Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 17958 February 27, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
LOL-LO and SARAW, defendants-appellants.

Thos. D. Aitken for appellants.

Acting Attorney-General Tuason for appellee.

MALCOLM, J.:

The days when pirates roamed the seas, when picturesque buccaneers like Captain Avery and
Captain Kidd and Bartholomew Roberts gripped the imagination, when grostesque brutes like
Blackbeard flourished, seem far away in the pages of history and romance. Nevertheless, the record
before us tells a tale of twentieth century piracy in the south seas, but stripped of all touches of
chivalry or of generosity, so as to present a horrible case of rapine and near murder.

On or about June 30, 1920, two boats left matuta, a Dutch possession, for Peta, another Dutch
possession. In one of the boats was one individual, a Dutch subject, and in the other boat eleven
men, women, and children, likewise subjects of Holland. After a number of days of navigation, at
about 7 o'clock in the evening, the second boat arrived between the Islands of Buang and Bukid in
the Dutch East Indies. There the boat was surrounded by six vintas manned by twenty-four Moros all
armed. The Moros first asked for food, but once on the Dutch boat, too for themselves all of the
cargo, attacked some of the men, and brutally violated two of the women by methods too horrible to
the described. All of the persons on the Dutch boat, with the exception of the two young women,
were again placed on it and holes were made in it, the idea that it would submerge, although as a
matter of fact, these people, after eleven days of hardship and privation, were succored violating
them, the Moros finally arrived at Maruro, a Dutch possession. Two of the Moro marauder were Lol-
lo, who also raped one of the women, and Saraw. At Maruro the two women were able to escape.

Lol-lo and Saraw later returned to their home in South Ubian, Tawi-Tawi, Sulu, Philippine Islands.
There they were arrested and were charged in the Court of First Instance of Sulu with the crime of
piracy. A demurrer was interposed by counsel de officio for the Moros, based on the grounds that
the offense charged was not within the jurisdiction of the Court of First Instance, nor of any court of
the Philippine Islands, and that the facts did not constitute a public offense, under the laws in force in
the Philippine Islands. After the demurrer was overruled by the trial judge, trial was had, and a
judgment was rendered finding the two defendants guilty and sentencing each of them to life
imprisonment (cadena perpetua), to return together with Kinawalang and Maulanis, defendants in
another case, to the offended parties, the thirty-nine sacks of copras which had been robbed, or to
indemnify them in the amount of 924 rupees, and to pay a one-half part of the costs.

A very learned and exhaustive brief has been filed in this court by the attorney de officio. By a
process of elimination, however, certain questions can be quickly disposed of.

The proven facts are not disputed. All of the elements of the crime of piracy are present. Piracy is
robbery or forcible depredation on the high seas, without lawful authority and done animo furandi,
and in the spirit and intention of universal hostility.

It cannot be contended with any degree of force as was done in the lover court and as is again done
in this court, that the Court of First Instance was without jurisdiction of the case. Pirates are in
law hostes humani generis. Piracy is a crime not against any particular state but against all mankind.
It may be punished in the competent tribunal of any country where the offender may be found or into
which he may be carried. The jurisdiction of piracy unlike all other crimes has no territorial limits. As
it is against all so may it be punished by all. Nor does it matter that the crime was committed within
the jurisdictional 3-mile limit of a foreign state, "for those limits, though neutral to war, are not neutral
to crimes." (U.S. vs. Furlong [1820], 5 Wheat., 184.)

The most serious question which is squarely presented to this court for decision for the first time is
whether or not the provisions of the Penal Code dealing with the crime of piracy are still in force.
Article 153 to 156 of the Penal Code reads as follows:
 ART. 153. The crime of piracy committed against Spaniards, or the subjects of another
nation not at war with Spain, shall be punished with a penalty ranging from cadena
temporal to cadena perpetua.

If the crime be committed against nonbelligerent subjects of another nation at war with
Spain, it shall be punished with the penalty of presidio mayor.

ART. 154. Those who commit the crimes referred to in the first paragraph of the next
preceding article shall suffer the penalty of cadena perpetua or death, and those who commit
the crimes referred to in the second paragraph of the same article, from cadena
temporal to cadena perpetua:

1. Whenever they have seized some vessel by boarding or firing upon the same.

2. Whenever the crime is accompanied by murder, homicide, or by any of the

physical injuries specified in articles four hundred and fourteen and four hundred and
fifteen and in paragraphs one and two of article four hundred and sixteen.

3. Whenever it is accompanied by any of the offenses against chastity specified in

Chapter II, Title IX, of this book.

4. Whenever the pirates have abandoned any persons without means of saving
themselves.

5. In every case, the captain or skipper of the pirates.

ART. 155. With respect to the provisions of this title, as well as all others of this code, when
Spain is mentioned it shall be understood as including any part of the national territory.

ART. 156. For the purpose of applying the provisions of this code, every person, who,
according to the Constitution of the Monarchy, has the status of a Spaniard shall be
considered as such.

The general rules of public law recognized and acted on by the United States relating to the effect of
a transfer of territory from another State to the United States are well-known. The political law of the
former sovereignty is necessarily changed. The municipal law in so far as it is consistent with the
Constitution, the laws of the United States, or the characteristics and institutions of the government,
remains in force. As a corollary to the main rules, laws subsisting at the time of transfer, designed to
secure good order and peace in the community, which are strictly of a municipal character, continue
until by direct action of the new government they are altered or repealed. (Chicago, Rock Islands,
etc., R. Co. vs. McGlinn [1885], 114 U.S., 542.)

These principles of the public law were given specific application to the Philippines by the
Instructions of President McKinley of May 19, 1898, to General Wesley Meritt, the Commanding
General of the Army of Occupation in the Philippines, when he said:

Though the powers of the military occupant are absolute and supreme, and immediately
operate upon the political condition of the inhabitants, the municipal laws of the conquered
territory, such as affect private rights of person and property, and provide for the punishment
of crime, are considered as continuing in force, so far as they are compatible with the new
order of things, until they are suspended or superseded by the occupying belligerent; and
practice they are not usually abrogated, but are allowed to remain in force, and to be
administered by the ordinary tribunals, substantially as they were before the occupations.
This enlightened practice is so far as possible, to be adhered to on the present occasion.
(Official Gazette, Preliminary Number, Jan. 1, 1903, p. 1. See also General Merritt
Proclamation of August 14, 1898.)

It cannot admit of doubt that the articles of the Spanish Penal Code dealing with piracy were meant
to include the Philippine Islands. Article 156 of the Penal Code in relation to article 1 of the
Constitution of the Spanish Monarchy, would also make the provisions of the Code applicable not
only to Spaniards but to Filipinos.

