October 20, 2015 After trial, the RTC promulgated its Decision3 

which
convicted petitioner of the crime charged and sentenced
G.R. No. 206513 him to suffer an indeterminate penalty of imprisonment
ranging from ten (10) years of prision mayor, as
MUSTAPHA DIMAKUTA MARUHOM, Petitioner minimum, to seventeen (17) years, four (4) months and
vs. one (1) day of reclusion temporal, as maximum, with the
PEOPLE OF THE PHIILPPINES, Respondent accessory penalty of perpetual absolute disqualification.
In addition, he was directed to pay a fine of ₱20,000.00,
DECISION civil indemnity of ₱25,000.00, and moral damages of
₱25,000.00.4
PERALTA, J.:
Feeling aggrieved, petitioner elevated the case to the
In the present controversy, petitioner Mustapha Dimakuta
Court of Appeals (CA) arguing, among other things, that
y Maruhom alias Boyet was indicted for Violation of
even assuming he committed the acts imputed, still there
Section 5 Paragraph (b), Article III of Republic Act (R.A.)
is no evidence showing that the same were done without
No. 7610 or the Special Protection of Children Against
the victim’s consent or through force, duress, intimidation
Abuse, Exploitation and Discriminatory Act. The
or violence upon her. Surprisingly, when asked to
Information reads:
comment on the appeal, the Office of the Solicitor
General (OSG), relying heavily on People v.
That on or about the 24th day of September 2005, in the
Abello,5 opined that petitioner should have been
City of Las Piñas, Philippines, and within the jurisdiction
convicted only of Acts of Lasciviousness under Article
of this Honorable Court, the above-named accused, with
336 of the Revised Penal Code (RPC) in view of the
lewd designs, did then and there willfully, unlawfully and
prosecution’s failure to establish that the lascivious acts
feloniously commit a lascivious conduct upon the person
were attended by force or coercion because the victim
of one AAA, who was then a sixteen (16) year old minor,
was asleep at the time the alleged acts were committed.
by then and there embracing her, touching her breast
and private part against her will and without her consent
On June 28, 2012, the CA rendered a Decision6 adopting
and the act complained of is prejudicial to the physical
the recommendation of the OSG. In modifying the RTC
and psychological development of the complainant.2
Decision, petitioner was found guilty of Acts of
Lasciviousness under Article 336 of the RPC and was
sentenced to suffer the indeterminate penalty of six (6)
months of arresto mayor, as minimum, to four (4) years
and two (2) months of prision correccional, as maximum.
Likewise, he was ordered to pay ₱20,000.00 as civil
indemnity and ₱30,000.00 as moral damages.
Petitioner received a copy of CA Decision on July 6,
2012.7 Instead of further appealing the case, he filed on
July 23, 2012 before the CA a manifestation with motion
to allow him to apply for probation upon remand of the
case to the RTC.8 Petitioner invoked the case
of Colinares v. People9 which allowed petitioner therein to
apply for probation after his sentence was later reduced
on appeal by the Supreme Court.
The CA issued a Resolution on September 3, 2012
denying petitioner’s manifestation with motion.10 It was
ruled that Colinares is inapplicable since petitioner
therein raised as sole issue the correctness of the
penalty imposed and claimed that the evidence
presented warranted only a conviction for the lesser
offense. Instead, the appellate court viewed as
appropriate the case of Lagrosa v. People,11 wherein the
application for probation was denied because petitioners
therein put in issue on appeal the merits of their
conviction and did not simply assail the propriety of the
penalties imposed.
Petitioner filed a motion for reconsideration,12 but it was
denied in a Resolution13 dated March 13, 2013; hence,
this petition.
The petition should be denied.
At the outset, tracing the evolution of the present
Probation Law is warranted in order to better understand
and apply the wisdom of its framers to cases invoking its
application.
In this jurisdiction, the concept of probation was
introduced during the American colonial period.14 For
juvenile delinquents, Act No. 320315 was enacted on
December 3, 1924. It was later amended by Act Nos.
3309,16 3559,17 and 3725.18 As to offenders who are
eighteen years old and above, Act No. 422119 was
passed by the legislature and took effect on August 7,
1935. Said Act allowed defendants who are convicted
and sentenced by a Court of First Instance or by the
Supreme Court on appeal, except those who are
convicted of offenses enumerated in Section 8
thereof,20 to be placed on probation upon application after
the sentence has become final and before its service has
begun.21 However, We declared in People v. Vera22 that
Act No. 4221 is unconstitutional and void as it constitutes
an improper and unlawful delegation of legislative
authority to the provincial boards.
During the martial law period, then President Ferdinand
E. Marcos issued Presidential Decree (P.D.) No. 96823 on
July 24, 1976. Originally, P.D. No. 968 allowed the filing
of an application for probation at any time after the
defendant had been convicted and sentenced. Section 4
of which provides:
SEC. 4. Grant of Probation. – Subject to the provisions of
this Decree, the court may, after it shall have convicted
and sentenced a defendant and upon application at
any time of said defendant, suspend the execution of
said sentence and place the defendant on probation for
such period and upon such terms and conditions as it
may deem best.
Probation may be granted whether the sentence imposes
a term of imprisonment or a fine only. An application for
probation shall be filed with the trial court, with notice to
the appellate court if an appeal has been taken from the
sentence of conviction. The filing of the application shall
be deemed a waiver of the right to appeal, or the
automatic withdrawal of a pending appeal. An order
granting or denying probation shall not be appealable.24
Later, the filing of an application for probation pending
appeal was still allowed when Section 4 of P.D. No. 968
was amended by P.D. No. 125725 on December 1, 1977
by providing that such application may be made after the
defendant had been convicted and sentenced but before
he begins to serve his sentence.
On October 5, 1985, Section 4 was subsequently
amended by P.D. No. 1990.27 Henceforth, the policy has
been to allow convicted and sentenced defendant to
apply for probation within the 15-day period for perfecting
an appeal. As modified, Section 4 of the Probation Law
now reads:
SEC. 4. Grant of Probation. – Subject to the provisions of
this Decree, the trial court may, after it shall have
convicted and sentenced a defendant and upon
application by said defendant within the period for
perfecting an appeal, suspend the execution of the
sentence and place the defendant on probation for such
period and upon such terms and conditions as it may
deem best; Provided, that no application for probation
shall be entertained or granted if the defendant has
perfected the appeal from the judgment of conviction.
Probation may be granted whether the sentence imposes
a term of imprisonment or a fine only. An application for
probation shall be filed with the trial court. The filing of
the application shall be deemed a waiver of the right to
appeal.
An order granting or denying probation shall not be
appealable.28
The reason for the disallowance may be inferred from the
preamble of P.D. No. 1990, thus:
WHEREAS, it has been the sad experience that persons
who are convicted of offenses and who may be entitled to
probation still appeal the judgment of conviction even up
to the Supreme Court, only to pursue their application for
probation when their appeal is eventually dismissed;
WHEREAS, the process of criminal investigation,
prosecution, conviction and appeal entails too much time
and effort, not to mention the huge expenses of litigation,
on the part of the State;
WHEREAS, the time, effort and expenses of the
Government in investigating and prosecuting accused
persons from the lower courts up to the Supreme Court,
are oftentimes rendered nugatory when, after the
appellate Court finally affirms the judgment of conviction,
the defendant applies for and is granted probation;
WHEREAS, probation was not intended as an escape
hatch and should not be used to obstruct and delay the
administration of justice, but should be availed of at the
first opportunity by offenders who are willing to be
reformed and rehabilitated;
WHEREAS, it becomes imperative to remedy the
problems abovementioned confronting our probation
system[.]
Observing the developments in our Probation Law, the
Court settled in Llamado v. Court of Appeals:29
Examination of Section 4, after its amendment by P.D.
No. 1257, reveals that it had established a prolonged but
definite period during which an application for probation
may be granted by the trial court. That period was: "After
[the trial court] shall have convicted and sentenced a
defendant but before he begins to serve his sentence."
Clearly, the cut-off time – commencement of service of
sentence – takes place NOT ONLY AFTER an appeal
has been taken from the sentence of conviction, but
even after judgment has been rendered by the
appellate court and after judgment has become final.
Indeed, in this last situation, Section 4, as amended by
P.D. No. 1257 provides that "the application [for
probation] shall be acted upon by the trial court on the
basis of the judgment of the appellate court"; for the
appellate court might have increased or reduced the
original penalty imposed by the trial court. x x x
xxxx
In sharp contrast with Section 4 as amended by PD No.
1257, in its present form, Section 4 establishes a much
narrower period during which an application for probation
may be filed with the trial court: "after [the trial court] shall
have convicted and sentenced a defendant and – within
the period for perfecting an appeal –." As if to provide
emphasis, a new proviso was appended to the first
paragraph of Section 4 that expressly prohibits the grant
of an application for probation "if the defendant has
perfected an appeal from the judgment of conviction." It is
worthy of note too that Section 4 in its present form
has dropped the phrase which said that the filing of an
application for probation means "the
automatic withdrawal of a pending appeal." The deletion
is quite logical since an application for probation can no
longer be filed once an appeal is perfected; there can,
therefore, be no pending appeal that would have to be
withdrawn.
xxxx
We find ourselves unable to accept the eloquently stated
arguments of petitioner's counsel and the dissenting
opinion. We are unable to persuade ourselves that
Section 4 as it now stands, in authorizing the trial court to
grant probation "upon application by [the]
defendant within the period for perfecting an appeal"
and in reiterating in the proviso that "no application for
probation shall be entertained or granted if the defendant
has perfected an appeal from the judgment of
conviction." did not really mean to refer to the fifteen-day
period established, as indicated above, by B.P. Blg. 129,
the Interim Rules and Guidelines Implementing B.P. Blg.
129 and the 1985 Rules on Criminal Procedure, but
rather to some vague and undefined time, i.e., "the
earliest opportunity" to withdraw the defendant's appeal.
The whereas clauses invoked by petitioner did not, of
course, refer to the fifteen-day period. There was
absolutely no reason why they should have so referred to
that period for the operative words of Section 4 already
do refer, in our view, to such fifteen-day
period. Whereas clauses do not form part of a statute,
strictly speaking; they are not part of the operative
language of the statute. Nonetheless, whereas clauses
may be helpful to the extent they articulate the general
purpose or reason underlying a new enactment, in the
present case, an enactment which drastically but clearly
changed the substantive content of Section 4 existing
before the promulgation of P.D. No.
1990. Whereas clauses, however, cannot control
the specific terms of the statute; in the instant case,
the whereas clauses of P.D. No. 1990 do not purport to
control or modify the terms of Section 4 as amended.
Upon the other hand, the term "period for perfecting an
appeal" used in Section 4 may be seen to furnish
specification for the loose language "first opportunity"
employed in the fourth whereas clause. "Perfection of an
appeal" is, of course, a term of art but it is a term of art
widely understood by lawyers and judges and Section 4
of the Probation Law addresses itself essentially to
judges and lawyers. "Perfecting an appeal" has no
sensible meaning apart from the meaning given to those
words in our procedural law and so the law-making
agency could only have intended to refer the law-making
agency could only have intended to refer to the meaning
of those words in the context of procedural law.30
In Sable v. People, et al.,31 this Court stated that Section
4 of the Probation Law was amended precisely to put a
stop to the practice of appealing from judgments of
conviction even if the sentence is probationable, for the
purpose of securing an acquittal and applying for the
probation only if the accused fails in his bid.32 The
Probation Law "expressly requires that an accused must
not have appealed his conviction before he can avail
himself of probation. This outlaws the element of
speculation on the part of the accused – to wager on the
result of his appeal – that when his conviction is finally
affirmed on appeal, the moment of truth well nigh at hand
and the service of his sentence inevitable, he now
applies for probation as an ‘escape hatch,’ thus rendering
nugatory the appellate court's affirmance of his
conviction."33
Verily, Section 4 of the Probation Law provides that the
application for probation must be filed with the trial court
within the 15-day period for perfecting an appeal. The
need to file it within such period is intended to encourage
offenders, who are willing to be reformed and
rehabilitated, to avail themselves of probation at the first
opportunity.  amendment of the law. To surmise a converse construal
If the application for probation is filed beyond the 15-day
period, then the judgment becomes final and executory
and the lower court can no longer act on the application
for probation.
On the other hand, if a notice of appeal is perfected, the
trial court that rendered the judgment of conviction is
divested of any jurisdiction to act on the case, except the
execution of the judgment when it has become final and
executory.
In view of the latest amendment to Section 4 of the
Probation Law that "no application for probation shall be
entertained or granted if the defendant has perfected an
appeal from the judgment of conviction," prevailing
jurisprudence35 treats appeal and probation as mutually
exclusive remedies because the law is unmistakable
about it.36 Indeed, the law is very clear and a contrary
interpretation would counter its envisioned mandate.
Courts have no authority to invoke "liberal interpretation"
or "the spirit of the law" where the words of the statute
themselves, and as illuminated by the history of that
statute, leave no room for doubt or interpretation.37 To be
sure, the remedy of convicted felons who want to avail of
the benefits of probation even after the remedy of an
appeal is to go to the Congress and ask for the
of the provision would be dangerously encroaching on
the power of the legislature to enact laws and is
tantamount to judicial legislation.
With due respect, however, to the ponente and the
majority opinion in Colinares,38 the application of the
Probation Law in the said case deserves a second hard
look so as to correct the mistake in the application of the
law in that particular case and in similar cases which will
be filed before the courts and inevitably elevated to Us
like this petition.
To refresh, Colinares concluded that since the trial court
imposed a penalty beyond what is allowed by the
Probation Law, albeit erroneously, the accused was
deprived of his choice to apply for probation and instead
was compelled to appeal the case. The reprehensible
practice intended to be avoided by the law was,
therefore, not present when he appealed the trial court’s
decision. Taking into account that the accused argued in
his appeal that the evidence presented against him
warranted his conviction only for attempted, not
frustrated, homicide, the majority of the Court opined that
the accused had purposely sought to bring down the
impossible penalty in order to allow him to apply for
probation.
It was obvious then, as it is now, that the accused
in Colinares should not have been allowed the benefit of
probation. As I have previously stated and insisted upon,
probation is not a right granted to a convicted offender; it
is a special privilege granted by the State to a penitent
qualified offender,39 who does not possess the
disqualifications under Section 9 of P.D. No. 968, as
amended.40 Likewise, the Probation Law is not a penal
law for it to be liberally construed to favor the accused.41
In the American law paradigm, probation is considered as
an act of clemency and grace, not a matter of right. It is a
privilege granted by the State, not a right to which a
criminal defendant is entitled.43 In City of Aberdeen v.
Regan,44 it was pronounced that:
The granting of a deferred sentence and probation,
following a plea or verdict of guilty, is
a rehabilitative measure and, as such, is not a matter of
right but is a matter of grace, privilege, or clemency
granted to the deserving.
As such, even in the American criminal justice model,
probation should be granted only to the deserving or, in
our system, only to qualified "penitent offenders" who are
willing to be reformed and rehabilitated. Corollarily, in this
jurisdiction, the wisdom behind the Probation Law is
outlined in its stated purposes, to wit:
(a) promote the correction and rehabilitation of an
offender by providing him with individualized treatment;
(b) provide an opportunity for the reformation of a
penitent offender which might be less probable if he
were to serve a prison sentence; and
45
(c) prevent the commission of offenses.
As I have previously indicated in Colinares, if this Court
will adopt as jurisprudential doctrine the opinion that an
accused may still be allowed to apply for probation
even if he has filed a notice of appeal, it must be
categorically stated that such appeal must be limited
to the following grounds:
1. When the appeal is merely intended for the correction
of the penalty imposed by the lower court, which when
corrected would entitle the accused to apply for
probation; and
2. When the appeal is merely intended to review the
crime for which the accused was convicted and that the
accused should only be liable to the lesser offense which
is necessarily included in the crime for which he was
originally convicted and the proper penalty imposable is
within the probationable period.
In both instances, the penalty imposed by the trial court
for the crime committed by the accused is more than six
years; hence, the sentence disqualifies the accused from
applying for probation. The accused should then be
allowed to file an appeal under the afore-stated grounds
to seek a review of the crime and/or penalty imposed by
the trial court.
If, on appeal, the appellate court finds it proper to modify
the crime and/or the penalty imposed, and the penalty
finally imposed is within the probationable period, the
accused should still be allowed to apply for probation.
In addition, before an appeal is filed based on the
grounds enumerated above, the accused should first file
a motion for reconsideration of the decision of the trial
court anchored on the above-stated grounds and
manifest his intent to apply for probation if the motion is
granted. The motion for reconsideration will give the trial
court an opportunity to review and rectify any errors in its
judgment, while the manifestation of the accused will
immediately show that he is agreeable to the judgment of
conviction and does not intend to appeal from it, but he
only seeks a review of the crime and/or penalty imposed,
so that in the event that the penalty will be modified
within the probationable limit, he will immediately apply
for probation. Without such motion for reconsideration,
the notice of appeal should be denied outright.
The notice of appeal should contain the following
averments:
(1) that an earlier motion for reconsideration was filed but
was denied by the trial court;
(2) that the appeal is only for reviewing the penalty
imposed by the lower court or the conviction should only
be for a lesser crime necessarily included in the crime
charged in the information; and
(3) that the accused-appellant is not seeking acquittal of
the conviction.
To note, what Section 4 of the Probation Law prohibits is
an appeal from the judgment of conviction, which
involves a review of the merits of the case and the
determination of whether the accused is entitled to
acquittal. However, under the recommended grounds for
appeal which were enumerated earlier, the purpose of
the appeal is not to assail the judgment of conviction but
to question only the propriety of the sentence, particularly
the penalty imposed or the crime for which the accused
was convicted, as the accused intends to apply for
probation upon correction of the penalty or conviction for
the lesser offense. If the CA finds it proper to modify the
sentence, and the penalty finally imposed by the
appellate court is within the probationable period, or the
crime for which the accused is eventually convicted
imposes a probationable penalty, application for
probation after the case is remanded to the trial court for
execution should be allowed.
It is believed that the recommended grounds for appeal
do not contravene Section 4 of the Probation Law, which
expressly prohibits only an appeal from the judgment of
conviction. In such instances, the ultimate reason of the
accused for filing the appeal based on the afore-stated
grounds is to determine whether he may avail of
probation based on the review by the appellate court of
the crime and/or penalty imposed by the trial court.
Allowing the afore-stated grounds for appeal would give
an accused the opportunity to apply for probation if his
ground for appeal is found to be meritorious by the
appellate court, thus, serving the purpose of the
Probation Law to promote the reformation of a penitent
offender outside of prison.
On the other hand, probation should NOT BE GRANTED
to the accused in the following instances:
1. When the accused is convicted by the trial court of a
crime where the penalty imposed is within the
probationable period or a fine, and the accused files a
notice of appeal; and
2. When the accused files a notice of appeal which puts
the merits of his conviction in issue, even if there is an
alternative prayer for the correction of the penalty
imposed by the trial court or for a conviction to a lesser
crime, which is necessarily included in the crime in which
he was convicted where the penalty is within the
probationable period.
Both instances violate the spirit and letter of the law, as
Section 4 of the Probation Law prohibits granting an
application for probation if an appeal from
the sentence of conviction has been perfected by the
accused.
In this case, petitioner appealed the trial court’s judgment
of conviction before the CA alleging that it was error on
the part of the RTC to have found him guilty of violating
Section 5(b), Article III of R.A. No. 7610. He argued that
the RTC should not have given much faith and credence
to the testimony of the victim because it was tainted with
inconsistencies. Moreover, he went on to assert that
even assuming he committed the acts imputed on him,
still there was no evidence showing that the lascivious
acts were committed without consent or through force,
duress, intimidation or violence because the victim at that
time was in deep slumber.
It is apparent that petitioner anchored his appeal on a
claim of innocence and/or lack of sufficient evidence to
support his conviction of the offense charged, which is
clearly inconsistent with the tenor of the Probation
Law that only qualified penitent offender are allowed
to apply for probation. The CA, therefore, did not err in
applying the similar case of Lagrosa v. People46 wherein
the protestations of petitioners therein did not simply
assail the propriety of the penalties imposed but meant a
profession of guiltlessness, if not complete innocence.
To be sure, if petitioner intended in the first instance to be
entitled to apply for probation he should have admitted
his guilt and buttressed his appeal on a claim that the
penalty imposed by the RTC was erroneous or that he is
only guilty of a lesser offense necessarily included in the
crime for which he was originally convicted.
Unfortunately for him, he already perfected his appeal
and it is late in the day to avail the benefits of probation
despite the imposition of the CA of a probationable
penalty.
As regards the CA Decision convicting petitioner of the
crime of Acts of Lasciviousness under Article 336 of the
RPC, such conclusion clearly contravenes the law and
existing jurisprudence.
Petitioner was charged and convicted by the trial court
with violation of Section 5(b), Article III of R.A. No. 7610
based on the complaint of a sixteen (16)-year-old girl for
allegedly molesting her by touching her breast and
vagina while she was sleeping. The provision reads:
Under Section 5, Article III of R.A. No. 7610, a child is
deemed subjected to other sexual abuse when he or she
indulges in lascivious conduct under the coercion or
influence of any adult. This statutory provision must be
distinguished from Acts of Lasciviousness under Articles
336 and 339 of the RPC. As defined in Article 336 of the
RPC, Acts of Lasciviousness has the following elements:
(1) That the offender commits any act of lasciviousness
or lewdness;
(2) That it is done under any of the following
circumstances:
a. By using force or intimidation; or
b. When the offended party is deprived or reason
or otherwise unconscious; or
c. When the offended party is under 12 years of
age; and
That the offended party is another person of either sex.49
Article 339 of the RPC likewise punishes acts of
lasciviousness committed with the consent of the
offended party done by the same persons and under the
same circumstances mentioned in Articles 337 and 338
of the RPC,
As correctly found by the trial court, all the elements of
sexual abuse under Section 5(b), Article III of R.A. No.
7610 are present in the case at bar.
First, petitioner’s lewd advances of touching the breasts
and vagina of his hapless victim constitute lascivious
conduct as defined in Section 32, Article XIII of the
Implementing Rules and Regulations (IRR) of R.A. No.
7610:
[T]he intentional touching, either directly or through
clothing, of the genitalia, anus, groin, breast, inner thigh,
or buttocks, or the introduction of any object into the
genitalia, anus or mouth, of any person, whether of the
same or opposite sex, with an intent to abuse, humiliate,
harass, degrade, or arouse or gratify the sexual desire of
any person, bestiality, masturbation, lascivious exhibition
of the genitals or pubic area of a person.53
Second, petitioner clearly has moral ascendancy over the
minor victim not just because of his relative seniority but
more importantly due to the presumed presence of
mutual trust and confidence between them by virtue of an
existing employment relationship, AAA being a domestic
helper in petitioner’s household. Notably, a child is
considered as sexually abused under Section 5(b) of
R.A. No. 7610 when he or she is subjected to lascivious
conduct under the coercion or influence of any adult.
Intimidation need not necessarily be irresistible. It is
sufficient that some compulsion equivalent to intimidation
annuls or subdues the free exercise of the will of the
offended party.54 The law does not require physical
violence on the person of the victim; moral coercion or
ascendancy is sufficient.55 On this point, Caballo v.
People56 explicated:
Finally, the victim is 16 years of age at the time of the
commission of the offense. Under Section 3 (a) of R.A.
No. 7610, "children" refers to "persons below eighteen
(18) years of age or those over but unable to fully take
care of themselves or protect themselves from abuse,
neglect, cruelty, exploitation or discrimination because of
a physical or mental disability or condition."
The decision of the trial court finding the petitioner guilty
of Violation of Section 5(b), Article III R.A. No. 7610
should have been upheld by the CA instead of
erroneously adopting the recommendation of the OSG,
which inaccurately relied on People v. Abello.58 In said
case, the decisive factor for the acquittal of the accused
was not the absence of coercion or intimidation on the
offended party, who was then sleeping at the time the
lascivious act was committed, but the fact that the victim
could not be considered as a "child" under R.A. No.
7610. This Court held that while the twenty-one year old
woman has polio as a physical disability that rendered
her incapable of normal function, the prosecution did not
present any testimonial or documentary evidence - any
medical evaluation or finding from a qualified physician,
psychologist or psychiatrist - attesting that the physical
condition rendered her incapable of fully taking care of
herself or of protecting herself against sexual abuse.
Thus, it is clear that petitioner could not have been
entitled to apply for probation in the first place.
Regrettably, since neither the accused nor the OSG
questioned the CA Decision, it has attained finality and to
correct the error at this stage is already barred by the
right of the accused against double jeopardy.
Based on the above disquisitions, the petitioner should
be denied the benefit of the Probation Law and that
the Court should adopt the recommendations above-
stated in situations where an accused files an appeal
for the sole purpose of correcting the penalty imposed to
qualify him for probation or where he files an appeal
specifically claiming that he should be found guilty of a
lesser offense necessarily included with the crime
originally filed with a prescribed penalty which is
probationable.
SO ORDERED.
G.R. No. 182748               December 13, 2011
ARNEL COLINARES, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
ABAD, J.:
This case is about a) the need, when invoking self-
defense, to prove all that it takes; b) what distinguishes
frustrated homicide from attempted homicide; and c)
when an accused who appeals may still apply for
probation on remand of the case to the trial court.
The Facts and the Case
The public prosecutor of Camarines Sur charged the
accused Arnel Colinares (Arnel) with frustrated homicide
before the Regional Trial Court (RTC) of San Jose,
Camarines Sur, in Criminal Case T-2213.1
Complainant Rufino P. Buena (Rufino) testified that at
around 7:00 in the evening on June 25, 2000, he and
Jesus Paulite (Jesus) went out to buy cigarettes at a
nearby store. On their way, Jesus took a leak by the
roadside with Rufino waiting nearby. From nowhere,
Arnel sneaked behind and struck Rufino twice on the
head with a huge stone, about 15 ½ inches in diameter.
Rufino fell unconscious as Jesus fled.
Ananias Jallores (Ananias) testified that he was walking
home when he saw Rufino lying by the roadside. Ananias
tried to help but someone struck him with something hard
on the right temple, knocking him out. He later learned
that Arnel had hit him.
Paciano Alano (Paciano) testified that he saw the whole
incident since he happened to be smoking outside his
house. He sought the help of a barangay tanod and they
brought Rufino to the hospital.
Dr. Albert Belleza issued a Medico-Legal
2
Certificate  showing that Rufino suffered two lacerated
wounds on the forehead, along the hairline area. The
doctor testified that these injuries were serious and
potentially fatal but Rufino chose to go home after initial
treatment.
On July 1, 2005 the RTC rendered judgment, finding
Arnel guilty beyond reasonable doubt of frustrated
homicide and sentenced him to suffer imprisonment from
two years and four months of prision correccional, as
minimum, to six years and one day of prision mayor, as
maximum. Since the maximum probationable
imprisonment under the law was only up to six years,
Arnel did not qualify for probation.
Arnel appealed to the Court of Appeals (CA), invoking
self-defense and, alternatively, seeking conviction for the
lesser crime of attempted homicide with the consequent
reduction of the penalty imposed on him. The CA entirely
affirmed the RTC decision but deleted the award for lost
income in the absence of evidence to support it.3 Not
satisfied, Arnel comes to this Court on petition for review.
In the course of its deliberation on the case, the Court
required Arnel and the Solicitor General to submit their
respective positions on whether or not, assuming Arnel
committed only the lesser crime of attempted homicide
with its imposable penalty of imprisonment of four months
of arresto mayor, as minimum, to two years and four
months of prision correccional, as maximum, he could
still apply for probation upon remand of the case to the
trial court.
Both complied with Arnel taking the position that he
should be entitled to apply for probation in case the Court
metes out a new penalty on him that makes his offense
probationable. The language and spirit of the probation
law warrants such a stand. The Solicitor General, on the
other hand, argues that under the Probation Law no
application for probation can be entertained once the
accused has perfected his appeal from the judgment of
conviction.
The Issues Presented
3. Given a finding that Arnel is entitled to
conviction for a lower offense and a reduced
probationable penalty, whether or not he may still
apply for probation on remand of the case to the
trial court.
