... Free
countries of the world have tried to restrict military tribunals to the narrowest
jurisdiction deemed absolutely essential to maintaining discipline among troops in
active service.
Moreover, military tribunals pertain to the Executive Department of the
Government and are simply instrumentalities of the executive power, provided by the
legislature for the President as Commander-in-Chief to aid him in properly commanding
the army and navy and enforcing discipline therein, and utilized under his orders or
those of his authorized military representatives. 41 Following the principle of separation
of powers underlying the existing constitutional organization of the Government of the
Philippines, the power and the duty of interpreting the laws as when an individual
should be considered to have violated the law) is primarily a function of the
judiciary. 42 It is not, and it cannot be the function of the Executive Department, through
the military authorities. And as long as the civil courts in the land remain open and are
regularly functioning, as they do so today and as they did during the period of martial
law in the country, military tribunals cannot try and exercise jurisdiction over civilians
for offenses committed by them and which are properly cognizable by the civil
courts. 43 To have it otherwise would be a violation of the constitutional right to due
process of the civilian concerned.
In addition to this pronouncement, We take note of the observation made by the
Solicitor General to the effect that the death penalty imposed upon the petitioners by
the respondent Military Commission No. 34 appears to have been rendered too hastily
to the prejudice to the petitioners, and in complete disregard of their constitutional
right to adduce evidence on their behalf. We quote the pertinent portions of the
Manifestation submitted by the Solicitor General, to wit —
Prior to the session of December 4, 1984, when the respondent Commission
rendered its sentence, petitioners have requested the prosecution to provide them with
copies of the complete record of trial, including the evidences presented against them,
but the prosecution dillydallied and failed to provide them with the document
requested. According to petitioners, they needed the documents to adequately prepare
for their defense.
 But a few days before December 4, 1984 the prosecution suddenly furnished
them with certain transcripts of the proceedings which were not complete. Petitioner
Othoniel Jimenez was scheduled to start with the presentation of his evidence on said
date and he requested that his first witness be served with subpoena. The other
petitioners, as agreed upon, were to present their evidence after the first one, Othoniel
Jimenez, has finished presenting his evidence. But on that fateful day, December 4,
1984, the witness requested to be served with subpoena was not around, because as
shown by the records, he was not even served with the requested subpoena. But in
spite of that, respondent Military Commission proceeded to ask each one of the
petitioners if they are ready to present their evidence.
Despite their explanation that Othoniel Jimenez cannot proceed because the
prosecution, which performs the duties and functions of clerk of court, failed to
subpoena his witness, and that the other petitioners were not ready because it was not
yet their turn to do so, the Commission abruptly decided that petitioners are deemed to
have waived the presentation of evidence in their behalf, and considered the case
submitted for resolution.
After a recess of only twenty-five (25) minutes, the session was resumed and the
Commission rendered its sentence finding petitioners guilty of all the charges against
them and imposing upon them the penalty of death by electrocution. 44
Thus, even assuming arguendo that the respondent Military Commission No. 34
does have the jurisdiction to try the petitioners, the Commission should be deemed
ousted of its jurisdiction when, as observed by the Solicitor General, the said tribunal
acted in disregard of the constitutional rights of the accused. Indeed, it is well-settled
that once a deprivation of a constitutional right is shown to exist, the tribunal that
rendered the judgment in question is deemed ousted of jurisdiction. 45
Moreover, We find that Proclamation No. 2045 (dated January 17, 1981) officially
lifting martial law in the Philippines and abolishing all military tribunals created pursuant
to the national emergency effectively divests the respondent Military Commission No.
34 (and all military tribunals for that matter) of its supposed authority to try civilians,
including the herein petitioners.
The main opinion in Aquino, Jr. is premised on the theory that military tribunals
have the jurisdiction to try civilians as long as the period of national emergency (brought
about by public disorder and similar causes) lasts. Undoubtedly, Proclamation No. 2045
is an acknowledgment on the part of the Executive Department of the Government that
the national emergency no longer exists. Thereafter, following the theory relied upon in
the main opinion, all military tribunals should henceforth be considered  functus
officio in their relationship with civilians.
By virtue of the proclamation itself, all cases against civilians pending therein
should eventually be transferred to the civil courts for proper disposition. The principle
of double jeopardy would not be an obstacle to such transfer because an indispensable
element of double jeopardy is that the first tribunal which tried the case must be of
competent jurisdiction.46 As discussed earlier, the military tribunals are devoid of the
required jurisdiction.
We take this opportunity to reiterate that as long as the civil courts in the land
are open and functioning, military tribunals cannot try and exercise jurisdiction over
civilians for offenses committed by them. Whether or not martial law has been
proclaimed throughout the country or over a part thereof is of no moment. The
imprimatur for this observation is found in Section 18, Article VII of the 1987
Constitution, to wit —
A state of martial law, does not suspend the operation of the Constitution, nor
supplant the functioning of the civil courts or legislative assemblies, nor authorize the
conferment of jurisdiction on military courts and agencies over civilians where civil
courts are able to function, nor automatically suspend the privilege of the writ.
(Emphasis supplied.)
This provision in the fundamental law is just one of the many steps taken by the
Filipino people towards the restoration of the vital role of the judiciary in a free country-
that of the guardian of the Constitution and the dispenser of justice without fear or
favor.
No longer should military tribunals or commissions exercise jurisdiction over
civilians for offenses allegedly committed by them when the civil courts are open and
functioning. No longer may the exclusive judicial power of the civil courts, beginning
with the Supreme Court down to the lower courts 47 be appropriate by any military body
or tribunal, or even diluted under the guise of a state of martial law, national security
and other similar labels.
At this juncture, We find it appropriate to quote a few paragraphs from the
ponencia of Mr. Justice Gutierrez in  Animas v. The Minister of National Defense , 48 viz —
The jurisdiction given to military tribunals over common crimes and civilian(s)
accused at a time when all civil courts were fully operational and freely functioning
constitutes one of the saddest chapters in the history of the Philippine judiciary.
 The downgrading of judicial prestige caused by the glorification of military
tribunals, the instability and insecurity felt by many members of the judiciary due to
various causes both real and imagined, and the many judicial problems spawned by
extended authoritarian rule which effectively eroded judicial independence and self-
respect will require plenty of time and determined efforts to cure.
The immediate return to civil courts of all cases which properly belong to them is
only a beginning.
And in his separate concurring opinion in Animas, Mr. Chief Justice Teehankee
had this to say —
I only wish to add that the great significance of our judgment in this case is that
we reestablish and reinstate the fundamental principle based on civilian supremacy over
the military as urged in vain in my dissent in the case of Benigno S. Aquino, Jr. vs.
Military Commission No. 2, et al. that "Civilians placed on trial for offenses under
general law are entitled to trial by judicial process, not by executive or military process.
Judicial power is vested by the Constitution exclusively in the Supreme Court and in such
inferior courts as are duly established by law. Military commissions, or tribunals, are not
courts and do not form part of the judicial system. Since we are not enemy-occupied
territory nor are we under a military government and even on the premise that martial
law continues in force, the military tribunals cannot try and exercise jurisdiction over
civilians for civil offenses committed by them which are properly cognizable by the civil
courts that have remained open and have been regularly functioning.
xxx xxx xxx
The terrible consequences of subjecting civilians to trial by military process is best
exemplified in the sham military trial of the martyred former Senator Benigno S. Aquino,
Jr., whereby he was deprived (1) by the summary ex parte investigation by the Chief
prosecution staff of the JAGO of his right to be informed of the charges against him and
of his right to counsel as expressly recognized by Section 20 of the Bill of Rights of the
1973 Constitution; (2) of his vested statutory right to a preliminary investigation of the
subversion charges against him before the proper court of first instance as required
under Section 5 of the Anti-Subversion Act, R.A. 1700 and of the other charges against
him before the proper civilian officials and to confront and cross-examine the witnesses
against him under R.A. 5180; (3) of the right to be tried by judicial process, by the
regular independent courts of justice, with all the specific constitutional, statutory and
procedural safeguards embodied in the judicial process and presided over not by
military officers; and (4) of the right to appeal to the regular appellate courts and to
judicial review by this Court in the event of conviction and imposition of a sentence of
death or life imprisonment which the charges carry and wherein a qualified majority of
ten (10) votes for affirmance of the death penalty is required. In fine, he was denied due
process of law as guaranteed under the Bill of Rights which further ordains that "No
person shall be held to answer for a criminal offense without due process of
law."Worse, his trial by a military tribunal created by the then President and composed
of the said President's own military subordinates without tenure and of non-lawyers
(except the law member) and of whose decision the President is the final reviewing
authority as Commander-in-Chief of the Armed Forces deprived him of a basic
constitutional right to be heard by a fair and impartial tribunal, considering that the said
President had publicly declared the evidence against petitioner "not only strong (but)
overwhelming" and thereby prejudged and predetermined his guilt, and none of his
military subordinates could be expected to go against their Commander-in-Chief's
declaration.
Hopefully, an these aberrations now belong to the dead and nightmarish past,
when time-tested doctrines, to borrow a phrase from the then Chief Justice, "shrivelled
in the effulgence of the overpowering rays of martial rule. 49
As stated earlier, We have been asked to re-examine a previous ruling of the
Court with a view towards abandoning or modifying the same. We do so now but not
without careful reflection and deliberation on Our part. Certainly, the rule of stare
decisis is entitled to respect because stability in jurisprudence is desirable. Nonetheless,
reverence for precedent, simply as precedent, cannot prevail when constitutionalism
and the public interest demand otherwise. Thus, a doctrine which should be abandoned
or modified should be abandoned or modified accordingly. After all, more important
than anything else is that this Court should be right. 50
Accordingly, it is Our considered opinion, and We so hold, that a military
commission or tribunal cannot try and exercise jurisdiction, even during the period of
martial law, over civilians for offenses allegedly committed by them as long as the civil
courts are open and functioning, and that any judgment rendered by such body relating
to a civilian is null and void for lack of jurisdiction on the part of the military tribunal
concerned. 51 For the same reasons, Our pronouncement in Aquino, Jr. v. Military
Commission No. 2 52 and all decided cases affirming the same, in so far as they are
inconsistent with this pronouncement, should be deemed abandoned.
WHEREFORE, in view of the foregoing, the Petitions for habeas corpus are
DISMISSED for having become moot and academic. The Petitions for certiorari and
prohibition are hereby GRANTED. The creation of the respondent Military Commission
No. 34 to try civilians like the petitioners is hereby declared unconstitutional and all its
proceedings are deemed null and void. The temporary restraining order issued against
the respondents enjoining them from executing the Decision of the respondent Military
Commission No. 34 is hereby made permanent and the said respondents are
permanently prohibited from further pursuing Criminal Case No. MC-34-1 against the
petitioners. The sentence rendered by the respondent Military Commission No. 34
imposing the death penalty on the petitioners is hereby vacated for being null and void,
and all the items or properties taken from the petitioners in relation to the said criminal
case should be returned to them immediately. No pronouncement as to costs.
SO ORDERED.