The opinion of Grotius was that piracy by the law of nations is the same thing as piracy by the civil
law, and he has never been disputed. The specific provisions of the Penal Code are similar in tenor
to statutory provisions elsewhere and to the concepts of the public law. This must necessarily be so,
considering that the Penal Code finds its inspiration in this respect in the Novelas, the Partidas, and
the Novisima Recopilacion.
The Constitution of the United States declares that the Congress shall have the power to define and
punish piracies and felonies committed on the high seas, and offenses against the law of nations.
(U.S. Const. Art. I, sec. 8, cl. 10.) The Congress, in putting on the statute books the necessary
ancillary legislation, provided that whoever, on the high seas, commits the crime of piracy as defined
by the law of nations, and is afterwards brought into or found in the United States, shall be
imprisoned for life. (U.S. Crim. Code, sec. 290; penalty formerly death: U.S. Rev. Stat., sec. 5368.)
The framers of the Constitution and the members of Congress were content to let a definition of
piracy rest on its universal conception under the law of nations.

It is evident that the provisions of the Penal Code now in force in the Philippines relating to piracy
are not inconsistent with the corresponding provisions in force in the United States.

By the Treaty of Paris, Spain ceded the Philippine Islands to the United States. A logical construction
of articles of the Penal Code, like the articles dealing with the crime of piracy, would be that
wherever "Spain" is mentioned, it should be substituted by the words "United States" and wherever
"Spaniards" are mentioned, the word should be substituted by the expression "citizens of the United
States and citizens of the Philippine Islands." somewhat similar reasoning led this court in the case
of United States vs. Smith ([1919], 39 Phil., 533) to give to the word "authority" as found in the Penal
Code a limited meaning, which would no longer comprehend all religious, military, and civil officers,
but only public officers in the Government of the Philippine Islands.

Under the construction above indicated, article 153 of the Penal Code would read as follows:

The crime of piracy committed against citizens of the United States and citizens of the
Philippine Islands, or the subjects of another nation not at war with the United States, shall
be punished with a penalty ranging from cadena temporal to cadena perpetua.

If the crime be committed against nonbelligerent subjects of another nation at war with the
United States, it shall be punished with the penalty of presidio mayor.

We hold those provisions of the Penal code dealing with the crime of piracy, notably articles 153 and
154, to be still in force in the Philippines.

The crime falls under the first paragraph of article 153 of the Penal Code in relation to article 154.
There are present at least two of the circumstances named in the last cited article as authorizing
either cadena perpetua or death. The crime of piracy was accompanied by (1) an offense against
chastity and (2) the abandonment of persons without apparent means of saving themselves. It is,
therefore, only necessary for us to determine as to whether the penalty of cadena perpetua or death
should be imposed. In this connection, the trial court, finding present the one aggravating
circumstance of nocturnity, and compensating the same by the one mitigating circumstance of lack
of instruction provided by article 11, as amended, of the Penal Code, sentenced the accused to life
imprisonment. At least three aggravating circumstances, that the wrong done in the commission of
the crime was deliberately augmented by causing other wrongs not necessary for its commission,
that advantage was taken of superior strength, and that means were employed which added
ignominy to the natural effects of the act, must also be taken into consideration in fixing the penalty.
Considering, therefore, the number and importance of the qualifying and aggravating circumstances
here present, which cannot be offset by the sole mitigating circumstance of lack of instruction, and
the horrible nature of the crime committed, it becomes our duty to impose capital punishment.

The vote upon the sentence is unanimous with regard to the propriety of the imposition of the death
penalty upon the defendant and appellant Lo-lo (the accused who raped on of the women), but is not
unanimous with regard to the court, Mr. Justice Romualdez, registers his nonconformity. In
accordance with provisions of Act No. 2726, it results, therefore, that the judgment of the trial court
as to the defendant and appellant Saraw is affirmed, and is reversed as to the defendant and
appellant Lol-lo, who is found guilty of the crime of piracy and is sentenced therefor to be hung until
dead, at such time and place as shall be fixed by the judge of first instance of the Twenty-sixth
Judicial District. The two appellants together with Kinawalang and Maulanis, defendants in another
case, shall indemnify jointly and severally the offended parties in the equivalent of 924 rupees, and
shall pay a one-half part of the costs of both instances. So ordered.

Araullo, C.J., Johnson, Avanceña, Villamor, Ostrand, Johns and Romualdez, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-239 June 30, 1947

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
APOLONIO CARLOS, defendant-appellant.

Vicente J. Francisco, Felicisimo Ocampo and Alberto V. Francisco for appellant.

Office of the First Assistant Solicitor General Reyes and Solicitor Tomacruz for appellee.

TUASON, J.:

The appellant was found guilty of treason by the People's Court and sentenced to reclusion
perpetua, to pay a fine of P7,000, and costs.

The findings of the People's Court are not assigned as errors or disputed.

The lower court found that one day in July or August, 1944, about two or three o'clock in the
morning, a truck pulled up to the curb in front of a house on Constancia Street, Sampaloc, Manila,
where one Martin Mateo lived. From the truck the accused, a Japanese spy, alighted together with
members of the Japanese military police and pointed Martin Mateo's house and Fermin Javier's
house to his Japanese companions, whereupon the Japanese soldiers broke into Martin Mateo's
dwelling first and Fermin Javier's afterwards. In those houses they seized Martin Mateo, Ladislao
Mateo and Fermin Javier, bound their hands, and put them in the truck. Along with other persons
who had been rounded up in the other places and who had been kept in the truck while it was
parked, they were taken to Fort Santiago where the two Mateos and Fermin Javier were tortured and
from which they were released six days later. The reason for the arrest and maltreatment of Martin
and Ladislao Mateo was that they had refused to divulge the whereabouts of their brother, Marcelino
Mateo, who was a guerrilla and who had escaped from the Japanese. And Fermin Javier was
arrested and tortured because he himself was a guerrilla, a fact which Carlos knew or at least
suspected.

The defendant in this instance invokes only questions of law. He assigns four alleged errors, viz.:

I. The lower court erred in not holding that the accused cannot be convicted of the offense of
treason committed against the government of the United States and of the Philippines,
because it is a settled principle in international law that in a territory actually under the
authority of the enemy, all laws of political complexion of the previous government are
suspended, and are without force and inasmuch as the laws of the United States and the
Commonwealth of the Philippines defining and penalyzing the crime of treason are all of
political complexion, they were suspended and had no binding effect whatsoever upon the
inhabitants in the said occupied territories.

II. The People's Court erred in not declaring the accused could not have violated the
Philippine law on treason, because it is also a settled principle in international law that in
such occupied territories all laws inconsistent with the occupation are being likewise
suspended and without force and effect over the inhabitants, and since the laws of the
United States and the Commonwealth of the Philippines defining and penalyzing treason
against the said government are by their very nature evidently inconsistent with the said
occupation of the Philippines by the Imperial Japanese forces, the said laws must be
deemed as having been suspended and without force and effect upon the Filipinos, during
the said occupation.