The Court’s Rulings
the Court finds Arnel liable only for attempted homicide
and entitled to the mitigating circumstance of voluntary
surrender.
Three. Ordinarily, Arnel would no longer be entitled to
apply for probation, he having appealed from the
judgment of the RTC convicting him for frustrated
homicide.
But, the Court finds Arnel guilty only of the lesser crime of
attempted homicide and holds that the maximum of the
penalty imposed on him should be lowered to
imprisonment of four months of arresto mayor, as
minimum, to two years and four months of prision
correccional, as maximum.
With this new penalty, it would be but fair to allow
him the right to apply for probation upon remand of
the case to the RTC.
Some in the Court disagrees. They contend that
probation is a mere privilege granted by the state only to
qualified convicted offenders. Section 4 of the probation
law (PD 968) provides: "That no application for probation
shall be entertained or granted if the defendant has
perfected the appeal from the judgment of
conviction."15 Since Arnel appealed his conviction for
frustrated homicide, he should be deemed permanently
disqualified from applying for probation.
But, firstly, while it is true that probation is a mere
privilege, the point is not that Arnel has the right to such
privilege; he certainly does not have.
What he has is the right to apply for that privilege. The
Court finds that his maximum jail term should only be 2
years and 4 months. If the Court allows him to apply for
probation because of the lowered penalty, it is still up to
the trial judge to decide whether or not to grant him the
privilege of probation, taking into account the full
circumstances of his case.
Secondly, it is true that under the probation law the
accused who appeals "from the judgment of conviction"
is disqualified from availing himself of the benefits of
probation. But, as it happens, two judgments of
conviction have been meted out to Arnel: one, a
conviction for frustrated homicide by the regional trial
court, now set aside; and, two, a conviction for attempted
homicide by the Supreme Court.
If the Court chooses to go by the dissenting opinion’s
hard position, it will apply the probation law on Arnel
based on the trial court’s annulled judgment against him.
He will not be entitled to probation because of the severe
penalty that such judgment imposed on him. More, the
Supreme Court’s judgment of conviction for a lesser
offense and a lighter penalty will also have to bend over
to the trial court’s judgment—even if this has been found
in error. And, worse, Arnel will now also be made to pay
for the trial court’s erroneous judgment with the forfeiture
of his right to apply for probation. Ang kabayo ang
nagkasala, ang hagupit ay sa kalabaw (the horse errs,
the carabao gets the whip). Where is justice there?
The dissenting opinion also expresses apprehension that
allowing Arnel to apply for probation would dilute the
ruling of this Court in Francisco v. Court of Appeals16 that
the probation law requires that an accused must not have
appealed his conviction before he can avail himself of
probation. But there is a huge difference between
Francisco and this case.
In Francisco, the Metropolitan Trial Court (MeTC) of
Makati found the accused guilty of grave oral defamation
and sentenced him to a prison term of one year and one
day to one year and eight months of prision correccional,
a clearly probationable penalty. Probation was his to ask!
Still, he chose to appeal, seeking an acquittal, hence
clearly waiving his right to apply for probation. When the
acquittal did not come, he wanted probation. The Court
would not of course let him. It served him right that he
wanted to save his cake and eat it too. He certainly could
not have both appeal and probation.
The Probation Law, said the Court in Francisco, requires
that an accused must not have appealed his conviction
before he can avail himself of probation. This
requirement "outlaws the element of speculation on the
part of the accused—to wager on the result of his appeal
—that when his conviction is finally affirmed on appeal,
the moment of truth well-nigh at hand, and the service of
his sentence inevitable, he now applies for probation as
an ‘escape hatch’ thus rendering nugatory the appellate
court’s affirmance of his conviction."17
Here, however, Arnel did not appeal from a judgment that
would have allowed him to apply for probation. He did not
have a choice between appeal and probation. He was not
in a position to say, "By taking this appeal, I choose not
to apply for probation." The stiff penalty that the trial court
imposed on him denied him that choice. Thus, a ruling
that would allow Arnel to now seek probation under this
Court’s greatly diminished penalty will not dilute the
sound ruling in Francisco. It remains that those who will
appeal from judgments of conviction, when they have the
option to try for probation, forfeit their right to apply for
that privilege.
Besides, in appealing his case, Arnel raised the issue of
correctness of the penalty imposed on him. He claimed
that the evidence at best warranted his conviction only for
attempted, not frustrated, homicide, which crime called
for a probationable penalty. In a way, therefore, Arnel
sought from the beginning to bring down the penalty to
the level where the law would allow him to apply for
probation.
In a real sense, the Court’s finding that Arnel was guilty,
not of frustrated homicide, but only of attempted
homicide, is an original conviction that for the first time
imposes on him a probationable penalty. Had the RTC
done him right from the start, it would have found him
guilty of the correct offense and imposed on him the right
penalty of two years and four months maximum. This
would have afforded Arnel the right to apply for probation.
The Probation Law never intended to deny an accused
his right to probation through no fault of his. The
underlying philosophy of probation is one of liberality
towards the accused. Such philosophy is not served by a
harsh and stringent interpretation of the statutory
provisions.18 As Justice Vicente V. Mendoza said in his
dissent in Francisco, the Probation Law must not be
regarded as a mere privilege to be given to the accused
only where it clearly appears he comes within its letter; to
do so would be to disregard the teaching in many cases
that the Probation Law should be applied in favor of the
accused not because it is a criminal law but to achieve its
beneficent purpose.19
One of those who dissent from this decision points out
that allowing Arnel to apply for probation after he
appealed from the trial court’s judgment of conviction
would not be consistent with the provision of Section 2
that the probation law should be interpreted to "provide
an opportunity for the reformation of a penitent offender."
An accused like Arnel who appeals from a judgment
convicting him, it is claimed, shows no penitence.
This may be true if the trial court meted out to Arnel a
correct judgment of conviction. Here, however, it
convicted Arnel of the wrong crime, frustrated homicide,
that carried a penalty in excess of 6 years. How can the
Court expect him to feel penitent over a crime, which as
the Court now finds, he did not commit? He only
committed attempted homicide with its maximum penalty
of 2 years and 4 months.
Ironically, if the Court denies Arnel the right to apply for
probation under the reduced penalty, it would be sending
him straight behind bars. It would be robbing him of the
chance to instead undergo reformation as a penitent
offender, defeating the very purpose of the probation law.
At any rate, what is clear is that, had the RTC done what
was right and imposed on Arnel the correct penalty of two
years and four months maximum, he would have had the
right to apply for probation. No one could say with
certainty that he would have availed himself of the right
had the RTC done right by him. The idea may not even
have crossed his mind precisely since the penalty he got
was not probationable.
The question in this case is ultimately one of fairness. Is
it fair to deny Arnel the right to apply for probation when
the new penalty that the Court imposes on him is, unlike
the one erroneously imposed by the trial court, subject to
probation?
WHEREFORE, the Court PARTIALLY GRANTS the
petition, MODIFIES the Decision dated July 31, 2007 of
the Court of Appeals in CA-G.R. CR 29639, FINDS
petitioner Arnel Colinares GUILTY beyond reasonable
doubt of attempted homicide, and SENTENCES him to
suffer an indeterminate penalty from four months of
arresto mayor, as minimum, to two years and four
months of prision correccional, as maximum, and to pay
Rufino P. Buena the amount of ₱20,000.00 as moral
damages, without prejudice to petitioner applying for
probation within 15 days from notice that the record of
the case has been remanded for execution to the
Regional Trial Court of San Jose, Camarines Sur, in
Criminal Case T-2213.
SO ORDERED.
G.R. No. 152044            July 3, 2003
DOMINGO LAGROSA and OSIAS BAGUIN, petitioners,
vs.
THE PEOPLE OF THE PHILIPPINES and THE
HONORABLE COURT OF APPEALS, respondents.
YNARES-SANTIAGO, J.:
This is a petition for review of the decision of the Court of
Appeals in CA-G.R. No. 67308,1 which affirmed the
Resolution of the Regional Trial Court of Tagbilaran City,
Branch 2, denying petitioners’ Application for Probation,
and its Order denying petitioners’ Motion for
Reconsideration.2
The undisputed facts are as follows.
On October 29, 1996, the Regional Trial Court of
Tagbilaran City, Branch 2, rendered a decision in
Criminal Case No. 8243,3 finding petitioners Domingo
Lagrosa and Osias Baguin guilty of violation of Section
68 of P.D. 705, as amended (The Revised Forestry
Code), for having in their possession forest products
without the requisite permits. The trial court sentenced
them to suffer the indeterminate penalty of imprisonment
from two (2) years, four (4) months and one (1) day of
prision correccional, as minimum, to eight (8) years of
prision mayor, as maximum.
Petitioners’ Motion for Reconsideration of the
decision4 was denied by the trial court on November 21,
1996.5
Petitioners appealed their conviction to the Court of
Appeals, where it was docketed as CA-G.R. CR No.
20632.6 On March 14, 2000, the appellate court affirmed
the conviction of the petitioners, with the modification as
to the penalty imposed, which was reduced to an
indeterminate penalty ranging from six (6) months and
one (1) day of prision correccional, as minimum, to one
(1) year, eight (8) months and twenty one (21) days of
prision correccional, as maximum.7 The decision became
final and executory on April 12, 2000.
On August 29, 2001, petitioners filed an Application for
Probation with the trial court,8 which, as mentioned at the
outset, was denied. Petitioners’ motion for
reconsideration was likewise denied by the trial court.
Hence, petitioners filed a petition for certiorari with the
Court of Appeals, which was docketed as CA-G.R. SP
No. 67308.9 On January 11, 2002, the Court of Appeals
rendered the assailed decision affirming the questioned
resolutions of the trial court.
Hence this petition, raising the following arguments:
1) That Section 4 of Presidential Decree No. 968,
as amended by PD No. 1990, is very absurd and
illogical considering that petitioners were not given
the opportunity to apply for probation when they
were convicted by the Regional Trial Court of
Bohol, Branch 2, because the penalty imposed by
said court is more than six (6) years and therefore
non-probationable.
That the first opportunity for herein petitioners to
apply for probation was when the Court of Appeals
modified the sentence imposed by the Regional
Trial Court of Bohol, Branch 2, from two (2) years,
four (4) months and one (1) day of prision
 correccional, as minimum, to eight (8) years of
prision mayor, as maximum, to six (6) months and
one (1) day to one (1) year, eight (8) months and
twenty one (21) days as maximum which is clearly
probationable.
2) That the ruling of this Honorable Supreme Court
in the case of Pablo Francisco versus Court of
Appeals, et al., G.R. No. 108747, is not applicable
to the instant case because in the said Francisco
case the accused therein can apply for probation
because the penalty imposed by the lower court
was already probationable but the accused
instead appealed the decision but in the case of
herein petitioners they cannot apply for probation
when they were convicted because the penalty
imposed by the lower court was more than six (6)
years and therefore non-probationable.
3) That the decision of the Court of Appeals herein
sought to be reviewed is clearly contrary to the
purpose of the Probation Law.10
The law that is at the heart of this controversy is
Presidential Decree No. 968, also known as the
Probation Law, as amended by P.D. 1990, the pertinent
provision of which reads:
SEC. 4. Grant of Probation. – Subject to the
provisions of this Decree, the trial court may, after
it shall have convicted and sentenced a defendant,
and upon application by said defendant within the
period for perfecting an appeal, suspend the
execution of the sentence and place the defendant
on probation for such period and upon such terms
and conditions as it may deem best; Provided,
That no application for probation shall be
entertained or granted if the defendant has
perfected the appeal from the judgment of
conviction. (underscoring ours)
Probation may be granted whether the sentence imposes
a term of imprisonment or a fine only. An application for
probation shall be filed with the trial court. The filing of
the application shall be deemed a waiver of the right to
appeal.
An order granting or denying probation shall not be
appealable.
Under Section 9 (a) of the Probation Law, offenders who
are sentenced to serve a maximum term of imprisonment
of more than six years are disqualified from seeking
probation.
It should be noted that before P.D. 968 was amended by
P.D. 1990, the accused was allowed to apply for
probation even after he had already filed an appeal, as
long as he had not yet begun to serve his sentence.
Petitioners contend that they should be allowed to apply
for probation even if they had already appealed the
decision of the trial court. They argue that their case
should be considered an exception to the general rule
which excludes an accused who has appealed his
conviction from the benefits of probation.
In the case at bar, the trial court sentenced petitioners to
a maximum term of eight years, which was beyond the
coverage of the Probation Law. They only became
eligible for probation after the Court of Appeals modified
the judgment of the trial court and reduced the maximum
term of the penalty imposed on them to one year, eight
months and twenty-one days.
They submit that the ruling in the case of Francisco v.
CA13 is not applicable because in that case, the accused
appealed their conviction notwithstanding the fact that the
maximum term of the prison sentence imposed on them
by the trial court was less than six years.14
In its Comment, the Office of the Solicitor General
reiterates the express provision of P.D. 968 prohibiting
the grant of probation to those who have appealed their
convictions.15 It argues that, even if the petitioners have
appealed for the purpose of reducing an incorrect
penalty, this fact does not serve to remove them from the
prohibition in Section 4 of P.D. 968 for the law makes no
such distinction.16
There is no question that petitioners appealed from the
decision of the trial court. This fact alone merits the
denial of petitioners’ Application for Probation. Having
appealed from the judgment of the trial court and having
applied for probation only after the Court of Appeals had
affirmed their conviction, petitioners were clearly
precluded from the benefits of probation.
However, petitioners now ask us not to apply the letter of
the law, claiming that their situation should be considered
an exception to the rule. Their petition is without merit.
Petitioners repeatedly assert that their application for
probation was made at the "first opportunity,"
undoubtedly invoking the fourth "whereas" clause of P.D.
1990, which reads:
WHEREAS, probation was not intended as an
escape hatch and should not be used to obstruct
and delay the administration of justice, but should
be availed of at the first opportunity by offenders
who are willing to be reformed and rehabilitated; x
x x.
To bolster this assertion, petitioners claim that
what prompted them to appeal the decision of the
trial court was the erroneous penalty imposed by
the trial court.18
Petitioners are not being very candid. In their appellant’s
brief filed in CA-G.R. CR No. 20632, they raised the
following assignment of errors:
I who, although already eligible, does not at once apply for
THAT THE LOWER COURT ERRED IN FINDING
BOTH ACCUSED GUILTY OF THE OFFENSE
CHARGED BECAUSE THE EVIDENCE AGAINST
THEM LACKS MORAL CERTAINTY.
II.
IF EVER ACCUSED ARE GUILTY, THE LOWER
COURT ERRED IN IMPOSING THE PROPER
PENALTY AS PROVIDED BY LAW.
The fact that petitioners put the merits of their conviction
in issue on appeal belies their claim that their appeal was
prompted by what was admittedly an incorrect penalty.
Certainly, the protestations of petitioners connote a
profession of guiltlessness, if not complete innocence,
and do not simply assail the propriety of the penalties
imposed. For sure, petitioners never manifested that they
were appealing only for the purpose of correcting a
wrong penalty – to reduce it to within probationable
range. Hence, upon interposing an appeal, more so after
asserting their innocence therein, petitioners should be
precluded from seeking probation.
By perfecting their appeal, petitioners ipso facto
relinquished the alternative remedy of availing of the
Probation Law, the purpose of which is simply to prevent
speculation or opportunism on the part of an accused
probation, but did so only after failing in his appeal.19
Although it has been suggested that an appeal should
not bar the accused from applying for probation if the
appeal is solely to reduce the penalty to within the
probationable limit may be equitable,20 we are not yet
prepared to accept this proposition, especially given the
factual circumstances of this case. Had the petitioners’
appeal from the decision of the trial court raised the
impropriety of the penalty imposed upon them as the sole
issue, perhaps this Court would have been more
sympathetic to their plight. Unfortunately, their
misrepresentation has led to their own undoing.
WHEREFORE, in view of the foregoing, the petition is
DENIED. The Decision of the Court of Appeals dated
January 11, 2002 in CA-G.R. No. 67308, which affirmed
the Resolution of the Regional Trial Court of Tagbilaran
City, Branch 2, denying petitioners’ Application for
Probation, and its Order denying petitioners’ Motion for
Reconsideration, is AFFIRMED. Costs against the
petitioners.
SO ORDERED.
 Branch 2, in Criminal Case Nos. 5265 and 5307. The
dispositive portion thereof reads:

WHEREFORE, Judgment is hereby rendered as follows:

1. In Criminal Case No. 5265, the Court finds and

so holds the herein accused Lilia Vicoy y
Jumagdao GUILTY beyond reasonable doubt for
G.R. No. 138203            July 3, 2002
violation of City Ordinance No. 365-B for peddling
LILIA J. VICOY, petitioner, fish outside the Agora Public Market, and
vs. accordingly sentences her to suffer the penalty of
PEOPLE OF THE PHILIPPINES, respondent. a fine of Fifty Pesos (P50.00) with subsidiary
imprisonment in case of insolvency and to pay the
YNARES-SANTIAGO, J.:
costs;

This is a petition under Rule 45 on pure question of law

2. In Criminal Case No. 5307, the Court finds and
1
assailing the February 9, 1998  and February 25,
so holds the herein accused Lilia Vicoy y
2
1998  Orders of the Regional Trial Court of Bohol,
Jumagdao GUILTY beyond reasonable doubt of
Branch 3, in SP. Civil Case No. 5881, dismissing
the crime of Resistance and Serious Disobedience
petitioner’s special civil action for certiorari.
To Agents Of A Person In Authority, and
accordingly sentences her to suffer the penalty of
The present controversy stemmed from a judgment of
three (3) months of arresto mayor and to pay a
conviction promulgated on August 24, 1995 by the
fine of two Hundred Pesos (P200.00) without
Municipal Trial Court in Cities (MTCC) of Tagbilaran,
 subsidiary imprisonment in case of insolvency and Philippines, represented by the Philippine National Police
to pay the costs. of Tagbilaran City. The parties were ordered by the court
to submit their memorandum within 10 days, after which,
SO ORDERED.3
the case was submitted for judgment on the pleadings.

On the same date, August 24, 1995, petitioner filed an

Realizing that the People should be represented by the
application for probation. On September 18, 1995,
City Prosecutor’s Office, the court issued an Order dated
however, petitioner filed a motion to withdraw her
August 2, 1996, requiring the latter to enter its
application for probation and simultaneously filed a notice
appearance. In the same order, petitioner was directed to
of appeal.
furnish the City Prosecutor’s Office with a copy of her
memorandum and of the assailed judgment, thus:
In an Omnibus Order6 dated September 22, 1995, the
MTCC of Tagbilaran granted petitioner’s withdrawal of
On February 9, 1998,9 the Regional Trial Court rendered
her application for probation but denied her notice of
the assailed Order dismissing petitioner’s special civil
appeal for having been filed out of time. Petitioner filed a
action for certiorari for failure to comply with the
motion for reconsideration of the denial of her appeal,
aforequoted August 2, 1996 Order. A motion for
however, the same was denied.
reconsideration of the said order of dismissal was denied
on February 25, 1999.10
Hence, petitioner filed a special civil action for certiorari
with the Regional Trial Court of Bohol, Branch 3,
Hence, the instant petition. The sole issue raised in this
contending that the MTCC of Tagbilaran gravely abused
petition is whether or not the petition for certiorari was
its discretion in denying her the right to appeal. Named
validly dismissed by the Regional Trial Court on the
respondents therein were the Presiding Judge of MTCC
of Tagbilaran, Branch 2, and the People of the
ground of petitioner’s failure to comply with its Order Petitioner’s counsel did not comply, prompting the court
dated August 2, 1996. to dismiss the petition for certiorari on February 9, 1998.
The fact that the City Prosecutor’s Office has not yet
Section 3, Rule 17, of the Rules of Court, provides:
entered its appearance is no justification to petitioner’s
adamant and continued insistence not to comply with a
Section 3. Dismissal due to fault of plaintiff. - If, for
lawful order of the court. Every court has the power to
no justifiable cause, the plaintiff fails to appear on
enforce and compel obedience to its orders, judgments,
the date of the presentation of his evidence in
and processes in all proceedings pending before it.11 The
chief on the complaint, or to prosecute his action
Regional Trial Court’s dismissal of petitioner’s special
for an unreasonable length of time, or to comply
civil action, therefore, was but a valid exercise of said
with these Rules or any order of the court, the
power.
complaint may be dismissed upon motion of the
defendant or upon the court’s own motion, without
Moreover, even assuming that the Regional Trial Court
prejudice to the right of the defendant to prosecute
did not order the said dismissal, petitioner’s special civil
his counterclaim in the same or in a separate
action, questioning the denial of her notice of appeal,
action. This dismissal shall have the effect of an
would still fail. Note that petitioner filed an application for
adjudication on the merits, unless otherwise
probation. Section 7, Rule 120, of the Rules on Criminal
declared by the court. (Emphasis supplied)
Procedure is explicit that a judgment in a criminal case
becomes final when the accused has applied for
In the case at bar, the trial court categorically directed
probation. This is totally in accord with Section 4 of
petitioner, in its August 2, 1996 Order, to furnish the City
Presidential Decree No. 968 (Probation Law of 1976, as
Prosecutor’s Office with a copy of her memorandum and
amended), which in part provides that the filing of an
of the assailed judgment.
application for probation is deemed a waiver of the right
to appeal.12 Thus, there was no more opportunity for
petitioner to exercise her right to appeal, the judgment
having become final by the filing of an application for
probation.
WHEREFORE, in view of all the foregoing, the petition
is DENIED. The assailed February 9, 1998 and February
25, 1999 Orders of the Regional Trial Court of Bohol,
Branch 3, in SP. Civil Case No. 5881 are AFFIRMED.
SO ORDERED.
G.R. No. 108747 April 6, 1995
PABLO C. FRANCISCO, petitioner,
vs.
COURT OF APPEALS AND THE HONORABLE
MAXIMO C. CONTRERAS, respondents.
BELLOSILLO, J.:
Probation is a special privilege granted by the state to a
penitent qualified offender. It essentially rejects appeals
and encourages an otherwise eligible convict to
immediately admit his liability and save the state of time,
effort and expenses to jettison an appeal. The law
expressly requires that an accused must not have
appealed his conviction before he can avail of probation.
This outlaws the element of speculation on the part of the
accused — to wager on the result of his appeal — that
when his conviction is finally affirmed on appeal, the
moment of truth well-nigh at hand, and the service of his
sentence inevitable, he now applies for probation as an
"escape hatch" thus rendering nugatory the appellate
court's affirmance of his conviction. Consequently,
probation should be availed of at the first opportunity by
convicts who are willing to be reformed and rehabilitated,
who manifest spontaneity, contrition, and remorse.
As conceptualized, is petitioner entitled to probation
within the purview of P.D. 968, as amended by P.D. 1257
and P.D. 1990?
Petitioner woes started when as President and General
Manager of ASPAC Trans. Company he failed to control
his outburst and blurted —
You employees in this office are all tanga,
son of a bitches (sic), bullshit. Puro kayo
walang utak . . . . Mga anak ng
puta . . . . Magkano ba kayo . . . God damn
you all.
Thus for humiliating his employees he was accused of
multiple grave oral defamation in five (5) separate
Informations instituted by five (5) of his employees, each
Information charging him with gravely maligning them on
four different days, i.e., from 9 to 12 April 1980.
On 2 January 1990, after nearly ten (10) years, the
Metropolitan Trial Court of Makati, Br. 61, found petitioner
guilty of grave oral defamation in four (4) of the five (5)
cases filed against him, i.e., Crim. Cases Nos. 105206,
105207, 105209 and 105210, sentenced him to a prison
term of one (1) year and one (l) day to one (1) year and
eight (8) months of prision correccional "in each crime
committed on each date of each case, as alleqed in the
information(s)," ordered him to indemnify each of the
offended parties, Victoria Gatchalian, Rowena Ruiz,
Linda Marie Ayala Pigar and Marie Solis, P10,000.00 as
exemplary damages, and P5,000.00 for attorney's fees,
plus costs of suit.1 He was however acquitted in Crim.
Case No. 105208 for persistent failure of the offended
party, Edgar Colindres, to appear and testify.
Not satisfied with the Decision of the MeTC, and insisting
on his innocence, petitioner elevated his case to the
Regional Trial Court.
On 5 August 1991 the Regional Trial Court of Makati, Br.
59, affirmed his conviction but appreciated in his favor a
mitigating circumstance analogous to passion or
obfuscation. Thus —
Accordingly, petitioner was sentenced "in each case to a
STRAIGHT penalty of EIGHT (8) MONTHS imprisonment
. . . . "3 After he failed to interpose an appeal therefrom,
the decision of the RTC became final. The case was then
set for execution of judgment by the MeTC which, as a
consequence, issued a warrant of arrest.
But before he could be arrested petitioner filed an
application for probation which the MeTC denied "in the
light of the ruling of the Supreme Court in Llamado v.
Court of Appeals, G.R. No, 84850, 29 June 1989, 174
SCRA 566 . . . ."4
Forthwith he went to the Court of Appeals
on certiorari which on 2 July 1992 dismissed his petition
on the following grounds —
Initially, the Court notes that the petitioner
has failed to comply with the provisions of
Supreme Court Circular No. 28-91 of
September 4, 1991. Violation of the circular
is sufficient cause for dismissal of the
petition.
Secondly, the petitioner does not allege
anywhere in the petition that he had asked
the respondent court to reconsider its
above order; in fact, he had failed to give
the court an opportunity to correct itself if it
had, in fact, committed any error on the
 matter. He is, however, required to move
for reconsideration of the questioned
order before filing a petition
for certiorari (Sy It v. Tiangco, 4 SCRA
436). This failure is fatal to his cause. It is a
ground for dismissal of his petition (Santos
v. Vda. de Cerdenola, 5 SCRA
823; Acquiao v. Estenso, 14 SCRA 18; Del
Pilar Transit, Inc. v. Public Service
Commission, 31-SCRA 372).
Thirdly, it is obvious that respondent court
did not commit any capricious, arbitrary,
despotic or whimsical exercise of power in
denying the petitioner's application for
probation . . . .
Fourthly, the petition for probation was filed
by the petitioner out of time . . . .
Fifthly, the Court notes that Section 4 of PD 968 allows
the trial court to grant probation after conviction, upon an
application by the defendant within the period of appeal,
upon terms and conditions and period appropriate to
each case, but expressly rules out probation where an
appeal has been taken . . .
The motion for reconsideration was likewise denied.
In the present recourse, petitioner squirms out of each
ground and seeks this Court's compassion in dispensing
with the minor technicalities which may militate against
his petition as he now argues before us that he has not
yet lost his right to avail of probation notwithstanding his
appeal from the MeTC to the RTC since "[t]he reason for
his appeal was precisely to enable him to avail himself of
the benefits of the Probation Law because the original
Decision of the (Metropolitan) Trial Court was such that
he would not then be entitled to probation." 6 He contends
that "he appealed from the judgment of the trial court
precisely for the purpose of reducing the penalties
imposed upon him by the said court to enable him to
qualify for probation." 7
The central issue therefore is whether petitioner is still
qualified to avail of probation even after appealing his
conviction to the RTC which affirmed the MeTC except
with regard to the duration of the penalties imposed.
Petitioner is no longer eligible for probation.
First. Probation is a mere privilege, not a right. 8 Its
benefits cannot extend to those not expressly included.
Probation is not a right of an accused, but rather an act of
grace and clemency or immunity conferred by the state
which may be granted by the court to a seemingly
deserving defendant who thereby escapes the extreme
rigors of the penalty imposed by law for the offense of
which he stands convicted. 9 It is a special prerogative
granted by law to a person or group of persons not
enjoyed by others or by all. Accordingly, the grant of
probation rests solely upon the discretion of the court
which is to be exercised primarily for the benefit of
organized society, and only incidentally for the benefit of
the accused.10 The Probation Law should not therefore
be permitted to divest the state or its government of any
of the latter's prerogatives, rights or remedies, unless the
intention of the legislature to this end is clearly
expressed, and no person should benefit from the terms
of the law who is not clearly within them.
Neither Sec. 4 of the Probation Law, as amended, which
clearly mandates that "no application for probation shall
be entertained or granted if the defendant has perfected
the appeal from the judgment of conviction," nor Llamado
v. Court of Appeals 11 which interprets the quoted
provision, offers any ambiguity or qualification.