EN BANC
[ G.R. No. 75983, April 15, 1988 ]
MANUEL R. CRUZ; PAULINO M. ARCEO; ELPIDIO G. CACHO;
ROGELIO P. GARCIA; MANUEL M. DELA CRUZ; WILLIAM H.
LORENZANA; PABLO P. GARCIA; RODRIGO A. HALASAN; ADRIANO B.
CASTILLO; LEONARDO L. PAQUINTO; NESTOR T. LIWANAG;
ALEXANDER P. ROXAS; PABLO M. MERCADO; EDUARDO P. GARCIA;
GERARDO M. LUCAS; LEONIDES G. MAÑABO; BRAULIO DEPUSOY;
ALFREDO M. TILA; JEOFREY T. METEORO; BENIGNO G. BANTOLINO;
ANTONIO P. DATUL; RENATO V. VENGCO; EDGARDO TERRENAL;
EDUARDO D. DELFIN; CORNELIO C. TACDERAN; AMANCIO D.
LORIESTO; JOSE A. SELOTERIO; APOLONIO E. ONIA; DOMINGO
MARCO; ARTURO VILLASANTA; ANTONIO OCCASIONES; TEODORO
C. CARANDANG; ROGELIO A. GARCIA; ROMEO A. BASENSE; HARRY B.
BENLIRO; ROLANDO B. BENLIRO; JAMES A. UMADHAY; VICENTE A.
GENER; ERNESTO A. CARPIO; MANUEL S. SALARDA; GETULIO B.
BRAGA, JR.; ARCADIO D. CELENDRO; VIRGILIO P. GOMEZ; SERGIO R.
PREYE; CIRIACOM DELA GUARDIA; RODITO B. SORIASO; ANTONIO D.
PUMAR; FEDERICO B. VECINAL; CESARIO D. VECINAL; LORETO D.
VECINAL; ROGELIO D. VECINAL; MARCELO B. DE MESA; JULIAN DE
MESA; GAVINO B. DE MESA; REMIGIO B. DE MESA; DANILO B. DE
MESA; ROLANDO P. TOLENTINO; ANASTACIO P. DEL ROSARIO;
REYNALDO C. REYES; BENITO B. PAÑGANIBAN; ROMUALDO M.
MONTENEGRO; ROMULO C. OCAMPO; DEMOCRITO M. SILVESTRE;
SALLY B. DIMAISIP; FILIPINO B. DE LEON; NARCISO G. VIGO; TOMAS
C. AMORTE; CATALINO S. CRUZ; EDUARDO F. JAVIER; ROGELIO L.
CARICUNGAN; ERNESTO R. BARADI; RENE P. CORTEZ; EDUARDO D.
RAMIREZ; DONATO G. CABONITALIA; CAMILO PATAO; JOSE
TORRES; ISABELO NARNE; ERIC F. PICHAY; DELFIN PIANO;
FRANCISCO PIANO; RUDY G. ROMERO; MARIO G. MERCADO;
JUANITO PIANO; REYNOSO J. LAGMAY; PABLO S. CALLEJO;
FORANTE SAGUN; RUSSEL A. PAULINO; LAUREL LAMACA; RUFINO
GAMBOA; TIRSO F. BALA JR.; ANTONIO CRUZ; BENITO PUGAL;
CASIMIRO PATAO; ROGELIO PATAO; EULOGIO PUGAL; CARLITO
PUGAL; ANDRES PATAO; VICENTE ARCANO; MARIANO YTURIAGA;
RODOLFO MANUEL; EDUARDO ABIHAY; MANUEL CARREON;
CAMILO PIANO; LUCIO ARIMADO; PABLO ACIERTO; EDUARDO
PASCUAL; FERMIN PUGAL; FLOR PIANO; RUDY PIANO; JUANITO
BAFUL; GODOFREDO RAQUEÑO; CALIXTO SOMERA; HILARION
PATAO; DELFIN B. GUTIERREZ; TEODULO BUGARIN; JAIME A.
SABADO JR.; ALMARIO VILLANUEVA; APOLONIO SOMUDIO; OSCAR
LITADA; ROLANDO L. TOLENTINO; HERMINIO BATONGBAKAL;
ROGELIO TURION; NELSON REMO; FERMIN CORREA; DOMINGO
SALAZAR; FELIPE PAREDES; DOMINGO RECINTO; SILVANO BEATO;
TOMAS GARCIA; RODOLFO ABIHAY; MELCHOR CA-AMIK; NELITO C.
LONTOC; EDERLINO LACSINA; DOMINGO R. REYES; RODOLFO D.
MANANSALA; ROSALINO R. DELOS SANTOS; RONIE A. CELIZ;
VIRGILIO M. MALGAPO; DIONISIO C. CABRERA; ROGELIO V.
PORTILLO; JOSE D. PAMINTUAN; ROBERTO P. GALVEZ; LINO B.
DAPADAP; FERNANDO R. ROMERO; LINO M. VILLARIN; EMILIANO P.
SICANGCO; PAULINO V. ZAMORA; LEONARDO C. REYES; GUMAL A.
SAMO; IMPERIAL D. USMAN; GERUNDIO A. BOYLES; ELPIDIO L.
URBANO; ROMEO S. CANTADA; SOFRONIO B. GALO; EUGENE D.
BALANSAG; CIRILO P. MARIANO; ROMEO C. CARIÑO; EDGARDO L.
GOMEZ; EUGENIO CABAÑERO; AQUILINO LEYRAN; ANTONIO A.
HERMIDA; ALVARO P. CABASAG; PRIMITIVO SULAYAO; TEODORO B.
PATANO; DOMINGO R. RODRIGUEZ; ROGER N. MAGALLANES;
SALVADOR O. CALDERON; LEOPOLDO B. ARCADIO; APLON M.
LINOGAMAN; JOSE E. ABRIA; JESUS N. ABRIA; ANDRES P. PARADO;
LARRY A. ARPON; JESSIE CABAÑGUNAY; MANUEL A. BARQUILLIA;
DANIEL S. CINCO; TIMOTEO C. LLAMERA, JR.; ERNESTO D. DUMPA;
ORLANDO G. ACSALAN; BONIFACIO VALLETE; AGUSTIN VALLETE;
SAMSON ARANETA; ERNESTO DOCTOLERO; AVELINO HABULAN;
ROLANDO TUDIN; CONRADO M. GLORIA; DANIEL G. CAMPOS; JAIME
F. CO; VIRGILIO ALEJANDRO; SULPECIO L. REJUSO, JR.; MARCELO S.
 GUESE; VICENTE PATAO; ROMEO IBAYAN; DANILO MAGALLANES;
RICARDO C. JARATA; ERNESTO H. ABOLOC; DIOSDADO RODRIGUEZ;
ALFREDO P. PEREZ; FEDERICO VILICINA; ROSENDO I. RAMOS; JOSE
C. SIOCHI; FEDERICO MARCELINO; BENJAMIN V. TAN; DANILO
CRUZ; CONSTANTE CABANILLA; LEOPOLDO V. JOSE; PACIFICO
BATACAN; VICENTE SY; JOSE TORDESILLAS; ANTONIO DEPUSOY;
ARMANDO I. ULPINDO; EDILBERTO LIBERATO; JIMMY C. REALIS;
SULPICIO C. REJUSO; GEDALTIE MARIN; RENATO BALLESTEROS;
AND DEMOCRITO LORAÑA; PETITIONERS, VS. MINISTER JUAN
PONCE ENRILE, GENERAL FIDEL RAMOS, GENERAL (RET.) EMILIO N.
CEA, MINISTER NEPTALI GONZALES AND BRIG. GENERAL SAMUEL
SORIANO, RESPONDENTS.

[G.R. NO. 79077. APRIL 15, 1988]

IN THE MATTER OF THE PETITION FOR WRIT OF HABEAS CORPUS OF

IMPERIAL D. USMAN AND SAMU GUMAL, ACSARA GUMAL,
PETITIONER, VS. THE SECRETARY OF NATIONAL DEFENSE, THE
PRESIDENT OF MILITARY COMMISSION NO. 30, THE DIRECTOR OF
PRISONS AND THE EXECUTIVE SECRETARY, RESPONDENTS.

[G.R. NO. 79599-79600. APRIL 15, 1988]

CONRADO M. GLORIA AND DANILO V. MAGALLANES, PETITIONERS,

VS. THE CHIEF OF STAFF (AFP), THE JUDGE ADVOCATE GENERAL
(AFP), THE SECRETARY OF JUSTICE, THE DIRECTOR OF PRISONS,
RESPONDENTS.

[G.R. NO. 79862. APRIL 15, 1988]

IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUS IN

BEHALF OF MANUEL DE LA CRUZ, PETITIONER, VS. BRIG. GEN.
MELITON GOYENA (RET.), IN HIS CAPACITY AS DIRECTOR OF THE
BUREAU OF PRISONS, RESPONDENTS.

[G.R. NO. 80565. APRIL 15, 1988]

LEOPOLDO V. JOSE, PETITIONER, VS. DIRECTOR OF PRISONS,

SECRETARY RAFAEL ILETO, GENERAL FIDEL RAMOS, SECRETARY
SEDFREY ORDOÑEZ, AND BRIG. GEN. SAMUEL SORIANO,
RESPONDENTS.
 DECISION

NARVASA, J.:

Habeas corpus proceedings were commenced in this Court on October 1, 1986[1] to test

the legality of the continued detention of some 217 so-called “political
detainees”[2] arrested in the nine-year span of official martial rule and committed to the
New Bilibid Prisons in Muntinlupa. All had been made to stand trial for common
crimes[3] before various courts martial;[4] if any of these offenses had any political color,
this had neither been pleaded nor proved.

Of the 217 prisoners, 157 are civilians, and only 26 confirmed as military personnel.
[5]
 One hundred and fifteen (115) accused had been condemned to die. Forty-six (46) were
sentenced to life imprisonment. To nine (9) others were meted prison terms of from
twenty to thirty years; to forty-one (41), prison terms of ten to twenty years; and to three
(3), less than ten years.

The present statuses of their cases are disparate, as might be expected. As of the date of
filing of the petitions in this Court, the sentences of sixty-eight (68) had become final
upon their approval by the Office of the President,[6] seventy-five (75) cases were pending
review in either that Office or before the Board of Military Review, while the appeal or
review of the remaining seventy-three (73) cases either had been expressly suspended
pending the outcome of these petitions, or are simply not dealt with in the records.

Presidential amnesty was granted to petitioner Virgilio Alejandrino,[7] yet to this date he

remains a prisoner at the Penitentiary, as do Domingo Reyes, Antonio Pumar, Teodoro
Patano, Andres Parado and Daniel Campus, although they were acquitted of the charges
against them,[8] and Reynaldo C. Reyes and Rosalino de los Santos, who appear to have
fully served the sentences imposed on them by the military commissions which convicted
them.[9]

The petitioners urge the Court to declare unconstitutional the establishment of all military
tribunals as well as General Order No. 8 ordaining their creation, and the nullity of all the
proceedings had against them before these bodies as a result of which they had been
illegally deprived of their liberty. Their plea is for the grant of a retrial of their respective
cases in the civil courts, where their right to due process may be accorded respect.[10] The
writ of habeas corpus issued on July 31, 1987, two weeks after an amended
petition[11] was filed with leave of court, reiterating the arguments originally pleaded, and
setting forth the additional claim that the pronouncement of this Court of the lack of
jurisdiction of military tribunals to try cases of civilians even during martial rule, as
declared in Olaguer, et al. vs. Military Commission No. 34, et al.,[12] entitled the
petitioners to be unconditionally freed from detention.

The Solicitor General’s return of the writ in behalf of the public respondents stated that
the latter “offer no objection or opposition to the release from detention of petitioners-
civilians * * (which) may be immediately effected, unless there are other legal causes that
may warrant their detention * * (while) the other petitioners who are military personnel *
* should not be released.”[13] This return was shortly amended however[14] to urge that this
Court take a “second look” and undertake a “thorough” re-examination of
the Olaguer decision,” suggesting the inapplicability of the ruling to “cases involving
civilians charged with, and convicted of common crimes and * * cases where the
detained accused have, in effect, fully served the sentence by their continued detention
for the duration of the penalty imposed.” Also suggested was the giving of “limited
retroactive” effect to the decision, considering the consequences “of voiding earlier
convictions, * * (such as) the grant of immunity from prosecution as a result of
prescription or of the Statute of (L)imitations having run, witnesses having been scattered
and no longer available, * * memories hav(ing) also been taxed beyond permissible
limits, * * and (the annulment) of acquittal decisions, * * to the great prejudice of the
rights of the accused.”[15]

In Olaguer, this Court in no uncertain terms affirmed that -

“* * a military commission or tribunal cannot try and exercise jurisdiction, even during
the period of martial law, over civilians for offenses allegedly committed by them as long
as the civil courts are open and functioning, and that any judgment rendered by such body
relating to a civilian is null and void for lack of jurisdiction on the part of the military
tribunal concerned (People v. Navarro, 63 SCRA 264, 274 [1975]). For the same reasons,
Our pronouncement in Aquino, Jr. v. Military Commission No. 2 (L-37364, 63 SCRA
546) and all decided cases affirming the same, in so far as they are inconsistent with this
pronouncement, should be deemed abandoned.”[16]

Such is the statement of the doctrine squarely applicable in these cases.

1. Clearly, no right to relief under Olaguer exists in favor of the 26 petitioners who
were admittedly in the military service.[17] Over them the courts martial validly
exercised jurisdiction. It need only be said that these tribunals were created
precisely to try and decide cases of military personnel, and the validity of General
Order No. 8 ordaining their creation, although repeatedly challenged on
constitutional grounds, has as many times been upheld by the Court, either
expressly or impliedly.[18] As to these petitioners, the writ is thus unavailing.

2. Deference to the Olaguer decision impels on the other hand the application thereof

to all civilians, without distinction, who were haled before military tribunals. To
be sure, due consideration was given to the submittal that the doctrine is, or should
 be declared as, limited in applicability to “political offenders,” and not “ordinary
crimes” such as those of which the civilian petitioners were convicted.18-A But
distinctions should not be set where none were clearly intended. The issue in
Olaguer, as here, is the jurisdiction of courts martial over the persons of civilians,
and not merely over the crimes imputed to them, regardless of which they are
entitled to trial by judicial, not executive or military process. Conformably with
this holding, the disposition of these cases would necessarily have, as a premise,
the invalidity of any and all proceedings had before courts martial against the
civilian petitioners. There is all the more reason to strike down the proceedings
leading to the conviction of these non-political detainees who should have been
brought before the courts of justice in the first place, as their offenses are totally
unrelated to the insurgency avowedly sought to be controlled by martial rule.

Due regard for consistency likewise dictates rejection of the proposal to merely give
“prospective effect” to Olaguer. No distinction should be made, as the public respondents
propose, between cases still being tried and those finally decided or already under review.
All cases must be treated alike, regardless of the stage they happen to be in, and since
according to Olaguer, all proceedings before courts martial in cases involving civilians
are null and void, the court deems it proper to adhere to that unequivocal pronouncement,
perceiving no cogent reason to deviate from the doctrine.

The fact cannot be ignored, however, that crimes appear to have been committed, and
there are accusations against herein petitioners for those offenses. Olaguer cannot and
does not operate to absolve the petitioners of these charges, or establish that the same are
baseless, so as to entitle them to immediate release from detention. It is not to be
forgotten that the victims in offenses ascribed to the petitioners have as much interest as
the State has to prosecute the alleged authors of the misdeeds. Justice will be better
served if the detention of such of the petitioners as are not hereby ordered released or
excepted, is continued until their cases are transferred to the ordinary courts having
jurisdiction, and the necessary informations have been filed against them therein, as has
already been done in the case of petitioners Imperial D. Usman and Samu Gumal. [19] The
State should be given a reasonable period of time to accomplish this transfer, at which
time the petitioners may apply for bail for their temporary release.

The Solicitor General not unreasonably anticipates questions to arise as to the availability
of certain defenses to the petitioners upon their prosecution before the civil courts. It
seems evident, however, that no breach of the constitutional prohibition against twice
putting an accused in jeopardy of punishment for the same offense[20] would result from
the retrial of the petitioners’ cases, for the simple reason that the absence of jurisdiction
of the courts martial to try and convict the petitioners prevented the first jeopardy from
attaching.[21] Valid previous proceedings are required in order that the defense of double
jeopardy can be raised by the accused in the second prosecution.[22]
Neither does the defense of prescription appear to be available to the petitioners who,
except for a handful, were charged with offenses punishable by death or reclusion
perpetua, which prescribe in twenty years.[23] Even the few not so charged cannot raise
such defense since the filing of the first indictments suspended the running of the
prescriptive period, and the prosecutions under the informations to be filed should be
regarded as mere continuations of the previous proceedings.[24] At the very least, the filing
of the first charges should be considered as having interrupted the prescriptive period
notwithstanding the lack of jurisdiction of the military tribunal in which they were filed,
applying, by analogy, the ruling in People vs. Olarte.[25]

In fine, the Court holds that the merits of the indictments against all these civilians are
solely for the civil courts to weigh and decide upon after due proceedings. Otherwise
stated, they are entitled to the retrial they have explicitly requested of their respective
cases in the civil courts.