III. The People's Court erred in not holding that the accused herein cannot be convicted of
the crime of treason committed against the government of the United States and of the
Philippines, because it is settled principle in international law that once the territory is so
occupied by the enemy, the allegiance is as a legal obligation distinguishable and
distinguished from loyalty of the inhabitants therein to the former government or
governments is temporarily suspended, and it being necessary and essential for the
commission of the offense of treason against the United States and the Commonwealth of
the Philippines that the supposed offender should owe allegiance to said government at the
time of the alleged offense, it follows that the accused cannot possibly be chargeable with
treason against the United States and the Commonwealth of the Philippines for acts
 allegedly committed by him in the territory of the Philippines actually occupied by the
Japanese during said occupation.

IV. The decision rendered in this case should be reversed and, set aside, because the law
creating the People's Court is unconstitutional.

The questions propounded in the first, second and third assignments of error were squarely raised
and decided in the case of Laurel vs. Misa (77 Phil., 856). That decision controls this appeal so far
as the pleas of suspended allegiance and change of sovereignty are concerned. On the strength
thereof, the first three assignments of error must be overruled.

The fourth assignment of error attacks the law creating the People's Court as unconstitutional.
Numerous provisions of the People's Court Act are singled out as contrary to the Organic Law. But in
formulating many of his propositions the appellant has not indicated the reasons or the authorities
which sustain them. We shall dispose of them as briefly as they are presented. For better
understanding, we shall reproduce the appellant's propositions and will comment on them
separately.

The brief says:

(a) It (People's Court Act) contains provisions which deal on matters entirely foreign to the
subject matter expressed in its title, such as:

(1) The first proviso of section 2 thereof, which retains the jurisdiction of the Court of First
Instance to try and decide cases of crimes against national security committed during the
second world war not filed within six months, notwithstanding the fact that according to its
title, the People's Court is precisely created for that purpose, and impliedly, the People's
Court jurisdiction in regard to said crimes is exclusive;

(2) The second proviso of the same section which grants the People's Court jurisdiction to
convict and sentence those accused therein even of crimes other than those against national
security, although its title does not in any way indicate that such jurisdiction over other crimes
would be granted to the said court;

(3) Section 14 thereof, which adds to the disqualifications of Justice of the Supreme Court
and provides a procedure for their substitution, a matter not indicated in any manner in its
title;

(4) The first proviso of action 19 thereof, which changes the existing Rules of Court on the
subject of bail although its title speaks only of the creation of the People's Court and the
Office of Special Prosecutors; and

(5) The second proviso of the same section, which suspends the provisions of article 125 of
the Revised Penal Code, a substantive law, which is not referred to in its title expressly or by
implication.

The People's Court was intended to be a full and complete scheme with its own machinery for the
indictment, trial and judgment of treason case. The various provisos mentioned, in our opinion, are
allied and germane to the subject matter and purposes of the People's Court Act; they are
subordinate to its end. The multitude of matters which the legislation, by its nature, has to embrace
would make mention of all of them in the title of the act cumbersome. It is not necessary, and the
Congress is not expected, to make the title of an enactment a complete index of its contents.
(Government of the Philippine Islands vs. Municipality of Binalonan, 32 Phil., 634.) The constitutional
rule is satisfied if all parts of a law relate to the subject expressed in its title.

The brief says:

(b) It deprives persons similarly situated of the equal protection of the laws inasmuch as:

(1) Only those political offenders against whom cases are filed within six months from the
passage of the law are to be tried in the People's Court, while others are to be tried in the
Courts of First Instance;

(2) Political offenders accused in the People's Court are denied preliminary examination
and/or investigation whereas the others who shall be entitled thereto;

(3) Political offenders accused in the People's Court have limited right to appeal, while those
who may be accused of the same crimes in the Courts of First Instance have absolute right
 of appeal inasmuch as under section 13 of the law, Rules 42 and 46 of the Rules of Court
are made applicable to the latter;

(4) Appeals in the case involving persons who held any office or position under either or both
the Philippine Executive Commission and the Philippine Republic or any branch,
instrumentality and/or agency thereof are to heard and decided by a substantially different
Supreme Court, thus causing lack of informity in rulings over the same subject;

(5) The first proviso of section 19 thereof prescribes a different rule as to the granting of
release on bail only with respect to the political offenders detained by the United States Army
and released to the Commonwealth of the Philippines but not as to others political offenders
accused or accusable of the same crimes; and

(6) The second proviso of section 19 thereof suspends article 125 of the Revised Penal
Code only as to those political detainees released by the United States Army to the
Commonwealth of the Philippines or, at most, only to those accused or accusable of the
crimes specified in the law and not as to all persons accused or accusable of crimes against
national security committed during the second world war, much less to all offenders,
notwithstanding the fact that there is no reasonable and real difference among said groups of
offenders.

(1) The People's Court is a court of special and restricted jurisdiction created under the stress of an
emergency and national security. It was devised to operate for a limited period only, a limitation
imposed by economic necessity and other factors of public policy. Obviously, the main concerning
the creation of a special court was the trial and and disposition of the cases, numbering over 6,000,
of accused who were being held by the United States military authorities and who were to be turned
over to the Commonwealth Government. It was presumed that there were other cases of treason not
included in this number — cases which might not be discovered until years afterward — , and the
possibility was not overlooked that even some of the cases which the United States Army was on the
eve of placing under the jurisdiction of the Philippine Government could not be filed and submitted
for trial within a foreseeable future owing to lack of readily available evidence, absence of witnesses,
or other causes. On the other hand, considerations of economy and public interests forbade
maintenance of the People's Court for an indefinite period. Under the circumstances, it was
necessary that a provision be made requiring that only cases which could be brought to court within
six months and which were deemed enough to occupy the attention of the People's Court within the
limited time of its life, should be cognizable by it, and the rest should be instituted in the proper
Courts of First Instance. Such provision is not an arbitrary and international discrimination, and does
not work as a deprivation of the right to equal protection of the laws. Both in privileges or advantages
conferred, if any, and in liabilities imposed, if any, person under equal circumstances are treated
alike. It does not deprive appellant of the protection enjoyed by others failing within his class. The
equal protection of the laws guaranteed by the Constitution "does not prevent a state or municipality
from adjusting its legislation to differences in situations and making a discrimination or distinction in
its legislation in respect of things that are different, provided that the discrimination or distinction has
a reasonable foundation or rational basis and is not palpably, purely, and entirely arbitrary in the
legislative sense, that is, outside of the wide discretion which the legislative body may exercise." (16
C.J.S., 997.) Moreover, with its associate feature the People's Court is designed to extend greater
protection to persons charged with collaboration with the enemy. If others are prosecuted before a
Court of First Instance, they and not the appellant should have cause to complain of discrimination.

(2) Section 22 in denying preliminary investigation to persons accused before the People's Court is
justified by the conditions prevailing when the law was enacted. In view of the great number of
prisoners then under detention and the length of time and amount of labor that would be consumed if
so many prisoners were allowed the right to have preliminary investigation, considered with the
necessity of disposing of these cases at the earliest possible dates in the interest of the public and of
the accused themselves, it was not an unwise measure which dispensed with such investigation in
such cases. Preliminary investigation, it must be remembered, is not a fundamental right guaranteed
by the Constitution. For the rest, the constitutional prohibition against discrimination among
defendants placed in the same situation and condition is not infringed.