As such, the application of the law should not be
subjected to any to suit the case of petitioner. While the
proposition that an appeal should not bar the accused
from applying for probation if the appeal is solely to
reduce the penalty to within the probationable limit may
be equitable, we are not yet prepared to accept this
interpretation under existing law and jurisprudence.
Accordingly, we quote Mr. Justice Feliciano speaking for
the Court en banc in Llamado v. Court of Appeals—
. . . we note at the outset that Probation
Law is not a penal statute. We, however,
understand petitioner's argument to be
really that any statutory language that
appears to favor the accused in acriminal
case should be given.a "liberal
interpretation." Courts . . . have no authority
to invoke "liberal interpretation" or "the spirit
of the law" where the words of the statute
themselves, and·as illuminated by the
history of that statute, leave no room for
doubt or interpretation. We do not believe
that "the spirit of·the law" may legitimately
be invoked to set at naught words which
have a clear and definite meaning imparted
to them by our procedural law. The "true
legislative intent" must obviously be given
effect by judges and all others who are
charged with the application and
implementation of a statute. It is absolutely
essential to bear in mind, however, that the
spirit of the law and the intent that is to be
given effect are derived from the words
actually used by the law-maker, and not
from some external, mystical or
metajuridical source independent of and
transcending the words of the legislature.
The Court is not here to be understood as
giving a "strict interpretation" rather than a
"liberal" one to Section 4 of the Probation
Law of 1976 as amended by P.D. No. 1990.
"Strict" and "liberal" are adjectives which
too frequently impede a disciplined and
principled search for the meaning which the
law-making authority projected when it
promulgated the language which we must
apply. That meaning is clearly visible in the
text of Section 4, as plain and unmistakable
as the nose on a man's face. The Courtis
simply·reading Section 4 as it is in fact
written. There is no need for the involved
process of construction that petitioner
invites us to engage in, a process made
necessary only because petitioner rejects
the conclusion or meaning which shines
through the words of the statute. The first
duty of the judge is to take and apply a
statute as he finds it, not as he would like·it
to be. Otherwise, as this Court in Yangco v.
Court of First Instance warned, confusion
and uncertainty will surely follow, making,
we might add, stability and continuity in the
law much more difficult to achieve:
.
The point in this warning may be expected
to become sharper as our people's grasp of
English is steadily attenuated. 12
Therefore, that an appeal should not bar the accused
from applying for probation if the appeal is taken solely to
reduce the penalty is simply contrary to the clear and
express mandate of Sec, 4 of the Probation Law, as
amended, which opens with a negative clause, "no
application for probation shall be entertained or granted if
the defendant has perfected the appeal from the
judgment of conviction." In Bersabal v. Salvador, 13 we
said —
By its very language, the Rule is
mandatory. Under the rule of statutory
construction. negative words and phrases
are to be regarded as mandatory while
those in the affirmative are merely directory.
. . . the use of the term "shall" further
emphasizes its mandatory character and
means that it is imperative, operating to
impose a duty which may be enforced.
And where the law does not distinguish the courts should
not distinguish; where the law does not make exception
the court should not except.
Second. At the outset, the penalties imposed by the
MeTC were already probationable. Hence, there was no
need to appeal if only to reduce the penalties to within
the probationable period. Multiple prison terms imposed
against an accused found guilty of several offenses in
one decision are not, and should not be, added up. And,
the sum of the multiple prison terms imposed against an
applicant should not be determinative of his eligibility for,
nay his disqualification from, probation. The multiple
prison terms are distinct from each other, and if none of
the terms exceeds the limit set out in the Probation
Law,i.e., not more than six (6) years, then he is entitled to
probation, unless he is otherwise specifically disqualified.
The number of offenses is immaterial as long as all the
penalties imposed, taken separately, are within the
probationable period.
For, Sec. 9, par. (a), P.D. 968, as amended, uses the
word maximum not total when it says that "[t]he benefits
of this Decree shall not be extended to those . . . .
sentenced to serve a maximum term of imprisonment of
more than six years."
Evidently, the law does not intend to sum up the
penalties imposed but to take each penalty separately
and distinctly with the others.
Consequently, even if petitioner was supposed to have
served his prison term of one (1) year and one (1) day to
one (1) year and eight (8) months of prision
correccional sixteen (16) times as he was sentenced to
serve the prison term for "each crime committed on each
date of each case, as alleged in the information(s)," and
in each of the four (4) informations, he was charged with
having defamed the four (4) private complainants on four
(4) different, separate days, he was still eligible for
probation, as each prison term imposed on petitioner was
probationable.
Fixing the cut-off point at a maximum term of six (6)
years imprisonment for probation is based on the
assumption that those sentenced to higher penalties
pose too great a risk to society, not just because of their
demonstrated capability for serious wrong doing but
because of the gravity and serious consequences of the
offense they might further commit. 14 The Probation Law,
as amended, disqualifies only those who have been
convicted of grave felonies as defined in Art. 9 in relation
to Art. 25 of The Revised Penal Code, 15 and not
necessarily those who have been convicted of multiple
offenses in a single proceeding who are deemed to be
less perverse.
Hence, the basis of the disqualification is principally the
gravity of the offense committed and the concomitant
degree of penalty imposed. Those sentenced to a
maximum term not exceeding six (6) years are not
generally considered callous, hard core criminals, and
thus may avail of probation.
To demonstrate the point, let us take for instance one
who is convicted in a single decision of, say, thirteen (13)
counts of grave oral defamation (for having defamed
thirteen [13] individuals in one outburst) and sentenced to
a total prison term of thirteen (13) years, and another
who has been found guilty of mutilation and sentenced to
six (6) years and one (l) day of prision mayor  as
minimum up to twelve (l2) years and one (1) day
of reclusion temporal  as maximum. Obviously, the latter
offender is more perverse and is disqualified from
availing of probation.
Petitioner thus proceeds on an erroneous assumption
that under the MeTC Decision he could not have availed
of the benefits of probation. Since he could have,
although he did not, his appeal now precludes him from
applying for probation.
And, even if we go along with the premise of petitioner,
however erroneous it may be, that the penalties imposed
against him should be summed up, still he would not
have qualified under the Decision rendered by the RTC
since if the "STRAIGHT penalty of EIGHT (8) MONTHS
imprisonment" imposed by the RTC is multiplied sixteen
(16) times, the total imposable penalty would be ten (10)
years and eight (8) months, which is still way beyond the
limit of not more than six (6) years provided for in the
Probation Law, as amended.
To illustrate: 8 months multiplied by 16 cases = 128
months; 128 months divided by 12 months (in a year) =
10 years and 8 months, hence, following his argument,
petitioner cannot still be eligible for probation as the total
of his penalties exceeds six (6) years.
The assertion that the Decision of the RTC should be
multiplied only four (4) times since there are only four (4)
Informations thereby allowing petitioner to qualify for
probation, instead of sixteen (16) times, is quite difficult to
understand. The penalties imposed by the MeTC cannot
be any clearer — "one (1) year and one (1) day to one (1)
year and eight (8) months of prision correccional, in each
crime committed on each date of each case, as alleged
in the information(s). "Hence, petitioner should suffer the
imposed penalties sixteen (16) times. On the other hand,
the RTC affirmed, the judgment of conviction and merely
reduced the duration of each penalty imposed by the
MeTC "in each case to a STRAIGHT penalty of EIGHT
(8) MONTHS imprisonment" on account of a mitigating
circumstance for each case, count or incident of grave
oral defamation·There is no valid reason therefore why
the penalties imposed by the RTC should be multiplied
only four (4) times, and not sixteen (16) times,
considering that the RTC merely affirmed the MeTC as
regards the culpability of petitioner in each of the sixteen
(16) cases and reducing only the duration of the
penalties imposed therein.
Nowhere in the RTC Decision is it stated or even hinted
at that the accused was acquitted or absolved in any of
the four (4) counts under each of the four (4)
Informations, or that any part of thejudgment of
conviction was reversed, or that any of the cases, counts
or incidents was dismissed. Otherwise, we will have to
account for the twelve (12) other penalties imposed by
the MeTC. Can we? What is clear is that the judgment of
conviction rendered by the was affirmed with the sole
modification on the duration of the penalties.
In fine, considering that the multiple prison terms should
not be summed up but taken separately as the totality of
all the penalties is not the test, petitioner should have
immediately filed an application for probation as he was
already qualified after being convicted by the MeTC, if
indeed thereafter he felt humbled, was ready to
unconditionally accept the verdict of the court and admit
his liability. Consequently, in appealing the Decision of
the MeTC to the RTC, petitioner lost his right to
probation. For, plainly, the law considers appeal and
probation mutually exclusive remedies. 17
Third. Petitioner appealed to the RTC not to reduce or
even correct the penalties imposed by the MeTC, but to
assert his innocence. Nothing more. The cold fact is that
petitioner appealed his conviction to the RTC not for the
sole purpose of reducing his penalties to make him
eligible for probation — since he was already qualified
under the MeTC Decision — but rather to insist on his
innocence. The appeal record is wanting of any other
purpose. Thus, in his Memorandum before the RTC, he
raised only three (3) statements of error purportedly
committed by the MeTC all aimed at his acquittal: (a) in
finding that the guilt of the accused has been established
because of his positive identification by the witness for
the prosecution; (b) in giving full faith and credence to the
bare statements of the private complainants despite the
absence of corroborating testimonies; and, (c)in not
acquitting him in all the cases," 18 Consequently,
petitioner insisted that the trial court committed an error
in relying on his positive identification considering that
private complainants could not have missed identifying
him who was their President and General Manager with
whom they worked for a good number of years. Petitioner
further argued that although the alleged defamatory
words were uttered in the presence of other persons,
mostly private complainants, co-employees and clients,
not one of them was presented as a witness. Hence,
according to petitioner, the trial court could not have
convicted him on the basis of the uncorroborative
testimony of private complainants. 19
Certainly, the protestations of petitioner connote
profession of guiltlessness, if not complete innocence,
and do not simply put in issue the propriety of the
penalties imposed. For sure, the accused never
manifested that he was appealing only for the purpose of
correcting a wrong penalty — to reduce it to within the
probationable range. Hence, upon interposing an appeal,
more so after asserting his innocence therein, petitioner
should be precluded from seeking probation. By
perfecting his appeal, petitioner ipso facto relinquished
his alternative remedy of availing of the Probation Law
the purpose of which is simply to prevent speculation or
opportunism on the part of an accused who although
already eligible does not at once apply for probation, but
doing so only after failing in his appeal.
The fact that petitioner did not elevate the affirmance of
his conviction by the RTC to the Court of Appeals does
not necessarily mean that his appeal to the RTC was
solely to reduce his penalties. Conversely, he was afraid
that the Court of Appeals would increase his penalties,
which could be worse for him. Besides, the RTC Decision
had already become final and executory because of the
negligence, according to him, of his former counsel who
failed to seek possible remedies within the period allowed
by law.
Perhaps it should be mentioned that at the outset
petitioner, in accordance with Sec 3, par. (e), Rule 117 of
the Rules of Court, 20 should have moved to quash as
each of the four (4) Informations filed against him
charged four (4) separate crimes of grave oral
defamation, committed on four (4) separate days. His
failure to do so however may now be deemed a waiver
under Sec. 8 of the same Rule 21 and he can be validly
convicted, as in the instant case, of as many crimes
charged in the Information.
Fourth. The application for probation was filed way
beyond the period allowed by law. This is vital way
beyond the period allowed by law and crucial.
In this case, it is clear that the application for probation
was filed "only after a warrant for the arrest of petitioner
had been issued . . . (and) almost two months after (his)
receipt of the Decision"  of the RTC. This is a significant
fact which militates against the instant petition. We quote
with affirmance the well-written, albeit
assailed, ponencia of now Presiding Justice of the Court
of Appeals Nathanael P. De Pano, Jr., on the specific
issue —
.
Our minds cannot simply rest easy on the proposition
that an application for probation may yet be granted even
if it was filed only after judgment has become final, the
conviction already set for execution and a warrant of
arrest issued for service of sentence.
The argument that petitioner had to await the remand of
the case to the MeTC, which necessarily must be after
the decision of the RTC had become final, for him to file
the application for probation with the trial court, is to
stretch the law beyond comprehension. The law, simply,
does not allow probation after an appeal has been
perfected.
Accordingly, considering that prevailing jurisprudence
treats appeal and probation as mutually exclusive
remedies, and petitioner appealed from his conviction by
the MeTC although the imposed penalties were already
probationable, and in his appeal, he asserted only his
innocence and did not even raise the issue of the
propriety of the penalties imposed on him, and finally, he
filed an application for probation outside the period for
perfecting an appeal granting he was otherwise eligible
for probation, the instant petition for review should be as
it is hereby DENIED. SO ORDERED.
G.R. No. 102007 September 2, 1994
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROGELIO BAYOTAS y CORDOVA, accused-appellant.
The Solicitor General for plaintiff-appellee.
Public Attorney's Office for accused-appellant.
ROMERO, J.:
In Criminal Case No. C-3217 filed before Branch 16, RTC
Roxas City, Rogelio Bayotas y Cordova was charged
with Rape and eventually convicted thereof on June 19,
1991 in a decision penned by Judge Manuel E. Autajay.
Pending appeal of his conviction, Bayotas died on
February 4, 1992 at
the National Bilibid Hospital due to cardio respiratory
arrest secondary to hepatic encephalopathy secondary to
hipato carcinoma gastric malingering. Consequently, the
Supreme Court in its Resolution of May 20, 1992
dismissed the criminal aspect of the appeal. However, it
required the Solicitor General to file its comment with
regard to Bayotas' civil liability arising from his
commission of the offense charged.
In his comment, the Solicitor General expressed his view
that the death of accused-appellant did not extinguish his
civil liability as a result of his commission of the offense
charged. The Solicitor General, relying on the case
of People v. Sendaydiego  1 insists that the appeal should
still be resolved for the purpose of reviewing his
conviction by the lower court on which the civil liability is
based.
Counsel for the accused-appellant, on the other hand,
opposed the view of the Solicitor General arguing that the
death of the accused while judgment of conviction is
pending appeal extinguishes both his criminal and civil
penalties. In support of his position, said counsel invoked
the ruling of the Court of Appeals in People v. Castillo
and Ocfemia  2 which held that the civil obligation in a
criminal case takes root in the criminal liability and,
therefore, civil liability is extinguished if accused should
die before final judgment is rendered.
We are thus confronted with a single issue: Does death
of the accused pending appeal of his conviction
extinguish his civil liability?
In the aforementioned case of People v. Castillo, this
issue was settled in the affirmative. This same issue
posed therein was phrased thus: Does the death of
Alfredo Castillo affect both his criminal responsibility and
his civil liability as a consequence of the alleged crime?
It resolved this issue thru the following disquisition:
Article 89 of the Revised Penal Code is the
controlling statute. It reads, in part:
Art. 89. How criminal liability
is totally extinguished. —
Criminal liability is totally
extinguished:
1. By the death of the convict,
as to the personal penalties;
and as to the pecuniary
penalties liability therefor is
extinguished only when the
death of the offender occurs
before final judgment;
With reference to Castillo's criminal liability,
there is no question. The law is plain.
Statutory construction is unnecessary. Said
liability is extinguished.
The civil liability, however, poses a
problem. Such liability is extinguished only
when the death of the offender occurs
before final judgment. Saddled upon us is
the task of ascertaining the legal import of
the term "final judgment." Is it final judgment
as contradistinguished from an interlocutory
order? Or, is it a judgment which is final and
executory?
We go to the genesis of the law. The legal
precept contained in Article 89 of the
Revised Penal Code heretofore transcribed
is lifted from Article 132 of the Spanish El
Codigo Penal de 1870 which, in part,
recites:
La responsabilidad penal se
extingue.
 1. Por la muerte del reo en
cuanto a las penas
personales siempre, y accused becomes — "una verdad legal."
respecto a las pecuniarias,
solo cuando a su fallecimiento
no hubiere recaido sentencia
firme.
xxx xxx xxx
The code of 1870 . . . it will be observed
employs the term "sentencia firme." What is
"sentencia firme" under the old statute?
XXVIII Enciclopedia Juridica Española, p.
473, furnishes the ready answer: It says:
SENTENCIA FIRME. La
sentencia que adquiere la
fuerza de las definitivas por
no haberse utilizado por las
partes litigantes recurso
alguno contra ella dentro de
los terminos y plazos legales
concedidos al efecto.
"Sentencia firme" really should be
understood as one which is definite.
Because, it is only when judgment is such
that, as Medina y Maranon puts it, the crime
is confirmed — "en condena determinada;"
or, in the words of Groizard, the guilt of the
Prior thereto, should the accused die,
according to Viada, "no hay legalmente, en
tal caso, ni reo, ni delito, ni responsabilidad
criminal de ninguna clase." And, as Judge
Kapunan well explained, when a defendant
dies before judgment becomes executory,
"there cannot be any determination by final
judgment whether or not the felony upon
which the civil action might arise exists," for
the simple reason that "there is no party
defendant." (I Kapunan, Revised Penal
Code, Annotated, p. 421. Senator
Francisco holds the same view. Francisco,
Revised Penal Code, Book One, 2nd ed.,
pp. 859-860)
The legal import of the term "final judgment"
is similarly reflected in the Revised Penal
Code. Articles 72 and 78 of that legal body
mention the term "final judgment" in the
sense that it is already enforceable. This
also brings to mind Section 7, Rule 116 of
the Rules of Court which states that a
judgment in a criminal case becomes final
"after the lapse of the period for perfecting
an appeal or when the sentence has been
partially or totally satisfied or served, or the
defendant has expressly waived in writing
his right to appeal."
By fair intendment, the legal precepts and
opinions here collected funnel down to one
positive conclusion: The term final judgment
employed in the Revised Penal Code
means judgment beyond recall. Really, as
long as a judgment has not become
executory, it cannot be truthfully said that
defendant is definitely guilty of the felony
charged against him.
Not that the meaning thus given to final
judgment is without reason. For where, as
in this case, the right to institute a separate
civil action is not reserved, the decision to
be rendered must, of necessity, cover "both
the criminal and the civil aspects of the
case." People vs. Yusico (November 9,
1942), 2 O.G., No. 100, p. 964. See
also: People vs. Moll, 68 Phil., 626,
634; Francisco, Criminal Procedure, 1958
ed., Vol. I, pp. 234, 236. Correctly, Judge
Kapunan observed that as "the civil action
is based solely on the felony committed and
of which the offender might be found guilty,
the death of the offender extinguishes the
civil liability." I Kapunan, Revised Penal
Code, Annotated, supra.
Here is the situation obtaining in the
present case: Castillo's criminal liability is
out. His civil liability is sought to be
enforced by reason of that criminal liability.
But then, if we dismiss, as we must, the
criminal action and let the civil aspect
remain, we will be faced with the
anomalous situation whereby we will be
called upon to clamp civil liability in a case
where the source thereof — criminal liability
— does not exist. And, as was well stated
in Bautista, et al. vs. Estrella, et al., CA-
G.R.
No. 19226-R, September 1, 1958, "no party
can be found and held criminally liable in a
civil suit," which solely would remain if we
are to divorce it from the criminal
proceeding."
This ruling of the Court of Appeals in
3
the Castillo case   was adopted by the Supreme Court in
the cases of People of the Philippines v. Bonifacio
Alison, et al., 4 People of the Philippines v. Jaime Jose, et
al. 5 and People of the Philippines v. Satorre  6 by
dismissing the appeal in view of the death of the accused
pending appeal of said cases.
As held by then Supreme Court Justice Fernando in
the Alison case:
The death of accused-appellant Bonifacio
Alison having been established, and
considering that there is as yet no final
judgment in view of the pendency of the
appeal, the criminal and civil liability of the
said accused-appellant Alison was
extinguished by his death (Art. 89, Revised
Penal Code; Reyes' Criminal Law, 1971
Rev. Ed., p. 717, citing People v. Castillo
and Ofemia C.A., 56 O.G. 4045);
consequently, the case against him should
be dismissed.
On the other hand, this Court in the subsequent cases
of Buenaventura Belamala v. Marcelino
7
Polinar   and Lamberto Torrijos v. The Honorable Court
of Appeals  8 ruled differently. In the former, the issue
decided by this court was: Whether the civil liability of
one accused of physical injuries who died before final
judgment is extinguished by his demise to the extent of
barring any claim therefore against his estate. It was the
contention of the administrator-appellant therein that the
death of the accused prior to final judgment extinguished
all criminal and civil liabilities resulting from the offense,
in view of Article 89, paragraph 1 of the Revised Penal
Code. However, this court ruled therein:
We see no merit in the plea that the civil
liability has been extinguished, in view of
the provisions of the Civil Code of the
Philippines of 1950 (Rep. Act No. 386) that
became operative eighteen years after the
revised Penal Code. As pointed out by the
Court below, Article 33 of the Civil Code
establishes a civil action for damages on
account of physical injuries,
entirely separate and distinct from the
criminal action.
Art. 33. In cases of
defamation, fraud, and
physical injuries, a civil action
for damages, entirely
separate and distinct from the
criminal action, may be
brought by the injured party.
Such civil action shall proceed
independently of the criminal
prosecution, and shall require
only a preponderance of
evidence.
Assuming that for lack of express
reservation, Belamala's civil action for
damages was to be considered instituted
together with the criminal action still, since
 both proceedings were terminated without
final adjudication, the civil action of the
offended party under Article 33 may yet be
enforced separately.
In Torrijos, the Supreme Court held that:
xxx xxx xxx
It should be stressed that the extinction of
civil liability follows the extinction of the
criminal liability under Article 89, only when
the civil liability arises from the criminal act
as its only basis. Stated differently, where
the civil liability does not exist
independently of the criminal responsibility,
the extinction of the latter by death, ipso
facto extinguishes the former, provided, of
course, that death supervenes before final
judgment. The said principle does not apply
in instant case wherein the civil liability
springs neither solely nor originally from the
crime itself but from a civil contract of
purchase and sale. (Emphasis ours)
x x x           x x x          x x x
In the above case, the court was convinced that
the civil liability of the accused who was charged
with estafa could likewise trace its genesis to
Articles 19, 20 and 21 of the Civil Code since said
accused had swindled the first and second
vendees of the property subject matter of the
contract of sale. It therefore concluded:
"Consequently, while the death of the accused
herein extinguished his criminal liability including
fine, his civil liability based on the laws of human
relations remains."
Thus it allowed the appeal to proceed with respect to the
civil liability of the accused, notwithstanding the extinction
of his criminal liability due to his death pending appeal of
his conviction.
To further justify its decision to allow the civil liability to
survive, the court relied on the following ratiocination:
Since Section 21, Rule 3 of the Rules of Court 9 requires
the dismissal of all money claims against the defendant
whose death occurred prior to the final judgment of the
Court of First Instance (CFI), then it can be inferred that
actions for recovery of money may continue to be heard
on appeal, when the death of the defendant supervenes
after the CFI had rendered its judgment. In such case,
explained this tribunal, "the name of the offended party
shall be included in the title of the case as plaintiff-
appellee and the legal representative or the heirs of the
deceased-accused should be substituted as defendants-
appellants."
It is, thus, evident that as jurisprudence evolved from
Castillo to Torrijos, the rule established was that the
survival of the civil liability depends on whether the same
can be predicated on sources of obligations other than
delict. Stated differently, the claim for civil liability is
also extinguished together with the criminal action if
it were solely based thereon, i.e., civil liability ex
delicto.
However, the Supreme Court in People v. Sendaydiego,
et al. 10 departed from this long-established principle of
law. In this case, accused Sendaydiego was charged
with and convicted by the lower court of malversation thru
falsification of public documents. Sendaydiego's death
supervened during the pendency of the appeal of his
conviction.
This court in an unprecedented move resolved to dismiss
Sendaydiego's appeal but only to the extent of his
criminal liability. His civil liability was allowed to survive
although it was clear that such claim thereon was
exclusively dependent on the criminal action already
extinguished. The legal import of such decision was for
the court to continue exercising appellate jurisdiction over
the entire appeal, passing upon the correctness of
Sendaydiego's conviction despite dismissal of the
criminal action, for the purpose of determining if he is
civilly liable. In doing so, this Court issued a Resolution of
July 8, 1977 stating thus:
The claim of complainant Province of
Pangasinan for the civil liability survived
Sendaydiego because his death occurred
after final judgment was rendered by the
Court of First Instance of Pangasinan,
which convicted him of three complex
crimes of malversation through falsification
and ordered him to indemnify the Province
in the total sum of P61,048.23 (should be
P57,048.23).
The civil action for the civil liability is
deemed impliedly instituted with the
criminal action in the absence of express
waiver or its reservation in a separate
action (Sec. 1, Rule 111 of the Rules of
Court). The civil action for the civil liability is
separate and distinct from the criminal
action (People and Manuel vs. Coloma, 105
Phil. 1287; Roa vs. De la Cruz, 107 Phil. 8).
When the action is for the recovery of
money and the defendant dies before final
judgment in the Court of First Instance, it
shall be dismissed to be prosecuted in the
manner especially provided in Rule 87 of
the Rules of Court (Sec. 21, Rule 3 of the
Rules of Court).
The implication is that, if the defendant dies
after a money judgment had been rendered
against him by the Court of First Instance,
the action survives him. It may be continued
on appeal (Torrijos vs. Court of Appeals, L-
40336, October 24, 1975; 67 SCRA 394).
The accountable public officer may still be
civilly liable for the funds improperly
disbursed although he has no criminal
liability (U.S. vs. Elvina, 24 Phil. 230;
Philippine National Bank vs. Tugab, 66 Phil.
583).
In view of the foregoing, notwithstanding
the dismissal of the appeal of the deceased
Sendaydiego insofar as his criminal liability
is concerned, the Court Resolved to
continue exercising appellate jurisdiction
over his possible civil liability for the money
claims of the Province of Pangasinan
arising from the alleged criminal acts
complained of, as if no criminal case had
been instituted against him, thus making
applicable, in determining his civil liability,
Article 30 of the Civil Code . . . and, for that
purpose, his counsel is directed to inform
this Court within ten (10) days of the names
and addresses of the decedent's heirs or
whether or not his estate is under
administration and has a duly appointed
judicial administrator. Said heirs or
administrator will be substituted for the
deceased insofar as the civil action for the
civil liability is concerned (Secs. 16 and 17,
Rule 3, Rules of Court).
Succeeding cases 11 raising the identical issue have
maintained adherence to our ruling in Sendaydiego; in
other words, they were a reaffirmance of our
abandonment of the settled rule that a civil liability solely
anchored on the criminal (civil liability ex delicto) is
extinguished upon dismissal of the entire appeal due to
the demise of the accused.
But was it judicious to have abandoned this old ruling? A
re-examination of our decision in Sendaydiego impels us
to revert to the old ruling.
To restate our resolution of July 8, 1977 in Sendaydiego:
The resolution of the civil action impliedly instituted in the
criminal action can proceed irrespective of the latter's
extinction due to death of the accused pending appeal of
his conviction, pursuant to Article 30 of the Civil Code
and Section 21, Rule 3 of the Revised Rules of Court.
Article 30 of the Civil Code provides:
 When a separate civil action is brought to
demand civil liability arising from a criminal
offense, and no criminal proceedings are
instituted during the pendency of the civil
case, a preponderance of evidence shall
likewise be sufficient to prove the act
complained of.
Clearly, the text of Article 30 could not possibly lend
support to the ruling in Sendaydiego.
Nowhere in its text is there a grant of authority to
continue exercising appellate jurisdiction over the
accused's civil liability ex delicto when his death
supervenes during appeal.
What Article 30 recognizes is an alternative and separate
civil action which may be brought to demand civil liability
arising from a criminal offense independently of any
criminal action.
In case no criminal proceedings are instituted during the
pendency of said civil case, the quantum of evidence
needed to prove the criminal act will have to be that
which is compatible with civil liability and that is,
preponderance of evidence and not proof of guilt beyond
reasonable doubt.
Citing or invoking Article 30 to justify the survival of the
civil action despite extinction of the criminal would in
effect merely beg the question of whether civil liability ex
delicto survives upon extinction of the criminal action due
to death of the accused during appeal of his conviction.