WHEREFORE, the petition is hereby GRANTED insofar as petitioners Virgilio

Alejandrino,[26] Domingo Reyes, Antonio Pumar, Teodoro Patono, Andres Parado, Daniel
Campus,[27] Reynaldo C. Reyes and Rosalino de los Santos[28] are concerned. The Director
of the Bureau of Prisons is hereby ordered to effect the immediate release of the above-
mentioned petitioners, unless there are other legal causes that may warrant their
detention.

The petition is DISMISSED as to petitioners Elpidio Cacho, William Lorenzana,

Benigno Bantolino, Getulio B. Braga, Jr., Tomas C. Amarte, Rogelio L. Caricungan,
Ernesto Baradiel, Isabelo Narne, Eric F. Pichay, Pablo Callejo, Russel A. Paulino, Laurel
Lamaca, Tirso F. Bala, Calixto Somera, Edulino Lacsina (Draftee), Ronnie A. Celiz,
Elpidio Urbano, Sofronio Galo, Aquilino Leyran, Leopoldo Arcadio, Rolando Tudin,
Rosendo I. Ramos, Pacifico Batacan, Edilberto Liberato, Jimmy C. Realis, Democrito
Loraña who are all military personnel.

As to the other petitioners, the Department of Justice is hereby DIRECTED TO FILE the
necessary informations against them in the courts having jurisdiction over the offenses
involved, within one hundred eighty (180) days from notice of this decision, without
prejudice to the reproduction of the evidence submitted by the parties and admitted by the
Military Commission. If eventually convicted, the period of the petitioners’ detention
shall be credited in their favor.

The Courts wherein the necessary informations are filed are DIRECTED TO CONDUCT
with dispatch the necessary proceedings inclusive of those for the grant of bail which
may be initiated by the accused.

SO ORDERED.
 FIRST DIVISION
[ G.R. No. 176229, October 19, 2011 ]
HO WAI PANG, PETITIONER, VS. PEOPLE OF THE PHILIPPINES,
RESPONDENT.

DECISION

DEL CASTILLO, J.:

Infraction of the rights of an accused during custodial investigation or the so-

called Miranda Rights render inadmissible only the extrajudicial confession or admission
made during such investigation.[1]  "The admissibility of other evidence, provided they
are relevant to the issue and is not otherwise excluded by law or rules, is not affected
even if obtained or taken in the course of custodial investigation." [2]

Petitioner Ho Wai Pang (petitioner) in this present recourse assails the June 16, 2006
Decision[3] of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 01459 affirming the April
6, 1995 Decision[4] of the Regional Trial Court (RTC), Branch 118 of Pasay City in Criminal
Case No. 91-1592, finding him and his co-accused, namely, Law Ka Wang, Chan Chit Yue,
[5]
 Wu Hing Sum, Tin San Mao [6] and Kin San Ho[7]  guilty beyond reasonable doubt for
violation of Section 15, Article III [8] of Republic Act (R.A.) No. 6425 otherwise known as
the Dangerous Drugs Act of 1972.  Also assailed is the January 16, 2007 CA
Resolution[9] denying the motion for reconsideration thereto.

Factual Antecedents

On September 6, 1991, at around 11:30 in the evening, United Arab Emirates Airlines
Flight No. 068 from Hongkong arrived at the Ninoy Aquino International Airport (NAIA). 
Among the passengers were 13 Hongkong nationals who came to the Philippines as
tourists.  At the arrival area, the group leader Wong Kwok Wah (Sonny Wong) presented
a Baggage Declaration Form to Customs Examiner Gilda L. Cinco (Cinco), who was then
manning Lane 8 of the Express Lane.  Cinco examined the baggages of each of the 13
passengers as their turn came up.  From the first traveling bag, she saw few personal
belongings such as used clothing, shoes and chocolate boxes which she pressed. When
the second bag was examined, she noticed chocolate boxes which were almost of the
same size as those in the first bag.  Becoming suspicious, she took out four of the
chocolate boxes and opened one of them.  Instead of chocolates, what she saw inside
was white crystalline substance contained in a white transparent plastic.  Cinco thus
immediately called the attention of her immediate superiors Duty Collector Alalo and
Customs Appraiser Nora Sancho who advised her to call the Narcotics Command
(NARCOM) and the police. Thereupon, she guided the tourists to the Intensive Counting
Unit (ICU) while bringing with her the four chocolate boxes earlier discovered.

At the ICU, Cinco called the tourists one after the other using the passenger manifest
and further examined their bags.  The bag of Law Ka Wang was first found to contain
three chocolate boxes.  Next was petitioner's bag which contains nothing except for
personal effects. Cinco, however, recalled that two of the chocolate boxes earlier
discovered at the express lane belong to him.  Wu Hing Sum's bag followed and same
yielded three chocolate boxes while the baggages of Ho Kin San, Chan Chit Yue and Tin
San Mao each contained two or three similar chocolate boxes. All in all, 18 chocolate
boxes were recovered from the baggages of the six accused.

NARCOM Agent Neowillie de Castro corroborated the relevant testimony of Cinco

pertaining to the presence of the chocolate boxes. According to him, he conducted a
test on the white crystalline substance contained in said chocolate boxes at the NAIA
using the Mandelline Re-Agent Test.[10] The result of his examination[11] of the white
crystalline substance yielded positive for methamphetamine hydrochloride or shabu. 
Thereafter, the chocolate boxes were bundled together with tape, placed inside a plastic
bag and brought to the Inbond Section.

The following day, September 7, 1991, the 13 tourists were brought to the National
Bureau of Investigation (NBI) for further questioning.  The confiscated stuff were turned
over to the Forensic Chemist who weighed and examined them. Findings show that its
total weight is 31.1126 kilograms and that the representative samples were positive for
methamphetamine hydrochloride.[12]  Out of the 13 tourists, the NBI found evidence for
violation of R.A. No. 6425 only as against petitioner and his five co-accused.

Accordingly, six separate Informations all dated September 19, 1991 were filed against
petitioner and his co-accused.  These Informations were docketed as Criminal Case Nos.
91-1591 to 97.  Subsequently, however, petitioner filed a Motion for
Reinvestigation[13] which the trial court granted.  The reinvestigation conducted gave
way to a finding of conspiracy among the accused and this resulted to the filing of a
single Amended Information[14] under Criminal Case No. 91-1592 and to the withdrawal
of the other Informations.[15]  The Amended Information reads:

That on or about September 6, 1991 in Pasay City, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring,
confederating and mutually helping one another, did, then and there, willfully,
unlawfully and feloniously carry and transport into the country without lawful authority,
31.112 kilograms, more or less, of Methamphetamine Hydrochloride, also popularly
known as "SHABU", a regulated drug.

CONTRARY TO LAW.[16]

After pleading not guilty to the crime charged, [17] all the accused testified almost
identically, invoking denial as their defense.  They claimed that they have no knowledge
about the transportation of illegal substance (shabu) taken from their traveling bags
which were provided by the travel agency.

Ruling of the Regional Trial Court

On April 6, 1995, the RTC rendered a Decision[18] finding all the accused guilty of violating
Section 15, Article III of R.A. No. 6425, as amended, the decretal portion of which reads:

WHEREFORE, all the foregoing considered, the Court finds the accused LAW KA
WANG, CHAN CHIT yue, ho wai pang, wu hing sum, tin sun mao, and kin san ho (ho kin
san) guilty of Conspiracy in violating Section 15, Article III, Republic Act No. 6425, as
amended for having conspired to transport into the Philippines 31.112 kilograms of
methamp[h]etamine hydrochloride, locally known as Shabu, and they are hereby
sentenced to suffer the PENALTY OF IMPRISONMENT OF SIX (6) [sic] RECLUSION
PERPETUA AND TO PAY EACH (SIC) THE AMOUNT OF THIRTY (30) THOUSAND PESOS
(p30,000.00) each as FINE, the penalty of reclusion perpetua is being imposed pursuant
to Republic Act No. 7659 considering its applicability to the accused though retroactively
for having a less stricter penalty than that of life imprisonment provided in Republic Act
No. 6425. The fine of P30,000.00 for each accused is imposed pursuant to R.A. No. 6425
it being more favorable to the accused [than] that provided in R.A. No. 7659 WITH
IMMEDIATE DEPORTATION AFTER SERVICE OF SENTENCE. The penalty of death cannot
be imposed since the offense was committed prior to the effectivity of R.A. No. 7659.

Let an alias warrant of arrest be issued against accused WONG KOK WAH @ SONNY
WONG, CHAN TAK PIU, HO WAI LING AND INOCENCIA CHENG.

SO ORDERED.[19]

From this judgment, all the accused appealed to this Court where the case records were
forwarded to per Order of the RTC dated May 10, 1995. [20]  Later, all the accused except
for petitioner, filed on separate dates their respective withdrawal of appeal. [21]  This
Court, after being satisfied that the withdrawing appellants were fully aware of the
consequences of their action, granted the withdrawal of their respective appeals
through a Resolution dated June 18, 1997. [22]  Per Entry of Judgment, [23] said Resolution
became final and executory on July 7, 1997. Consequently, petitioner was the only one
left to pursue his appeal.

Petitioner filed his Brief[24] on April 6, 1998 while the brief[25] for the respondent People
of the Philippines was filed on August 27, 1998 through the Office of the Solicitor
General (OSG). Per Resolution[26] dated August 30, 2004, this Court referred the appeal
to the CA for proper disposition and determination pursuant to this Court's ruling
in People v. Mateo.[27]

Ruling of the Court of Appeals

On June 16, 2006, the CA denied the appeal and affirmed the Decision of the RTC.  While
conceding that petitioner's constitutional right to counsel during the custodial
investigation was indeed violated, it nevertheless went on to hold that there were other
evidence sufficient to warrant his conviction.  The CA also rebuked petitioner's claim
that he was deprived of his constitutional and statutory right to confront the witnesses
against him.  The CA gave credence to the testimonies of the prosecution witnesses and
quoted with favor the trial court's ratiocination regarding the existence of conspiracy
among the accused.
Undeterred, petitioner filed a Motion for Reconsideration [28] which the CA denied in its
Resolution[29] dated January 16, 2007.

Hence, this petition for review on certiorari anchored on the following grounds:

WHILE ACKNOWLEDGING THAT PETITIONER WAS DEPRIVED OF HIS CONSTITUTIONAL

AND STATUTORY RIGHTS UNDER CUSTODIAL INVESTIGATION BOTH BY THE CUSTOMS
OFFICIALS AND BY THE NBI INVESTIGATORS, THE HONORABLE COURT OF APPEALS
ERRED IN NOT EXCLUDING EVIDENCE TAKEN DURING THE CUSTODIAL INVESTIGATION.

II

THE HONORABLE COURT OF APPEALS ERRED IN NOT CONSIDERING THAT PETITIONER

WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESSES
AGAINST HIM.

III

THE HONORABLE COURT OF APPEALS ERRED IN NOT FINDING THAT THE

PROSECUTION'S EVIDENCE FAILED TO ESTABLISH THE EXISTENCE OF A CONSPIRACY.

IV

THE HONORABLE COURT OF APPEALS ERRED IN NOT FINDING THAT THE PROSECUTION
FAILED TO PRESENT PROOF BEYOND REASONABLE DOUBT AS TO OVERTURN THE
PRESUMPTION OF INNOCENCE ACCORDED TO PETITIONER BY THE CONSTITUTION.[30]

OUR RULING

The petition lacks merit.

Section 12, Article III of the Constitution

prohibits as evidence only confessions and
admissions of the accused as against himself.

Anent the error first assigned, petitioner takes issue on the fact that he was not assisted
by a competent and independent lawyer during the custodial investigation.  He claimed
that he was not duly informed of his rights to remain silent and to have competent
counsel of his choice.  Hence, petitioner faults the CA in not excluding evidence taken
during such investigation.

While there is no dispute that petitioner was subjected to all the rituals of a custodial
questioning by the customs authorities and the NBI in violation of his constitutional right
under Section 12[31] of Article III of the Constitution, we must not, however, lose sight of
the fact that what said constitutional provision prohibits as evidence are only
confessions and admissions of the accused as against himself.  Thus, in Aquino v. Paiste,
[32]
 the Court categorically ruled that "the infractions of the so-called Miranda rights
render inadmissible `only the extrajudicial confession or admission made during
custodial investigation.'  The admissibility of other evidence, provided they are relevant
to the issue and [are] not otherwise excluded by law or rules, [are] not affected even if
obtained or taken in the course of custodial investigation."

In the case at bench, petitioner did not make any confession or admission during his
custodial investigation. The prosecution did not present any extrajudicial confession
extracted from him as evidence of his guilt.  Moreover, no statement was taken from
petitioner during his detention and subsequently used in evidence against him.  Verily,
in determining the guilt of the petitioner and his co-accused, the trial court based its
Decision on the testimonies of the prosecution witnesses and on the existence of the
confiscated shabu.  As the Court held in People v. Buluran,[33] "[a]ny allegation of
violation of rights during custodial investigation is relevant and material only to cases in
which an extrajudicial admission or confession extracted from the accused becomes the
basis of their conviction."  Hence, petitioner's claim that the trial court erred in not
excluding evidence taken during the custodial investigation deserves scant
consideration.