(3) For the same reasons stated before, this contention cannot be upheld. There is a rational basis
for the distinction. The employment of two modes of appellate procedure in the two classes of cases
involved are, in our opinion, suitably adapted to the differences, in their composition, between the
courts from which the appeals are taken. The People's Court is a collegiate court whereas the Court
of First Instance is presided over by a single judge. Appeal is not a constitutional but statutory right.
The admitted fact that there is no discrimination among appeals from the same court or class of
court saves the provision objected to from being unconstitutional.

(4) This objection does not seem to fall within the subject of constitutional guarantee against
deprivation of equal protection of the laws. Be that as it may, we find no merit in the appellant's
contention. The disqualification under the People's Court Act of some or a majority of the members
of this Court and their substitution by justices of the Court of Appeals or judges of the Courts of First
Instance do not make the Supreme Court, as thus constituted, a new court in the eyes of the law. A
court is an entity possessing a personality separate and distinct from the men who compose or sit on
it. This objection is no more valid than that of a party in an ordinary action who protests that his case
is heard by a Supreme Court which, by reason of disability of a majority of its regular members, is
made up mostly of judges from outside. As to the "lack of uniformity in rulings over the same
subject," it need only be said that the Constitution does not insure uniformity of judicial decisions;
neither does it assure immunity from judicial error.

(5) and (6) The two provisos in section 19 do no constitute denial of equal protection of the laws. The
distinction made by these provisos between two sets of accused in the "granting or release on bail"
and in the application of article 125 of the Revised Penal Code are not arbitrary or fanciful calculated
to favor or prejudice one or the other class. This point was discussed at length and made clear
in Laurel vs. Misa (76 Phil., 372), in which this Court explained the reasons which necessitated the
extension to six months of the authorized detention of persons charged with treason before filing of
information. The provisos rest "on some real and substantial difference or distinction bearing a just
and fair relation to the legislation." (16 C.J.S., 998.)

The brief says:

"(c) It is a bill of attainder in that it virtually imposes upon specific, known and identified
individuals or group of individual, the penalty of detention and imprisonment for a period not
exceeding six months without any form of judicial trial or procedure."

"The bill of attainder is a legislative act which inflicts punishment without judicial trial."
(Cummings vs. Missouri, 4 Wall., 232, etc.) Detention of a prisoner for a period not
exceeding six months pending investigation or trial is not a punishment but a necessary
extension of the well-recognized power to hold the criminal suspected for investigation. This
proviso was held by this Court to be justified and reasonable under existing circumstances
in Laurel vs. Misa, supra.

The brief says:

"(d) Section 2 thereof which purports to define the jurisdiction of the People's Court constitutes an
invalid and void delegation of legislative power which is vested exclusively in the Congress of the
Philippines by the Constitution, in so far as said section virtually leaves unqualifiedly in the discretion
of the Solicitor General and/or the Office of Special Prosecutors the power to determine the actual
cases over which the People's Court shall have jurisdiction."

Granting the correctness of the premise of this proposition, it does not follow that the authority
vested in the Solicitor General amounts to a delegation of legislative power. We do not think that the
power to institute certain cases in one court or another in the discretion of the prosecuting attorney is
an exercise of legislative power. "The true distinction is between the delegation of power to make the
law, which necessarily involves a discretion as to what it shall be, and conferring authority or
discretion as to its law. The first cannot be done; to the latter no valid objection can be made."
(Cincinnati, V. & Z. R. Co. vs. Clinton County Comr's [1852], 1 Ohio St., 77, cited in Tañada on the
constitution of the Philippines, p. 291.)

The brief says:

"(e) Sections 1, 4 and 18 thereof abridge, limit and curtail the power of appointment of the
President or the Chief Executive in that —

(1) Section 1 practically leaves the President with such a very small field of choice in the
appointment of the members of the court that he can hardly use his discretion in regard
thereto; and

(4) Sections 4 and 18 actually designate and appoint the persons who will occupy the
positions left vacant by those appointed to the People's Court and the Office of Special
Prosecutors respectively.

The power to create offices and courts is vested in the legislative department. Subject to
constitutional restrictions, the Congress may determine on the eligibility and qualification of officers
and provide the method for filing them. We find no valid objection on constitutional ground to a law
which directs that a special temporary court should be filled by appointment by the Chief Executive
himself from among judges already on the bench and/or other quasi-judicial officers. As to outsiders
who might have to be appointed by reason of insufficiency of qualified men already in the service,
the Chief Executive is left with a wide field of choice.
The theory that "sections 4 and 18 actually designate and appoint the persons who will occupy the
positions left vacant by those appointed to the People's Court and the Office of Special Prosecutors
respectively" loses sight of the fact that the positions referred to are, as a matter of fact, vacant only
in theory, and for the duration of the People's Court, and that the law does no more than say that
after those judges and officers shall have accomplished their work, they shall go back to their
permanent posts.

The brief says:

"(f) The said law provides for the designation and/or transfer of judges appointed for particular
districts to another place outside of their respective districts without the consent of the Supreme
Court."

Section 7 of Article VIII of the Constitution provides that "no judge appointed for a particular district
shall be designated or transferred to another district without the approval of the Supreme Court. The
Congress shall by law determine the residence of judges of the inferior courts." This constitutional
provision, as its language clearly states, refers to transfers from one judicial district to another. It
does not prohibit the appointment or designation of a judge from being appointed temporarily or
permanently with his consent to a court of different grade and make-up, such as the People's Court.

The brief says:

"(g) Sections 13 and 19 thereof prescribed rules of procedure regarding appeal and bail which
violate the rule of uniformity of rules for all courts of the same grade established in the Constitution."

It is the rules promulgated by the Supreme Court which are required by section 13 of Article VIII of
the Constitution to be uniform for all courts of the same grade. The People's Court is not a court of
the same grade, considering many of its special features, and its purposes, as the Court of First
Instance or any other existing court in the Philippines, so that the adoption of special rules of
procedure for said court different from those applicable to Courts of First Instance is not violative of
this constitutional mandate. More than this, the last sentence of the section expressly authorizes the
Congress "to repeal, alter, or supplement the rules concerning pleading, practice, and procedure,
and the admission to the practice of law in the Philippines."

The brief says:

"(h) It is destructive of the independence of the judiciary and thereby violates the constitutional
provision that the Philippines is a republican state because:

(1) By creating a special court with jurisdiction over cases which were already within the
jurisdiction of the existing Courts of First Instance without any real necessity and urgent
justification, considering that the persons involved in said cases were more or less known
and identified at the time of the creation of said special court, the law establishes a
precedent under which the legislature may at any time remove from the jurisdiction of
existing courts cases involving definite or specific individuals or groups of individuals to serve
any purpose which said legislature or the legislators composing the same may wish to
accomplish, either to the benefit or damage of said individuals or groups of individuals;

(2) By limiting the choice of the judges to compose the People's Court to those who did not
hold any position in the Philippine Executive Commission and/or the so-called Republic of
the Philippines, the law makes a classification that has absolutely no rational basis inasmuch
as the reason for discriminating against those who served in said governments, which is, that
they might be prejudiced or influenced in favor of the accused exists in equal measure for
those who did not serve, in the sense that they may likewise be prejudiced or influenced
against the accused; and

(3) In leaving practically in the hands of the Solicitor General the absolute right to choose, in
which court he shall prosecute the cases contemplated by the law, and in providing that the
judges of the People's Court shall be chosen from a limited group of the judges of the Court
of First Instance, etc., the law does not leave a wide room for the play of external factors in
the administration of justice to those concerned but also destroys the confidence of the
people in the judiciary.