This is because whether asserted in the criminal action or
in a separate civil action, civil liability ex delicto  is
extinguished by the death of the accused while his
conviction is on appeal. Article 89 of the Revised Penal
Code is clear on this matter:
Art. 89. How criminal liability is totally
extinguished. — Criminal liability is totally
extinguished:
1. By the death of the convict, as to the
personal penalties; and as to pecuniary
penalties, liability therefor is extinguished
only when the death of the offender occurs
before final judgment;
x x x           x x x          x x x
However, the ruling in Sendaydiego deviated from the
expressed intent of Article 89. It allowed claims for civil
liability ex delicto to survive by ipso facto treating the civil
action impliedly instituted with the criminal, as one filed
under Article 30, as though no criminal proceedings had
been filed but merely a separate civil action. This had the
effect of converting such claims from one which is
dependent on the outcome of the criminal action to an
entirely new and separate one, the prosecution of which
does not even necessitate the filing of criminal
proceedings. 12 One would be hard put to pinpoint the
statutory authority for such a transformation. It is to be
borne in mind that in recovering civil liability ex delicto,
the same has perforce to be determined in the criminal
action, rooted as it is in the court's pronouncement of the
guilt or innocence of the accused. This is but to render
fealty to the intendment of Article 100 of the Revised
Penal Code which provides that "every person criminally
liable for a felony is also civilly liable." In such cases,
extinction of the criminal action due to death of the
accused pending appeal inevitably signifies the
concomitant extinction of the civil liability. Mors Omnia
Solvi. Death dissolves all things.
In sum, in pursuing recovery of civil liability arising from
crime, the final determination of the criminal liability is a
condition precedent to the prosecution of the civil action,
such that when the criminal action is extinguished by the
demise of accused-appellant pending appeal thereof,
said civil action cannot survive. The claim for civil liability
springs out of and is dependent upon facts which, if true,
would constitute a crime.
Such civil liability is an inevitable consequence of the
criminal liability and is to be declared and enforced in the
criminal proceeding. This is to be distinguished from that
which is contemplated under Article 30 of the Civil Code
which refers to the institution of a separate civil action
that does not draw its life from a criminal proceeding.
The Sendaydiego resolution of July 8, 1977, however,
failed to take note of this fundamental distinction when it
allowed the survival of the civil action for the recovery of
civil liability ex delicto by treating the same as a separate
civil action referred to under Article 30. Surely, it will take
more than just a summary judicial pronouncement to
authorize the conversion of said civil action to an
independent one such as that contemplated under Article
30.
Ironically however, the main decision in Sendaydiego did
not apply Article 30, the resolution of July 8, 1977
notwithstanding. Thus, it was held in the main decision:
Sendaydiego's appeal will be resolved only
for the purpose of showing his criminal
liability which is the basis of the civil liability
for which his estate would be liable. 13
In other words, the Court, in resolving the issue of his
civil liability, concomitantly made a determination on
whether Sendaydiego, on the basis of evidenced
adduced, was indeed guilty beyond reasonable doubt of
committing the offense charged. Thus, it upheld
Sendaydiego's conviction and pronounced the same as
the source of his civil liability. Consequently, although
Article 30 was not applied in the final determination of
Sendaydiego's civil liability, there was a reopening of the
criminal action already extinguished which served as
basis for Sendaydiego's civil liability.
We reiterate: Upon death of the accused pending appeal
of his conviction, the criminal action is extinguished
inasmuch as there is no longer a defendant to stand as
the accused; the civil action instituted therein for recovery
of civil liability ex delicto is ipso facto extinguished,
grounded as it is on the criminal.
Section 21, Rule 3 of the Rules of Court was also
invoked to serve as another basis for
the Sendaydiego resolution of July 8, 1977. In citing Sec.
21, Rule 3 of the Rules of Court, the Court made the
inference that civil actions of the type involved
in Sendaydiego consist of money claims, the recovery of
which may be continued on appeal if defendant dies
pending appeal of his conviction by holding his estate
liable therefor. Hence, the Court's conclusion:
"When the action is for the recovery of
money" "and the defendant dies before final
judgment in the court of First Instance, it
shall be dismissed to be prosecuted in the
manner especially provided" in Rule 87 of
the Rules of Court (Sec. 21, Rule 3 of the
Rules of Court).
The implication is that, if the defendant dies
after a money judgment had been rendered
against him by the Court of First Instance,
the action survives him. It may be continued
on appeal.
Sadly, reliance on this provision of law is misplaced.
From the standpoint of procedural law, this course taken
in Sendaydiego cannot be sanctioned. As correctly
observed by Justice Regalado:
xxx xxx xxx
I do not, however, agree with the
justification advanced in
both Torrijos and Sendaydiego which,
relying on the provisions of Section 21,
Rule 3 of the Rules of Court, drew the
strained implication therefrom that where
the civil liability instituted together with the
criminal liabilities had already passed
beyond the judgment of the then Court of
First Instance (now the Regional Trial
Court), the Court of Appeals can continue
to exercise appellate jurisdiction thereover
despite the extinguishment of the
component criminal liability of the
deceased. This pronouncement, which has
been followed in the Court's judgments
subsequent and consonant
 to Torrijos and Sendaydiego, should be set
aside and abandoned as being clearly
erroneous and unjustifiable.
Said Section 21 of Rule 3 is a rule of civil
procedure in ordinary civil actions. There is
neither authority nor justification for its
application in criminal procedure to civil
actions instituted together with and as part
of criminal actions. Nor is there any
authority in law for the summary conversion
from the latter category of an ordinary civil
action upon the death of the offender. . . .
Moreover, the civil action impliedly instituted in a criminal
proceeding for recovery of civil liability ex delicto can
hardly be categorized as an ordinary money claim such
as that referred to in Sec. 21, Rule 3 enforceable before
the estate of the deceased accused.
Ordinary money claims referred to in Section 21, Rule 3
must be viewed in light of the provisions of Section 5,
Rule 86 involving claims against the estate, which
in Sendaydiego was held liable for Sendaydiego's civil
liability. "What are contemplated in Section 21 of Rule 3,
in relation to Section 5 of Rule 86, 14 are contractual
money claims while the claims involved in civil liability ex
delicto may include even the restitution of personal or
real property." 15 Section 5, Rule 86 provides an exclusive
enumeration of what claims may be filed against the
estate. These are: funeral expenses, expenses for the
last illness, judgments for money and claim arising from
contracts, expressed or implied. It is clear that money
claims arising from delict do not form part of this
exclusive enumeration. Hence, there could be no legal
basis in (1) treating a civil action ex delicto as an ordinary
contractual money claim referred to in Section 21, Rule 3
of the Rules of Court and (2) allowing it to survive by
filing a claim therefor before the estate of the deceased
accused. Rather, it should be extinguished upon
extinction of the criminal action engendered by the death
of the accused pending finality of his conviction.
Accordingly, we rule: if the private offended party, upon
extinction of the civil liability ex delicto desires to recover
damages from the same act or omission complained
of, he must subject to Section 1, Rule 111 16 (1985 Rules
on Criminal Procedure as amended) file a separate civil
action, this time predicated not on the felony previously
charged but on other sources of obligation. The source of
obligation upon which the separate civil action is
premised determines against whom the same shall be
enforced.
If the same act or omission complained of also arises
from quasi-delict or may, by provision of law, result in an
injury to person or property (real or personal), the
separate civil action must be filed against the executor or
administrator 17 of the estate of the accused pursuant to
Sec. 1, Rule 87 of the Rules of Court:
Sec. 1. Actions which may and which may
not be brought against executor or
administrator. — No action upon a claim for
the recovery of money or debt or interest
thereon shall be commenced against the
executor or administrator; but actions to
recover real or personal property, or an
interest therein, from the estate, or to
enforce a lien thereon, and actions to
recover damages for an injury to person or
property, real or personal, may be
commenced against him.
This is in consonance with our ruling in
Belamala 18 where we held that, in recovering damages
for injury to persons thru an independent civil action
based on Article 33 of the Civil Code, the same must be
filed against the executor or administrator of the estate of
deceased accused and not against the estate under Sec.
5, Rule 86 because this rule explicitly limits the claim to
those for funeral expenses, expenses for the last
sickness of the decedent, judgment for money and claims
arising from contract, express or implied. Contractual
money claims, we stressed, refers only to purely
personal obligations other than those which have their
source in delict or tort.
Conversely, if the same act or omission complained of
also arises from contract, the separate civil action must
be filed against the estate of the accused, pursuant to
Sec. 5, Rule 86 of the Rules of Court.
From this lengthy disquisition, we summarize our ruling
herein:
1. Death of the accused pending appeal of his conviction
extinguishes his criminal liability as well as the civil
liability based solely thereon. As opined by Justice
Regalado, in this regard, "the death of the accused prior
to final judgment terminates his criminal liability
and only the civil liability directly arising from and based
solely on the offense committed, i.e., civil liability ex
delicto in senso strictiore."
2. Corollarily, the claim for civil liability survives
notwithstanding the death of accused, if the same may
also be predicated on a source of obligation other than
delict. 19 Article 1157 of the Civil Code enumerates these
other sources of obligation from which the civil liability
may arise as a result of the same act or omission:
a) Law 20
b) Contracts
c) Quasi-contracts
 d) . . .
e) Quasi-delicts
3. Where the civil liability survives, as explained in
Number 2 above, an action for recovery therefor may be
pursued but only by way of filing a separate civil action
and subject to Section 1, Rule 111 of the 1985 Rules on
Criminal Procedure as amended. This separate civil
action may be enforced either against the
executor/administrator or the estate of the accused,
depending on the source of obligation upon which the
same is based as explained above.
4. Finally, the private offended party need not fear a
forfeiture of his right to file this separate civil action by
prescription, in cases where during the prosecution of the
criminal action and prior to its extinction, the private-
offended party instituted together therewith the civil
action. In such case, the statute of limitations on the civil
liability is deemed interrupted during the pendency of the
criminal case, conformably with provisions of Article
1155 21 of the Civil Code, that should thereby avoid any
apprehension on a possible privation of right by
prescription. 22
Applying this set of rules to the case at bench, we hold
that the death of appellant Bayotas extinguished his
criminal liability and the civil liability based solely on the
act complained of, i.e., rape. Consequently, the appeal is
hereby dismissed without qualification.
WHEREFORE, the appeal of the late Rogelio Bayotas is
DISMISSED with costs de oficio.
SO ORDERED.
G.R. No. 169588               October 7, 2013
JADEWELL PARKING SYSTEMS CORPORATION
represented by its manager and authorized
representative Norma Tan, Petitioner,
vs.
HON. JUDGE NELSON F. LIDUA SR., Presiding Judge
of The Municipal Trial Court Branch 3, Baguio City,
BENEDICTO BALAJADIA, EDWIN ANG, "JOHN
DOES" and "PETER DOES" Respondents.
DECISION
LEONEN, J.:
We are asked to rule on this Petition for Review on
Certiorari under Rule 45 of the Rules of Court, praying
that the assailed Decision of Branch 7 of the Regional
Trial Court of Baguio City and Order dated August 15,
2005 be reversed and that Criminal Case Nos. 112934
and 112935 be ordered reinstated and prosecuted before
the Municipal Trial Court of Baguio City.
Petitioner Jadewell Parking Systems Corporation is a
private parking operator duly authorized to operate and
manage the parking spaces in Baguio City pursuant to
City Ordinance 003-2000. It is also authorized under
Section 13 of the City Ordinance to render any motor
vehicle immobile by placing its wheels in a clamp if the
vehicle is illegally parked.1
According to the Resolution of the Office of the Provincial
Prosecutor, San Fernando City, La Union, the facts
leading to the filing of the Informations are the following:
Jadewell Parking Systems Corporation (Jadewell), thru
[sic] its General Manager Norma Tan and Jadewell
personnel Januario S. Ulpindo and Renato B. Dulay
alleged in their affidavit-complaint that on May 17, 2003,
the respondents in I.S No. 2003-1996 Edwin Ang,
Benedicto Balajadia and John Doe dismantled, took and
carried away the clamp attached to the left front wheel of
a Mitsubishi Adventure with Plate No. WRK 624 owned
by Edwin Ang. Accordingly, the car was then illegally
parked and left unattended at a Loading and Unloading
Zone. The value of the clamp belonging to Jadewell
which was allegedly forcibly removed with a piece of
metal is ₱26,250.00. The fines of ₱500.00 for illegal
parking and the declamping fee of ₱500.00 were also not
paid by the respondents herein.
In I.S. No., 2003-1997, Jadewell thru [sic] its General
Manager Norina C. Tan, Renato B. Dulay and Ringo
Sacliwan alleged in their affidavit-complaint that on May
7, 2003, along Upper Mabini Street, Baguio City, herein
respondents Benedicto Balajadia, Jeffrey Walan and two
(2) John Does forcibly removed the clamp on the wheel
of a Nissan Cefiro car with Plate No. UTD 933, belonging
to Jeffrey Walan which was then considered illegally
parked for failure to pay the prescribed parking fee. Such
car was earlier rendered immobile by such clamp by
Jadewell personnel. After forcibly removing the clamp,
respondents took and carried it away depriving its owner,
Jadewell, its use and value which is ₱26,250.00.
According to complainants, the fine of ₱500.00 and the
declamping fee of ₱500.00 were not paid by the
respondents.2
The incident resulted in two cases filed by petitioner and
respondents against each other. Petitioner Jadewell filed
two cases against respondents: Robbery under I.S. Nos.
2003-1996 and 2003-1997. Petitioner filed an Affidavit-
Complaint against respondents Benedicto Balajadia,
Jeffrey Walan, and three (3) John Does, one of whom
was eventually identified as respondent Ramon Ang. The
Affidavit-Complaint was filed with the Office of the City
Prosecutor of Baguio City on May 23, 2003.3 A
preliminary investigation took place on May 28, 2003.
Respondent Benedicto Balajadia likewise filed a case
charging Jadewell president, Rogelio Tan, and four (4) of
Jadewell's employees with Usurpation of Authority/Grave
Coercion in I.S. No. 2003-1935.
In his Counter-affidavit for the two cases he filed for
himself and on behalf of his co-respondents, respondent
Benedicto Balajadia denied that his car was parked
illegally. He admitted that he removed the clamp
restricting the wheel of his car since he alleged that the
placing of a clamp on the wheel of the vehicle was an
illegal act. He alleged further that he removed the clamp
not to steal it but to remove the vehicle from its clamp so
that he and his family could continue using the car. He
also confirmed that he had the clamp with him, and he
intended to use it as a piece of evidence to support the
Complaint he filed against Jadewell.4
In the Resolution5 of the Office of the Provincial
Prosecutor of San Fernando City, La Union, Acting City
Prosecutor Mario Anacleto Banez found probable cause
to file a case of Usurpation of Authority against the
petitioner. Regarding the case of Robbery against
respondents, Prosecutor Banez stated that:
We find no probable cause to charge respondents in
these two (2) cases for the felony of Robbery. The
elements of Robbery, specifically the intent to gain and
force upon things are absent in the instant cases, thereby
negating the existence of the crime.
xxxx
We, however, respectfully submit that the acts of
respondents in removing the wheel clamps on the wheels
of the cars involved in these cases and their failure to pay
the prescribed fees were in violation of Sec. 21 of Baguio
City Ordinance No. 003-2000 which prescribes fines and
penalties for violations of the provisions of such
ordinance. Certainly, they should not have put the law
into their own hands. (Emphasis supplied)
WHEREFORE, premises considered, there is probable
cause against all the respondents, except Jeffrey Walan
or Joseph Walan (who has been dragged into this
controversy only by virtue of the fact that he was still the
registered owner of the Nissan Cefiro car) for violation of
Section 21 of City Ord. No. 003-2000 in both cases and
we hereby file the corresponding informations against
them in Court.6
Prosecutor Banez issued this Resolution on July 25,
2003.
On October 2, 2003, two criminal Informations were filed
with the Municipal Trial Court of Baguio City dated July
25, 2003, stating:
That on May 17, 2003 at Baguio City and within the
jurisdiction of this Honorable Court, the above-named
accused with unity of action and concerted design, did
then and there, with unity of action and concerted design,
willfully, unlawfully and feloniously forcibly dismantled
[sic] and took [sic] an immobilizing clamp then attached
to the left front wheel of a Mitsubishi Adventure vehicle
with Plate No. WRK 624 belonging to Edwin Ang which
was earlier rendered immobilized by such clamp by
Jadewell Personnel's for violation of the Baguio City
ordinance No. 003-2600 to the damage and prejudice of
private complainant Jadewell Parking System
Corporation (Jadewell) which owns such clamp worth
₱26,250.00 and other consequential damages.
CONTRARY TO LAW,
San Fernando City, La Union for Baguio City, this 25th
day of July 2003.7
The cases were docketed as Criminal Case Nos. 112934
and 112935 with the Municipal Trial Court of Baguio City,
Branch 3. Respondent Benedicto Balajadia and the other
accused through their counsel Paterno Aquino filed a
January 20, 2004 Motion to Quash and/or
Manifestation8 on February 2, 2004. The Motion to Quash
and/or Manifestation sought the quashal of the two
Informations on the following grounds: extinguishment of
criminal action or liability due to prescription; failure of the
Information to state facts that charged an offense; and
the imposition of charges on respondents with more than
one offense.
In their Motion to Quash, respondents argued that:
1. The accused in this case are charged with
violation of Baguio City Ordinance No. 003-2000.
2. Article 89 of the Revised Penal [sic] provides
that criminal liability is totally extinguished by
prescription of the crime.
3. Act No. 3326, as amended by Act No. 3763,
provides: "Section 1. x x x Violations penalized by
municipal ordinances shall prescribed [sic] after
two months."
4. As alleged in the Information, the offense
charged in this case was committed on May 7,
2003. 5. As can be seen from the right hand
corner of the Information, the latter was filed with
this Honorable Court on October 2, 2003, almost
five (5) months after the alleged commission of the
offense charged. Hence, criminal liability of the
accused in this case, if any, was already
extinguished by prescription when the Information
was filed.9
In an Order10 dated February 10, 2004, respondent Judge
Nelson F. Lidua, Sr., Presiding Judge of the Municipal
Trial Court of Baguio City, Branch 3, granted the
accused's Motion to Quash and dismissed the cases.
Petitioner filed a Motion for Reconsideration on February
27, 2004 responding to the February 10, 2004 Order11 to
argue among other points that:
6.b. For another, the offenses charged have not yet
prescribed. Under the law, the period of prescription of
offenses shall be interrupted by the filing of the complaint
or information. While it may be true that the Informations
in these cases have been filed only on October 2, 2003,
the private complainant has, however, filed its criminal
complaint on May 23, 2003, well within the prescribed
period.12
Respondents filed their Opposition13 on March 24, 2004,
and petitioner filed a Reply14 on April 1, 2004.
The respondent judge released a Resolution15 dated April
16, 2004 upholding the Order granting respondents'
Motion to Quash. The Resolution held that:
For the guidance of the parties, the Court will make an
extended resolution on one of the ground [sic] for the
motion to quash, which is that the criminal action has
been extinguished on grounds of prescription.
These offenses are covered by the Rules on Summary
Procedure being alleged violations of City Ordinances.
Under Section 9 of the Rule [sic] on Summary Procedure,
the running of the prescriptive period shall be halted on
the date the case is filed in Court and not on any date
before that (Zaldivia vs. Reyes, Jr. G.R. No. 102342, July
3, 1992, En Banc).
In case of conflict, the Rule on Summary Procedure as
the special law prevails over Sec. 1 of Rule 110 of the
Rules on Criminal Procedure and also Rule 110 of the
Rules of Criminal Procedure must yield to Act No. 3326
or "AN ACT TO ESTABLISH PERIODS OF
PRESCRIPTION FOR VIOLATIONS PENALIZED BY
SPECIAL ACTS AND MUNICIPAL ORDINANCES AND
TO PROVIDE WHEN PRESCRIPTION SHALL BEGIN
TO RUN" (Ibid).
Petitioner then filed a Petition16 for Certiorari under Rule
65 with the Regional Trial Court of Baguio City. The case
was raffled to Branch 7 of the Regional Trial Court of
Baguio City. Petitioners contended that the respondent
judge committed grave abuse of discretion amounting to
lack or excess of jurisdiction in dismissing Criminal Case
Nos. 112934 and 112935 on the ground of prescription.
Petitioners argued that the respondent judge ruled
erroneously saying that the prescriptive period for the
offenses charged against the private respondents was
halted by the filing of the Complaint/Information in court
and not when the Affidavit-Complaints were filed with the
Office of the City Prosecutor of Baguio City. Petitioner
cited Section 1 of Rule 110 of the Rules on Criminal
Procedure:
x x x "criminal actions shall be instituted x x x in x x x
other chartered cities, the complaint shall be filed with the
office of the prosecutor unless otherwise provided in their
charter" and the last paragraph thereof states that "the
institution of the criminal action shall interrupt the running
of the period of prescription of the offense charged
unless otherwise provided in special laws."17
Petitioner contended further that:
the filing of the criminal complaint with the Office of the
City Prosecutor of Baguio City, not the filing of the
criminal information before this Honorable Court, is the
reckoning point in determining whether or not the criminal
action in these cases had prescribed.
xxxx
The offenses charged in Criminal Case Nos. 112934 and
112935 are covered by the Revised Rules on Summary
Procedure, not by the old Rules on Summary Procedure.
Considering that the offenses charged are for violations
of a City Ordinance, the criminal cases can only be
commenced by informations. Thus, it was only legally
and procedurally proper for the petitioner to file its
complaint with the Office of the City Prosecutor of Baguio
City as required by Section 11 of the new Rules on
Summary Procedure, these criminal cases "shall be
commenced only by information." These criminal cases
cannot be commenced in any other way.
Moreover, the ruling of the Supreme Court in Zaldivia vs.
Reyes cited in the assailed Resolution does not apply in
this case. The offense charged in Zaldivia is a violation of
municipal ordinance in which case, the complaint should
have been filed directly in court as required by Section 9
of the old Rules on Summary Procedure. On the other
hand, Criminal Case Nos. 112934 and 112935 are for
violations of a city ordinance and as aforestated, "shall be
commenced only by information."18
Thus, petitioner contended that the filing of the criminal
complaint with the Office of the City Prosecutor stopped
the running of the two-month prescriptive period. Hence,
the offenses charged have not prescribed.
In their Comment,19 respondents maintained that the
respondent judge did not gravely abuse his discretion.
They held that Section 2 of Act No. 3326, as amended,
provides that:
Sec. 2. Prescription shall begin to run from the day of the
commission of the violation of the law, and if the same be
not known at the time, from the discovery thereof and the
institution of judicial proceeding for its investigation and
punishment.
The prescription shall be interrupted when proceedings
are instituted against the guilty person, and shall begin to
run again if the proceedings are dismissed for reasons
not constituting jeopardy.20 (Emphasis supplied)
Respondents argued that Zaldivia v. Reyes21 held that
the proceedings mentioned in Section 2 of Act No. 3326,
as amended, refer to judicial proceedings . Thus, this
Court, in Zaldivia, held that the filing of the Complaint
with the Office of the Provincial Prosecutor was not a
judicial proceeding. The prescriptive period commenced
from the alleged date of the commission of the crime on
May 7, 2003 and ended two months after on July 7,
2003. Since the Informations were filed with the
Municipal Trial Court on October 2, 2003, the respondent
judge did not abuse its discretion in dismissing Criminal
Case Nos. 112934 and 112935.
In a Decision dated April 20, 2005, the Regional Trial
Court of Baguio City Branch 7, through Judge Clarence
F. Villanueva, dismissed the Petition for Certiorari. The
Regional Trial Court held that, since cases of city
ordinance violations may only be commenced by the
filing of an Information, then the two-month prescription
period may only be interrupted by the filing of
Informations (for violation of City Ordinance 003-2000)
against the respondents in court. The Regional Trial
Court of Baguio City, Branch 7, ruled in favor of the
respondents and upheld the respondent judge’s Order
dated February 10, 2004 and the Resolution dated April
16, 2004.
Petitioners then filed a May 17, 2005 Motion for
Reconsideration which was denied by the Regional Trial
Court in an August 15, 2005 Order.
Hence, this Petition.
The principal question in this case is whether the filing of
the Complaint with the Office of the City Prosecutor on
May 23, 2003 tolled the prescription period of the
commission of the offense charged against respondents
Balajadia, Ang, "John Does," and "Peter Does."
Petitioner contends that the prescription period of the
offense in Act No. 3326, as amended by Act No. 3763,
does not apply because respondents were charged with
the violation of a city ordinance and not a municipal
ordinance. In any case, assuming arguendo that the
prescriptive period is indeed two months, filing a
Complaint with the Office of the City Prosecutor tolled the
prescription period of two months. This is because Rule
110 of the Rules of Court provides that, in Manila and in
other chartered cities, the Complaint shall be filed with
the Office of the Prosecutor unless otherwise provided in
their charters.
In their Comment,22 respondents maintain that
respondent Judge Lidua did not err in dismissing the
cases based on prescription. Also, respondents raise that
the other grounds for dismissal they raised in their Motion
to Quash, namely, that the facts charged constituted no
offense and that respondents were charged with more
than one offense, were sustained by the Metropolitan
Trial Court. Also, respondents argue that petitioner had
no legal personality to assail the Orders, since Jadewell
was not assailing the civil liability of the case but the
assailed Order and Resolution. This was contrary to the
ruling in People v. Judge Santiago23 which held that the
private complainant may only appeal the civil aspect of
the criminal offense and not the crime itself.
24
In the Reply,  petitioner argues that the respondent
judge only dismissed the case on the ground of
prescription, since the Resolution dated April 16, 2004
only cited that ground. The Order dated February 10,
2004 merely stated but did not specify the grounds on
which the cases were dismissed. Petitioner also
maintains that the proceedings contemplated in Section 2
of Act No. 3326 must include the preliminary investigation
proceedings before the National Prosecution Service in
light of the Rules on Criminal Procedure25 and Revised
Rules on Summary Procedure.
Lastly, petitioner maintains that it did have legal
personality, since in a Petition for Certiorari, "persons
aggrieved x x x may file a verified petition"26 before the
court.
The Petition is denied.
The resolution of this case requires an examination of
both the substantive law and the procedural rules
governing the prosecution of the offense. With regard to
the prescription period, Act No. 3326, as amended, is the
only statute that provides for any prescriptive period for
the violation of special laws and municipal ordinances.
No other special law provides any other prescriptive
period, and the law does not provide any other
distinction.
Petitioner may not argue that Act No. 3326 as amended
does not apply.
In Romualdez v. Hon. Marcelo,27 this Court defined the
parameters of prescription:
In resolving the issue of prescription of the offense
charged, the following should be considered: (1) the
period of prescription for the offense charged; (2) the
time the period of prescription starts to run; and (3) the
time the prescriptive period was interrupted.28 (Citation
omitted)
With regard to the period of prescription, it is now without
question that it is two months for the offense charged
under City Ordinance 003-2000.
The commencement of the prescription period is also
governed by statute. Article 91 of the Revised Penal
Code reads:
Art. 91. Computation of prescription of offenses. — The
period of prescription shall commence to run from the
day on which the crime is discovered by the offended
party, the authorities, or their agents, and shall be
interrupted by the filing of the complaint or information,
and shall commence to run again when such
proceedings terminate without the accused being
convicted or acquitted, or are unjustifiably stopped for
any reason not imputable to him.
The offense was committed on May 7, 2003 and was
discovered by the attendants of the petitioner on the
same day. These actions effectively commenced the
running of the prescription period.
The procedural rules that govern this case are the 1991
Revised Rules on Summary Procedure.
SECTION 1. Scope – This rule shall govern the summary
procedure in the Metropolitan Trial Courts, the Municipal
Trial Courts in Cities, the Municipal Trial Courts, and the
Municipal Circuit Trial Courts in the following cases falling
within their jurisdiction:
xxxx
B. Criminal Cases:
(1) Violations of traffic laws, rules and regulations;
(2) Violations of the rental law;
(3) Violations of municipal or city ordinances
(Emphasis supplied)
Section 11 of the Rules provides that:
Sec. 11. How commenced. — The filing of criminal cases
falling within the scope of this Rule shall be either by
complaint or by information: Provided, however, that in
Metropolitan Manila and in Chartered Cities, such cases
shall be commenced only by information, except when
the offense cannot be prosecuted de officio.