Petitioner cannot take refuge in this Court's ruling in People v. Wong Chuen Ming[34] to
exculpate himself from the crime charged. Though there are semblance in the facts, the
case of Ming is not exactly on all fours with the present case. The disparity is clear from
the evidence adduced upon which the trial courts in each case relied on in rendering
their respective decisions.  Apparently in Ming, the trial court, in convicting the accused,
relied heavily on the signatures which they affixed on the boxes of Alpen Cereals and on
the plastic bags.  The Court construed the accused's act of affixing their signatures
thereon as a tacit admission of the crime charged. And, since the accused were not
informed of their Miranda rights when they affixed their signatures, the admission was
declared inadmissible  evidence for having been obtained in violation of their
constitutional rights.  In ruling against the accused, the trial court also gave credence to
the sole testimony of the customs examiner whom it presumed to have performed his
duties in regular manner. However, in reversing the judgment of conviction, the Court
noted that said examiner's testimony was not corroborated by other prosecution
witnesses.

On the other hand, petitioner's conviction in the present case was on the strength of his
having been caught in flagrante delicto transporting shabu into the country and not on
the basis of any confession or admission. Moreover, the testimony of Cinco was found
to be direct, positive and credible by the trial court, hence it need not be corroborated. 
Cinco witnessed the entire incident thus providing direct evidence as eyewitness to the
very act of the commission of the crime.  As the Court held in People v Dela Cruz,
[35]
 "[n]o rule exists which requires a testimony to be corroborated to be adjudged
credible. x x x Thus, it is not at all uncommon to reach a conclusion of guilt on the basis
of the testimony of a single witness despite the lack of corroboration, where such
testimony is found positive and credible by the trial court.  In such a case, the lone
testimony is sufficient to produce a conviction."

Indeed, a ruling in one case cannot simply be bodily lifted and applied to another case
when there are stark differences between the two cases.  Cases must be decided based
on their own unique facts and applicable law and jurisprudence.

Petitioner was not denied of his right to confrontation.

Turning now to the second assigned error, petitioner invokes the pertinent provision of
Section 14(2) of Article III of the 1987 Philippine Constitution providing for the right to
confrontation, viz:
 Section 14. x x x

(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.

Petitioner asserts that he was deprived of his right to know and understand what the
witnesses testified to.  According to him, only a full understanding of what the witnesses
would testify to would enable an accused to comprehend the evidence being offered
against him and to refute it by cross-examination or by his own countervailing evidence.

In refutation, the OSG countered that petitioner was given the opportunity to confront
his accusers and/or the witnesses of the prosecution when his counsel cross-examined
them.  It is petitioner's call to hire an interpreter to understand the proceedings before
him and if he could not do so, he should have manifested it before the court.   At any
rate, the OSG contends that petitioner was nevertheless able to cross-examine the
prosecution witnesses and that such examination suffices as compliance with
petitioner's right to confront the witnesses against him.

We agree with the OSG.

As borne out by the records, petitioner did not register any objection to the
presentation of the prosecution's evidence particularly on the testimony of Cinco
despite the absence of an interpreter. Moreover, it has not been shown that the lack of
an interpreter greatly prejudiced him.  Still and all, the important thing is that petitioner,
through counsel, was able to fully cross-examine Cinco and the other witnesses and test
their credibility.  The right to confrontation is essentially a guarantee that a defendant
may cross-examine the witnesses of the prosecution.  In People v. Libo-on,[36] the Court
held:
 The right to confrontation is one of the fundamental rights guaranteed by the
Constitution 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.  The chief purpose of the right of confrontation is to secure the opportunity for
cross-examination, so that if the opportunity for cross-examination has been secured,
the function and test of confrontation has also been accomplished, the confrontation
being merely the dramatic preliminary to cross-examination.

Under the circumstances obtaining, petitioner's constitutional right to confront the

witnesses against him was not impaired.

Conspiracy among the accused

was duly established.

Respecting the third assigned error, we uphold the trial court's finding of conspiracy
which was quoted by the appellate court in its assailed Decision, and  which we once
again herein reproduce with approval:

On the allegation of conspiracy, the Court finds [no] direct evidence to conclude
conspiracy.  However, just like in other cases where conspiracy is not usually established
by direct evidence but by circumstantial evidence, the Court finds that there are enough
circumstantial evidence which if taken together sufficiently prove conspiracy. First, it
cannot be denied that the accused somehow have known each other prior to their
[departure] in Hong Kong for Manila. Although Law Ka Wang denied having known any
of the accused prior to the incident in NAIA, accused Ho Wai Pang identified him as the
one who assisted him in the supposed tour in the Philippines to the extent of directly
dealing with the travel agency and [that] Law Ka Wang was the one who received the
personal things of Ho Wai Pang allegedly to be place[d] in a bag provided for by the
travel agency.  Accused Wu Hing Sum has been known to accused Ho Kin San for about
two to three years as they used to work as cooks in a restaurant in Hong Kong. Accused
Ho Wai Ling, who is still at large, is know[n] to accused Chan Chit Yue, Wu Hing Sum and
Ho Kin San. These relationships in a way can lead to the presumption that they have the
capability to enter into a conspiracy. Second, all the illegal substances confiscated from
the six accused were contained in chocolate boxes of similar sizes and almost the same
weight all contained in their luggages. The Court agrees with the finding of the trial
prosecutor that under the given circumstances, the offense charged [c]ould have been
perpetrated only through an elaborate and methodically planned conspiracy with all the
accused assiduously cooperating and mutually helping each other in order to ensure its
success.[37]

We find no cogent reason to reverse such findings.

"Conspiracy is [the] common design to commit a felony." [38]  "[C]onspiracy which

determines criminal culpability need not entail a close personal association or at least an
acquaintance between or among the participants to a crime." [39]  "It need not be shown
that the parties actually came together and agreed in express terms to enter into and
pursue a common design."[40]  "The assent of the minds may be and, from the secrecy of
the crime, usually inferred from proof of facts and circumstances which, taken together,
indicate that they are parts of some complete whole" as we ruled in People v. Mateo, Jr.
[41]
  Here, it can be deduced from petitioner and his co-accused's collective conduct,
viewed in its totality, that there was a common design, concerted action and
concurrence of sentiments in bringing about the crime committed.

Petitioner's guilt was proved

beyond reasonable doubt.

Finally, petitioner asserts that the prosecution failed to prove his guilt beyond
reasonable doubt.  He makes capital on the contention that no chocolate boxes were
found in his traveling bag when it was examined at the ICU.  He claimed that it was his
co-accused Sonny Wong who took charge in ascribing upon him the possession of the
two chocolate boxes.

Petitioner's contentions fail to persuade.

True, when principal prosecution witness Cinco first testified on June 3, 1992, she
declared that she did not see any chocolate boxes but only personal effects in
petitioner's bag.[42]  Nonetheless, she clarified in her succeeding testimony that she
recalls taking the two chocolate boxes from petitioner's bag when they were still at the
counter. This sufficiently explained why Cinco did not find any chocolate boxes from
petitioner's bag when they were at the ICU. [43]  To us, this slight clash in Cinco's
statements neither dilute her credibility nor the veracity of her testimony.
The trial court's words on this matter when it resolved petitioner's Demurrer to
Evidence in its Order[44] of February 16, 1993 is quite enlightening.  Thus -

In claiming that the evidences [sic] presented by the prosecution is insufficient to

command conviction, the Demurrer went on to say that the testimony of Hilda Cinco is
either conjectural or hearsay and definitely missed its mark in incriminating accused, Ho
Wai Pang, because she even testified that she found nothing inside the hand-carried
luggage of Ho Wai Pang (pp. 48-49, TSN, June 3, 1992).  But that was when investigation
was going on at the Intensive Counting Unit (ICU). However, the same Hilda Cinco later
on testified that from the express lane in going to the ICU, after the discovery of shabu,
she was already carrying with her four (4) chocolate boxes, two of [which] taken from
the bag of Tin Sun Mau and the other two retrieved from the luggage of herein movant,
Ho Wai Pang. Categorically, Cinco admitted it was the reason that at the ICU, Ho Wai
Pang's bag was already empty (pp. 53-54, TSN, June 3, 1992), but she nonetheless
recognized the bag and could recall the owner thereof, pointing to Ho Wai Pang. Such
testimony is not hearsay evidence. They are facts from the personal perception of the
witness and out of her personal knowledge. Neither is it conjectural. [45]

Jurisprudence teaches that in assessing the credibility of a witness, his testimony must
be considered in its entirety instead of in truncated parts.  The technique in deciphering
a testimony is not to consider only its isolated parts and anchor a conclusion on the
basis of said parts.  "In ascertaining the facts established by a witness, everything stated
by him on direct, cross and redirect examinations must be calibrated and
considered."[46]  Also, where there is nothing in the records which would show a motive
or reason on the part of the witnesses to falsely implicate the accused, identification
should be given full weight.  Here, petitioner presented no evidence or anything to
indicate that the principal witness for the prosecution, Cinco, was moved by any
improper motive, hence her testimony is entitled to full faith and credit.

Verily, the evidence adduced against petitioner is so overwhelming that this Court is
convinced that his guilt has been established beyond reasonable doubt.  Nothing else
can speak so eloquently of his culpability than the unassailable fact that he was caught
red-handed in the very act of transporting, along with his co-accused, shabu into the
country.  In stark contrast, the evidence for the defense consists mainly of denials.
Petitioner tried to show that he was not aware of the shabu inside his luggage
considering that his bag was provided by the travel agency.  However, it bears stressing
that the act of transporting a prohibited drug is a malum prohibitum because it is
punished as an offense under a special law.  As such, the mere commission of the act is
what constitutes the offense punished and same suffices to validly charge and convict
an individual caught committing the act so punished regardless of criminal intent.
Moreover, beyond his bare denials, petitioner has not presented any plausible proof to
successfully rebut the evidence for the prosecution. "It is basic that affirmative
testimony of persons who are eyewitnesses of the events or facts asserted easily
overrides negative testimony."[47]

All told, we are convinced that the courts below committed no error in adjudging
petitioner guilty of transporting methamphetamine hydrochloride or shabu into the
country in violation of Section 15, Article III of R.A. No. 6425, as amended.

Penalty

As to the penalties imposed by the trial court and as affirmed by the appellate court, we
find the same in accord with law and jurisprudence.  It should be recalled that at the
time of the commission of the crime on September 6, 1991, Section 15 of R.A. No. 6425
was already amended by Presidential Decree No. 1683. [48]  The decree provided that for
violation of said Section 15, the penalty of life imprisonment to death and a fine ranging
from P20,000.00 to P30,000.00 shall be imposed.  Subsequently, however, R.A. No.
7659[49] further introduced new amendments to Section 15, Article III and Section 20,
Article IV of R.A. No. 6425, as amended.  Under the new amendments, the penalty
prescribed in Section 15 was changed from "life imprisonment to death and a fine
ranging from P20,000.00 to P30,000.00" to "reclusion perpetua to death and a fine
ranging from P500,000.00 to P10 million".  On the other hand, Section 17 of R.A. No.
7659 amended Section 20, Article IV of R.A. No. 6425 in that the new penalty provided
by the amendatory law shall be applied depending on the quantity of the dangerous
drugs involved.

The trial court, in this case, imposed on petitioner the penalty

of reclusion perpetua under R.A. No. 7659 rather than life imprisonment ratiocinating
that R.A. No. 7659 could be given retroactive application, it being more favorable to the
petitioner in view of its having a less stricter punishment.

We agree.  In People v. Doroja,[50] we held:

In People v. Martin Simon (G.R. No. 93028, 29 July 1994) this Court ruled (a) that
the amendatory law, being more lenient and favorable to the accused than the original
provisions of the Dangerous Drugs Act, should be accorded retroactive application, x x x.

And, since "reclusion perpetua is a lighter penalty than life imprisonment, and
considering the rule that criminal statutes with a favorable effect to the accused, have,
as to him, a retroactive effect",[51] the penalty imposed by the trial court upon petitioner
is proper.  Consequently, the Court sustains the penalty of imprisonment, which
is reclusion perpetua, as well as the amount of fine imposed by the trial court upon
petitioner, the same being more favorable to him.

WHEREFORE premises considered, the petition is DENIED and the assailed June 16, 2006
Decision and January 16, 2007 Resolution of the Court of Appeals in CA-G.R. CR-H.C. No.
01459 are AFFIRMED.

SO ORDERED.

THIRD DIVISION
[ G.R. No. 200630, June 04, 2018 ]
KIM LIONG, PETITIONER, V. PEOPLE OF THE PHILIPPINES,
RESPONDENT.

DECISION

LEONEN, J.:

The right to confront and cross-examine an adverse witness is a basic

fundamental constitutional right. However, this is personal to the accused, who can
waive the right.
This resolves the Petition for Review on Certiorari [1] assailing the October 7, 2011
Decision[2] and February 20, 2012 Resolution[3] of the Court of Appeals in CA-G.R. SP
No. 113152. The Court of Appeals found no grave abuse of discretion in the issuance of
the Orders dated August 27, 2009[4] and February 9, 2010[5] of Branch 44, Regional Trial
Court, Manila declaring Kim Liong (Liong) to have waived his right to cross-examine
prosecution witness Antonio Dela Rama (Dela Rama).