(1 and 2) These objections go to the wisdom of the law and to matters of policy. This being so, it is
enough that the Congress deemed it necessary to incorporate these provisions in Commonwealth
Act No. 682. It is not the province of the courts to supervise legislation and keep it within the bounds
of propriety and common sense. That is primarily and exclusively a legislative concern.
(Rubi vs. Provincial Board of Mindoro, 39 Phil., 661.)
(3) This proposition is covered by and answered in our comment on paragraph (d) of the brief.

The judgment of the lower court is affirmed with costs against appellant.

Moran, C.J., Feria, Pablo, Hilado, Bengzon, and Briones, JJ., concur.
Hontiveros, and Padilla, JJ., concur in the result.

PARAS, J.:

I reserve my vote, the decision in the Laurel case is not as yet final.

Separate Opinions

PERFECTO, J., concurring and dissenting:

The appeal in this case raises only questions of law. Of the four assignments of error made in
appellant's brief, the first three are premised on the theory of suspended allegiance, and the last is
premised on the theory that the law creating the People's Court is unconstitutional.

The question of suspended allegiance was already rejected by a majority of this court in the case
of Laurel vs. Misa, in a resolution dated January 30, 1947 (77 Phil., 856),and our reasons for voting
for the rejection are expressed in our written opinion in said case.

We do not see in appellant's brief any argument which may justify the changing of our opinion in the
Laurel case where, by the way, the question of suspended allegiance appears to have been
discussed, perhaps, thoroughly and exhaustibly.

Regarding the fourth assignment of error, appellant advances the following proposition: "The
People's Court Law (Commonwealth Act No. 682) is unconstitutional and void in many parts and as
a whole because:

"(a) it contains provisions which deal on matters entirely foreign to the subject matter
expressed on its title;

"(b) It deprives persons similarly situated of the equal protection of the laws;

"(c) It is a bill of attainder in that it virtually imposes upon specific, known, and identified
individuals or group of individuals, the penalty of detention and imprisonment for a period not
exceeding six months without any form or judicial trial or procedure;

"(d) Section 2 thereof constitutes an invalid and void delegation of legislative power, in so far
as it virtually leaves unqualifiedly in the discretion of the Solicitor General and/or the Office of
Special Prosecutors the power to determine the actual case over which the People's Court
shall have jurisdiction;

"(e) Section 1, 4, and 18 thereof abridge, limit and curtail the power of appointment of the
President;

"(f) It provides for the designation and/or transfer of judges appointed for particular district to
another place outside of their respective district without the consent of the Supreme Court;

"(g) Section 13 and 19 thereof prescribed rules of procedure regarding appeal and bail which
violate the rule of uniformity of rules for all courts of the same grade established in the
Constitution;

"(h) It is destructive of the independence of the judiciary and thereby violates the
constitutional provision that the Philippines is a republican state;

"(i) Section 14 providing for disqualification of some Justice of the Supreme Court is
unreasonable in its operation."
Although it is regrettable that appellant failed to elaborate on the several grounds upon which he
impugns the validity of the law in question, upon which theory he seeks reversal of the decision of
the People's Court and his acquittal from the treason charge, such failure does not relieve us from
the duty of passing upon the questions raised, much more because they are not of passing
importance. Our opinion on the several grounds relied upon by appellant to attack the validity of
Commonwealth Act No. 682 as is follows:

(a) MULTIPLICITY OF SUBJECT MATTER

On the first ground, appellant undoubtedly relies on the following provision of the Constitution:

No bill which may be enacted into law shall embrace more than one subject which shall be
expressed in the title of the bill. (Section 21 [1], Article VI.)

Five reasons are advanced by appellant to show that the acts violates the constitutional prohibition
against multiplicity of subject matter. We are going to deal with them separately.

(1) It is alleged that, although the People's Court has been created precisely to try crimes against
national security with jurisdiction impliedly exclusive, section 2 thereof retains the jurisdiction of
courts of first instance to try and decide case not filed within six months. We do not believe that the
provision violates the constitutional inhibition. There should not be any question that the creation of
the People's Court was an answer to an unusual situation, created by the extraordinary social
upheaval provoked by the last war, demanding an uncommon solution, compatible with the tenets of
our democracy, with the provision of the Constitution, and with the noble aims of justice. The several
thousands of persons detained upon liberation charged with treason and other crimes against
national security needed the creation of a judicial machinery for the prompt disposal of their cases so
as not to violate their constitutional right to a speedy trial. It was admitted that the inferior courts then
existing were not enough to cope with the situation. Those who are guilty, should be sentenced as
soon as possible, so they may expiate for the wrongs that they have committed, and those who are
innocent are entitled to be cleared without any delay. The People's Court was, therefore, created to
shoulder the burden that the courts of first instance could not bear. Congress estimate that six
months was enough time for the cases of the thousands of detainees to be filed with the People's
Court, while the cases of those who have not yet been detained, on the assumption that they will be
few, there was no reason why these should not be disposed of by the courts of first instance as is
declared in the proviso of section 2. The proviso is germane with the subject matter of the law and
does not violate the prohibition against multiplicity of subject matter.

(2) The second objection is raised against the proviso authorizing the People's Court to convict and
sentence those accused for any crime included in the acts alleged in the information and established
by the evidence, although they are not classified as among those committed against national
security. The objection cannot be entertained. The proviso is within the logical purview of the
creation of the People's Court. The lawmaker must have had in mind the fact that among the
thousands of detainees which motivated the creation of the court there were persons who had
committed crimes other than those against national security.

Although these are the crimes preliminary in the minds of those who arrested said detainees, there
is nothing unnatural that those who committed said crimes may have also committed offenses of
different nature either in connection with the first ones or independently, and if said other offenses
are included among the facts alleged in the information filed with the People's Court and proved by
the evidence, there is no reason why said court should not punish them as a court of first instance
would, it appearing that the People's Court is but a special court of first instance.

(3) The third objection points to the disqualification of certain Justice of the Supreme Court and the
procedure of their substitution as provided in section 14 of Commonwealth Act No. 682. Although
said section is, in effect, null and void as unconstitutional, it is not enough ground to hold the whole
act as unconstitutional, as said section can be eliminated without affecting the remaining provisions
of the act.