The Local Government Code provides for the
classification of cities. Section 451 reads:
SEC. 451. Cities, Classified. – A city may either be
component or highly urbanized: Provided, however, that
the criteria established in this Code shall not affect the
classification and corporate status of existing cities.
Independent component cities are those component
cities whose charters prohibit their voters from voting for
provincial elective officials. Independent component cities
shall be independent of the province.
Cities in the Philippines that were created by law can
either be highly urbanized cities or component cities. An
independent component city has a charter that proscribes
its voters from voting for provincial elective officials. It
stands that all cities as defined by Congress are
chartered cities. In cases as early as United States v.
Pascual Pacis,29 this Court recognized the validity of the
Baguio Incorporation Act or Act No. 1963 of 1909,
otherwise known as the charter of Baguio City.
As provided in the Revised Rules on Summary
Procedure, only the filing of an Information tolls the
prescriptive period where the crime charged is involved in
an ordinance. The respondent judge was correct when
he applied the rule in Zaldivia v. Reyes.
In Zaldivia v. Reyes, the violation of a municipal
ordinance in Rodriguez, Rizal also featured similar facts
and issues with the present case. In that case, the
offense was committed on May 11, 1990. The Complaint
was received on May 30, 1990, and the Information was
filed with the Metropolitan Trial Court of Rodriguez on
October 2, 1990. This Court ruled that:
As it is clearly provided in the Rule on Summary
Procedure that among the offenses it covers are
violations of municipal or city ordinances, it should follow
that the charge against the petitioner, which is for
violation of a municipal ordinance of Rodriguez, is
governed by that rule and not Section 1 of Rule 110.
Where paragraph (b) of the section does speak of
"offenses falling under the jurisdiction of the Municipal
Trial Courts and Municipal Circuit Trial Courts," the
obvious reference is to Section 32(2) of B.P. No. 129,
vesting in such courts:
(2) Exclusive original jurisdiction over all offenses
punishable with imprisonment of not exceeding four
years and two months, or a fine of not more than four
thousand pesos, or both such fine and imprisonment,
regardless of other imposable accessory or other
penalties, including the civil liability arising from such
offenses or predicated thereon, irrespective of kind,
nature, value, or amount thereof; Provided, however,
That in offenses involving damage to property through
criminal negligence they shall have exclusive original
jurisdiction where the imposable fine does not exceed
twenty thousand pesos.
These offenses are not covered by the Rules on
Summary Procedure.
Under Section 9 of the Rules on Summary Procedure,
"the complaint or information shall be filed directly in
court without need of a prior preliminary examination or
preliminary investigation." Both parties agree that this
provision does not prevent the prosecutor from
conducting a preliminary investigation if he wants to.
However, the case shall be deemed commenced only
when it is filed in court, whether or not the prosecution
decides to conduct a preliminary investigation. This
means that the running of the prescriptive period shall be
halted on the date the case is actually filed in court and
not on any date before that.
This interpretation is in consonance with the afore-quoted
Act No. 3326 which says that the period of prescription
shall be suspended "when proceedings are instituted
against the guilty party." The proceedings referred to in
Section 2 thereof are "judicial proceedings," contrary to
the submission of the Solicitor General that they include
administrative proceedings. His contention is that we
must not distinguish as the law does not distinguish. As a
matter of fact, it does.
At any rate, the Court feels that if there be a conflict
between the Rule on Summary Procedure and Section 1
of Rule 110 of the Rules on Criminal Procedure, the
former should prevail as the special law. And if there be a
conflict between Act No. 3326 and Rule 110 of the Rules
on Criminal Procedure, the latter must again yield
because this Court, in the exercise of its rule-making
power, is not allowed to "diminish, increase or modify
substantive rights" under Article VIII, Section 5(5) of the
Constitution. Prescription in criminal cases is a
substantive right.30
Jurisprudence exists showing that when the Complaint is
filed with the Office of the Prosecutor who then files the
Information in court, this already has the effect of tolling
the prescription period. The recent People v.
Pangilinan31 categorically stated that Zaldivia v. Reyes is
not controlling as far as special laws are concerned.
Pangilinan referred to other cases that upheld this
principle as well. However, the doctrine of Pangilinan
pertains to violations of special laws but not to
ordinances.
There is no distinction between the filing of the
Information contemplated in the Rules of Criminal
Procedure and in the Rules of Summary Procedure.
When the representatives of the petitioner filed the
Complaint before the Provincial Prosecutor of Baguio, the
prescription period was running. It continued to run until
the filing of the Information. They had two months to file
the Information and institute the judicial proceedings by
filing the Information with the Municipal Trial Court. The
conduct of the preliminary investigation, the original
charge of Robbery, and the subsequent finding of the
violation of the ordinance did not alter the period within
which to file the Information. Respondents were correct in
arguing that the petitioner only had two months from the
discovery and commission of the offense before it
prescribed within which to file the Information with the
Municipal Trial Court.
Unfortunately, when the Office of the Prosecutor filed the
Informations on October 5, 2003, the period had already
prescribed. Thus, respondent Judge Nestor Lidua, Sr. did
not err when he ordered the dismissal of the case against
respondents. According to the Department of Justice –
National Prosecutors Service Manual for Prosecutors, an
Information is defined under Part I, Section 5 as:
SEC. 5. Information. - An information is the accusation in
writing charging a person with an offense, subscribed by
the prosecutor, and filed with the court. The information
need not be placed under oath by the prosecutor signing
the same.
The prosecutor must, however, certify under oath that –
a) he has examined the complainant and his
witnesses;
b) there is reasonable ground to believe that a
crime has been committed and that the accused is
probably guilty thereof;
c) the accused was informed of the complaint and
of the evidence submitted against him; and
d) the accused was given an opportunity to submit
controverting evidence.
As for the place of the filing of the Information, the
Manual also provides that:
SEC. 12. Place of the commission of offense. - The
complaint or information is sufficient if it states that the
crime charged was committed or some of the ingredients
thereof occurred at some place within the jurisdiction of
the court, unless the particular place in which the crime
was committed is an essential element of the crime, e.g.
in a prosecution for violation of the provision of the
Election Code which punishes the carrying of a deadly
weapon in a "polling place," or if it is necessary to identify
the offense charged, e.g., the domicile in the offense of
"violation of domicile."
Finally, as for the prescription period, the Manual
provides that:
SEC. 20. How Period of Prescription Computed and
Interrupted. - For an offense penalized under the Revised
Penal Code, the period of prescription commences to run
from the day on which the crime is discovered by the
offended party, the authorities, or their agents, and shall
be interrupted:
a) by the filing of the complaint with the Office of
the City/Provincial Prosecutor; or with the Office of
the Ombudsman; or
b) by the filing of the complaint or information with
the court even if it is merely for purposes of
preliminary examination or investigation, or even if
 the court where the complaint or information is
filed cannot try the case on its merits.
However, for an offense covered by the Rules on
Summary Procedure, the period of prescription is
interrupted only by the filing of the complaint or
information in court.
xxxx
For violation of a special law or ordinance, the period of
prescription shall commence to run from the day of the
commission of the violation, and if the same is not known
at the time, from the discovery and the institution of
judicial proceedings for its investigation and punishment.
The prescription shall be interrupted only by the filing of
the complaint or information in court and shall begin to
run again if the proceedings are dismissed for reasons
not constituting double jeopardy. (Emphasis
supplied).1âwphi1
Presidential Decree No. 127532 reorganized the
Department of Justice’s Prosecution Staff and
established Regional State Prosecution Offices. These
Regional State Prosecution Offices were assigned
centers for particular regions where the Informations will
be filed. Section 6 provides that the area of responsibility
of the Region 1 Center located in San Fernando, La
Union includes Abra, Benguet, Ilocos Norte, Ilocos Sur,
La Union, Mt. Province, Pangasinan, and the cities of
Baguio, Dagupan, Laoag, and San Carlos.
The Regional Prosecutor for Region 1 or his/her duly
assigned prosecutor was designated to file the
Information within the two-month period provided for in
Act No. 3326, as amended.1âwphi1
The failure of the prosecutor to seasonably file the
Information is unfortunate as it resulted in the dismissal
of the case against the private respondents. It stands that
the doctrine of Zaldivia is applicable to ordinances and
their prescription period. It also upholds the necessity of
filing the Information in court in order to toll the period.
Zaldivia also has this to say concerning the effects of its
ruling:
The Court realizes that under the above interpretation, a
crime may prescribe even if the complaint is filed
seasonably with the prosecutor's office if, intentionally or
not, he delays the institution of the necessary judicial
proceedings until it is too late. However, that possibility
should not justify a misreading of the applicable rules
beyond their obvious intent as reasonably deduced from
their plain language.
The remedy is not a distortion of the meaning of the rules
but a rewording thereof to prevent the problem here
sought to be corrected.33
WHEREFORE the Petition is DENIED.
SO ORDERED.
G.R. No. 167571             November 25, 2008
LUIS PANAGUITON, JR., petitioner
vs.
DEPARTMENT OF JUSTICE, RAMON C. TONGSON
and RODRIGO G. CAWILI, respondents.
DECISION
TINGA, J.:
This is a Petition for Review1 of the resolutions of the
Court of Appeals dated 29 October 2004 and 21 March
2005 in CA G.R. SP No. 87119, which dismissed Luis
Panaguiton, Jr.'s (petitioner's) petition for certiorari and
his subsequent motion for reconsideration.2
The facts, as culled from the records, follow.
In 1992, Rodrigo Cawili (Cawili) borrowed various sums
of money amounting to P1,979,459.00 from petitioner.
On 8 January 1993, Cawili and his business associate,
Ramon C. Tongson (Tongson), jointly issued in favor of
petitioner three (3) checks in payment of the said loans.
Significantly, all three (3) checks bore the signatures of
both Cawili and Tongson.
Upon presentment for payment on 18 March 1993, the
checks were dishonored, either for insufficiency of funds
or by the closure of the account. Petitioner made formal
demands to pay the amounts of the checks upon Cawili
on 23 May 1995 and upon Tongson on 26 June 1995, but
to no avail.
On 24 August 1995, petitioner filed a complaint against
Cawili and Tongson4 for violating Batas Pambansa Bilang
22 (B.P. Blg. 22)5 before the Quezon City Prosecutor's
Office. During the preliminary investigation, only Tongson
appeared and filed his counter-affidavit.6 Tongson
claimed that he had been unjustly included as party-
respondent in the case since petitioner had lent money to
Cawili in the latter's personal capacity. Moreover, like
petitioner, he had lent various sums to Cawili and in
appreciation of his services, he was offered to be an
officer of Roma Oil Corporation. He averred that he was
not Cawili's business associate; in fact, he himself had
filed several criminal cases against Cawili for violation of
B.P. Blg. 22. Tongson denied that he had issued the
bounced checks and pointed out that his signatures on
the said checks had been falsified.
To counter these allegations, petitioner presented several
documents showing Tongson's signatures, which were
purportedly the same as the those appearing on the
checks.7 He also showed a copy of an affidavit of
adverse claim wherein Tongson himself had claimed to
be Cawili's business associate.8
In a resolution dated 6 December 1995,9 City Prosecutor
III Eliodoro V. Lara found probable cause only against
Cawili and dismissed the charges against Tongson.
Petitioner filed a partial appeal before the Department of
Justice (DOJ) even while the case against Cawili was
filed before the proper court. In a letter-resolution dated
11 July 1997,10 after finding that it was possible for
Tongson to co-sign the bounced checks and that he had
deliberately altered his signature in the pleadings
submitted during the preliminary investigation, Chief
State Prosecutor Jovencito R. Zuño directed the City
Prosecutor of Quezon City to conduct a reinvestigation of
the case against Tongson and to refer the questioned
signatures to the National Bureau of Investigation (NBI).
Tongson moved for the reconsideration of the resolution,
but his motion was denied for lack of merit.
On 15 March 1999, Assistant City Prosecutor Ma. Lelibet
S. Sampaga (ACP Sampaga) dismissed the
complaint against Tongson without referring the matter to
the NBI per the Chief State Prosecutor's resolution. In her
resolution,11 ACP Sampaga held that the case had
already prescribed pursuant to Act No. 3326, as
amended,12 which provides that violations penalized by
B.P. Blg. 22 shall prescribe after four (4) years. In this
case, the four (4)-year period started on the date the
checks were dishonored, or on 20 January 1993 and 18
March 1993. The filing of the complaint before the
Quezon City Prosecutor on 24 August 1995 did not
interrupt the running of the prescriptive period, as the law
contemplates judicial, and not administrative
proceedings. Thus, considering that from 1993 to 1998,
more than four (4) years had already elapsed and no
information had as yet been filed against Tongson, the
alleged violation of B.P. Blg. 22 imputed to him had
already prescribed.13 Moreover, ACP Sampaga stated
that the order of the Chief State Prosecutor to refer the
matter to the NBI could no longer be sanctioned under
Section 3, Rule 112 of the Rules of Criminal Procedure
because the initiative should come from petitioner himself
and not the investigating prosecutor.14 Finally, ACP
Sampaga found that Tongson had no dealings with
petitioner.15
Petitioner appealed to the DOJ. But the DOJ, through
Undersecretary Manuel A.J. Teehankee, dismissed the
same, stating that the offense had already prescribed
pursuant to Act No. 3326.16 Petitioner filed a motion for
reconsideration of the DOJ resolution. On 3 April
2003,17 the DOJ, this time through then Undersecretary
Ma. Merceditas N. Gutierrez, ruled in his favor and
declared that the offense had not prescribed and that the
filing of the complaint with the prosecutor's office
interrupted the running of the prescriptive period
citing Ingco v. Sandiganbayan.18 Thus, the Office of the
City Prosecutor of Quezon City was directed to file three
(3) separate informations against Tongson for violation of
B.P. Blg. 22.19 On 8 July 2003, the City Prosecutor's
Office filed an information20 charging petitioner with three
(3) counts of violation of B.P. Blg. 22.21
However, in a resolution dated 9 August 2004,22 the DOJ,
presumably acting on a motion for reconsideration filed
by Tongson, ruled that the subject offense had already
prescribed and ordered "the withdrawal of the three (3)
informations for violation of B.P. Blg. 22" against
Tongson. In justifying its sudden turnabout, the DOJ
explained that Act No. 3326 applies to violations of
special acts that do not provide for a prescriptive period
for the offenses thereunder. Since B.P. Blg. 22, as a
special act, does not provide for the prescription of the
offense it defines and punishes, Act No. 3326 applies to
it, and not Art. 90 of the Revised Penal Code which
governs the prescription of offenses penalized
thereunder.23 The DOJ also cited the case of Zaldivia v.
Reyes, Jr.,24 wherein the Supreme Court ruled that the
proceedings referred to in Act No. 3326, as amended,
are judicial proceedings, and not the one before the
prosecutor's office.
Petitioner thus filed a petition for certiorari25 before the
Court of Appeals assailing the 9 August 2004 resolution
of the DOJ. The petition was dismissed by the Court of
Appeals in view of petitioner's failure to attach a proper
verification and certification of non-forum shopping. The
Court of Appeals also noted that the 3 April 2003
resolution of the DOJ attached to the petition is a mere
photocopy.26 Petitioner moved for the reconsideration of
the appellate court's resolution, attaching to said motion
an amended Verification/Certification of Non-Forum
Shopping.27 Still, the Court of Appeals denied petitioner's
motion, stating that subsequent compliance with the
formal requirements would not per se warrant a
reconsideration of its resolution. Besides, the Court of
Appeals added, the petition is patently without merit and
the questions raised therein are too unsubstantial to
require consideration.28
In the instant petition, petitioner claims that the Court of
Appeals committed grave error in dismissing his petition
on technical grounds and in ruling that the petition before
it was patently without merit and the questions are too
unsubstantial to require consideration.
The DOJ, in its comment,29 states that the Court of
Appeals did not err in dismissing the petition for non-
compliance with the Rules of Court. It also reiterates that
the filing of a complaint with the Office of the City
Prosecutor of Quezon City does not interrupt the running
of the prescriptive period for violation of B.P. Blg. 22. It
argues that under B.P. Blg. 22, a special law which does
not provide for its own prescriptive period, offenses
prescribe in four (4) years in accordance with Act No.
3326.
Cawili and Tongson submitted their comment, arguing
that the Court of Appeals did not err in dismissing the
petition for certiorari. They claim that the offense of
violation of B.P. Blg. 22 has already prescribed per Act
No. 3326. In addition, they claim that the long delay,
attributable to petitioner and the State, violated their
constitutional right to speedy disposition of cases.30
The petition is meritorious.
First on the technical issues.
Petitioner submits that the verification attached to his
petition before the Court of Appeals substantially
complies with the rules, the verification being intended
simply to secure an assurance that the allegations in the
pleading are true and correct and not a product of the
imagination or a matter of speculation. He points out that
this Court has held in a number of cases that a deficiency
in the verification can be excused or dispensed with, the
defect being neither jurisdictional nor always fatal. 31
Indeed, the verification is merely a formal requirement
intended to secure an assurance that matters which are
alleged are true and correct–the court may simply order
the correction of unverified pleadings or act on them and
waive strict compliance with the rules in order that the
ends of justice may be served,32 as in the instant case. In
the case at bar, we find that by attaching the pertinent
verification to his motion for reconsideration, petitioner
sufficiently complied with the verification requirement.
Petitioner also submits that the Court of Appeals erred in
dismissing the petition on the ground that there was
failure to attach a certified true copy or duplicate original
of the 3 April 2003 resolution of the DOJ. We agree. A
plain reading of the petition before the
Court of Appeals shows that it seeks the annulment of
the DOJ resolution dated 9 August 2004,33 a certified true
copy of which was attached as Annex "A."34 Obviously,
the Court of Appeals committed a grievous mistake.
Now, on the substantive aspects.
Petitioner assails the DOJ's reliance on Zaldivia v.
Reyes,35 a case involving the violation of a municipal
ordinance, in declaring that the prescriptive period is
tolled only upon filing of the information in court.
According to petitioner, what is applicable in this case
is Ingco v. Sandiganbayan,36 wherein this Court ruled that
the filing of the complaint with the fiscal's office for
preliminary investigation suspends the running of the
prescriptive period. Petitioner also notes that the Ingco
case similarly involved the violation of a special law,
Republic Act (R.A.) No. 3019, otherwise known as the
Anti-Graft and Corrupt Practices Act, petitioner
notes.37 He argues that sustaining the DOJ's and the
Court of Appeals' pronouncements would result in grave
injustice to him since the delays in the present case were
clearly beyond his control.38
There is no question that Act No. 3326, appropriately
entitled An Act to Establish Prescription for Violations of
Special Acts and Municipal Ordinances and to Provide
When Prescription Shall Begin, is the law applicable to
offenses under special laws which do not provide their
own prescriptive periods. The pertinent provisions read:
Section 1. Violations penalized by special acts
shall, unless otherwise provided in such acts,
prescribe in accordance with the following rules:
(a) x x x; (b) after four years for those punished by
imprisonment for more than one month, but less
than two years; (c) x x x
Sec. 2. Prescription shall begin to run from the day
of the commission of the violation of the law, and if
the same be not known at the time, from the
discovery thereof and the institution of judicial
proceedings for its investigation and punishment.
The prescription shall be interrupted when
proceedings are instituted against the guilty
person, and shall begin to run again if the
proceedings are dismissed for reasons not
constituting jeopardy.
We agree that Act. No. 3326 applies to offenses under
B.P. Blg. 22.
An offense under B.P. Blg. 22 merits the penalty of
imprisonment of not less than thirty (30) days but not
more than one year or by a fine, hence, under Act No.
3326, a violation of B.P. Blg. 22 prescribes in four (4)
years from the commission of the offense or, if the same
be not known at the time, from the discovery thereof.
Nevertheless, we cannot uphold the position that only
the filing of a case in court can toll the running of the
prescriptive period.
It must be pointed out that when Act No. 3326 was
passed on 4 December 1926, preliminary investigation of
criminal offenses was conducted by justices of the peace,
thus, the phraseology in the law, "institution of judicial
proceedings for its investigation and punishment,"39 and
the prevailing rule at the time was that once a complaint
is filed with the justice of the peace for preliminary
investigation, the prescription of the offense is halted.40
The historical perspective on the application of Act No.
3326 is illuminating.41 Act No. 3226 was approved on 4
December 1926 at a time when the function of
conducting the preliminary investigation of criminal
offenses was vested in the justices of the peace. Thus,
the prevailing rule at the time, as shown in the cases
of U.S. v. Lazada42 and People v. Joson,43 is that the
prescription of the offense is tolled once a complaint is
filed with the justice of the peace for preliminary
investigation inasmuch as the filing of the complaint
signifies the institution of the criminal proceedings
against the accused.44 These cases were followed by our
declaration in People v. Parao and Parao45 that the first
step taken in the investigation or examination of offenses
partakes the nature of a judicial proceeding which
suspends the prescription of the offense.46 Subsequently,
in People v. Olarte,47 we held that the filing of the
complaint in the Municipal Court, even if it be merely for
purposes of preliminary examination or investigation,
should, and does, interrupt the period of prescription of
the criminal responsibility, even if the court where the
complaint or information is filed cannot try the case on
the merits. In addition, even if the court where the
complaint or information is filed may only proceed to
investigate the case, its actuations already represent the
initial step of the proceedings against the offender,48 and
hence, the prescriptive period should be interrupted.
In Ingco v. Sandiganbayan49 and Sanrio Company
Limited v. Lim,50 which involved violations of the Anti-
Graft and Corrupt Practices Act (R.A. No. 3019) and the
Intellectual Property Code (R.A. No. 8293), which are
both special laws, the Court ruled that the prescriptive
period is interrupted by the institution of proceedings for
preliminary investigation against the accused.
In the more recent case of Securities and Exchange
Commission v. Interport Resources Corporation, et
al.,51 the Court ruled that the nature and purpose of the
investigation conducted by the Securities and Exchange
Commission on violations of the Revised Securities
Act,52 another special law, is equivalent to the preliminary
investigation conducted by the DOJ in criminal cases,
and thus effectively interrupts the prescriptive period.
The following disquisition in the Interport
53
Resources case  is instructive, thus:
While it may be observed that the term "judicial
proceedings" in Sec. 2 of Act No. 3326 appears
before "investigation and punishment" in the old
law, with the subsequent change in set-up
whereby the investigation of the charge for
purposes of prosecution has become the exclusive
function of the executive branch, the term
"proceedings" should now be understood either
executive or judicial in character: executive when it
involves the investigation phase and judicial when
it refers to the trial and judgment stage. With this
clarification, any kind of investigative proceeding
instituted against the guilty person which may
ultimately lead to his prosecution should be
sufficient to toll prescription.54
Indeed, to rule otherwise would deprive the injured party
the right to obtain vindication on account of delays that
are not under his control. A clear example would be this
case, wherein petitioner filed his complaint-affidavit on 24
August 1995, well within the four (4)-year prescriptive
period. He likewise timely filed his appeals and his
motions for reconsideration on the dismissal of the
charges against Tongson. He went through the proper
channels, within the prescribed periods. However, from
the time petitioner filed his complaint-affidavit with the
Office of the City Prosecutor (24 August 1995) up to the
time the DOJ issued the assailed resolution, an
aggregate period of nine (9) years had elapsed. Clearly,
the delay was beyond petitioner's control.
After all, he had already initiated the active prosecution of
the case as early as 24 August 1995, only to suffer
setbacks because of the DOJ's flip-flopping resolutions
and its misapplication of Act No. 3326. Aggrieved parties,
especially those who do not sleep on their rights and
actively pursue their causes, should not be allowed to
suffer unnecessarily further simply because of
circumstances beyond their control, like the accused's
delaying tactics or the delay and inefficiency of the
investigating agencies.
We rule and so hold that the offense has not yet
prescribed.
Petitioner 's filing of his complaint-affidavit before the
Office of the City Prosecutor on 24 August 1995 signified
the commencement of the proceedings for the
prosecution of the accused and thus effectively
interrupted the prescriptive period for the offenses they
had been charged under B.P. Blg. 22. Moreover, since
there is a definite finding of probable cause, with the
debunking of the claim of prescription there is no longer
any impediment to the filing of the information against
petitioner.
WHEREFORE, the petition is GRANTED. The
resolutions of the Court of Appeals dated 29 October
2004 and 21 March 2005 are REVERSED and SET
ASIDE. The resolution of the Department of Justice dated
9 August 2004 is also ANNULLED and SET ASIDE. The
Department of Justice is ORDERED to REFILE the
information against the petitioner.
No costs.
SO ORDERED.
G.R. No. 141931             December 4, 2000
ANICETO RECEBIDO, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
KAPUNAN, J.:
RESOLUTION
The antecedent facts are the following, to wit:
On September 9, 1990, private complainant Caridad
Dorol went to the house of her cousin, petitioner Aniceto
Recebido, at San Isidro, Bacon, Sorsogon to redeem her
property, an agricultural land with an area of 3,520
square meters located at San Isidro, Bacon, Sorsogon,
which Caridad Dorol mortgaged to petitioner sometime in
April of 1985. Petitioner and Caridad Dorol did not
execute a document on the mortgage but Caridad Dorol
instead gave petitioner a copy of the Deed of Sale dated
June 16, 1973 (Exhibit "A") executed in her favor by her
father, Juan Dorol.
In said confrontation, petitioner refused to allow Caridad
Dorol to redeem her property on his claim that she had
sold her property to him in 1979. Caridad Dorol
maintained and insisted that the transaction between
them involving her property was a mortgage.
Caridad Dorol verified from the Office of the Assessor in
Sorsogon that there exists on its file a Deed of Sale
dated August 13, 1979 (Exhibit "J"), allegedly executed
by Caridad Dorol in favor of petitioner and that the
property was registered in the latter's name. After
comparison of the specimen signatures of Caridad Dorol
in other documents (Exhibits "K" to "K-10") with that of
the signature of Caridad Dorol on the questioned Deed of
Sale, NBI Document Examiner Antonio Magbojas, found
that the latter signature was falsified (Exhibits "L-1" to "L-
2").
Thereafter, Caridad Dorol filed her complaint against
petitioner Aniceto Recebido with the National Bureau of
Investigation (NBI), Legaspi City and its Questioned
Documents Division conducted an examination in the
original copy of the Deed of Sale in question allegedly
signed by Caridad, particularly her signature affixed
thereon.
Mr. Magboja's report was approved by the Chief of the
Questioned Documents Division, Arcadio Ramos, and
the Deputy Director of Technical Services, Manuel
Roura, both of the NBI.1
Thus, the Office of the Provincial Prosecutor of Sorsogon
filed the information indicting petitioner for Falsification of
Public Document with the Regional Trial Court, 5th
Judicial Region, Branch 51, Sorsogon, Sorsogon, reading
as follows:
"That on or about the 13th day of August, 1979, in
the Municipality of Sorsogon, Province of
Sorsogon, Philippines, and within the jurisdiction
of this Honorable Court, the above-named
accused, being a private individual, did then and
there, willfully, unlawfully and feloniously, with
intent to defraud, falsify and/or imitate the
 signature of one Caridad Dorol and/or cause it to
appear that said Caridad Dorol has signed her
name on a Deed of Absolute Sale of Real Property
in favor of the herein accused and Notarized as
Doc. No. 680; page No. 54; Boon No. XIV and
Series of 1979 of the Registry of Notary Public
Dominador S. Reyes, when in truth and in fact
accused well knew, that Caridad Dorol did not
execute said document, to the damage and
prejudice of the latter.
Contrary to law."2
Upon arraignment petitioner pleaded "not guilty."
As narrated by the Court of Appeals, the petitioner
contends that the land in question was mortgage to him
by Juan Dorol, the father of Caridad, on February 25,
1977 and was subsequently sold to him on August 13,
1983 although it was made to appear that the deed of
sale was executed on August 13, 1979. It was also on
the said date that Recebido gave Caridad the amount of
P1,000.00 in addition to the P2,600.00 mortgage price
given to Juan Dorol which culminated into the execution
of the Deed of Sale signed by Caridad.