In an Information[6] dated January 28, 2002, Liong was charged with estafa for allegedly
failing to return to Equitable PCI Bank, despite demand, a total of US$50,955.70, which
was erroneously deposited in his dollar account. The accusatory portion of this
Information read:

That on or about March 16, 2000, and for sometime subsequent thereto, in the City of
Manila, Philippines, the said accused did then and there wilfully, unlawfully and
feloniously defraud the EQUITABLE PCI BANK, Roxas Blvd. Branch, this City, a
banking institution duly organized and existing under and by virtue of the Philippine
laws, with place of business located at the corner of Padre Faura and Roxas Boulevard,
Ermita, this City, represented by its Branch Manager, ERMELINDA V. CONTRERAS,
in the following manner, to wit: the said accused, being then a depositor of the said bank,
with Dollar Savings Account Deposit No. 5265-00761-9, well knowing that a mistake has
been inadvertently committed by the said bank in posting and crediting to his said
account the following amounts in U.S. dollars, to wit:

$ 11,989.70
14,565.30
8,610.40
15,790.30

or all in the total amount of US$50,955.70 which amount should have been instead
credited and posted to the account of WALLEN (sic) MARITIME SERVICES,
INC. under Account No. 5265-00431-8, and by reason of said misposting and crediting
of the said amount to the accused's account, his dollar deposit balance with the said bank
had increased by US$50,955.70 of which, accused is under obligation to inform the said
bank as regards to the excess amount unduly posted and/or credited in his said account
but instead of doing so, did then and there make and/or cause the series of withdrawals
until the full amount of said US$50,955.70 was withdrawn from the said bank, and once
in possession of the same, in serious breach of his legal obligation to return the said
amount of US$50,955.70, failed and refused and still fails and refuses to do so despite
repeated demands made upon him, and instead, with intent to defraud, with
unfaithfulness and grave abuse of trust and confidence, misappropriated, misapplied and
converted the said amount of US$50,955.70 to his own personal use and benefit, to the
damage and prejudice of the said EQUITABLE PCI BANK, Roxas Blvd. Branch, in the
aforesaid amount of US$50,955.70, or its equivalent in Philippine Currency.
Contrary to law.[7]

Liong was arraigned on January 20, 2003, pleading not guilty to the charge. [8] The pre-
trial conference was terminated on July 13, 2004.[9]

The initial presentation of the prosecution's evidence was set on December 19, 2005.
However, on that day, private prosecutor Atty. Aceray Pacheco (Atty. Pacheco) requested
a resetting, which was granted by the trial court. The December 19, 2005 hearing was
reset to January 26, 2006.[10]

On January 26, 2006, the hearing was again reset to March 30, 2006. The March 30, 2006
hearing was likewise reset, this time, on the instance of a certain Atty. Villaflor, also one
of the private prosecutors. The initial presentation of the prosecution's evidence was,
thus, moved to June 8, 2006.[11]

The first prosecution witness, Antonio Dela Rama (Dela Rama), was finally presented as
scheduled on June 8, 2006. His direct examination was terminated on January 25, 2007,
and the initial date for his cross-examination was set on March 15, 2007. On March 15,
2007, Atty. Danilo Banares (Atty. Banares) appeared as collaborating counsel of Atty.
Jovit Ponon (Atty. Ponon), Liong's counsel of record. Atty. Banares then moved for the
resetting of the hearing to Apri119, 2007.[12]

On April 19, 2007, the hearing was again reset on the instance of Liong because Atty.
Ponon was allegedly a fraternity brother of the private prosecutor, Atty. Pacheco. Thus,
Liong terminated the services of Atty. Ponon and the hearing was reset to June 28, 2007.
[13]

On July 31, 2008, the hearing was again reset to October 16, 2008 because Dela Rama
had suffered a stroke.[14]

On February 5, 2009, Atty. Banares failed to appear in court. Liong subsequently filed a
Motion to Suspend Proceedings and, eventually, a Motion to Dismiss. [15] The hearing was
reset to May 7, 2009, which seems to have been cancelled again. [16]

On August 27, 2009, Atty. Banares again failed to appear in court. Thus, private
prosecutor Atty. Ma. Julpha Maningas moved that Liong be declared to have waived his
right to cross-examine Dela Rama.[17] The Motion was granted by the trial court in its
August 27, 2009 Order,[18] hereby reproduced below, thus:

ORDER

When this case was called for hearing, accused Kim Liong appeared. However, his
counsel, Atty. Dan Banares, failed to appear.
Private prosecutor, Atty. Ma. Julpha Maningas, is present in court. She moved that the
right of the accused to cross-examine prosecution's witness, Antonio dela Rama, be
deemed waived considering that his testimony was given way back November 2006 and
up to now he has not yet been cross-examined by the defense. The same is granted.

Meanwhile, set the continuation of the presentation of prosecution's evidence on October

29, 2009 at 8:30 in the morning.

Notify Atty. Banares.

SO ORDERED.[19]

Liang, through a new counsel, Atty. Arnold Burigsay, filed an Entry of Appearance with
Motion for Reconsideration.[20] Liang argued that his former counsel, Atty. Banares, was
grossly negligent in handling his case as he repeatedly failed to attend hearings, including
the August 27, 2009 hearing where Liang was declared to have waived his right to cross-
examine Dela Rama. He did not even file a motion for reconsideration of the August 27,
2009 Order. According to Liang, Del a Rama was a vital witness, and to allow his
testimony to remain on record without Liang having to cross-examine him would be
extremely damaging to the defense. Thus, Liong prayed that the trial court reconsider its
August 27, 2009 Order and grant him another chance to cross-examine Dela Rama. [21]

The trial court, however, found that Liang's abuse of his right by changing his counsels
repeatedly was a tactic to delay the proceedings. Thus, it denied Liang's Motion for
Reconsideration in its February 9, 2010 Order,[22] which stated:

ORDER

Accused thru his new counsel, Atty. Arnold M. Burigsay filed on October 26, 2009 an
Entry of Appearance with Motion for Reconsideration of the order of this court dated
August 27, 2009 declaring the accused to have waived his right to cross examine
prosecution witness, Antonio dela Rama.

Accused admitted that the failure to cross examine prosecution witness was due to the
negligence of his counsel who failed to appear and perform his task as counsel for the
accused. Accused should not be punished for the negligence of his counsel.

In opposition to the motion, the private prosecutor thru Atty. Ma. Julpha P. Maningas
averred that the cross examination of witness Antonio dela Rama had been reset a
number of times due to the fault of the accused who kept on changing his counsel; that
accused was given more than sufficient opportunities to cross examine the said witness
but simply delayed the proceedings of this case until it lapsed two (2) years.
The records will show that this case has been filed on February 12, 2002. Accused was
arraigned on January 20, 2003. Pre-trial was terminated on July 13, 2004. The first
witness for the prosecution in the person of Antonio dela Rama was presented on June 8,
2006, August 3, 2006, November 9, 2006 and January 25, 2007. Because of the lengthy
testimony of the witness on direct examination, the cross examination was deferred and
reset to March 15, 2007. The cross examination was reset several times upon motion of
the accused who engaged the services of the new counsel (March 15, 2007 and April 19,
2007).

On January 31, 2008[,] witness Antonio dela Rama was hospitalized. Accused also got
sick on April 17, 2008. On February 5, 2009[,] accused['s] counsel, Atty. Banares[,]
failed to appear. Accused likewise filed several motions, Motion to Suspend Proceedings
on February 5, 2009 and Motion to Dismiss on July 30, 2009. Again[,] on August 27,
2009[,] counsel for the accused failed to appear. No motion has been filed for his non-
appearance, hence, the court upon motion of private prosecutor, Atty. Maningas[,] in
conformity of Prosecutor Meneses, declared accused to have waived his right to cross
examine the witness Antonio dela Rama.

The direct examination of said witness was concluded on January 25, 2007. The delay in
the cross examination of the witness was due to the fault of the accused and counsel. The
court has noted the ploy employed by the accused like the tiling of baseless motions and
the changing of his counsel to delay the proceedings of this case. More than two (2) years
has lapsed and still accused has not started his cross examination. Witness has been
coming to court despite his condition (after his hospitalization) only to be reset due to the
unpreparedness of accused['s] counsel or his non-appearance. The court has to put end to
this unreasonable delay.

WHEREFORE, in view of the foregoing considerations, the Motion for Reconsideration

is hereby denied due course.

SO ORDERED.[23]

Alleging grave abuse of discretion on the part of Presiding Judge Jose P. Morallos
(Presiding Judge Morallos) in declaring him to have waived his right to cross-examine
Dela Rama, Liong filed a Petition for Certiorari before the Court of Appeals.[24]

The Court of Appeals agreed with the trial court judge and denied Liang's Petition. It held
that what is essential is for an accused to be granted the opportunity to confront and
cross-examine the witnesses against him, not to actually cross-examine them. In other
words, when an accused fails to avail himself or herself of this right, he or she is deemed
to have waived it.[25]
The Court of Appeals found that Liong repeatedly delayed his cross examination of Dela
Rama specifically on March 15, 2007, April 19, 2007, February 5, 2009, and August 27,
2009. On those dates, Liong's counsel was either unprepared or absent. While there were
hearings that were reset on the instance of witness Dela Rama, those were caused by his
then hospitalization due to stroke. The Court of Appeals likewise said that Liong could
not use in his favor the cancelled hearings on June 28, 2007, September 30, 2007,
November 22, 2007, and October 16, 2008. The allegations that the hearings on these
dates were cancelled due to the absence of the public prosecutor or the trial court judge
were not substantiated.[26]

On Liong's claim that his former counsel was grossly negligent, the Court of Appeals
nevertheless said that the negligence of counsel binds the client and, in this case, Liong
was not blameless. The Court of Appeals cited an Order dated October 8, 2003 of the
former presiding judge trying the case, Presiding Judge Edelwina Catubig Pastoral (Judge
Pastoral), where Liong was admonished because he frequently changed counsels. [27]

The dispositive portion of the Court of Appeals October 7, 2011 Decision[28] read:

WHEREFORE, premises considered, the present petition is DENIED. Accordingly, the

assailed Orders of the Regional Trial Court dated August 27, 2009 and February 9, 2010
are hereby AFFIRMED.

SO ORDERED.[29]

Liong filed a Motion for Reconsideration, which the Court of Appeals denied in its
February 20, 2012 Resolution,[30] thus:

An assiduous evaluation of the said Motion for Reconsideration led US to conclude that
there exists no compelling and justifiable reason for US to veer away from OUR earlier
pronouncement. The arguments presented by petitioner had already been traversed and
ruled upon by US. There is no need to belabor the issues one more time.

WHEREFORE, on account of the foregoing, WE deny the said Motion for

Reconsideration.

SO ORDERED.[31]

On March 26, 2012, Liong tiled his Petition for Review on Certiorari [32] before this Court.
The Office of the Solicitor General, on behalf of the People of the Philippines, filed a
Comment[33] to which petitioner filed his Reply.[34]

Petitioner alleges that the cross-examination of Dela Rama was reset 13 times. However,
out of those 13 resettings, only four (4) are attributable to him while the rest are due to
reasons beyond his control, such as witness Dela Rama's stroke and the absence of the
public prosecutor.[35] He adds that the order of waiver was made in open court and at a
time when his counsel was absent; thus, he was not able to oppose the declaration.
[36]
 Therefore, he argues that the trial court judge, Presiding Judge Morallos, gravely
abused his discretion in depriving him of the rights to confront and cross-examine
prosecution witness Dela Rama.[37]

Respondent People of the Philippines counters that petitioner raises a question of fact,
specifically on which of the resettings are not attributable to him. It contends that
questions of facts are not allowed in a Rule 45 Petition, and therefore, this Court is "not
duty-bound to analyze again and weigh the evidence introduced in and considered by the
[trial court and the Court of Appeals]."[38]

On the supposed negligence of petitioner's former counsel, respondent argues that this
was not gross so as to discharge petitioner from any liability. Respondent alleges that
petitioner benefited from the absences of his former counsel and his other dilatory tactics
such as frequently changing counsels.[39] For these reasons, the trial court judge, Presiding
Judge Morallos, correctly deemed petitioner's right to cross-examine Dela Rama as
waived.

The issues for this Court's resolution are:

First, whether or not this Petition for Review on Certiorari should be denied for raising
factual issues; and

Second, whether or not the trial court gravely abused its discretion in declaring as waived
petitioner Kim Liong's right to cross-examine prosecution witness Antonio Dela Rama.

This Petition must be denied.

The fundamental rights of the accused are provided in Article III, Section 14 of the
Constitution:

Section 14. (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. (Underscoring
supplied)

"To meet the witnesses face to face" is the right of confrontation. Subsumed in this right
to confront is the right of an accused to cross-examine the witnesses against him or her,
i.e., to propound questions on matters stated during direct examination, or connected with
it.[40] The cross-examination may be done "with sufficient fullness and freedom to test
[the witness'] accuracy and truthfulness and freedom from interest or bias, or the reverse,
and to elicit all important facts bearing upon the issue."[41]

Rule 115 of the Rules of Court with its lone section is devoted entirely to the rights of the
accused during trial. Rule 115, Section 1(f) on the right to cross-examine provides:

Section 1. Rights of accused at the trial. — In all criminal prosecutions, the accused shall
be entitled to the following rights:

....

To confront and cross-examine the witnesses against him at the trial. Either party may utilize
f) as part of its evidence the testimony of a witness who is deceased, out of or can not with due
diligence be found in the Philippines, unavailable, or otherwise unable to testify, given in another
case or proceeding, judicial or administrative, involving the same parties and subject matter, the
adverse party having the opportunity to cross-examine him.

Denying an accused the right to cross-examine will render the testimony of the witness
incomplete and inadmissible in evidence. "[W]hen cross-examination is not and cannot
be done or completed due to causes attributable to the party offering the witness, the
uncompleted testimony is thereby rendered incompetent."[42]

However, like any right, the right to cross-examine may be waived. [43] It "is a personal
one which may be waived expressly or impliedly by conduct amounting to a renunciation
of the right of cross-examination." [44] When an accused is given the opportunity to cross-
examine a witness but fails to avail of it, the accused shall be deemed to have waived this
right.[45] The witness' testimony given during direct examination will remain on record.
[46]
 If this testimony is used against the accused, there will be no violation of the right of
confrontation.