(4) The fourth objection points to the proviso of section 19, which provides for an exception
concerning political offenders in the existing rules of court on the subject of bail. Whether the proviso
is valid or not, it cannot affect the constitutionality of the whole act. If it is valid, it is within the purview
of the creation of the People's Court. If it is invalid, it can be discarded without affecting the other
provisions of the law.

(5) The fifth objection points to the second proviso of section 19, suspending the provisions of article
125 of the Revised Penal Code. The proviso is evidently unconstitutional. It is within the purview of
the creation of the People's Court. It creates a discrimination violative of the constitutional guarantee
of the equal protection of the laws. In effect, it authorizes deprivation of liberty of the political
prisoners for a period of six months, which is violated of the constitutional guarantee that no person
shall be deprived of his liberty without due process of law. But the proviso may be eliminated without
affecting the remaining portions of the act and, therefore, is not enough ground for declaring the
whole act null and void.

Our conclusion is that the first ground attacking the validity of the law is without merit.

(b) EQUAL PROTECTION OF THE LAWS

Appellant advances six reasons to show that the act violates the constitutional guarantee of the
equal protection of the laws.

(1) The first reason is that, under section 2, the People's Court is only to try the cases of political
offenders against whom the information has been filed within six months., while others shall be tried
in a Court of First Instance. We believe that there is no unjust discrimination in it, complain of any
unjust discrimination. They will be tried by the regular tribunals created to try all other offenses.
Those who are to be tried by the People's Court cannot complain either, because said court is but
another court of first instance, although especially created for the prompt disposal of the cases of
political detainees. Congress made it collegiate as a guarantee against possible miscarriage of
justice due to popular excitement during the first months after the liberation. Congress believed that
a three-person tribunal can defend itself better against any outside pressure than a one-man
tribunal.

(2) The second reason is that political offenders accused in the People's Court are denied the
preliminary investigation accorded to those who may be accused in the court of first instance. We
are of opinion that the allegation is groundless. There is nothing in the act in question depriving
political offenders accused in the People's Court of the preliminary investigation as provided by Rule
108.

(3) The third reason is that political offenders accused in the People's Court have limited right to
appeal, while those who may be accused of the same crime in court of first instance have absolute
right to appeal. The allegation is partly true. There appears a discrimination against those who may
be convicted by the People's Court in banc, by providing that they can only appeal in accordance
with Rule 46, under which only questions of law may be raised. We are of opinion that the
discrimination is violative of the guarantee of the equal protection of the laws, and should not be
given effect. But the unconstitutional provision may be eliminated, without annulling the whole act. In
practice, the invalid discriminating provision seems to have become obsolete as all cases in the
People's Court are tried and decided in division and not in banc.

(4) The fourth reason is that appeals in cases involving persons who held any office under the
governments established by the Japanese during the occupation are to be heard and decided by a
substantially different Supreme Court. The allegation is correct by virtue of the provisions of section
14 which is flagrantly unconstitutional because (a) the disqualification of some members of the
Supreme Court provided therein constitutes in effect partial removal form office in open violation of
the guarantees and procedure provided by Article IX of the Constitution, (b) it provides for sitting in
the Supreme Court of persons not appointed in accordance with section 5 of Article VIII of the
constitution and without the qualifications provided in section 6 of the same article, and (c) it
provides for the existence of a second Supreme Court in violation of section 2 of Article VIII of the
Constitution which provides for only "one Supreme Court." But, as we have already stated, section
14 can be eliminated from Commonwealth Act No. 682, without declaring the act wholly
unconstitutional.

(5) The fifth reason is that there is discrimination in the first proviso of section 19 as to the granting of
release on bail. We are opinion that there is no substantial discrimination.

(6) The sixth reason is the discrimination provided in the second proviso of section 19. The proviso is
null and void, but it can be eliminated without annulling the whole act. It is a denial of the equal
protection of the laws and is violative of the constitutional guarantee against deprivation of liberty
without due process of law. The proviso should not be given effect, without annulling the whole act.

(c) BILL OF ATTAINDER

Appellant alleges that Commonwealth Act No. 682 is a bill of attainder in that it virtually impose upon
specific, known and identified individuals or group of individuals, the penalty of detention and
imprisonment for a period not exceeding six months without any form of judicial trial or procedure.

The allegation is justified by the second proviso of section 19 of the act. But it cannot affect it in
whole as said proviso can be eliminated without impairing the remaining proviso of the law.

(d) DELEGATION OF LEGISLATIVE POWER

Appellant alleges that section 2 constitutes an invalid and void delegation of legislative power in so
far as it virtually leaves unqualifiedly in the discretion of the Solicitor General and/or the Office of
Special Prosecutors the power to determine the actual cases over which the People's Court shall
have jurisdiction. There is no such delegation. The People's Court is substantially but one court of
first instance, only with limited jurisdiction. Whether a case is to be tried by the People's Court or by
an ordinary court of first instance, there is no substantial difference for the purposes of the
administration of justice and the jurisdictions of both courts are specifically provided in the law.

(e) CURTAILMENT OF THE POWER OF APPOINTMENT OF THE PRESIDENT

Appellant's objection is directed against section 1, 4, and 18. The objection is untenable. Congress
may validly provide for the qualifications of the members of the People's Court. Section 8 of Article
VIII of the constitution expressly grants that authority.

(f) TRANSFER OF JUSTICE WITHOUT APPROVAL OF THE SUPREME COURT

Appellant alleges that Commonwealth Act No. 682 provides for the designation and/or transfer of
judges to an other place outside their respective districts without the consent of the Supreme Court,
implying that section 7 of Article VIII of the Constitution is violated. The allegation is untenable. The
fact that the act authorizes the appointment of person already holding positions in the judiciary to be
members of the People's Court is no violation of the constitutional mandate. What the authors of the
Constitution contemplated were transfers from one district to another, but not appointment of those
already holding positions to other positions.

(g) UNIFORMITY OF LAWS

The objections of appellant in paragraph (g) is but a repetition of his objections in paragraph (b)
already dealt with above.

(h) INDEPENDENCE OF THE JUDICIARY

Appellant sets the following propositions:

1. By creating a special court with jurisdiction over cases which were already within the jurisdiction of
the existing courts of first instance, considering that the persons involved in said cases were more or
less known and identified at the time of the creation of said court, the law establishes a precedent
under which Congress may at any time remove from the jurisdiction of existing court cases involving
definite or specific individuals or groups of individuals to serve any purpose which the members of
the Congress may wish to accomplish, either to the benefit or damage of said individuals.

2. By limiting the choice of the judges to compose the People's Court, the law makes a classification
that has absolutely no rational basis.

3. In leaving to the hands of the Solicitor General the absolute right to choose in which court he shall
prosecute the cases contemplated by the law and in providing that the judges of the People's Court
shall be chosen from a limited groups of individuals, etc., the law does not leave a wide room for the
play of external factors in the administration of justice to those concerned but also destroys the
confidence of the people in the judiciary.