After trial on the merits, the trial court rendered the
decision on December 2, 1996, convicting petitioner of
the crime charged and sentencing him as follows:
ACCORDINGLY, accused ANECITO RECEBIDO
is sentenced to an indeterminate penalty of one
(1) year to three (3) years and six (6) months of
prision correccional as maximum and to pay a fine
of Three Thousand (P3,000.00) Pesos, with
subsidiary imprisonment.
Accused is ordered to pay P5,000.00 damages
and to vacate the land in question owned by the
offended party.
SO ORDERED.4
On appeal, the Court of Appeals affirmed with
modification the decision of the trial court, the
dispositive portion of which reads:
WHEREFORE, with the modification that the
award for damages is DELETED, is assailed
judgment is AFFIRMED in all of her respects.
SO ORDERED.5
The petitioner raises his case before this Court seeking
the reversal of the assailed decision and resolution of the
Court of Appeals. Based on his petition, the following
issues are before this Court:
1. Whether or not the crime charged had already
prescribed at the time the information was filed?
 2. Whether or not the Court of Appeals committed
gave abuse of discretion in sustaining the
conviction of the petitioner?
3. Whether or not the Court of Appeals committed
grievous error in affirming the decision of the trial
court for the petitioner to vacate the land in
question owned by the offended party?
We rule in the negative on the three issues.
On the first issue: While the defense of prescription of the
crime was raised only during the motion for
reconsideration of the decision of the Court of Appeals,
there was no waiver of the defense.
Under the Rules of Court, the failure of the accused to
assert the ground of extinction of the offense, inter alia, in
a motion to quash shall not be deemed a waiver of such
ground.The reason is that by prescription, the State or
the People loses the right to prosecute the crime or to
demand the service of the penalty imposed.  is discovered by the offended party, the authorities, or
Accordingly, prescription, although not invoked in the
trial, may, as in this case, be invoked on appeal.8 Hence,
the failure to raise this defense in the motion to quash the
information does not give rise to the waiver of the
petitioner-accused to raise the same anytime thereafter
including during appeal.
Nonetheless, we hold that the crime charged has not
prescribed. The petitioner is correct in stating that
whether or not the offense charged has already
prescribed when the information was filed would depend
on the penalty imposable therefor, which in this case is
"prision correccional in its medium and maximum periods
and a fine of not more than 5,000.00 pesos."9 Under the
Revised Penal Code,10 said penalty is a correctional
penalty in the same way that the fine imposed is
categorized as correctional. Both the penalty and fine
being correctional, the offense shall prescribe in TEN
years.11 
The issue that the petitioner has missed, however, is the
reckoning point of the prescriptive period.
The petitioner is of the impression that the ten-year
prescriptive period necessarily started at the time the
crime was committed. This is inaccurate. Under Article 91
of the Revised Penal Code, the period of prescription
shall "commence to run from the day on which the crime
their agents,……" In People v. Reyes,12 this Court has
declared that registration in public registry is a notice to
the whole world. The record is constructive notice of its
contents as well as all interests, legal and equitable,
included therein. All persons are charged with knowledge
of what it contains.
The prosecution has established that private complainant
Dorol did not sell the subject land to the petitioner-
accused at anytime and that sometime in 1983 the
private complainant mortgaged the agricultural land to
petitioner Recebido. It was only on September 9, 1990,
when she went to petitioner to redeem the land that she
came to know of the falsification committed by the
petitioner.
On the other hand, petitioner contends that the land in
question was mortgaged to him by Juan Dorol, the father
of private complainant, and was subsequently sold to him
on August 13, 1983. This Court notes that the private
offended party had no actual knowledge of the
falsification prior to September 9, 1990. Meanwhile,
assuming arguendo that the version of the petitioner is
believable, the alleged sale could not have been
registered before 1983, the year the alleged deed of sale
was executed by the private complainant. Considering
the foregoing, it is logical and in consonance with human
experience to infer that the crime committed was not
discovered, nor could have been discovered, by the
offended party before 1983.
Neither could constructive notice by registration of the
forged deed of sale, which is favorable to the petitioner
since the running of the prescriptive period of the crime
shall have to be reckoned earlier, have been done before
1983 as it is impossible for the petitioner to have
registered the deed of sale prior thereto. Even
granting arguendo that the deed of sale was executed by
the private complainant, delivered to the petitioner-
accused in August 13, 1983 and registered on the same
day, the ten-year prescriptive period of the crime had not
yet elapsed at the time the information was filed in 1991.
The inevitable conclusion, therefore, is that the crime had
not prescribed at the time of the filing of the information.
These are specious arguments. The petitioner based his
claim of possession alternatively by virtue of two
alternative titles: one, based on the forged deed of sale
and, two, as mortgagee of the land. As already
discussed, the deed of sale was forged and, hence, could
not be a valid basis of possession. Neither could his
status as mortgagee be the basis of possession since it
is the mortgagor in a contract of mortgage who is entitled
to the possession of the property. We have taken note of
the practice in the provinces that in giving a realty for a
collateral, possession usually goes with it.18 Besides,
even assuming that petitioner had a right to possess the
subject land, his possession became unlawful when the
private complainant offered to redeem the property and
petitioner unjustly refused. Petitioner cannot profit from
the effects of his crime. The trial court, therefore, did not
commit any error in ordering petitioner to vacate the
subject property.
In view of the foregoing, this Court finds that the Court of The facts of this case are undisputed. The petitioner was
Appeals did not commit any reversible error in its indicted for simple seduction in Criminal Case No. 85-
Decision dated September 9, 1999 and its Resolution 816, at the Municipal Trial Court of Angeles City, Branch
dated February 15, 2000. 3.

ACCORDINGLY, is instant petition is DENIED for lack of During the trial of the case, Atty. Eduardo Pineda,
merit.1âwphi1.nêt counsel for petitioner, submitted the case for decision
without offering any evidence, due to the petitioner’s
SO ORDERED. constant absence at hearings.

On September 16, 1987, the petitioner was convicted of

the offense charged and was sentenced to serve a
penalty of two months and one day of arresto mayor.

On appeal, the Regional Trial Court, on October 24,

1988, affirmed in toto the decision of the Municipal Trial
G.R. No. 141718            January 21, 2005 Court.

BENJAMIN PANGAN y RIVERA, petitioner, On August 9, 1991, the case was called for promulgation
vs. of the decision in the court of origin. Despite due notice,
HON. LOURDES F. GATBALITE, as the Presiding counsel for the petitioner did not appear. Notice to
Judge, Regional Trial Court of Angeles City, Branch petitioner was returned unserved with the notation that he
56, and COL. JAMES D. LABORDO, as the City Jail no longer resided at the given address.
Warden of Angeles City, respondents.
As a consequence, he also failed to appear at the
DECISION scheduled promulgation. The court of origin issued an
order directing the recording of the decision in the
AZCUNA, J.:
criminal docket of the court and an order of arrest against
the petitioner.
Pursuant to the order of arrest, on January 20, 2000, the
petitioner was apprehended and detained at the
Mabalacat Detention Cell. On January 24, 2000,
petitioner filed a Petition for a Writ of Habeas Corpus at
the Regional Trial Court of Angeles City. He impleaded
as respondent the Acting Chief of Police of Mabalacat,
Pampanga. Petitioner contended that his arrest was
illegal and unjustified on the grounds that:
(a) the straight penalty of two months and one day
of arresto mayor prescribes in five years under No.
3, Article 93 [of the] Revised Penal Code, and
(b) having been able to continuously evade
service of sentence for almost nine years, his
criminal liability has long been totally extinguished
under No. 6, Article 89 [of the] Revised Penal
Code.4
After his transfer to the City Jail of Angeles City on
January 25, 2000, petitioner filed an Amended Petition
with the Regional Trial Court, impleading herein
respondent Col. James D. Labordo, the Jail Warden of
Angeles City, as respondent.5
In response, the Jail Warden alleged that petitioner’s
detention was pursuant to the order of commitment
(mittimus), issued by Marlon P. Roque, Clerk of Court III
of the Municipal Trial Court of Angeles City, Branch 3,
dated January 25, 2000.6
On January 31, 2000, respondent Judge rendered the
decision, which is the subject of this present appeal,
which pronounced:
The Court cannot subscribe to the contention of the
petitioner that the penalty imposed on him in the decision
adverted to above had already prescribed, hence, his
detention is illegal for under Article 93 of the Revised
Penal Code:
"The period of prescription of penalties shall
commence to run from the date when the culprit
should evade the service of sentence, and it shall be
interrupted if the defendant should give himself up, be
captured, should go to some foreign country with which
this Government has no extradition treaty, or should
commit another crime before the expiration of the period
of prescription.
The elements of prescription are:
1. That the penalty is imposed by final judgment;
2. That convict evaded the service of the sentence
by escaping during the term of his sentence;
3. That the convict who had escaped from prison
has not given himself up, or been captured, or
gone to a foreign country with which we have no
extradition treaty, or committed another crime;
 4. The penalty has prescribed, because of the
lapse of time from the date of the evasion of the
service of the sentence by the convict.
In this case, the essential element of prescription which is
the evasion of the service of sentence is absent.
Admittedly, the petitioner herein has not served the
penalty imposed on him in prison and that during the
service of the sentence, he escaped therefrom. Notably,
at the trial of Crim. Case No. 85-816 in the Municipal Trial
Court, Branch III, Angeles City and on the date set for the
promulgation of the affirmed decision, the petitioner failed
to appear and remained at large.1a\^/phi1.net
"There was no evasion of the service of the sentence in
this case, because such evasion presupposes escaping
during the service of the sentence consisting in
deprivation of liberty." (Infante vs. Warden, 48 O.G. No.
122) (92 Phil. 310).
Corollarily, the detention of the petitioner in Angeles City
Jail in compliance with the Order of Commitment (Exhibit
E) is not illegal for –
"A commitment in due form, based on a final judgment,
convicting and sentencing the defendant in a criminal
case, is conclusive evidence of the legality of his
detention, unless it appears that the court which
pronounced the judgment was without jurisdiction or
exceeded it." (U.S. vs. Jayne, 24 Phil 90, 24 J.F. 94, Phil.
Digest, Vol. 2, 1398).
WHEREFORE, for not being meritorious and well-
founded, the petition for a writ of habeas corpus is hereby
denied.
SO ORDERED.
Angeles City, January 31, 2000.7
From the above quoted decision, petitioner filed the
instant petition for review on a question purely of law and
raised the following issue:
HOW SHOULD THE PHRASE "SHALL COMMENCE TO
RUN FROM THE DATE WHEN THE CULPRIT SHOULD
EVADE THE SERVICE OF SENTENCE" IN ARTICLE 93
OF THE REVISED PENAL CODE ON THE
COMPUTATION OF THE PRESCRIPTION OF
PENALTIES BE CONSTRUED? PUT A LITTLE
DIFFERENTLY, WHEN DOES THE PRESCRIPTIVE
PERIOD OF PENALTIES BEGIN TO RUN?
Petitioner claims that:
xxx the period for the computation of penalties under
Article 93 of the Revised Penal Code begins to run from
the moment the judgment of conviction becomes final
and the convict successfully evades, eludes, and dodges
arrest for him to serve sentence.9
Petitioner supports his claim in the following manner:
The Decision subject of this appeal, which was based on
the 1952 ruling rendered in Infante vs. Warden, 48 O.G.
No. 122, 92 Phil. 310, is, petitioner most respectfully
submits, not good case law. It imposes upon the convict
a condition not stated in the law. It is contrary to the spirit,
nature or essence of prescription of penalties, creates an
ambiguity in the law and opens the law to abuse by
government.
THE INFANTE RULING IMPOSES A
CONDITION NOT STATED IN THE LAW.
It appears that the Infante ruling imposes that, as an
essential element, the convict must serve at least a few
seconds, minutes, days, weeks or years of his jail
sentence and then escapes before the computation of
prescription of penalties begins to run. This, petitioner
respectfully submits is not a condition stated in Article 93,
which states that, the prescription of penalties "shall
commence to run from the date when the culprit should
evade the service of sentence."
There is no dispute that the duty of government to
compel the service of sentence sets in when the
judgment of conviction becomes final.
The dispute, however, is in the construction of the
phrase "should evade the service of sentence." When
does the period of prescription of penalties begin to run?
The Infante ruling construes this to mean that the convict
must escape from jail "because such evasion
presupposes escaping during the service of the sentence
consisting in deprivation of liberty."
Petitioner, with due respect, disagrees because if that
were the intention of the law, then the phrase "should
evade the service of sentence" in Article 93 would have
read: "should escape during the service of the sentence
consisting in deprivation of liberty." The legislature could
have very easily written Article 93 to read this way –
"The period of prescription of penalties shall commence
to run from the date when the culprit should escape
during the service of the sentence consisting in
deprivation of liberty, and it shall be interrupted if the
defendant should give himself up, be captured, should go
to some foreign country with which this Government has
no extradition treaty, or should commit another crime
before the expiration of the period of prescription."
But they did not.
The legislature wrote "should evade the service of
sentence" to cover or include convicts like him who,
although convicted by final judgment, were never
arrested or apprehended by government for the
service of their sentence.
With all the powers of government at its disposal,
petitioner was able to successfully evade service of his 2
months and 1 day jail sentence for at least nine (9) years,
from August 9, 1991 to January 20, 2000. This is
approximately 3 years and 5 months longer than the 5-
year prescriptive period of the penalty imposed on him.
That, as the respondent RTC Judge noted, petitioner did
not attend the trial at the Municipal Trial Court and the
promulgation of his judgment of conviction in August 9,
1991 is of no moment. His bond for provisional release
was surely cancelled and an order of arrest was surely
issued against petitioner. The undisputed fact is that on
August 9, 1991 the judgment of conviction was
promulgated in absentia and an order for petitioner’s
arrest was issued by the Municipal Trial Court of Angeles
City, Branch III.
The duty of government, therefore, to arrest petitioner
and compel him to serve his sentence began on August
9, 1991.
The 5-year prescriptive period of his arresto
mayor penalty also began to run on that day considering
that no relief was taken therefrom.
Since petitioner never gave himself up [n]or was [he],
until January 20, 2000, ever captured, for the service of
his sentence nor did he flee to some foreign country with
which [our] government has no extradition treaty, that 5-
year prescriptive period of his penalty ran
continuously from August 9, 1991 when his judgment
of conviction was promulgated in absentia and was
never interrupted.
For reasons known only to it, however, government failed
or neglected, for almost nine (9) years, to arrest petitioner
for the service of his arresto mayor sentence [which]
should not be taken against petitioner. He was able to
successfully evade service of his sentence for a period
longer than the 5-year prescriptive period of his penalty
and, as such, is entitled to total extinction of his criminal
liability.
To say, as was said in Infante, that the prescriptive
period of the penalty never began to run in favor of
petitioner because he never escaped from jail during the
service of his sentence imposes a condition not written in
the law. It also violates the basic principle that the
criminal statutes are construed liberally in favor of the
accused and/or convict and is contrary to the spirit
behind or essence of statutes of limitations [and]
prescription, in criminal cases.10
The Regional Trial Court based its decision on the case
of Infante v. Warden11 . In said case, Infante, the
petitioner, was convicted of murder and was sentenced
to seventeen years, four months and one day
of reclusion temporal. After serving fifteen years, seven
months and eleven days, he was granted a conditional
pardon. The condition was that "he shall not again violate
any of the penal laws of the Philippines." Ten years after
his release on conditional pardon, Infante was found
guilty by a Municipal Court for driving without a license.
Infante was immediately ordered rearrested for breach of
the condition of his pardon. One of the issues raised by
Infante in his petition,
xxx was that the remitted penalty for which the petitioner
had been recommitted to jail – one year and 11 days –
had prescribed. xxx 12
The Court disagreed and reasoned out thus:
The contention is not well taken. According to article 93
of the Revised Penal Code the period of prescription of
penalties commences to run from the date when the
culprit should evade the service of his sentence. It is
evident from this provision that evasion of the sentence is
an essential element of prescription. There has been no
such evasion in this case. Even if there had been one
and prescription were to be applied, its basis would have
to be the evasion of the unserved sentence, and
computation could not have started earlier than the date
of the order for the prisoner's rearrest.13
A perusal of the facts in Infante v. Warden reveals that it
is not on all fours with the present case. In Infante, the
convict was on conditional pardon when he was re-
arrested. Hence, he had started serving sentence but the
State released him.
In the present case, the convict evaded service of
sentence from the start, and was arrested eight years
later.
The RTC decision, however, must stand, since it is in
accord with applicable decisions of this Court. The issue
raised by petitioner is not novel. Article 93 of the Revised
Penal Code14 has been interpreted several times by the
Court.
The case of Tanega v. Masakayan15 falls squarely within
the issues of the present case. In that case, petitioner
Adelaida Tanega failed to appear on the day of the
execution of her sentence.1awphi1.nét On the same day,
respondent judge issued a warrant for her arrest. She
was never arrested. More than a year later, petitioner
through counsel moved to quash the warrant of arrest, on
the ground that the penalty had prescribed. Petitioner
claimed that she was convicted for a light offense and
since light offenses prescribe in one year, her penalty
had already prescribed. The Court disagreed, thus:
xxx The period of prescription of penalties — the
succeeding Article 93 provides — "shall commence to
run from the date when the culprit should evade the
service of his sentence". What then is the concept of
evasion of service of sentence? Article 157 of the
Revised Penal Code furnishes the ready answer. Says
Article 157:
"ART. 157. Evasion of service of sentence. — The
penalty of prision correccional in its medium and
maximum periods shall be imposed upon any convict
who shall evade service of his sentence by escaping
during the term of his imprisonment by reason of final
judgment. xxx"
Elements of evasion of service of sentence are: (1) the
offender is a convict by final judgment; (2) he "is serving
his sentence which consists in deprivation of liberty"; and
(3) he evades service of sentence by escaping during the
term of his sentence. This must be so. For, by the
express terms of the statute, a convict evades "service of
his sentence" by "escaping during the term of his
imprisonment by reason of final judgment." That escape
should take place while serving sentence, is emphasized
by the provisions of the second sentence of Article 157
which provides for a higher penalty if such "evasion or
escape shall have taken place by means of unlawful
entry, by breaking doors, windows, gates, walls, roofs, or
floors, or by using picklocks, false keys, disguise, deceit,
violence or intimidation, or through connivance with other
convicts or employees of the penal institution, . . ."
Indeed, evasion of sentence is but another expression of
the term "jail breaking."
xxx
We, therefore, rule that for prescription of penalty of
imprisonment imposed by final sentence to commence to
run, the culprit should escape during the term of such
imprisonment.
Adverting to the facts, we have here the case of a convict
who — sentenced to imprisonment by final judgment —
was thereafter never placed in confinement. Prescription
of penalty, then, does not run in her favor.
In Del Castillo v. Torrecampo 17 , the Court cited and
reiterated Tanega. Petitioner, Del Castillo, was charged
for violation of Section 178 (nn) of the 1978 Election
Code. The trial court found Del Castillo guilty beyond
reasonable doubt and sentenced him to suffer an
indeterminate sentence of imprisonment of 1 year as
minimum to 3 years as maximum. On appeal the Court of
Appeals affirmed the decision of the trial court in toto.
During the execution of judgment on October 14, 1987,
petitioner was not present. The presiding Judge issued
an order of arrest and the confiscation of his bond.
Petitioner was never apprehended. Ten years later,
petitioner filed a motion to quash the warrant of arrest on
the ground that the penalty imposed upon him had
already prescribed. The motion was denied by the trial
court. Del Castillo, on a petition for certiorari to the Court
of Appeals, questioned the denial by the trial court. The
Court of Appeals dismissed the petition for lack of merit.
Upon denial of his Motion for Reconsideration, Del
Castillo raised the matter to this Court. The Court
decided against Del Castillo and after quoting the ratio
decidendi of the Court of Appeals in full, it ratiocinated,
thus:
The foregoing conclusion of the Court of Appeals is
consistent with the ruling of this Court in Tanega vs.
Masakayan, et al., where we declared that, for
prescription of penalty imposed by final sentence to
commence to run, the culprit should escape during the
term of such imprisonment.
The Court is unable to find and, in fact, does not perceive
any compelling reason to deviate from our earlier
pronouncement clearly exemplified in the Tanega case.
Article 93 of the Revised Penal Code provides when the
prescription of penalties shall commence to run. Under
said provision, it shall commence to run from the date the
felon evades the service of his sentence. Pursuant to
Article 157 of the same Code, evasion of service of
sentence can be committed only by those who have been
convicted by final judgment by escaping during the term
of his sentence.
As correctly pointed out by the Solicitor General,
"escape" in legal parlance and for purposes of Articles 93
and 157 of the RPC means unlawful departure of
prisoner from the limits of his custody. Clearly, one who
has not been committed to prison cannot be said to have
escaped therefrom.
In the instant case, petitioner was never brought to
prison. In fact, even before the execution of the judgment
for his conviction, he was already in hiding. Now
petitioner begs for the compassion of the Court because
he has ceased to live a life of peace and tranquility after
he failed to appear in court for the execution of his
sentence. But it was petitioner who chose to become a
fugitive. The Court accords compassion only to those
who are deserving. Petitioner's guilt was proven beyond
reasonable doubt but he refused to answer for the wrong
he committed. He is therefore not to be rewarded
therefor.
The assailed decision of the Court of Appeals is based
on settled jurisprudence and applicable laws. It did not
engage in judicial legislation but correctly interpreted the
pertinent laws. Because petitioner was never placed in
confinement, prescription never started to run in his
favor.18
Consistent with the two cases cited above, this Court
pronounces that the prescription of penalties found in
Article 93 of the Revised Penal Code, applies only to
those who are convicted by final judgment and are
serving sentence which consists in deprivation of liberty. G.R. No. 139033           December 18, 2002
The period for prescription of penalties begins only when
the convict evades service of sentence by escaping JOVENDO DEL CASTILLO, petitioner,
during the term of his sentence. Since petitioner never vs.
suffered deprivation of liberty before his arrest on HON. ROSARIO TORRECAMPO, Presiding Judge,
January 20, 2000 and as a consequence never evaded RTC of Camarines Sur, Branch 33 and
sentence by escaping during the term of his service, the PEOPLE OF THE PHILIPPINES, respondents.
period for prescription never began.
DECISION
Petitioner, however, has by this time fully served his
CORONA, J.:
sentence of two months and one day of arresto
mayor and should forthwith be released unless he is
The instant petition is one for the review, by way of
being detained for another offense or charge.
appeal by certiorari, of the Decision1 of the Court of
Appeals dated November 20, 1998, and of the Resolution
WHEREFORE, the decision of the Regional Trial Court of
dated June 14, 1999 denying the motion for
Angeles City, Branch 56 is AFFIRMED, but petitioner is
reconsideration thereof.
ordered released effective immediately for having fully
served his sentence unless he is detained for another
Petitioner was charged on March 8, 1983 with violation of
offense or charge.
Section 178 (nn)2 of the 1978 Election Code in Criminal
Case No. F-1447 before Branch 33, Regional Trial Court,
No costs.
Camarines Sur. The Information alleged:
SO ORDERED.
That on May 17, 1982, (Barangay Election Day), at
around 8:15 P.M. in Barangay Ombao, Municipality of
Bula, Province of Camarines Sur, Philippines, and within
the jurisdiction of this Honorable Court, the above-named
accused did, then and there unlawfully conducted himself
in a disorderly manner, by striking the electric bulb and
two (2) kerosene petromax lamps lighting the room
where voting center no. 24 is located, during the counting
of the votes in said voting center plunging the room in
complete darkness, thereby interrupting and disrupting
the proceedings of the Board of Election Tellers.3
On arraignment, petitioner pleaded not guilty. Thereafter,
trial on the merits ensued.
On January 14, 1985, the trial court rendered judgment
and declared petitioner guilty beyond reasonable doubt of
violating Section 178 (nn) of PD 1296, otherwise known
as the 1978 Election Code, as amended, and sentenced
petitioner to suffer the indeterminate penalty of
imprisonment of 1 year as minimum to 3 years as
maximum.
Aggrieved, petitioner appealed his conviction to the Court
of Appeals which eventually affirmed the decision of the
trial court in toto. Said decision became final and
executory. Thus, the execution of judgment was
scheduled on October 14, 1987.
On October 12, 1987, an urgent motion to reset the
execution of judgment was submitted by petitioner
through his counsel. But it was denied for lack of merit.
During the execution of judgment, petitioner failed to
appear which prompted the presiding judge to issue an
order of arrest of petitioner and the confiscation of his
bond. However, petitioner was never apprehended. He
remained at large.
Ten years later, on October 24, 1997, petitioner filed
before the trial court a motion to quash the warrant
issued for his arrest on the ground of prescription of the
penalty imposed upon him. However, it was denied. His
motion for reconsideration thereof was likewise denied.
Dissatisfied, petitioner filed with the Court of Appeals a
Petition for Certiorari assailing the orders of the trial court
denying both his motion to quash the warrant of arrest
and motion for reconsideration.
On November 20, 1998, the Court of Appeals rendered
its now assailed decision dismissing the petition for lack
of merit.
Following the denial of his motion for reconsideration, the
instant petition was filed before us.
Petitioner asserts that the Court of Appeals gravely erred
in holding that the penalty imposed upon petitioner has
not prescribed. Petitioner maintains that Article 93 of the
Revised Penal Code provides that the period of
prescription shall commence to run from the date when
the culprit should evade the service of his sentence. The
Court of Appeals, in its interpretation of the said
provision, engaged in judicial legislation when it added
the phrase "by escaping during the term of the sentence"
thereto, so petitioner claims.
Going over the merits of the petition, the Court finds that
the Court of Appeals did not err in dismissing the petition
for certiorari.
The threshold issue in the instant case is the
interpretation of Article 93 of the Revised Penal Code in
relation to Article 157 of the same Code.
In dismissing the petition, the Court of Appeals ruled:
"Article 92 of the Revised Penal Code provides as
follows:
‘When and how penalties prescribe – The penalties
imposed by the final sentence prescribed as follows:
1. Death and reclusion perpetua, in twenty years;
2. Other afflictive penalties, in fifteen years;
3. Correctional penalties, in ten years; with the
exception of the penalty of arresto mayor, which
prescribes in five years;
4. Light penalties, in one year.’
"And Article 93 of the Revised Penal Code, provides as
follows:
‘Computation of the prescription of penalties – The period
of prescription of penalties shall commence to run from
the date when the culprit should evade the service of his
sentence, and it shall be interrupted if the defendant
should give himself up, be captured, should go to some
foreign country with which his Government has no
extradition treaty, or should commit another crime before
the expiration of the period of prescription.’
"The penalty imposed upon the petitioner is one
(1) year of imprisonment as minimum to three (3)
years of imprisonment as maximum.
"The law under which the petitioner was convicted
is a special law, the 1978 Election Code. This law
does not provide for the prescription of penalties.
This being the case, We have to apply the
provision of the Revised Penal Code which allows
the application of said code in suppletory
character when it provides that:
‘Offenses which are or in the future may be
punishable under special laws are not subject to
the provision of this code. This code shall be
supplementary to such laws, unless the latter
should specially provide the contrary.’
"The penalty imposed upon the petitioner is a
correctional penalty under Article 25 in relation to
Article 27 of the Revised Penal Code. Being a
correctional penalty it prescribed in ten (10) years.
"The petitioner was convicted by a final judgment
on June 14, 1986. Such judgment would have
been executed on October 14, 1986 but the
accused did not appear for such proceeding. And
he has never been apprehended.
"The contention of the petitioner is that said
judgment prescribed on October 24, 1996.
"The issue here is whether or not the penalty
imposed upon the petitioner has prescribed.
"The elements in order that the penalty imposed
has prescribed are as follows:
‘1. That the penalty is imposed by final
sentence.
2. That the convict evaded the service of
the sentence by escaping during the term of
his sentence.
3. That the convict who escaped from
prison has not given himself up, or been
captured, or gone to a foreign country with
which we have no extradition treaty or
committed another crime.
4. That the penalty has prescribed, because
of the lapse of time form the date of the
evasion of the service of the sentence by
the convict.’
(p. 93, Revised Penal Code by L. Reyes 93
ed.)