In People v. Narca,[47] the trial court deferred to another date the cross examination of the
prosecution witness on the instance of the accused. However, in the interim, the
prosecution witness was murdered. Thus, the accused moved that the testimony of the
prosecution witness be stricken off the record for lack of cross-examination. This Court
rejected the argument, finding that the accused waived their right to cross-examine the
prosecution witness when they moved for postponement. It said that "mere opportunity
and not actual cross-examination is the essence of the right to cross-examine."[48]

In Gimenez v. Nazareno,[49] the accused, after arraignment but before trial, escaped from
his detention center. Trial ensued despite his absence and the accused was subsequently
convicted of murder. On appeal, the accused contended that the testimonies against him
should be stricken off the record because he failed to exercise his right to cross-examine
the witnesses against him. Rejecting this contention, this Court held that an escapee who
has been tried in absentia does not retain the rights to confront and cross-examine the
witnesses against him. These rights are personal and "by his failure to appear during the
trial of which he had notice," this Court said that the accused "virtually waived these
rights."[50]

II

Petitioner maintains that he did not waive his right to cross-examine witness Dela Rama,
attributing the successive cancellation of hearings on the absence either of the witness,
the public prosecutor, or the trial court judge. He adds that his counsel was grossly
negligent in handling the case.

However, as pointed out by respondent, the matters raised in this Petition are questions of
fact not proper in a Rule 45 petition. This Court is not a trier of facts, [51] and rightfully so.
This Court, as the court of last resort, should focus more on performing "the functions
assigned to it by the fundamental charter and immemorial tradition." [52] The rule,
therefore, is that petitions for review on certiorari may only raise questions of law. Rule
45, Section 1 of the Rules of Court provides:

Section 1. Filing of petition with Supreme Court. — A party desiring to appeal

by certiorari from a judgment, final order or resolution of the Court of Appeals, the
Sandiganbayan, the Court of Tax Appeals, the Regional Trial Court or other courts,
whenever authorized by law, may file with the Supreme Court a verified petition for
review on certiorari. The petition may include an application for a writ of preliminary
injunction or other provisional remedies and shall raise only questions of law, which must
be distinctly set forth. The petitioner may seek the same provisional remedies by verified
motion filed in the same action or proceeding at any time during its pendency.

It is true that this rule is subject to exceptions. This Court may review factual issues if
any of the following is present:

(1) [W]hen the findings are grounded entirely on speculation, surmises or conjectures; (2)
when the inference made is manifestly mistaken, absurd or impossible; (3) when there is
grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts;
(5) when the findings of facts are conflicting; (6) when in making its findings the Court
of Appeals went beyond the issues of the case, or its findings are contrary to the
admissions of both the appellant and the appellee; (7) when the findings are contrary to
the trial court; (8) when the findings are conclusions without citation of specific evidence
on which they are based; (9) when the facts set forth in the petition as well as in the
petitioner's main and reply briefs are not disputed by the respondent; (10) when the
findings of fact are premised on the supposed absence of evidence and contradicted by
the evidence on record; and (11) when the Court of Appeals manifestly overlooked
certain relevant facts not disputed by the parties, which, if properly considered, would
justify a different conclusion.[53]

Nevertheless, this Court finds that none of the exceptions applies in this case. Even if this
Court considers the facts as alleged by petitioner, it will still arrive at the conclusion that
the trial court judge did not gravely abuse his discretion in deeming petitioner's right to
cross-examination as waived. Therefore, the Court of Appeals did not err in denying
petitioner's Petition for Certiorari.

The table below is a summary of the hearing dates set for the cross-examination of Dela
Rama and the reasons for their cancellation. It is based on the dates as alleged in the
Petition.[54]

Hearing Dates Reasons for Cancellation

March 15, Atty. Banares appeared as collaborating counsel for accused's
2007 counsel of record, Atty. Ponon.
April 19, 2007 Petitioner terminated the services of Atty. Ponon. who was
allegedly a fraternity brother of private prosecutor, Atty. Pacheco.
June 28, 2007 No reason indicated.
September 30, No reason indicated.
2007
November 22, Public prosecutor was absent.
2007
January 31, Witness Dela Rama was absent.
2008
April 17, 2008 Petitioner was indisposed, and therefore absent.
June 26, 2008 Witness Dela Rama was absent.
July 31, 2008 Witness Dela Rama was absent because he suffered a stroke.
October 16, Presiding Judge Morallos was on leave.
2008
February 5, Petitioner's counsel was absent.
2009
May 7, 2009 No reason indicated.
August 27, Petitioner's counsel was absent and, on motion by the private
2009 prosecutor, Presiding Judge Morallos deemed petitioner's right to
cross-examine witness Dela Rama as waived.
 The table shows that petitioner was given more than enough opportunity to
cross-examine witness Dela Rama. Contrary to his allegation, five (5) of the cancellations
are attributable to him. For instance, the March 15, 2007 hearing was cancelled on
petitioner's motion because Atty. Banares appeared as collaborating counsel for his
counsel of record, Atty. Ponon. The next hearing set on April 19, 2007 was again
cancelled because petitioner terminated the services of Atty. Ponon who was allegedly a
fraternity brother of one of the private prosecutors, Atty. Pacheco. On April 17, 2008,
petitioner was allegedly indisposed and did not attend the hearing. On February 5, 2009,
petitioner had no counsel. Finally, on August 27, 2009, petitioner again had no counsel
and Presiding Judge Morallos deemed petitioner's right to cross-examine Dela Rama as
waived.

Of course, there were cancellations due to the absence of either the prosecutor or witness
Dela Rama himself. There was even one hearing, which was cancelled because Presiding
Judge Morallos was on leave. However, even after Dela Rama suffered a stroke, he
attended the hearings on February 5, 2009 and August 27, 2009, with the hearings only to
be cancelled because petitioner did not have his counsel with him. These show that
petitioner failed to aggressively exercise his rights to confront and cross-examine witness
Dela Rama. The absence of counsel during the February 5, 2009 and August 27, 2009
hearings was never explained.

Petitioner had the habit of frequently changing counsels. In an Order issued as early as
October 8, 2003, former Presiding Judge Pastoral admonished petitioner for "again"
changing his counsel during pre-trial, thus, delaying the proceedings:

The accused again has engaged another lawyer and he asked for a resetting.

Atty. Ponon is the new counsel for the accused and he asked for a last resetting.

The court warned the accused not to hire another lawyer only for the purpose of delaying
this case.

For the last time[,] reset the pre-trial to December 11[,] 2003, at 8:30 o'clock in the
morning.

Notify the bonding company and the accused is duly notified in open court of the
resetting.

SO ORDERED.[55]
No gross negligence is attributable to petitioner's counsel. Ordinary diligence and
prudence could have prevented the cancellation of the hearings. If there is any negligence
in this case, it is that of petitioner himself. For failure to avail himself of the several
opportunities given to him, he is deemed to have waived his right to confront and cross-
examine witness Dela Rama.

The right to confront and cross-examine witnesses is a basic, fundamental human right
vested inalienably to an accused. This right ensures that courts can confidently ferret out
the facts on the basis of which they can determine whether a crime occurred and the level
of culpability of the accused. It is a basic requirement of criminal justice.

However, this right does not exist in isolation. The State, representing the people that
may have been wronged by a crime, also has the right to due process. This means that the
prosecution must not be denied unreasonably of its ability to be able to prove its case
through machinations by the accused.

When the accused abuses its option to choose his counsel as in this case, he can be
deemed to have waived his right to confrontation and cross-examination. The pattern of
postponements and changes of counsel in this case is so obvious and patent. Petitioner
should have been dissuaded by any of the lawyers, unless they, too, connived in such an
amateurish strategy, which wastes the time and resources of our judicial system.

All told, Presiding Judge Morallos did not gravely abuse his discretion in deeming as
waived petitioner's right to cross-examine prosecution witness Dela Rama. The Court of
Appeals correctly denied petitioner's Petition for Certiorari. Dela Rama's testimony given
during direct examination shall remain on record. We sustain both courts.

WHEREFORE, the Petition for Review on Certiorari is DENIED. The October 7, 2011
Decision and February 20, 2012 Resolutions of the Court of Appeals in CA-G.R. SP No.
113152 are AFFIRMED.

SO ORDERED.

EN BANC
[ G.R. No. L-37933, April 15, 1988 ]
FISCAL CELSO M. GIMENEZ AND FEDERICO B. MERCADO,
PETITIONERS, VS. HON. RAMON E. NAZARENO, PRESIDING JUDGE,
COURT OF FIRST INSTANCE OF CEBU AND TEODORO DE LA VEGA,
JR., RESPONDENTS.
 DECISION

GANCAYCO, J.:

Two basic issues are raised for Our resolution in this petition
for certiorari and mandamus. The first is whether or not a court loses jurisdiction over
an accused who after being arraigned, escapes from the custody of the law. The other
issue is whether or not under Section 19, Article IV of the 1973 Constitution, an accused
who has been duly tried in absentia retains his right to present evidence on his own
behalf and to confront and cross-examine witnesses who testified against him.

The following facts are not in dispute:

On August 3, 1973, Samson Suan, Alex Potot, Rogelio Mula, Fernando Cargando, Rogelio
Baguio and the herein private respondent Teodoro de la Vega, Jr., were charged with
the crime of murder.

On August 22, 1973 all the above-named accused were arraigned and each of them
pleaded not guilty to the crime charged. Following the arraignment, the respondent
judge, Hon. Ramon E. Nazareno, set the hearing of the case for September 18, 1973 at
1:00 o'clock in the afternoon. All the accused, including private respondent, were duly
informed of this.

Before the scheduled date of the first hearing the private respondent escaped from his
detention center and on the said date, failed to appear in court. This prompted the
fiscals handling the case (the petitioners herein) to file a motion with the lower court to
proceed with the hearing of the case against all the accused praying that private
respondent de la Vega, Jr. be tried in absentia invoking the application of Section 19,
Article IV of the 1973 Constitution which provides:
"SEC. 19. 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 unjustified. (Underscoring supplied.)*
Pursuant to the above-written provision, the lower court proceeded with the trial
of the case but nevertheless gave the private respondent the opportunity to take the
witness stand the moment he shows up in court. [1]

After due trial, or on November 6, 1973, the lower court rendered a decision dismissing
the case against the five accused while holding in abeyance the proceedings against the
private respondent. The dispositive portion is as follows:
"WHEREFORE, insofar as the accused Samson Suan, Alex Potot, Rogelio Mula,
Fernando Cargando, and Rogelio Baguio are concerned, this case is hereby dismissed.
The City Warden of Lapu-Lapu City is hereby ordered to release these accused if they
are no longer serving sentence of conviction involving other crimes.
The proceedings in this case against the accused Teodoro de la Vega, Jr. who has
escaped on August 30, 1973 shall remain pending, without prejudice on the part of the
said accused to cross-examine the witnesses for the prosecution and to present his
defense whenever the court acquires back the jurisdiction over his person." [2]

On November 16, 1973 the petitioners filed a Motion for Reconsideration questioning
the above-quoted dispositive portion on the ground that it will render nugatory the
constitutional provision on "trial in absentia" cited earlier. However, this was denied by
the lower court in an Order dated November 22, 1973.

Hence, this petition.

The respondent court, in its Order denying the Motion for Reconsideration filed by the
herein petitioners, expressed the opinion that under Section 19, Article IV of the 1973
Constitution, the private respondent, who was tried in absentia, did not lose his right to
cross-examine the witnesses for the prosecution and present his evidence. [3] The
reasoning of the said court is that under the same provision, all accused should be
presumed innocent.[4] Furthermore, the lower court maintains that jurisdiction over
private respondent de la Vega, Jr. was lost when he escaped and that his right to cross-
examine and present evidence must not be denied him once jurisdiction over his person
is reacquired.[5]
We disagree.

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 or 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 case, [6] 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.[7] It was also proved by a certified copy of the Police
Blotter[8] 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:
"x x x 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."[9]
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. [10] 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:
"x x x 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. x x x"
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.[11]

WHEREFORE, in view of the foregoing, the judgment of the trial court in Criminal Case
No. 112-L in so far as it suspends the proceedings against the herein private respondent
Teodoro de la Vega, Jr. is reversed and set aside. The respondent judge is hereby
directed to render judgment upon the innocence or guilt of the herein private
respondent Teodoro de la Vega, Jr. in accordance with the evidence adduced and the
applicable law. No pronouncement as to costs.

SO ORDERED.

SECOND DIVISION
[ A.M. RTJ-96-1353, March 11, 1997 ]
DANILO B. PARADA, COMPLAINANT, VS. JUDGE LORENZO
B.VENERACION, REGIONAL TRIAL COURT, BRANCH 47, MANILA,
RESPONDENT.

DECISION

TORRES, JR., J.:

 The case before us stems from a verified complaint filed by Danilo B. Parada
against respondent Judge Lorenzo B. Veneracion for gross ignorance of the law, abuse
of authority and rendering unjust and erroneous interlocutory orders and judgment in
connection with Criminal Cases Nos. 93-121385 to 88, entitled People vs. Danilo Parada,
which led to complainant Parada’s “premature incarceration” at the Makati City Jail and
Muntinlupa National Penitentiary.

The undisputed facts of the case as found by the Office of the Court Administrator are as
follows :

“Complainant herein is the accused in the aforementioned case for four (4)
counts of estafa which were initially raffled to Branch 30, RTC, Manila presided by Judge
Senecio Ortile. Complainant is also duly bonded with the Eastern Assurance and Surety
Corporation (EASCO). On October 23, 1993 complainant notified said court formally thru
counsel of his change of address from 219 Cityland Condominium, Buendia Extension,
Makati, Metro Manila to 2412 Nobel St., Bo. San Isidro, Makati, Metro Manila. On
October 27, 1993 he also notified the Manager of the bonding company of his change of
address. On February 8, 1994, Judge Ortile inhibited himself from trying the said case
and thus, the case was re-raffled to the sala of respondent Judge Lorenzo Veneracion,
and per order of April 26, 1994, the hearing of the case was set for June 3, 6, 7 and 8,
1994. Apparently, the notice of hearing dated April 27, 1994 was sent to complainant’s
former address and that for failure of accused-complainant to appear on June 3, 1994,
respondent ordered the arrest of herein accused-complainant, ordering the confiscation
of the bond and a trial in absentia was conducted. Respondent Judge likewise assigned a
counsel de officio, Atty. Jesse Tiburan of the Public Attorney’s Office (PAO) as counsel for
the accused.

xxx Furthermore, a warrant of arrest was issued on June 3, 1994 with ‘no bail
recommended’.