The question raised in the above three propositions are serious but none of them amounts to a
violation of the fundamental law that may nullify the law in question, as they involve a matter of
public policy, although the first one points to a situation bordering into a transgression of the
guarantee of the equal protection of the laws. If the provisions of the law creating the special court
should show a clear purpose of making a discrimination, pro or against those who may be tried
under it, then the law must be declared null and void in toto. Such is not the case of the law under
discussion. Matters of public policy not involving a violation of the fundamental law are within the
province of Congress to legislate, subject only to the control of the people through the electorate.

For all the foregoing, we vote to affirm the decision rendered by the lower court in this case.
 Republic of the Philippines
SUPREME COURT

FIRST DIVISION

G.R. No. 138509 July 31, 2000

IMELDA MARBELLA-BOBIS, petitioner,

vs.
ISAGANI D. BOBIS, respondent.

YNARES-SANTIAGO, J.:

On October 21, 1985, respondent contracted a first marriage with one Maria Dulce B. Javier. Without
said marriage having been annulled, nullified or terminated, the same respondent contracted a
second marriage with petitioner Imelda Marbella-Bobis on January 25, 1996 and allegedly a third
marriage with a certain Julia Sally Hernandez. Based on petitioner's complaint-affidavit, an
information for bigamy was filed against respondent on February 25, 1998, which was docketed as
Criminal Case No. Q98-75611 of the Regional Trial Court, Branch 226, Quezon City. Sometime
thereafter, respondent initiated a civil action for the judicial declaration of absolute nullity of his first
marriage on the ground that it was celebrated without a marriage license. Respondent then filed a
motion to suspend the proceedings in the criminal case for bigamy invoking the pending civil case
for nullity of the first marriage as a prejudicial question to the criminal case. The trial judge granted
the motion to suspend the criminal case in an Order dated December 29, 1998.1 Petitioner filed a
motion for reconsideration, but the same was denied.

Hence, this petition for review on certiorari. Petitioner argues that respondent should have first
obtained a judicial declaration of nullity of his first marriage before entering into the second marriage,
inasmuch as the alleged prejudicial question justifying suspension of the bigamy case is no longer a
legal truism pursuant to Article 40 of the Family Code.2

The issue to be resolved in this petition is whether the subsequent filing of a civil action for
declaration of nullity of a previous marriage constitutes a prejudicial question to a criminal case for
bigamy.

A prejudicial question is one which arises in a case the resolution of which is a logical antecedent of
the issue involved therein.3 It is a question based on a fact distinct and separate from the crime but
so intimately connected with it that it determines the guilt or innocence of the accused.4 It must
appear not only that the civil case involves facts upon which the criminal action is based, but also
that the resolution of the issues raised in the civil action would necessarily be determinative of the
criminal case.5 Consequently, the defense must involve an issue similar or intimately related to the
same issue raised in the criminal action and its resolution determinative of whether or not the latter
action may proceed.6 Its two essential elements are:7

(a) the civil action involves an issue similar or intimately related to the issue raised in the
criminal action; and

(b) the resolution of such issue determines whether or not the criminal action may proceed.

A prejudicial question does not conclusively resolve the guilt or innocence of the accused but simply
tests the sufficiency of the allegations in the information in order to sustain the further prosecution of
the criminal case. A party who raises a prejudicial question is deemed to have hypothetically
admitted that all the essential elements of a crime have been adequately alleged in the information,
considering that the prosecution has not yet presented a single evidence on the indictment or may
not yet have rested its case. A challenge of the allegations in the information on the ground of
prejudicial question is in effect a question on the merits of the criminal charge through a non-criminal
suit.

Article 40 of the Family Code, which was effective at the time of celebration of the second marriage,
requires a prior judicial declaration of nullity of a previous marriage before a party may remarry. The
clear implication of this is that it is not for the parties, particularly the accused, to determine the
validity or invalidity of the marriage.8 Whether or not the first marriage was void for lack of a license is
a matter of defense because there is still no judicial declaration of its nullity at the time the second
marriage was contracted. It should be remembered that bigamy can successfully be prosecuted
provided all its elements concur – two of which are a previous marriage and a subsequent marriage
which would have been valid had it not been for the existence at the material time of the first
marriage.9
In the case at bar, respondent's clear intent is to obtain a judicial declaration of nullity of his first
marriage and thereafter to invoke that very same judgment to prevent his prosecution for bigamy. He
cannot have his cake and eat it too. Otherwise, all that an adventurous bigamist has to do is to
disregard Article 40 of the Family Code, contract a subsequent marriage and escape a bigamy
charge by simply claiming that the first marriage is void and that the subsequent marriage is equally
void for lack of a prior judicial declaration of nullity of the first. A party may even enter into a marriage
aware of the absence of a requisite - usually the marriage license - and thereafter contract a
subsequent marriage without obtaining a declaration of nullity of the first on the assumption that the
first marriage is void. Such scenario would render nugatory the provisions on bigamy. As succinctly
held in Landicho v. Relova:10

(P)arties to a marriage should not be permitted to judge for themselves its nullity, only
competent courts having such authority. Prior to such declaration of nullity, the validity of the
first marriage is beyond question. A party who contracts a second marriage then assumes
the risk of being prosecuted for bigamy.

Respondent alleges that the first marriage in the case before us was void for lack of a marriage
license. Petitioner, on the other hand, argues that her marriage to respondent was exempt from the
requirement of a marriage license. More specifically, petitioner claims that prior to their marriage,
they had already attained the age of majority and had been living together as husband and wife for
at least five years.11 The issue in this case is limited to the existence of a prejudicial question, and we
are not called upon to resolve the validity of the first marriage. Be that as it may, suffice it to state
that the Civil Code, under which the first marriage was celebrated, provides that "every intendment
of law or fact leans toward the validity of marriage, the indissolubility of the marriage bonds."12 []
Hence, parties should not be permitted to judge for themselves the nullity of their marriage, for the
same must be submitted to the determination of competent courts. Only when the nullity of the
marriage is so declared can it be held as void, and so long as there is no such declaration the
presumption is that the marriage exists.13 No matter how obvious, manifest or patent the absence of
an element is, the intervention of the courts must always be resorted to. That is why Article 40 of the
Family Code requires a "final judgment," which only the courts can render. Thus, as ruled
in Landicho v. Relova,14 he who contracts a second marriage before the judicial declaration of nullity
of the first marriage assumes the risk of being prosecuted for bigamy, and in such a case the
criminal case may not be suspended on the ground of the pendency of a civil case for declaration of
nullity. In a recent case for concubinage, we held that the pendency of a civil case for declaration of
nullity of marriage is not a prejudicial question.15 This ruling applies here by analogy since both
crimes presuppose the subsistence of a marriage.

Ignorance of the existence of Article 40 of the Family Code cannot even be successfully invoked as
an excuse.16 The contracting of a marriage knowing that the requirements of the law have not been
complied with or that the marriage is in disregard of a legal impediment is an act penalized by the
Revised Penal Code.17 The legality of a marriage is a matter of law and every person is presumed to
know the law. As respondent did not obtain the judicial declaration of nullity when he entered into the
second marriage, why should he be allowed to belatedly obtain that judicial declaration in order to
delay his criminal prosecution and subsequently defeat it by his own disobedience of the law? If he
wants to raise the nullity of the previous marriage, he can do it as a matter of defense when he
presents his evidence during the trial proper in the criminal case.