"From the foregoing elements, it is clear that the
penalty imposed has not prescribed because the
circumstances of the case at bench failed to
satisfy the second element, to wit – ‘That the
convict evaded the service of the sentence by
escaping during the service of his sentence.’ As a
matter of fact, the petitioner never served a single
minute of his sentence.
The foregoing conclusion of the Court of Appeals is
consistent with the ruling of this Court in Tanega vs.
Masakayan, et. al.,4 where we declared that, for
prescription of penalty imposed by final sentence to
commence to run, the culprit should escape during the
term of such imprisonment.
The Court is unable to find and, in fact, does not perceive
any compelling reason to deviate from our earlier
pronouncement clearly exemplified in the Tanega case.
Article 93 of the Revised Penal Code provides when the
prescription of penalties shall commence to run. Under
said provision, it shall commence to run from the date
the felon evades the service of his sentence.
Pursuant to Article 157 of the same Code, evasion of
service of sentence can be committed ONLY by those
who have been convicted by final judgment by escaping
during the term of his sentence.
As correctly pointed out by the Solicitor General,
"escape" in legal parlance and for purposes of Articles 93
and 157 of the RPC means unlawful departure of
prisoner from the limits of his custody.
Clearly, one who has not been committed to prison
cannot be said to have escaped therefrom.
In the instant case, petitioner was never brought to
prison. In fact, even before the execution of the judgment
for his conviction, he was already in hiding. Now
petitioner begs for the compassion of the Court because
he has ceased to live a life of peace and tranquility after
he failed to appear in court for the execution of his
sentence. But it was petitioner who chose to become a
fugitive. The Court accords compassion only to those
who are deserving. Petitioner’s guilt was proven beyond
reasonable doubt but he refused to answer for the wrong
he committed. He is therefore not to be rewarded
therefor.
The assailed decision of the Court of Appeals is based
on settled jurisprudence and applicable laws. It did not
engage in judicial legislation but correctly interpreted the
pertinent laws. Because petitioner was never placed in
confinement, prescription never started to run in his
favor.
WHEREFORE, for lack of merit, the petition is hereby
DENIED.
SO ORDERED.
G.R. No. 206666               January 21, 2015
ATTY. ALICIA RISOS-VIDAL, Petitioner,
ALFREDO S. LIM Petitioner-Intervenor,
vs.
COMMISSION ON ELECTIONS and JOSEPH
EJERCITO ESTRADA, Respondents.
DECISION
LEONARDO-DE CASTRO, J.:
The Facts
The salient facts of the case are as follows:
On September 12, 2007, the Sandiganbayan convicted
former President Estrada, a former President of the
Republic of the Philippines, for the crime of plunder in
Criminal Case No. 26558, entitled "People of the
Philippines v. Joseph Ejercito Estrada, et al." The
dispositive part of the graft court’s decision reads:
WHEREFORE, in view of all the foregoing, judgment is
hereby rendered in Criminal Case No. 26558 finding the
accused, Former President Joseph Ejercito Estrada,
GUILTY beyond reasonable doubt of the crime of
PLUNDER, defined in and penalized by Republic Act No.
7080, as amended. On the other hand, for failure of the
prosecution to prove and establish their guilt beyond
reasonable doubt, the Court finds the accused Jose
"Jinggoy" Estrada and Atty. Edward S. Serapio NOT
GUILTY of the crime of plunder, and accordingly, the
Court hereby orders their ACQUITTAL.
The penalty imposable for the crime of plunder under
Republic Act No. 7080, as amended by Republic Act No.
7659, is Reclusion Perpetua to Death. There being no
aggravating or mitigating circumstances, however, the
lesser penalty shall be applied in accordance with Article
63 of the Revised Penal Code. Accordingly, the accused
Former President Joseph Ejercito Estrada is hereby
sentenced to suffer the penalty of Reclusion Perpetua
and the accessory penalties of civil interdiction during the
period of sentence and perpetual absolute
disqualification.
The period within which accused Former President
Joseph Ejercito Estrada has been under detention shall
be credited to him in full as long as he agrees voluntarily
in writing to abide by the same disciplinary rules imposed
upon convicted prisoners.
Moreover, in accordance with Section 2 of Republic Act
No. 7080, as amended by Republic Act No. 7659, the
Court hereby declares the forfeiture in favor of the
government of the following:
(1) The total amount of Five Hundred Forty[-]Two
Million Seven Hundred Ninety[-]One Thousand
Pesos (₱545,291,000.00), with interest and
income earned, inclusive of the amount of Two
Hundred Million Pesos (₱200,000,000.00),
deposited in the name and account of the Erap
Muslim Youth Foundation.
(2) The amount of One Hundred Eighty[-]Nine
Million Pesos (₱189,000,000.00), inclusive of
interests and income earned, deposited in the
Jose Velarde account.
(3) The real property consisting of a house and lot
dubbed as "Boracay Mansion" located at #100
11th Street, New Manila, Quezon City.
The cash bonds posted by accused Jose "Jinggoy"
Estrada and Atty. Edward S. Serapio are hereby ordered
cancelled and released to the said accused or their duly
authorized representatives upon presentation of the
original receipt evidencing payment thereof and subject
to the usual accounting and auditing procedures.
Likewise, the hold-departure orders issued against the
said accused are hereby recalled and declared functus
oficio.4
On October 25, 2007, however, former President Gloria
Macapagal Arroyo (former President Arroyo) extended
executive clemency, by way of pardon, to former
President Estrada. The full text of said pardon states:
MALACAÑAN PALACE
MANILA
By the President of the Philippines
PARDON
WHEREAS, this Administration has a policy of releasing
inmates who have reached the age of seventy (70),
WHEREAS, Joseph Ejercito Estrada has been under
detention for six and a half years,
WHEREAS, Joseph Ejercito Estrada has publicly
committed to no longer seek any elective position or
office,
IN VIEW HEREOF and pursuant to the authority
conferred upon me by the Constitution, I hereby grant
executive clemency to JOSEPH EJERCITO ESTRADA,
convicted by the Sandiganbayan of Plunder and imposed
a penalty of Reclusion Perpetua. He is hereby restored to
his civil and political rights.
The forfeitures imposed by the Sandiganbayan remain in
force and in full, including all writs and processes issued
by the Sandiganbayan in pursuance hereof, except for
the bank account(s) he owned before his tenure as
President.
Upon acceptance of this pardon by JOSEPH EJERCITO
ESTRADA, this pardon shall take effect.
Given under my hand at the City of Manila, this 25th Day
of October, in the year of Our Lord, two thousand and
seven.
Gloria M. Arroyo (sgd.)
By the President:
IGNACIO R. BUNYE (sgd.)
Acting Executive Secretary5
On October 26, 2007, at 3:35 p.m., former President
Estrada "received and accepted"6 the pardon by affixing
his signature beside his handwritten notation thereon.
On November 30, 2009, former President Estrada filed a
Certificate of Candidacy7 for the position of President.
During that time, his candidacy earned three oppositions
in the COMELEC: (1) SPA No. 09-024 (DC), a "Petition
to Deny Due Course and Cancel Certificate of
Candidacy" filed by Rev. Elly Velez B. Lao Pamatong,
ESQ; (2) SPA No. 09-028 (DC), a petition for
"Disqualification as Presidential Candidate" filed by Evilio
C. Pormento (Pormento); and (3) SPA No. 09-104 (DC),
a "Petition to Disqualify Estrada Ejercito, Joseph M.from
Running as President due to Constitutional
Disqualification and Creating Confusion to the Prejudice
of Estrada, Mary Lou B" filed by Mary Lou Estrada. In
separate Resolutions8 dated January 20, 2010 by the
COMELEC, Second Division, however, all three petitions
were effectively dismissed on the uniform grounds that (i)
the Constitutional proscription on reelection applies to a
sitting president; and (ii) the pardon granted to former
President Estrada by former President Arroyo restored
the former’s right to vote and be voted for a public office.
The subsequent motions for reconsideration thereto were
denied by the COMELEC En banc.
After the conduct of the May 10, 2010 synchronized
elections, however, former President Estrada only
managed to garner the second highest number of votes.
Of the three petitioners above-mentioned, only Pormento
sought recourse to this Court and filed a petition for
certiorari, which was docketed as G.R. No. 191988,
entitled "Atty. Evilio C. Pormento v. Joseph ‘ERAP’
Ejercito Estrada and Commission on Elections." But in a
Resolution9 dated August 31, 2010, the Court dismissed
the aforementioned petition on the ground of mootness
considering that former President Estrada lost his
presidential bid.
On October 2, 2012, former President Estrada once more
ventured into the political arena, and filed a Certificate of
Candidacy,10 this time vying for a local elective post, that
of the Mayor of the City of Manila.
On January 24, 2013, Risos-Vidal, the petitioner in this
case, filed a Petition for Disqualification against former
President Estrada before the COMELEC. The petition
was docketed as SPA No. 13-211 (DC). Risos Vidal
anchored her petition on the theory that "[Former
President Estrada] is Disqualified to Run for Public Office
because of his Conviction for Plunder by the
Sandiganbayan in Criminal Case No. 26558 entitled
‘People of the Philippines vs. Joseph Ejercito Estrada’
Sentencing Him to Suffer the Penalty of Reclusion
Perpetuawith Perpetual Absolute Disqualification."11 She
relied on Section 40 of the Local Government Code
(LGC), in relation to Section 12 of the Omnibus Election
Code (OEC), which state respectively, that:
Sec. 40, Local Government Code:
SECTION 40. Disqualifications.- The following persons
are disqualified from running for any elective local
position:
(a) Those sentenced by final judgment for an
offense involving moral turpitude or for an offense
punishable by one (1) year or more of
imprisonment, within two (2) years after serving
sentence; (b) Those removed from office as a
result of an administrative case;
(c) Those convicted by final judgment for violating
the oath of allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or nonpolitical
cases here or abroad;
(f) Permanent residents in a foreign country or
those who have acquired the right to reside
abroad and continue to avail of the same right
after the effectivity of this Code; and
(g) The insane or feeble minded. (Emphasis
supplied.)
Sec. 12, Omnibus Election Code:
Section 12. Disqualifications. - Any person who has been
declared by competent authority insane or incompetent,
or has been sentenced by final judgmentfor subversion,
insurrection, rebellion, or for any offense for which he has
been sentenced to a penalty of more than eighteen
months or for a crime involving moral turpitude, shall be
disqualified to be a candidate and to hold any public
office, unless he has been given plenary pardon or
granted amnesty. (Emphases supplied.)
In a Resolution dated April 1, 2013,the COMELEC,
Second Division, dismissed the petition for
disqualification, the fallo of which reads:
WHEREFORE, premises considered, the instant petition
is hereby DISMISSED for utter lack of merit.12
The COMELEC, Second Division, opined that "[h]aving
taken judicial cognizance of the consolidated resolution
for SPA No. 09-028 (DC) and SPA No. 09-104 (DC) and
the 10 May 2010 En Banc resolution affirming it, this
Commission will not be labor the controversy further.
Moreso, [Risos-Vidal] failed to present cogent proof
sufficient to reverse the standing pronouncement of this
Commission declaring categorically that [former
President Estrada’s] right to seek public office has been
effectively restored by the pardon vested upon him by
former President Gloria M. Arroyo. Since this
Commission has already spoken, it will no longer engage
in disquisitions of a settled matter lest indulged in
wastage of government resources."13
The subsequent motion for reconsideration filed by
Risos-Vidal was denied in a Resolution dated April 23,
2013.
On April 30, 2013, Risos-Vidal invoked the Court’s
jurisdiction by filing the present petition. She presented
five issues for the Court’s resolution, to wit:
I. RESPONDENT COMELEC COMMITTED
GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR EXCESS OF JURISDICTION IN
HOLDING THAT RESPONDENT ESTRADA’S
PARDON WAS NOT CONDITIONAL;
II. RESPONDENT COMELEC COMMITTED
GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR EXCESS OF JURISDICTION IN
NOT FINDING THAT RESPONDENT ESTRADA
IS DISQUALIFIED TO RUN AS MAYOR OF
MANILA UNDER SEC. 40 OF THE LOCAL
GOVERNMENTCODE OF 1991 FOR HAVING
BEEN CONVICTED OF PLUNDER, AN
OFFENSE INVOLVING MORAL TURPITUDE;
III. RESPONDENT COMELEC COMMITTED
GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR EXCESS OF JURISDICTION IN
DISMISSING THE PETITION FOR
DISQUALIFICATION ON THE GROUND THAT
THE CASE INVOLVES THE SAME OR SIMILAR
ISSUES IT ALREADY RESOLVED IN THE
CASES OF "PORMENTO VS. ESTRADA", SPA
NO. 09-028 (DC) AND IN "RE: PETITION TO
DISQUALIFY ESTRADA EJERCITO, JOSEPH M.
FROM RUNNING AS PRESIDENT, ETC.," SPA
NO. 09-104 (DC);
IV. RESPONDENT COMELEC COMMITTED
GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR EXCESS OF JURISDICTION IN
NOT RULING THAT RESPONDENT ESTRADA’S
PARDON NEITHER RESTORED HIS RIGHT OF
SUFFRAGE NOR REMITTED HIS PERPETUAL
ABSOLUTE DISQUALIFICATION FROM
SEEKING PUBLIC OFFICE; and
V. RESPONDENT COMELEC COMMITTED
GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR EXCESS OF JURISDICTION IN
NOT HAVING EXERCISED ITS POWER TO
MOTU PROPRIO DISQUALIFY RESPONDENT
ESTRADA IN THE FACE OF HIS PATENT
DISQUALIFICATION TO RUN FOR PUBLIC
OFFICE BECAUSE OF HIS PERPETUAL AND
ABSOLUTE DISQUALIFICATION TO SEEK
PUBLIC OFFICE AND TO VOTE RESULTING
 FROM HIS CRIMINAL CONVICTION FOR
PLUNDER.14
While this case was pending before The Court, or on May
13, 2013, the elections were conducted as scheduled
and former President Estrada was voted into office with
349,770 votes cast in his favor. The next day, the local
board of canvassers proclaimed him as the duly elected
Mayor of the City of Manila.
On June 7, 2013, Lim, one of former President Estrada’s
opponents for the position of Mayor, moved for leave to
intervene in this case. His motion was granted by the
Court in a Resolution15 dated June 25, 2013. Lim
subscribed to Risos-Vidal’s theory that former President
Estrada is disqualified to run for and hold public office as
the pardon granted to the latter failed to expressly remit
his perpetual disqualification. Further, given that former
President Estrada is disqualified to run for and hold
public office, all the votes obtained by the latter should be
declared stray, and, being the second placer with
313,764 votes to his name, he (Lim) should be declared
the rightful winning candidate for the position of Mayor of
the City of Manila.
The Issue
Though raising five seemingly separate issues for
resolution, the petition filed by Risos-Vidal actually
presents only one essential question for resolution by the
Court, that is, whether or not the COMELEC committed
grave abuse of discretion amounting to lack or excess of
jurisdiction in ruling that former President Estrada is
qualified to vote and be voted for in public office as a
result of the pardon granted to him by former President
Arroyo.
In her petition, Risos-Vidal starts her discussion by
pointing out that the pardon granted to former President
Estrada was conditional as evidenced by the latter’s
express acceptance thereof. The "acceptance," she
claims, is an indication of the conditional natureof the
pardon, with the condition being embodied in the third
Whereas Clause of the pardon, i.e., "WHEREAS, Joseph
Ejercito Estrada has publicly committed to no longer seek
any elective position or office." She explains that the
aforementioned commitment was what impelled former
President Arroyo to pardon former President Estrada,
without it, the clemency would not have been extended.
And any breach thereof, that is, whenformer President
Estrada filed his Certificate of Candidacy for President
and Mayor of the City of Manila, he breached the
condition of the pardon; hence, "he ought to be
recommitted to prison to serve the unexpired portion of
his sentence x x x and disqualifies him as a candidate for
the mayoralty [position] of Manila."16
Nonetheless, Risos-Vidal clarifies that the fundamental
basis upon which former President Estrada mustbe
disqualified from running for and holding public elective
office is actually the proscription found in Section 40 of
the LGC, in relation to Section 12 ofthe OEC. She argues
that the crime of plunder is both an offense punishable by
imprisonment of one year or more and involving moral
turpitude; such that former President Estrada must be
disqualified to run for and hold public elective office.
Even with the pardon granted to former President
Estrada, however, Risos-Vidal insists that the same did
not operate to make available to former President
Estrada the exception provided under Section 12 of the
OEC, the pardon being merely conditional and not
absolute or plenary. Moreover, Risos-Vidal puts a
premium on the ostensible requirements provided under
Articles 36 and 41 of the Revised Penal Code, to wit:
ART. 36. Pardon; its effects.– A pardon shall not work the
restoration of the right to hold public office, or the right of
suffrage, unless such rights be expressly restored by the
terms of the pardon.
A pardon shall in no case exempt the culprit from the
payment of the civil indemnity imposed upon him by the
sentence.
xxxx
ART. 41. Reclusion perpetua and reclusion temporal –
Their accessory penalties.– The penalties of reclusion
perpetua and reclusion temporal shall carry with them
that of civil interdiction for life or during the period of the
sentence as the case may be, and that of perpetual
absolute disqualification which the offender shall suffer
even though pardoned as to the principal penalty, unless
the same shall have been expressly remitted in the
pardon. (Emphases supplied.)
She avers that in view of the foregoing provisions of law,
it is not enough that a pardon makes a general statement
that such pardon carries with it the restoration of civil and
political rights. By virtue of Articles 36 and 41, a pardon
restoring civil and political rights without categorically
making mention what specific civil and political rights are
restored "shall not work to restore the right to hold public
office, or the right of suffrage; nor shall it remit the
accessory penalties of civil interdiction and perpetual
absolute disqualification for the principal penalties of
reclusion perpetua and reclusion temporal."17 In other
words, she considers the above constraints as
mandatory requirements that shun a general or implied
restoration of civil and political rights in pardons.
Risos-Vidal cites the concurring opinions of Associate
Justices Teodoro R. Padilla and Florentino P. Feliciano in
Monsanto v. Factoran, Jr.18 to endorse her position that
"[t]he restoration of the right to hold public office to one
who has lost such right by reason of conviction in a
criminal case, but subsequently pardoned, cannot be left
to inference, no matter how intensely arguable, but must
be statedin express, explicit, positive and specific
language."
Applying Monsantoto former President Estrada’s case,
Risos-Vidal reckons that "such express restoration is
further demanded by the existence of the condition in the
[third] [W]hereas [C]lause of the pardon x x x indubitably
indicating that the privilege to hold public office was not
restored to him."19
On the other hand, the Office ofthe Solicitor General
(OSG) for public respondent COMELEC, maintains that
"the issue of whether or not the pardon extended to
[former President Estrada] restored his right to run for
public office had already been passed upon by public
respondent COMELEC way back in 2010 via its rulings in
SPA Nos. 09-024, 09-028 and 09-104, there is no cogent
reason for it to reverse its standing pronouncement and
declare [former President Estrada] disqualified to run and
be voted as mayor of the City of Manila in the absence of
any new argument that would warrant its reversal. To be
sure, public respondent COMELEC correctly exercised
its discretion in taking judicial cognizance of the aforesaid
rulings which are known toit and which can be verified
from its own records, in accordance with Section 2, Rule
129 of the Rules of Court on the courts’ discretionary
power to take judicial notice of matters which are of
public knowledge, orare capable of unquestionable
demonstration, or ought to be known to them because of
their judicial functions."20
Further, the OSG contends that "[w]hile at first glance, it
is apparent that [former President Estrada’s] conviction
for plunder disqualifies him from running as mayor of
Manila under Section 40 of the [LGC], the subsequent
grant of pardon to him, however, effectively restored his
right to run for any public office."21 The restoration of his
right to run for any public office is the exception to the
prohibition under Section 40 of the LGC, as provided
under Section 12 of the OEC. As to the seeming
requirement of Articles 36 and 41 of the Revised Penal
Code, i.e., the express restoration/remission of a
particular right to be stated in the pardon, the OSG
asserts that "an airtight and rigid interpretation of Article
36 and Article 41 of the [RPC] x x x would be stretching
too much the clear and plain meaning of the aforesaid
provisions."22 Lastly, taking into consideration the third
Whereas Clause of the pardon granted to former
President Estrada, the OSG supports the position that it
"is not an integral part of the decree of the pardon and
cannot therefore serve to restrict its effectivity."23
Thus, the OSG concludes that the "COMELEC did not
commit grave abuse of discretion amounting to lack or
excess of jurisdiction in issuing the assailed
Resolutions."24
For his part, former President Estrada presents the
following significant arguments to defend his stay in
office: that "the factual findings of public respondent
COMELEC, the Constitutional body mandated to
administer and enforce all laws relative to the conduct of
the elections, [relative to the absoluteness of the pardon,
the effects thereof, and the eligibility of former President
Estrada to seek public elective office] are binding [and
conclusive] on this Honorable Supreme Court;" that he
"was granted an absolute pardon and thereby restored to
his full civil and political rights, including the right to seek
public elective office such as the mayoral (sic) position in
the City of Manila;" that "the majority decision in the case
of Salvacion A. Monsanto v. Fulgencio S. Factoran,
Jr.,which was erroneously cited by both Vidal and Lim as
authority for their respective claims, x x x reveal that
there was no discussion whatsoever in the ratio
decidendi of the Monsanto case as to the alleged
necessity for an expressed restoration of the ‘right to hold
public office in the pardon’ as a legal prerequisite to
remove the subject perpetual special disqualification;"
that moreover, the "principal question raised in this
Monsanto case is whether or not a public officer, who has
been granted an absolute pardon by the Chief Executive,
is entitled to reinstatement toher former position without
need of a new appointment;" that his "expressed
acceptance [of the pardon] is not proof that the pardon
extended to [him] is conditional and not absolute;" that
this case is a mere rehash of the casesfiled against him
during his candidacy for President back in 2009-2010;
that Articles 36 and 41 of the Revised Penal Code
"cannot abridge or diminish the pardoning power of the
President expressly granted by the Constitution;" that the
text of the pardon granted to him substantially, if not fully,
complied with the requirement posed by Article 36 of the
Revised Penal Code as it was categorically stated in the
said document that he was "restored to his civil and
political rights;" that since pardon is an act of grace, it
must be construed favorably in favor of the grantee;25 and
that his disqualification will result in massive
disenfranchisement of the hundreds of thousands of
Manileños who voted for him.26
The Court's Ruling
The petition for certiorari lacks merit.
Former President Estrada was granted an absolute
pardon that fully restored all his civil and political rights,
which naturally includes the right to seek public elective
office, the focal point of this controversy.
The wording of the pardon extended to former President
Estrada is complete, unambiguous, and unqualified. It is
likewise unfettered by Articles 36 and 41 of the Revised
Penal Code. The only reasonable, objective, and
constitutional interpretation of the language of the pardon
is that the same in fact conforms to Articles 36 and 41 of
the Revised Penal Code. Recall that the petition for
disqualification filed by Risos-Vidal against former
President Estrada, docketed as SPA No. 13-211 (DC),
was anchored on Section 40 of the LGC, in relation to
Section 12 of the OEC, that is, having been convicted of
a crime punishable by imprisonment of one year or more,
and involving moral turpitude, former President Estrada
must be disqualified to run for and hold public elective
office notwithstanding the fact that he is a grantee of a
pardon that includes a statement expressing "[h]e is
hereby restored to his civil and political rights." Risos-
Vidal theorizes that former President Estrada is
disqualified from running for Mayor of Manila inthe May
13, 2013 Elections, and remains disqualified to hold any
local elective post despite the presidential pardon
extended to him in 2007 by former President Arroyo for
the reason that it (pardon) did not expressly provide for
the remission of the penalty of perpetual absolute
disqualification, particularly the restoration of his (former
President Estrada) right to vote and bevoted upon for
public office. She invokes Articles 36 and 41 of the
Revised Penal Code as the foundations of her theory.
It is insisted that, since a textual examination of the
pardon given to and accepted by former President
Estrada does not actually specify which political right is
restored, it could be inferred that former President Arroyo
did not deliberately intend to restore former President
Estrada’s rights of suffrage and to hold public office, orto
otherwise remit the penalty of perpetual absolute
disqualification. Even if her intention was the contrary,
the same cannot be upheld based on the pardon’s text.
The pardoning power of the President cannot be limited
by legislative action.
The 1987 Constitution, specifically Section 19 of Article
VII and Section 5 of Article IX-C, provides that the
President of the Philippines possesses the power to grant
pardons, along with other acts of executive clemency, to
wit:
Section 19. Except in cases of impeachment, or as
otherwise provided in this Constitution, the President may
grant reprieves, commutations, and pardons, and remit
fines and forfeitures, after conviction by final judgment.
He shall also have the power to grant amnesty with the
concurrence of a majority of all the Members of the
Congress.
xxxx
Section 5. No pardon, amnesty, parole, or suspension of
sentence for violation of election laws, rules, and
regulations shall be granted by the President without the
favorable recommendation of the Commission.
It is apparent from the foregoing constitutional provisions
that the only instances in which the President may not
extend pardon remain to be in: (1) impeachment cases;
(2) cases that have not yet resulted in a final conviction;
and (3) cases involving violations of election laws, rules
and regulations in which there was no favorable
recommendation coming from the COMELEC. Therefore,
it can be argued that any act of Congress by way of
statute cannot operate to delimit the pardoning power of
the President.
In Cristobal v. Labrador27 and Pelobello v.
28
Palatino,  which were decided under the 1935
Constitution, wherein the provision granting pardoning
power to the President shared similar phraseology with
what is found in the present 1987 Constitution, the Court
then unequivocally declared that "subject to the
limitations imposed by the Constitution, the pardoning
power cannot be restricted or controlled by legislative
action." The Court reiterated this pronouncement in
Monsanto v. Factoran, Jr.29 thereby establishing that,
under the present Constitution, "a pardon, being a
presidential prerogative, should not be circumscribed by
legislative action." Thus, it is unmistakably the long-
standing position of this Court that the exercise of the
pardoning power is discretionary in the President and
may not be interfered with by Congress or the Court,
except only when it exceeds the limits provided for by the
Constitution.
This doctrine of non-diminution or non-impairment of the
President’s power of pardon by acts of Congress,
specifically through legislation, was strongly adhered to
by an overwhelming majority of the framers of the 1987
Constitution when they flatly rejected a proposal to carve
out an exception from the pardoning power of the
President in the form of "offenses involving graft and
corruption" that would be enumerated and defined by
Congress through the enactment of a law. The following
is the pertinent portion lifted from the Record of the
Commission (Vol. II):
MR. ROMULO. I ask that Commissioner Tan be
recognized to introduce an amendment on the same
section.
THE PRESIDENT. Commissioner Tan is recognized.
SR. TAN. Madam President, lines 7 to 9 state:
However, the power to grant executive clemency for
violations of corrupt practices laws may be limited by
legislation.
I suggest that this be deletedon the grounds that, first,
violations of corrupt practices may include a very little
offense like stealing ₱10; second, which I think is more
important, I get the impression, rightly or wrongly, that
subconsciously we are drafting a constitution on the
premise that all our future Presidents will bebad and
dishonest and, consequently, their acts will be lacking in
wisdom. Therefore, this Article seems to contribute
towards the creation of an anti-President Constitution or
a President with vast responsibilities but no
corresponding power except to declare martial law.
Therefore, I request that these lines be deleted.
MR. REGALADO. Madam President,may the Committee
react to that?
THE PRESIDENT. Yes, please.
MR. REGALADO. This was inserted here on the
resolution of Commissioner Davide because of the fact
that similar to the provisions on the Commission on
Elections, the recommendation of that Commission is
required before executive clemency isgranted because
violations of the election laws go into the very political life
of the country.