On June 6, 7 and 8, 1994, respondent court issued orders noting the failure of the
petitioner to appear and proceeded with the trial in absentia. On the hearing of June 8,
1994, the motion of counsel de officio of accused-complainant that defense be allowed
to present evidence upon petitioner’s arrest, was denied and further held that the
‘failure of the accused to appear is a waiver of his right to adduce evidence’.
xxx. On November 25, 1994, a decision was rendered convicting herein accused-
appellant of the crime and the decision was promulgated despite his absence. Accused-
complainant was arrested and brought to the Makati City Jail.

Accused-complainant filed a Petition for Habeas Corpus, Certiorari and Annulment of

Judgment with prayer for immediate relief with the Court of Appeals and was docketed
as CA-G.R. SP No. 37340 entitled ‘Danilo Parada vs. Judge Lorenzo B. Veneracion, et. al.’.

On August 18, 1995, the Court of Appeals promulgated a decision declaring the decision
dated November 25, 1995 of respondent court null and void and further ordering the
case to be remanded to respondent for further proceeding in order to afford accused-
complainant the opportunity to rebut the testimonies of the prosecution witnesses and
documentary evidence against him as well as present his evidence.” [1]
Subsequently, Parada filed with this Court the instant complaint dated March 11,
1996 against the respondent Judge Veneracion in connection with the decision and
interlocutory orders rendered by the latter in Criminal Cases Nos. 93-121385 to 88. He
alleged, inter alia, that the respondent Judge is guilty of ignorance of the law when he
did not follow the legal requirements of a valid trial in absentia which led to his
conviction and premature incarceration, that the order of his arrest with no
recommendation for bail was erroneous, and that respondent Judge abused his
authority when he issued the June 8, 1994 order denying the motion of Parada’s counsel
de oficio to allow him to present his evidence upon his arrest. Parada thus prayed for
the dismissal from service of the respondent Judge and that the latter be barred from
railroading the subject Criminal Cases Nos. 93-121385 to 88.

On June 4, 1996, the Office of the Court Administrator received the respondent Judge’s
comment to Parada’s complaint, the pertinent portion of which reads:

1. That the herein complaint is purely and plainly a ‘harassment suit’ arising from
the Decision rendered in the case of People vs. Danilo Parada for estafa;

2. That the charges therein are denied because they are not based on the facts and of
the records of the case, the herein Judge merely acted with compassion upon receipt of
the records of these cases from another sala, after having been informed that the
private complainants merely borrowed from ‘loan sharks’ the money given to the
accused Danilo Parada and that they are only interested in compelling said accused to
return their money, not in sending said accused to jail;

3. That the herein Judge acted in good faith in the trial of the said cases.” [2]
Unfazed by the foregoing assertions of the respondent Judge, the Office of the
Court Administrator on the contrary held that:
Respondent’s general denial of the allegations imputed to him does not belie any
of the facts which lead to the incarceration of the complainant. Thus, his failure to deny
each and every specific allegations can be construed as admission on his part.

Moreover, trial in absentia may proceed only if the accused failed to appear at the trial
without justification despite due notice. In this case, complainant was never notified of
any hearing from the time he changed his address up to the promulgation of the
decision despite the fact that he notified the court and his bonding company.

Respondent issued a warrant for the arrest of the accused-complainant with no ‘bail
recommended’ despite the fact that the crime charged was bailable and denied the
motion of his counsel for the accused to adduce evidence upon accused’s arrest. Clearly,
respondent denied complainant his right to due process.”[3]
On the basis of these observations, the Office of the Court Administrator
recommended that respondent Judge Veneracion be fined in the amount of P10,000.00
with a warning that a commission of the same or similar infraction shall be dealt with
more severely.

We agree with the findings of the Office of the Court Administrator.

Section 14 (2), Article 3 of the Constitution provides, inter alia, that trial may proceed
notwithstanding the absence of the accused provided that he has been duly notified and
his failure to appear is unjustifiable. The requisites then of a valid trial in absentia are:
(1) the accused has already been arraigned; (2) he has been duly notified of the trial;
and (3) his failure to appear is unjustifiable. [4]

In the subject criminal cases, requisite numbers two (2) and three (3) of a valid trial in
absentia are clearly wanting. Parada had not been duly notified of the trial because the
notice of hearing dated April 27, 1994 was sent to the former address of Parada’s
counsel despite the fact that the latter formally notified the court of his change of
address. His failure to appear therefore in the June 3, 6, 7 and 8, 1994 hearings is
justified by the absence of a valid service of notice of hearing to him.

As a rule, where a party appears by attorney in an action or proceeding in a court of

record, all notices required to be given therein must be given to the attorney of record.
[5]
 Accordingly, notices to counsel should be properly sent to his address of record and
unless the counsel files a notice of change of address, his official address remains to be
that of his address of record.[6]

It is undisputed that Parada’s counsel filed a notice of change of address on October 23,
1993. As such, the respondent judge should have already taken cognizance of the new
address when it sent the notice of hearing dated April 27, 1994. It is thus unwarranted
for the respondent judge to still send the notice of hearing to the old address of
Parada’s counsel because it is not his official address nor his address of record.
Concomitantly, the sending of notice of hearing to his former address is an invalid
service and cannot in any way bind Parada.

It is worthy to stress that due process of law in judicial proceedings requires that the
accused must be given an opportunity to be heard. He has the right to be present and
defend in person at every stage of the proceedings. Incidentally, the right to a hearing
carries with it the right to be notified of every incident of the proceedings in court.
Notice to a party is essential to enable him to adduce his own evidence and to meet and
refute the evidence submitted by the other party. [7] No less than the Constitution
provides that no person shall be held to answer for a criminal offense without due
process of law. A violation therefore of any of the rights accorded the accused
constitutes a denial of due process of law. The circumstantial setting of the instant case
as weighed by the basic standards of fair play impels us to so hold that the trial in
absentia of Parada and his subsequent conviction are tainted with the vice of nullity, for
evidently Parada was denied due process of law.

Judges, by the very delicate nature of their functions in dispensing justice, should be
more circumspect in the performance of their duties. [8] In resolving matters in litigation,
they should endeavor assiduously to ascertain the facts and the applicable laws. Had
respondent judge carefully and diligently studied the records of the case, he would have
surely noticed the change of address, and his questioned orders, which eventually led to
Parada’s unwarranted deprivation of liberty, could not have been precipitately issued.

Likewise, the warrant of arrest with no recommendation for bail that was issued by
respondent Judge on June 3, 1994 is a downright violation of Parada’s constitutional
right to bail. The rule is clear that unless charged with offenses punishable by reclusion
perpetua and the evidence of guilt is strong, all persons detained, arrested or otherwise
under the custody of the law are entitled to bail as a matter of right. It should be noted
that the crime with which Parada was charged is estafa [9] which is undoubtedly a
bailable offense. This circumstance could not have escaped the attention of the
respondent judge when he issued on June 3, 1994 the order of arrest of Parada with no
recommendation for his bail. In so doing, respondent judge exhibited that degree of
ignorance so gross which the Court can not countenance. Judges are required by Canon
3, Rule 3.01 of the Code of Judicial Conduct to be faithful to the law and maintain
professional competence.[10] They are called upon to exhibit more than just a cursory
acquaintance with statutes and procedural rules; it is imperative that he be conversant
with basic legal principles.[11]

WHEREFORE, respondent Judge Lorenzo B. Veneracion is FINED P10,000.00 for

disregarding Parada’s right to procedural due process and for showing gross ignorance
of the law, with a STERN WARNING that a repetition of a similar act in the future will be
dealt with more severely.
SO ORDERED.

SECOND DIVISION
[ G.R. NO. 166980, April 03, 2007 ]
CARMELO C. BERNARDO, PETITIONER, VS. PEOPLE OF THE
PHILIPPINES AND F.T. YLANG-YLANG MARKETING CORPORATION,
RESPONDENTS.

DECISION

CARPIO MORALES, J.:

Petitioner Carmelo C. Bernardo assails the Resolutions[1] of the Court of Appeals (CA)
dated July 30, 2004 and January 14, 2005 dismissing his petition and denying
reconsideration, respectively.

Petitioner was charged before the Metropolitan Trial Court (MeTC) of Manila with six
counts of violation of Batas Pambansa Blg. 22 (B.P. 22), otherwise known as the
Bouncing Checks Law, for issuing on December 3, 1997 six postdated checks in equal
amounts of P22,500. Save for the check numbers and dates of maturity, four Informations
under Criminal Case Nos. 320977 to 320980 were similarly worded as follows:
That on or about December 3, 1997, in the City of Manila, Philippines, the said accused,
did then and there wilfully, unlawfully, feloniously make or draw and issue to F.T.
YLANG-YLANG MARKETING, CORP. rep. by Dennis Tan to apply on account or for
value PHILIPPINE SAVINGS BANK check no. 0007806 [0007805, 0007804, 0007803]
dated April 30, [March 30, February 28, January 30] 1998 payable to YLANG-YLANG
MFG. in the amount of P22,500.00 said accused well knowing that at the time of issue
she did not have sufficient funds in or credit with the drawee bank for payment of such
check in full upon its presentment, which check when presented for payment within
ninety (90) days from the date thereof was subsequently dishonored by the drawee bank
for reason"Account Closed" and despite receipt of notice of such dishonor, said accused
failed to pay said F.T. YLANG-YLANG MARKETING CORP. the amount of the check
or to make arrangement for full payment of the same within five (5) banking days after
receiving said notice.

Contrary to law.[2]
The two Informations under Criminal Case Nos. 320975-76 averred that Check Nos.
0007808 and 0007807 respectively dated June 30, 1998 and May 30, 1998 "would be
dishonored by the drawee bank for the reason "Account Closed" if presented for payment
as the account against which it was drawn ha[d] already been closed even before [their]
said date[s]."[3]

Upon arraignment, petitioner, assisted by a counsel de oficio, pleaded "not guilty" to the
offenses charged. At the pre-trial conference on August 25, 1999, petitioner failed to
appear despite notice, prompting Branch 24 of the MeTC to issue a warrant of arrest
against him and set the cases for trial in absentia.

After the prosecution presented its first witness, petitioner filed a Waiver of Appearance,
a Motion to Lift Warrant of Arrest, and a Motion to Quash on the ground that the facts
charged in the Informations under Criminal Case Nos. 320975-76 do not constitute an
offense.

By Order of April 5, 2000, the trial court lifted the warrant of arrest in view of petitioner's
appearance but denied the Motion to Quash for lack of merit.
At the following trial date, petitioner failed to appear despite notice, drawing the trial
court to proceed with his trial in absentia and issue warrant of arrest[4] against him.

By Decision[5] of October 23, 2001 promulgated in absentia on December 13, 2001, the
trial court found petitioner guilty beyond reasonable doubt of violating B.P. 22 in all the
cases. He was, in each case, sentenced to suffer the penalty of imprisonment of One (1)
Year, to pay a fine of Twenty-Two Thousand Five Hundred Pesos (P22,500), and to
indemnify private complainant in the amount of Twenty-Two Thousand Five Hundred
Pesos (P22,500).

Ten months following the promulgation of the judgment, petitioner posted a bond before
another branch of the court. Petitioner having been convicted and no motion having been
filed for his provisional liberty pending any appeal from or motion for reconsideration of
the Decision, the trial court cancelled the bond and issued an alias warrant of arrest. [6]

Petitioner thereupon filed an Urgent Motion for New Trial and/or to Set Aside Trial and
Judgment (Motion for New Trial) which was, by Order[7] of January 10, 2003, denied
following his and his counsel's failure to appear at the hearing of the motion and comply
with the rule on proper service of a motion.[8] Petitioner's Urgent Motion for
Reconsideration was likewise denied, by Order[9] of May 26, 2003.

Petitioner appealed the Orders dated January 10, 2003 and May 26, 2003 as well as the
Decision dated October 23, 2001 to the Regional Trial Court (RTC) of Manila, Branch 26
of which, by Decision of December 22, 2003, affirmed[10] the judgment with modification
as to the penalties imposed, thus:
WHEREFORE PREMISES CONSIDERED, the appealed decision is hereby affirmed
with modification. This Court finds accused/appellant Carmelo C. Bernardo GUILTY
beyond reasonable doubt for Violation of Batas Pambansa Bilang 22 but set [sic] aside
the penalty of imprisonment and hereby sentences her [sic] to pay a fine of P22,500.00 in
each case, with subsidiary imprisonment in case of insolvency or non-payment not to
exceed six (6) months, and, to pay private complainant F.T. YLANG-YLANG
MARKETING CORPORATION the total amount of P113,500.00 by way of indemnity.

Meanwhile, the alias warrant of arrest issued against accused x x x

is hereby ordered lifted and set aside.

No pronouncement as to costs. (Underscoring supplied)

SO ORDERED.[11]
Petitioner filed a Motion for Partial Reconsideration of the RTC decision but it was
denied.
Unsatisfied, petitioner elevated the case to the CA.

Petitioner filed with the appellate court a Motion for Extension of Time to File Petition
for Review within 30 days from June 1, 2004, the 15th day from his counsel's receipt of
the RTC Order denying his Motion for Partial Reconsideration.

The Court of Appeals, by Resolution of June 21, 2004, granted petitioner an extension,
but only 15 days pursuant to Section 1 of Rule 42,[12] to file his Petition.

Apparently unaware of the above-said Resolution of June 21, 2004 under which his
petition would be filed not later than June 16, 2004, petitioner used up the 30-day
extension sought and filed his petition on July 1, 2004. Petitioner in fact received the
June 21, 2004 Resolution only on July 9, 2004.[13]

By Resolution[14] of July 30, 2004, the appellate court denied petitioner's petition due
course for having been filed 15 days late and for failure to attach the MeTC Decision and
other pertinent and material documents. Petitioner's Motion for Reconsideration was
likewise denied by Resolution[15] of January 14, 2005, the appellate court noting that the
MeTC Decision attached to the Motion for Reconsideration was a mere photocopy and
uncertified.

Hence, the instant petition faulting the appellate court:

A. . . . IN RECKONING THE PERIOD OF 15 DAYS EXTENSION FROM THE

EXPIRY DATE OF THE ORIGINAL PERIOD OF 15 DAYS FROM RECEIPT
OF THE DECISION OF THE REGIONAL TRIAL COURT OR FINAL ORDER
APPEALED FROM, INSTEAD OF FROM DATE OF THE RECEIPT OF THE
ORDER GRANTING EXTENSION;

B. . . . IN APPLYING THE RULES OF PROCEDURE VERY STRICTLY AND IN

UTTER DISREGARD OF ITS INTERNAL RULES WHICH LIBERALLY
ALLOW COMPLETION OF PORTIONS OF RECORDS IN COMPLIANCE
WITH THE RULES AND THE SETTLED JURISPRUDENCE APPLYING
LIBERALLY THE RULES OF PROCEDURE;

C. . . . [IN NOT] CONSIDER[ING] THE MERITS OF THE PETITION FOR

REVIEW.[16] (Underscoring supplied)

Petitioner argues that the 15-day extension granted to him by the appellate court should
be reckoned from his date of receipt of its June 21, 2004 Resolution.

The argument fails. A.M. No. 00-2-14-SC[17] issued on February 29, 2000 is clear. It
provides that "[a]ny extension of time to file the required pleading should . . . be counted
from the expiration of the period . . ." The extension should thus be tacked to the original
period, to commence immediately after the expiration of such period. The court has no
discretion to reckon the commencement of the extension from a date later than the
expiration of such original period, not even if the expiry date is a Saturday, Sunday, or a
legal holiday.[18]

Petitioner's reliance on the 1989 case of Vda. de Capulong v. Workmen's Insurance Co.,
Inc.[19] on this point does not thus lie. Parenthetically, the factual milieus in Vda. de
Capulong and the present case are dissimilar. The respondent in Vda. de Capulong
specifically moved that it be given an additional period "from receipt of the order" of the
court allowing extension, and the court granted an extension of time without indicating
when it would commence. In the present case, petitioner prayed for a period of extension
to be counted from the expiration of the original period or "from June 1, 2004," which
date the appellate court correctly used in reckoning the extension.[20]

Petitioner goes on to fault the appellate court in not resolving his motion for extension
before the expiration of the 15-day extension so that he would have known that his
request for 30 days was not granted.

Petitioner's position does not lie too.

Section 1 of Rule 42 is clear. The Court of Appeals may grant an "additional period of 15
days only" within which to file the petition for review. Albeit under the same section, a
"further extension" not to exceed 15 days may be granted "for the most compelling
reason," petitioner had no basis to assume that his request for a 30-day extension is
meritorious and would be granted.[21]

Motions for extension are not granted as a matter of right but in the sound discretion of
the court, and lawyers should never presume that their motions for extension or
postponement would be granted or that they would be granted the length of time they
pray for.[22]

Petitioner claims, however, that his motion for extension presented a compelling reason
for the grant of a further extension. Justifying the 30-day period sought, petitioner
explains that he was implicitly seeking both a 15-day extension and a further extension of
15 days.

The wording of the rule with respect to further extension is couched in restrictive terms.
Section 1 of Rule 42 provides that "[n]o further extension shall be granted except for the
most compelling reason and in no case to exceed fifteen (15) days."

Petitioner's motion for extension was anchored on a lone ground, his counsel's being
"pre-occupied in the preparation of petitions, memoranda, briefs, and other lengthy
pleadings in cases as important as this case" and in "daily court appearance and personal
commitments." Sustaining petitioner's lone ground would obliterate the distinguishing
essence of a further extension for it would do away with the necessity of presenting
compelling grounds addressed to the sound discretion of the court.

But crediting arguendo petitioner's "implicit" justification, this Court sees no reason to

disturb the exercise by the appellate court of its discretion in denying a "cumulative"
extension and in effectively ruling that heavy workload of counsel is not a most
compelling reason.

Respecting the second assigned error, the CA correctly dismissed petitioner's appeal for
failure to comply with Section 2 (d) of Rule 42, which specifically requires that both
lower courts' judgments or final orders must be attached to the petition in the required
form — clearly legible duplicate originals or certified true copies. Indeed, petitioner fell
short in his compliance. He attached to his petition only the RTC Decision of December
22, 2003 and its Order of May 4, 2004. He did not attach thereto the MeTC Orders dated
January 10, 2003 and May 26, 2003, and the Decision dated October 23, 2001 which
were appealed[23] to the RTC and which were likewise adverse to him.[24] While to his
Motion for Reconsideration, he attached the October 23, 2001 Decision, it was not in the
required form, and while he attached a duplicate original of the May 26, 2003 Order, he
failed to submit the January 10, 2003 Order.

There is no cogent reason to deviate from such requirement under Section 2(d) of Rule
42, the mandatory tenor of which has been held to be discernible and well settled.[25]

Petitioner having failed to perfect his appeal, the RTC judgment had become final and
executory.[26] This leaves it unnecessary to dwell on petitioner's assertion that he was
denied due process of law and the right to counsel before the trial court.

Suffice it to state that the requisites of a valid trial in absentia, viz, (1) the accused has
already been arraigned, (2) he has been duly notified of the trial, and (3) his failure to
appear is unjustifiable, are, as reflected above, present in the case. [27]

Estrada v. People[28] should, under the facts and circumstances attendant to the case,
dispel any lingering doubts of petitioner on the validity of the trial court's proceedings.
The holding of trial in absentia is authorized under Section 14 (2), Article III of the 1987
Constitution which provides that "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." x x x
x x x Conformably with our decision in People v. Salas, [the] escape should have
been considered a waiver of their right to be present at their trial, and the inability
of the court to notify them of the subsequent hearings did not prevent it from
continuing with their trial. They were deemed to have received notice. The same fact
of their escape made their failure to appear unjustified because they have, by escaping,
placed themselves beyond the pale and protection of the law. This being so, then pursuant
to Gimenez v. Nazareno, the trial against the fugitives, just like those of the others, should
have been brought to its ultimate conclusion. Thereafter, the trial court had the duty to
rule on the evidence presented by the prosecution against all the accused and to
render its judgment accordingly. It should not wait for the fugitives" re-appearance
or re-arrest. They were deemed to have waived their right to present evidence on
their own behalf and to confront and cross-examine the witnesses who testified
against them.[29] (Emphasis and italics in the original)
As for the promulgation of judgment in absentia, the following pertinent provision of
Section 6 of Rule 120 should likewise put to rest any doubts on its validity:
The judgment is promulgated by reading it in the presence of the accused and any judge
of the court in which it was rendered. However, if the conviction is for a light offense, the
judgment may be pronounced in the presence of his counsel or representative. When the
judge is absent or outside the province or city, the judgment may be promulgated by the
clerk of court.

xxxx

The proper clerk of court shall give notice to the accused personally or through his
bondsman or warden and counsel, requiring him to be present at the promulgation of the
decision. If the accused was tried in absentia because he jumped bail or escaped
from prison, the notice to him shall be served at his last known address.

In case the accused fails to appear at the scheduled date of promulgation of

judgment despite notice, the promulgation shall be made by recording the judgment
in the criminal docket and serving him a copy thereof at his last known address or
thru his counsel.

x x x x (Italics in the original; emphasis supplied)

A word on the modified penalty imposed by the RTC. Contrary to its reasoning, the
penalty of imprisonment in cases of violation of B.P. 22 was not deleted. As clarified by
Administrative Circular 13-2001, the clear tenor and intention of Administrative Circular
12-2000 is not to remove imprisonment as an alternative penalty, but to lay down a rule
of preference in the application of the penalties provided for in B.P. 22.[30]

Since the prosecution did not raise the matter as an issue and, at any rate, there is no
showing of repeated violation or wanton bad faith on the part of petitioner, the non-
imposition of the penalty of imprisonment is in order.

WHEREFORE, in light of the foregoing, the petition is DENIED.

SO ORDERED.
 FIRST DIVISION
[ G.R. No. 66469, July 29, 1986 ]
PEOPLE OF THE PHILIPPINES AND ALFREDO QUIJANO, PETITIONERS,
VS. HON. BERNARDO SALAS (IN HIS CAPACITY AS PRESIDING JUDGE
OF RTC, CEBU, BRANCH VIII), MARIO ABONG, ALFREDO DE LEON,
ERIWADWIN MONTEBON, ROMEO DE GUZMAN, & EDUARDO
MABUHAY, RESPONDENTS.

DECISION

CRUZ, J.:

Mario Abong  was originally charged with homicide in the Court of First Instance
of Cebu  but before he could be arraigned the case was reinvestigated on motion of the
prosecution.[1] As a result of the reinvestigation, an amended information was filed, with
no bail recommended, to which he pleaded not guilty. [2] Trial commenced, but while it
was in progress, the prisoner, taking advantage of the first information for homicide,
succeeded in deceiving the city court of Cebu into granting him bail and ordering his
release; and so he escaped.[3] The respondent judge, learning later of the trickery,
cancelled the illegal bail bond and ordered Abong's re-arrest. [4] But he was gone. 
Nonetheless, the prosecution moved that the hearing continue in accordance with the
constitutional provision authorizing trial in absentia under certain circumstances. [5] The
respondent judge denied the motion, however, and suspended all proceedings until the
return of the accused.[6] The order of the trial court is now before us on certiorari  and
mandamus.[7]

The judge erred.  He did not see the woods for the trees.  He mistakenly allowed himself
to be tethered by the literal reading of the rule when he should have viewed it from the
broader perspective of its intendment.

The rule is found in the last sentence of Article IV, Section 19, of the 1973 Constitution,
reading in full as follows:
"Sec. 19.  In all criminal prosecution, 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 unjustified."
The purpose of this rule is to speed up the disposition of criminal cases, trial of
which could in the past be indefinitely deferred, and many times completely
abandoned, because of the defendant's escape.  The old case of People v.
Avanceña[8] required his presence at certain stages of the trial which as a result, had to
be discontinued as long as the defendant had not reappeared or remained at large.  As
his right to be present at these stages was then held not waivable even by his escape,
such escape thus operated to the fugitive's advantage, and in mockery of the
authorities, insofar as the trial could not proceed as long as he had not been recaptured.

The doctrine laid down in that case has been modified by Section 19, which now allows
trial in absentia.  Now, the prisoner cannot by simply escaping thwart his continued
prosecution and possibly eventual conviction provided only that:  a) he has been
arraigned; b) he has been duly notified of the trial; and c) his failure to appear is
unjustified.

The respondent judge was probably still thinking of the old doctrine when he ruled that
trial in absentia of the escapee could not be held because he could not be duly notified
under Section 19.  He forgets that the fugitive is now deemed to have waived such
notice precisely because he has escaped, and it is also this escape that make his failure
to appear at his trial unjustified.  Escape can never be a legal justification.  In the past,
his escape "rewarded" him by postponing all further proceedings against him and in
effect ultimately absolving him of the charge he was facing.  Under the present rule, his
escape will, legally speaking, operate to his disadvantage by preventing him from
attending his trial, which will continue even in his absence and most likely result in his
conviction.

The right to be present at one's trial may now be waived except only at that stage where
the prosecution intends to present witnesses who will identify the accused.[9] Under
Section 19, the defendant's escape will be considered a waiver of this right and the
inability of the court to notify him of the subsequent hearings will not prevent it from
continuing with his trial.  He will be deemed to have received due notice.  The same fact
of his escape will make his failure to appear unjustified because he has, by escaping,
placed himself beyond the pale, and protection, of the law.

Trial in absentia was not allowed in Borja v. Mendoza [10] because it was held
notwithstanding that the accused had not been previously arraigned.  His subsequent
conviction was properly set aside.  But in the instant case, since all the requisites are
present, there is absolutely no reason why the respondent judge should refuse to try
the accused, who had already been arraigned at the time he was released on the illegal
bail bond.  Abong should be prepared to bear the consequences of his escape, including
forfeiture of the right to be notified of the subsequent proceedings and of the right to
adduce evidence on his behalf and refute the evidence of the prosecution, not to
mention a possible or even probably conviction.

We admonish against a too-literal reading of the law as this is apt to constrict rather
than fulfill its purpose and defeat the intention of its authors.  That intention is usually
found not in "the letter that killeth but in the spirit that vivifieth," which is not really
that evanescent or elusive.  As judges, we must look beyond and not be bound by the
language of the law, seeking to discover, by our own lights, the reason and the rhyme
for its enactment.  That we may properly apply it according to its ends, we need and
must use not only learning but also vision.

The trial judge is directed to investigate the lawyer who assisted Mario Abong in
securing bail from the city court of Cebu on the basis of the withdrawn information for
homicide and to report to us the result of his investigation within sixty days.

WHEREFORE, the order of the trial court dated December 22, 1983, denying the motion
for the trial in absentia of the accused is set aside.  The respondent judge is directed to
continue hearing the case against the respondent Mario Abong in absentia as long as he
has not reappeared, until it is terminated.  No costs.

SO ORDERED.