With respect to violations of our Corrupt Practices Law,
we felt that it is also necessary to have that subjected to
the same condition because violation of our Corrupt
Practices Law may be of such magnitude as to affect the
very economic systemof the country. Nevertheless, as a
compromise, we provided here that it will be the
Congress that will provide for the classification as to
which convictions will still require prior recommendation;
after all, the Congress could take into account whether or
not the violation of the Corrupt Practices Law is of such
magnitude as to affect the economic life of the country, if
it is in the millions or billions of dollars. But I assume the
Congress in its collective wisdom will exclude those petty
crimes of corruption as not to require any further stricture
on the exercise of executive clemency because, of
course, there is a whale of a difference if we consider a
lowly clerk committing malversation of government
property or funds involving one hundred pesos. But then,
we also anticipate the possibility that the corrupt practice
of a public officer is of such magnitude as to have
virtually drained a substantial portion of the treasury, and
then he goes through all the judicial processes and later
on, a President who may have close connections with
him or out of improvident compassion may grant
clemency under such conditions. That is why we left it to
Congress to provide and make a classification based on
substantial distinctions between a minor act of corruption
or an act of substantial proportions. SR. TAN. So, why do
we not just insert the word GROSS or GRAVE before the
word "violations"?
MR. REGALADO. We feel that Congress can make a
better distinction because "GRAVE" or "GROSS" can be
misconstrued by putting it purely as a policy.
MR. RODRIGO. Madam President.
THE PRESIDENT. Commissioner Rodrigo is recognized.
MR. RODRIGO. May I speak in favor of the proposed
amendment?
THE PRESIDENT. Please proceed.
MR. RODRIGO. The power to grant executive clemency
is essentially an executive power, and that is precisely
why it is called executive clemency. In this sentence,
which the amendment seeks to delete, an exception is
being made. Congress, which is the legislative arm, is
allowed to intrude into this prerogative of the executive.
Then it limits the power of Congress to subtract from this
prerogative of the President to grant executive clemency
by limiting the power of Congress to only corrupt
practices laws. There are many other crimes more
serious than these. Under this amendment, Congress
cannot limit the power of executive clemency in cases of
drug addiction and drug pushing which are very, very
serious crimes that can endanger the State; also, rape
with murder, kidnapping and treason. Aside from the fact
that it is a derogation of the power of the President to
grant executive clemency, it is also defective in that it
singles out just one kind of crime. There are far more
serious crimes which are not included.
MR. REGALADO. I will just make one observation on
that. We admit that the pardoning power is anexecutive
power. But even in the provisions on the COMELEC, one
will notice that constitutionally, it is required that there be
a favorable recommendation by the Commission on
Elections for any violation of election laws.
At any rate, Commissioner Davide, as the principal
proponent of that and as a member of the Committee,
has explained in the committee meetings we had why he
sought the inclusion of this particular provision. May we
call on Commissioner Davide to state his position.
MR. DAVIDE. Madam President.
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. I am constrained to rise to object to the
proposal. We have just approved the Article on
Accountability of Public Officers. Under it, it is mandated
that a public office is a public trust, and all government
officers are under obligation to observe the utmost of
responsibility, integrity, loyalty and efficiency, to lead
modest lives and to act with patriotism and justice.
In all cases, therefore, which would go into the very core
of the concept that a public office is a public trust, the
violation is itself a violation not only of the economy but
the moral fabric of public officials. And that is the reason
we now want that if there is any conviction for the
violation of the Anti-Graft and Corrupt Practices Act,
which, in effect, is a violation of the public trust character
of the public office, no pardon shall be extended to the
offender, unless some limitations are imposed.
Originally, my limitation was, it should be with the I am supporting the amendment by deletion of
concurrence of the convicting court, but the Committee Commissioner Tan.
left it entirely to the legislature to formulate the
mechanics at trying, probably, to distinguish between MR. ROMULO. Commissioner Tingson would like to be
grave and less grave or serious cases of violation of the recognized.
Anti-Graft and Corrupt Practices Act. Perhaps this is now
the best time, since we have strengthened the Article on THE PRESIDENT. Commissioner Tingson is recognized.
Accountability of Public Officers, to accompany it with a
mandate that the President’s right to grant executive MR. TINGSON. Madam President, I am also in favor of
clemency for offenders or violators of laws relating to the the amendment by deletion because I am in sympathy
concept of a public office may be limited by Congress with the stand of Commissioner Francisco "Soc" Rodrigo.
itself. I do believe and we should remember that above all the
elected or appointed officers of our Republic, the leader
MR. SARMIENTO. Madam President. is the President. I believe that the country will be as the
President is, and if we systematically emasculate the
THE PRESIDENT. Commissioner Sarmiento is power of this presidency, the time may come whenhe will
recognized. be also handcuffed that he will no longer be able to act
like he should be acting.
MR. SARMIENTO. May I briefly speak in favor of the
amendment by deletion. So, Madam President, I am in favor of the deletion of this
particular line.
Madam President, over and over again, we have been
saying and arguing before this Constitutional MR. ROMULO. Commissioner Colayco would like to be
Commission that we are emasculating the powers of the recognized.
presidency, and this provision to me is another clear
example of that. So, I speak against this provision. Even THE PRESIDENT. Commissioner Colayco is recognized.
the 1935 and the 1973 Constitutions do not provide for
this kind of provision. MR. COLAYCO. Thank you very much, Madam
President.
I seldom rise here to object to or to commend or to
recommend the approval of proposals, but now I find that
the proposal of Commissioner Tan is worthy of approval
of this body.
Why are we singling out this particular offense? There
are other crimes which cast a bigger blot on the moral
character of the public officials.
Finally, this body should not be the first one to limit the
almost absolute power of our Chief Executive in deciding
whether to pardon, to reprieve or to commute the
sentence rendered by the court.
I thank you.
THE PRESIDENT. Are we ready to vote now?
MR. ROMULO. Commissioner Padilla would like to be
recognized, and after him will be Commissioner
Natividad.
THE PRESIDENT. Commissioner Padilla is recognized.
MR. PADILLA. Only one sentence, Madam President.
The Sandiganbayan has been called the Anti-Graft Court,
so if this is allowed to stay, it would mean that the
President’s power togrant pardon or reprieve will be
limited to the cases decided by the Anti-Graft Court,
when as already stated, there are many provisions inthe
Revised Penal Code that penalize more serious offenses.
Moreover, when there is a judgment of conviction and the
case merits the consideration of the exercise of executive
clemency, usually under Article V of the Revised Penal
Code the judge will recommend such exercise of
clemency. And so, I am in favor of the amendment
proposed by Commissioner Tan for the deletion of this
last sentence in Section 17.
THE PRESIDENT. Are we ready to vote now, Mr. Floor
Leader?
MR. NATIVIDAD. Just one more.
THE PRESIDENT. Commissioner Natividad is
recognized.
MR. NATIVIDAD. I am also against this provision which
will again chip more powers from the President. In case
of other criminals convicted in our society, we extend
probation to them while in this case, they have already
been convicted and we offer mercy. The only way we can
offer mercy to them is through this executive clemency
extended to them by the President. If we still close this
avenue to them, they would be prejudiced even worse
than the murderers and the more vicious killers in our
society. I do not think they deserve this opprobrium and
punishment under the new Constitution.
I am in favor of the proposed amendment of
Commissioner Tan.
MR. ROMULO. We are ready tovote, Madam President.
THE PRESIDENT. Is this accepted by the Committee?
MR. REGALADO. The Committee, Madam President,
prefers to submit this to the floor and also because of the
objection of the main proponent, Commissioner Davide.
So we feel that the Commissioners should vote on this
question.
VOTING
THE PRESIDENT. As many as are in favor of the
proposed amendment of Commissioner Tan to delete the
last sentence of Section 17 appearing on lines 7, 8 and 9,
please raise their hand. (Several Members raised their
hand.)
As many as are against, please raise their hand. (Few
Members raised their hand.)
The results show 34 votes in favor and 4 votes against;
the amendment is approved.30 (Emphases supplied.)
The proper interpretation of Articles
36 and 41 of the Revised Penal Code.
The foregoing pronouncements solidify the thesis that
Articles 36 and 41 of the Revised Penal Code cannot, in
any way, serve to abridge or diminish the exclusive
power and prerogative of the President to pardon
persons convicted of violating penal statutes.
The Court cannot subscribe to Risos-Vidal’s
interpretation that the said Articles contain specific textual
commands which must be strictly followed in order to free
the beneficiary of presidential grace from the
disqualifications specifically prescribed by them.
Again, Articles 36 and 41 of the Revised Penal Code
provides:
ART. 36. Pardon; its effects.– A pardon shall not work the
restoration of the right to hold publicoffice, or the right of
suffrage, unless such rights be expressly restored by the
terms of the pardon.
A pardon shall in no case exempt the culprit from the
payment of the civil indemnity imposed upon him by the
sentence.
xxxx
ART. 41. Reclusion perpetua and reclusion temporal –
Their accessory penalties.– The penalties of reclusion
perpetua and reclusion temporal shall carry with them
that of civil interdiction for life or during the period of the
sentence as the case may be, and that of perpetual
absolute disqualification which the offender shall suffer
even though pardoned as to the principal penalty, unless
the same shall have been expressly remitted in the
pardon. (Emphases supplied.)
A rigid and inflexible reading of the above provisions of
law, as proposed by Risos-Vidal, is unwarranted,
especially so if it will defeat or unduly restrict the power of
the President to grant executive clemency.
It is well-entrenched in this jurisdiction that where the
words of a statute are clear, plain, and free from
ambiguity, it must be given its literal meaning and applied
without attempted interpretation. Verba legis non est
recedendum. From the words of a statute there should be
no departure.31  All that Articles 36 and 41 do is prescribe that, if the
It is this Court’s firm view that the phrase in the
presidential pardon at issue which declares that former
President Estrada "is hereby restored to his civil and
political rights" substantially complies with the
requirement of express restoration.
The Dissent of Justice Marvic M.V.F. Leonen agreed with
Risos Vidal that there was no express remission and/or
restoration of the rights of suffrage and/or to hold public
office in the pardon granted to former President Estrada,
as required by Articles 36 and 41 of the Revised Penal
Code.
Justice Leonen posits in his Dissent that the
aforementioned codal provisions must be followed by the
President, as they do not abridge or diminish the
President’s power to extend clemency. He opines that
they do not reduce the coverage of the President’s
pardoning power. Particularly, he states:
Articles 36 and 41 refer only to requirements of
convention or form. They only provide a procedural
prescription. They are not concerned with areas where or
the instances when the President may grant pardon; they
are only concerned with how he or she is to exercise
such power so that no other governmental instrumentality
needs to intervene to give it full effect.
President wishes to include in the pardon the restoration
of the rights of suffrage and to hold public office, or the
remission of the accessory penalty of perpetual absolute
disqualification,he or she should do so expressly. Articles
36 and 41 only ask that the President state his or her
intentions clearly, directly, firmly, precisely, and
unmistakably. To belabor the point, the President retains
the power to make such restoration or remission, subject
to a prescription on the manner by which he or she is to
state it.32
With due respect, I disagree with the overbroad
statement that Congress may dictate as to how the
President may exercise his/her power of executive
clemency. The form or manner by which the President, or
Congress for that matter, should exercise their respective
Constitutional powers or prerogatives cannot be
interfered with unless it is so provided in the Constitution.
This is the essence of the principle of separation of
powers deeply ingrained in our system of government
which "ordains that each of the three great branches of
government has exclusive cognizance of and is supreme
in matters falling within its own constitutionally allocated
sphere."33 Moreso, this fundamental principle must be
observed if noncompliance with the form imposed by one
branch on a co-equal and coordinate branch will result
into the diminution of an exclusive Constitutional
prerogative.
For this reason, Articles 36 and 41 of the Revised Penal
Code should be construed in a way that will give full
effect to the executive clemency granted by the
President, instead of indulging in an overly strict
interpretation that may serve to impair or diminish the
import of the pardon which emanated from the Office of
the President and duly signed by the Chief Executive
himself/herself. The said codal provisions must be
construed to harmonize the power of Congress to define
crimes and prescribe the penalties for such crimes and
the power of the President to grant executive clemency.
All that the said provisions impart is that the pardon of the
principal penalty does notcarry with it the remission of the
accessory penalties unless the President expressly
includes said accessory penalties in the pardon. It still
recognizes the Presidential prerogative to grant executive
clemency and, specifically, to decide to pardon the
principal penalty while excluding its accessory penalties
or to pardon both. Thus, Articles 36 and 41 only clarify
the effect of the pardon so decided upon by the President
on the penalties imposedin accordance with law.
A close scrutiny of the text of the pardon extended to
former President Estrada shows that both the principal
penalty of reclusion perpetua and its accessory penalties
are included in the pardon. The first sentence refers to
the executive clemency extended to former President
Estrada who was convicted by the Sandiganbayan of
plunder and imposed a penalty of reclusion perpetua.
The latter is the principal penalty pardoned which
relieved him of imprisonment. The sentence that
followed, which states that "(h)e is hereby restored to his
civil and political rights," expressly remitted the accessory
penalties that attached to the principal penalty of
reclusion perpetua. Hence, even if we apply Articles 36
and 41 of the Revised Penal Code, it is indubitable from
the text of the pardon that the accessory penalties of civil
interdiction and perpetual absolute disqualification were
expressly remitted together with the principal penalty of
reclusion perpetua.
In this jurisdiction, the right to seek public elective office
is recognized by law as falling under the whole gamut of
civil and political rights.
Section 5 of Republic Act No. 9225,34 otherwise known as
the "Citizenship Retention and Reacquisition Act of
2003," reads as follows:
Section 5. Civil and Political Rights and Liabilities.–
Those who retain or reacquire Philippine citizenship
under this Act shall enjoy full civil and political rights and
be subject to all attendant liabilities and responsibilities
under existing laws of the Philippines and the following
conditions: (1) Those intending to exercise their right of
suffrage must meet the requirements under Section 1,
Article V of the Constitution, Republic Act No. 9189,
otherwise known as "The Overseas Absentee Voting Act
of 2003" and other existing laws;
(2) Those seeking elective public office in the
Philippines shall meet the qualifications for holding
such public office as required by the Constitution
and existing laws and, at the time of the filing of
the certificate of candidacy, make a personal and
sworn renunciation of any and all foreign
citizenship before any public officer authorized to
administer an oath;
(3) Those appointed to any public office shall
subscribe and swear an oath of allegiance to the
Republic of the Philippines and its duly constituted
authorities prior to their assumption of office:
Provided, That they renounce their oath of
allegiance to the country where they took that
oath; (4) Those intending to practice their
profession in the Philippines shall apply with the
proper authority for a license or permit to engage
in such practice; and
(5) That right to vote or be elected or appointed to
any public office in the Philippines cannot be
exercised by, or extended to, those who:
(a) are candidates for or are occupying any
public office in the country of which theyare
naturalized citizens; and/or
(b) are in active service as commissioned
or non commissioned officers in the armed
forces of the country which they are
naturalized citizens. (Emphases supplied.)
No less than the International Covenant on Civil and
Political Rights, to which the Philippines is a signatory,
acknowledges the existence of said right. Article 25(b) of
the Convention states: Article 25
Every citizen shall have the right and the opportunity,
without any of the distinctions mentioned in Article 2 and
without unreasonable restrictions:
xxxx
(b) To vote and to be electedat genuine periodic elections
which shall be by universal and equal suffrage and shall
be held by secret ballot, guaranteeing the free expression
of the will of the electors[.] (Emphasis supplied.)
Recently, in Sobejana-Condon v. Commission on
Elections,35 the Court unequivocally referred to the right
to seek public elective office as a political right, to wit:
Stated differently, it is an additional qualification for
elective office specific only to Filipino citizens who re-
acquire their citizenship under Section 3 of R.A. No.
9225. It is the operative act that restores their right to run
for public office. The petitioner’s failure to comply there
with in accordance with the exact tenor of the law,
rendered ineffectual the Declaration of Renunciation of
Australian Citizenship she executed on September 18,
2006. As such, she is yet to regain her political right to
seek elective office. Unless she executes a sworn
renunciation of her Australian citizenship, she is ineligible
to run for and hold any elective office in the Philippines.
(Emphasis supplied.)
Thus, from both law and jurisprudence, the right to seek
public elective office is unequivocally considered as a
political right. Hence, the Court reiterates its earlier
statement that the pardon granted to former President
Estrada admits no other interpretation other than to mean
that, upon acceptance of the pardon granted to him, he
regained his FULL civil and political rights – including the
right to seek elective office.
On the other hand, the theory of Risos-Vidal goes
beyond the plain meaning of said penal provisions; and
prescribes a formal requirement that is not only
unnecessary but, if insisted upon, could be in derogation
of the constitutional prohibition relative to the principle
that the exercise of presidential pardon cannot be
affected by legislative action.
Risos-Vidal relied heavily on the separate concurring
opinions in Monsanto v. Factoran, Jr.36 to justify her
argument that an absolute pardon must expressly state
that the right to hold public office has been restored, and
that the penalty of perpetual absolute disqualification has
been remitted.
This is incorrect.
Her reliance on said opinions is utterly misplaced.
Although the learned views of Justices Teodoro R.
Padilla and Florentino P. Feliciano are to be respected,
they do not form part of the controlling doctrine nor to be
considered part of the law of the land. On the contrary, a
careful reading of the majority opinion in Monsanto,
penned by no less than Chief Justice Marcelo B. Fernan,
reveals no statement that denotes adherence to a
stringent and overly nuanced application of Articles 36
and 41 of the Revised Penal Code that will in effect
require the President to use a statutorily prescribed
language in extending executive clemency, even if the
intent of the President can otherwise be deduced from
the text or words used in the pardon. Furthermore, as
explained above, the pardon here is consistent with, and
not contrary to, the provisions of Articles 36 and 41.
The disqualification of former President Estrada under
Section 40 of the LGC in relation to Section 12 of the
OEC was removed by his acceptance of the absolute
pardon granted to him.
Section 40 of the LGC identifies who are disqualified from
running for any elective local position. Risos-Vidal argues
that former President Estrada is disqualified under item
(a), to wit:
(a) Those sentenced by final judgment for an offense
involving moral turpitude or for an offense punishable by
one (1) year or more of imprisonment, within two (2)
years after serving sentence[.] (Emphasis supplied.)
Likewise, Section 12 of the OEC provides for similar
prohibitions, but it provides for an exception, to wit:
Section 12. Disqualifications. – x x x unless he has been
given plenary pardon or granted amnesty. (Emphasis
supplied.)
As earlier stated, Risos-Vidal maintains that former
President Estrada’s conviction for plunder disqualifies
him from running for the elective local position of Mayor
of the City of Manila under Section 40(a) of the LGC.
However, the subsequent absolute pardon granted to
former President Estrada effectively restored his right to
seek public elective office. This is made possible by
reading Section 40(a) of the LGC in relation to Section 12
of the OEC.
While it may be apparent that the proscription in Section
40(a) of the LGC is worded in absolute terms, Section 12
of the OEC provides a legal escape from the prohibition –
a plenary pardon or amnesty. In other words, the latter
provision allows any person who has been granted
plenary pardon or amnesty after conviction by final
judgment of an offense involving moral turpitude, inter
alia, to run for and hold any public office, whether local or
national position.
Take notice that the applicability of Section 12 of the
OEC to candidates running for local elective positions is
not unprecedented. In Jalosjos, Jr. v. Commission on
Elections,37 the Court acknowledged the aforementioned
provision as one of the legal remedies that may be
availed of to disqualify a candidate in a local election filed
any day after the last day for filing of certificates of
candidacy, but not later than the date of
proclamation.38 The pertinent ruling in the Jalosjos case
is quoted as follows:
What is indisputably clear is that false material
representation of Jalosjos is a ground for a petition under
Section 78. However, since the false material
representation arises from a crime penalized by prision
mayor, a petition under Section 12 ofthe Omnibus
Election Code or Section 40 of the Local Government
Code can also be properly filed. The petitioner has a
choice whether to anchor his petition on Section 12 or
Section 78 of the Omnibus Election Code, or on Section
40 of the Local Government Code. The law expressly
provides multiple remedies and the choice of which
remedy to adopt belongs to petitioner.39 (Emphasis
supplied.)
The third preambular clause of the pardon did not
operate to make the pardon conditional.
Contrary to Risos-Vidal’s declaration, the third
preambular clause of the pardon, i.e., "[w]hereas, Joseph
Ejercito Estrada has publicly committed to no longer seek
any elective position or office," neither makes the pardon
conditional, nor militate against the conclusion that
former President Estrada’s rights to suffrage and to seek
public elective office have been restored.
This is especially true as the pardon itself does not
explicitly impose a condition or limitation, considering the
unqualified use of the term "civil and political rights"as
being restored. Jurisprudence educates that a preamble
is not an essential part of an act as it is an introductory or
preparatory clause that explains the reasons for the
enactment, usually introduced by the word
40
"whereas."  Whereas clauses do not form part of a
statute because, strictly speaking, they are not part of the
operative language of the statute.41 In this case, the
whereas clause at issue is not an integral part of the
decree of the pardon, and therefore, does not by itself
alone operate to make the pardon conditional or to make
its effectivity contingent upon the fulfilment of the
aforementioned commitment nor to limit the scope of the
pardon.
On this matter, the Court quotes with approval a relevant
excerpt of COMELEC Commissioner Maria Gracia
Padaca’s separate concurring opinion in the assailed
April 1, 2013 Resolution of the COMELEC in SPA No.
13-211 (DC), which captured the essence of the legal
effect of preambular paragraphs/whereas clauses, viz:
The present dispute does not raise anything which the 20
January 2010 Resolution did not conclude upon. Here,
Petitioner Risos-Vidal raised the same argument with
respect to the 3rd "whereas clause" or preambular
paragraph of the decree of pardon. It states that "Joseph
Ejercito Estrada has publicly committed to no longer seek
any elective position or office." On this contention, the
undersigned reiterates the ruling of the Commission that
the 3rd preambular paragraph does not have any legal or
binding effect on the absolute nature of the pardon
extended by former President Arroyo to herein
Respondent. This ruling is consistent with the traditional
and customary usage of preambular paragraphs. In the
case of Echegaray v. Secretary of Justice, the Supreme
Court ruled on the legal effect of preambular paragraphs
or whereas clauses on statutes. The Court stated, viz.:
Besides, a preamble is really not an integral part of a law.
It is merely an introduction to show its intent or purposes.
It cannot be the origin of rights and obligations. Where
the meaning of a statute is clear and unambiguous, the
preamble can neither expand nor restrict its operation
much less prevail over its text.
If former President Arroyo intended for the pardon to be
conditional on Respondent’s promise never to seek a
public office again, the former ought to have explicitly
stated the same in the text of the pardon itself. Since
former President Arroyo did not make this an integral part
of the decree of pardon, the Commission is constrained
to rule that the 3rd preambular clause cannot be
interpreted as a condition to the pardon extended to
former President Estrada.42 (Emphasis supplied.)
Absent any contrary evidence, former President Arroyo’s
silence on former President Estrada’s decision torun for
President in the May 2010 elections against, among
others, the candidate of the political party of former
President Arroyo, after the latter’s receipt and
acceptance of the pardon speaks volume of her intention
to restore him to his rights to suffrage and to hold public
office.
Where the scope and import of the executive clemency
extended by the President is in issue, the Court must turn
to the only evidence available to it, and that is the pardon
itself. From a detailed review ofthe four corners of said
document, nothing therein gives an iota of intimation that
the third Whereas Clause is actually a limitation, proviso,
stipulation or condition on the grant of the pardon, such
that the breach of the mentioned commitment not to seek
public office will result ina revocation or cancellation of
said pardon. To the Court, what it is simply is a statement
of fact or the prevailing situation at the time the executive
clemency was granted. It was not used as a condition to
the efficacy orto delimit the scope of the pardon.
Even if the Court were to subscribe to the view that the
third Whereas Clausewas one of the reasons to grant the
pardon, the pardon itself does not provide for the
attendant consequence of the breach thereof. This Court
will be hard put to discern the resultant effect of an
eventual infringement. Just like it will be hard put to
determine which civil or political rights were restored if
the Court were to take the road suggested by Risos-Vidal
that the statement "[h]e is hereby restored to his civil and
political rights" excludes the restoration of former
President Estrada’s rights to suffrage and to hold public
office. The aforequoted text ofthe executive clemency
granted does not provide the Court with any guide asto
how and where to draw the line between the included
and excluded political rights.
Justice Leonen emphasizes the point that the ultimate
issue for resolution is not whether the pardon is
contingent on the condition that former President Estrada
will not seek janother elective public office, but it actually
concerns the coverage of the pardon – whether the
pardon granted to former President Estrada was so
expansive as to have restored all his political rights,
inclusive of the rights of suffrage and to hold public office.
Justice Leonen is of the view that the pardon in question
is not absolute nor plenary in scope despite the
statement that former President Estrada is "hereby
restored to his civil and political rights," that is, the
foregoing statement restored to former President Estrada
all his civil and political rights except the rights denied to
him by the unremitted penalty of perpetual absolute
disqualification made up of, among others, the rights of
suffrage and to hold public office. He adds that had the
President chosen to be so expansive as to include the
rights of suffrage and to hold public office, she should
have been more clear on her intentions.
However, the statement "[h]e is hereby restored to his
civil and political rights," to the mind of the Court, iscrystal
clear – the pardon granted to former President Estrada
was absolute, meaning, it was not only unconditional, it
was unrestricted in scope, complete and plenary in
character, as the term "political rights"adverted to has a
settled meaning in law and jurisprudence.
With due respect, I disagree too with Justice Leonen that
the omission of the qualifying word "full" can be
construed as excluding the restoration of the rights of
suffrage and to hold public office. There appears to be no
distinction as to the coverage of the term "full political
rights" and the term "political rights" used alone without
any qualification. How to ascribe to the latter term the
meaning that it is "partial" and not "full" defies one’s
understanding. More so, it will be extremely difficult to
identify which of the political rights are restored by the
pardon, when the text of the latter is silent on this matter.
Exceptions to the grant of pardon cannot be presumed
from the absence of the qualifying word "full" when the
pardon restored the "political rights" of former President
Estrada without any exclusion or reservation.
Therefore, there can be no other conclusion but to say
that the pardon granted to former President Estrada was
absolute in the absence of a clear, unequivocal and
concrete factual basis upon which to anchor or support
the Presidential intent to grant a limited pardon.
To reiterate, insofar as its coverage is concerned, the text
of the pardon can withstand close scrutiny even under
the provisions of Articles 36 and 41 of the Revised Penal
Code.
The COMELEC did not commit grave abuse of discretion
amounting to lack or excess of jurisdiction in issuing the
assailed Resolutions.
In light of the foregoing, contrary to the assertions of
Risos-Vidal, the COMELEC did not commit grave abuse
of discretion amounting to lack or excess of jurisdiction in
issuing the assailed Resolutions.
The Court has consistently held that a petition for
certiorariagainst actions of the COMELEC is confined
only to instances of grave abuse of discretion amounting
to patentand substantial denial of due process, because
the COMELEC is presumed to be most competent in
matters falling within its domain.43
As settled in jurisprudence, grave abuse of discretion is
the arbitrary exercise of power due to passion, prejudice
or personal hostility; or the whimsical, arbitrary, or
capricious exercise of power that amounts to an evasion
or refusal to perform a positive duty enjoined by law or to
act at all in contemplation of law. For an act to be
condemned as having been done with grave abuse of
discretion, such an abuse must be patent and gross.44
The arguments forwarded by Risos-Vidal fail to
adequately demonstrate any factual or legal bases to
prove that the assailed COMELEC Resolutions were
issued in a "whimsical, arbitrary or capricious exercise of
power that amounts to an evasion orrefusal to perform a
positive duty enjoined by law" or were so "patent and
gross" as to constitute grave abuse of discretion.
On the foregoing premises and conclusions, this Court
finds it unnecessary to separately discuss Lim's petition-
in-intervention, which substantially presented the same
arguments as Risos-Vidal's petition.
WHEREFORE, the petition for certiorari and petition-
inintervention are DISMISSED. The Resolution dated
April 1, 2013 of the Commission on Elections, Second
Division, and the Resolution dated April 23, 2013 of the
Commission on Elections, En bane, both in SPA No. 13-
211 (DC), are AFFIRMED.
SO ORDERED.
Absolute pardon refers to the total extinction of
criminal liability to whom it is granted without any
condition. It restores to the individual his civil and
political rights, and remits the penalty imposed for
the particular offense of which he was convicted.
On the otherhand, conditional pardon refers to
the exemption of an individual from the punishment
subject to the fulfillment of a certain condition as
imposed by the government authority.