The burden of proof to show the dissolution of the first marriage before the second marriage was
contracted rests upon the defense,18 but that is a matter that can be raised in the trial of the bigamy
case. In the meantime, it should be stressed that not every defense raised in the civil action may be
used as a prejudicial question to obtain the suspension of the criminal action. The lower court,
therefore, erred in suspending the criminal case for bigamy. Moreover, when respondent was
indicted for bigamy, the fact that he entered into two marriage ceremonies appeared indubitable. It
was only after he was sued by petitioner for bigamy that he thought of seeking a judicial declaration
of nullity of his first marriage. The obvious intent, therefore, is that respondent merely resorted to the
civil action as a potential prejudicial question for the purpose of frustrating or delaying his criminal
prosecution. As has been discussed above, this cannot be done. 1aw phi 1

In the light of Article 40 of the Family Code, respondent, without first having obtained the judicial
declaration of nullity of the first marriage, can not be said to have validly entered into the second
marriage. Per current jurisprudence, a marriage though void still needs a judicial declaration of such
fact before any party can marry again; otherwise the second marriage will also be void.19 The reason
is that, without a judicial declaration of its nullity, the first marriage is presumed to be subsisting. In
the case at bar, respondent was for all legal intents and purposes regarded as a married man at the
time he contracted his second marriage with petitioner.20 Against this legal backdrop, any decision in
the civil action for nullity would not erase the fact that respondent entered into a second marriage
during the subsistence of a first marriage. Thus, a decision in the civil case is not essential to the
determination of the criminal charge. It is, therefore, not a prejudicial question. As stated above,
respondent cannot be permitted to use his own malfeasance to defeat the criminal action against
him.21
WHEREFORE, the petition is GRANTED. The order dated December 29, 1998 of the Regional Trial
Court, Branch 226 of Quezon City is REVERSED and SET ASIDE and the trial court is ordered to
IMMEDIATELY proceed with Criminal Case No. Q98-75611.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.

Footnotes:

1
Rollo, pp. 29-30.

2
Petition, p. 6; Rollo, p. 23.

3
Fortich-Celdran v. Celdran, 19 SCRA 502 (1967); Zapanta v. Montessa; 114 Phil. 428
(1962); Merced v. Diez, 109 Phil. 155 (1960); See also People v. Aragon, 94 Phil. 357 (1954)
cited in Dichaves v. Judge Apalit, AM-MTJ-00-1274, June 8, 2000.

4
Yap v. Paras, 205 SCRA 625 (1992); Donato v. Luna, 160 SCRA 441 (1988);
Quiambao v. Osorio, 158 SCRA 674 (1988); Mendiola v. Macadaeg, 1 SCRA 593 (1961);
Aleria v. Mendoza, 83 Phil. 427 (1949); Berbari v. Concepcion, 40 Phil. 837 (1920)

Ras v. Rasul, 100 SCRA 125 (1980); Benitez v. Concepcion, Jr., 2 SCRA 178 (1961) citing
5

De Leon v. Mabanag, 70 Phil. 202 (1940)

6
Yap v. Paras, 205 SCRA 625 (1992)

7
Rules of Court, Rule 111, Sec. 5. Elements of prejudicial question. — The two (2) essential
elements of a prejudicial question are: (a) the civil action involves an issue similar or
intimately related to the issue raised in the criminal action; and (b) the resolution of such
issue determines whether or not the criminal action may proceed. (See also Prado v. People,
218 Phil. 571)

8
Niñal v. Badayog, G.R. No. 133778, March 14, 2000.

9
People v. Dumpo, 62 Phil. 246 (1935). The elements of bigamy are: (1) the offender has
been legally married; (2) that the first marriage has not been legally dissolved, or in case his
or her spouse is absent, the absent spouse has not been judicially declared presumptively
dead; (3) that he contracts a subsequent marriage; (4) the subsequent marriage would have
been valid had it not been for the existence of the first. The exception to prosecution for
bigamy are those covered by Article 41 of the Family Code and by P.D. 1083 otherwise
known as the Code of Muslim Personal Laws of the Philippines, which provides that penal
laws relative to the crime of bigamy "shall not apply to a person married xxx under Muslim
Law" where the requirements set therein are met. See also Sulu Islamic Association v. Malik,
226 SCRA 193 (1993); Merced v. Diez, 109 Phil. 155 (1960)

10
22 SCRA 731, 735 (1968)

11
Civil Code, Article 76.

12
Civil Code, Article 220.

13
Landicho v. Relova, supra.

14
Supra.

15
Beltran v. People of the Philippines, G.R. No. 137567, June 20, 2000.

16
Civil Code, Article 3.

17
Revised Penal Code, Article 350.

18
People v. Dungao, 56 Phil. 805 (1931)
19
Apiag v. Judge Cantero, 268 SCRA 47, 61 (1997)

20
Wiegel v. Hon. Sempio-Dy, 143 SCRA 499, 501 (1986)

21
People v. Aragon, 94 Phil. 357, 360 (1954)
 EN BANC

G.R. No. 146710-15 March 2, 2001

JOSEPH E. ESTRADA, petitioner,

vs.
ANIANO DESIERTO, in his capacity as Ombudsman, RAMON GONZALES, VOLUNTEERS
AGAINST CRIME AND CORRUPTION, GRAFT FREE PHILIPPINES FOUNDATION, INC.,
LEONARD DE VERA, DENNIS FUNA, ROMEO CAPULONG and ERNESTO B. FRANCISCO,
JR., respondent.

----------------------------------------

G.R. No. 146738 March 2, 2001

JOSEPH E. ESTRADA, petitioner,

vs.
GLORIA MACAPAGAL-ARROYO, respondent.

PUNO, J.:

On the line in the cases at bar is the office of the President. Petitioner Joseph Ejercito Estrada
alleges that he is the President on leave while respondent Gloria Macapagal-Arroyo claims she is
the President. The warring personalities are important enough but more transcendental are the
constitutional issues embedded on the parties' dispute. While the significant issues are many, the
jugular issue involves the relationship between the ruler and the ruled in a democracy, Philippine
style.

First, we take a view of the panorama of events that precipitated the crisis in the office of the
President.

In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President while
respondent Gloria Macapagal-Arroyo was elected Vice-President. Some ten (10) million Filipinos
voted for the petitioner believing he would rescue them from life's adversity. Both petitioner and the
respondent were to serve a six-year term commencing on June 30, 1998.

From the beginning of his term, however, petitioner was plagued by a plethora of problems that
slowly but surely eroded his popularity. His sharp descent from power started on October 4, 2000.
Ilocos Sur Governor, Luis "Chavit" Singson, a longtime friend of the petitioner, went on air and
accused the petitioner, his family and friends of receiving millions of pesos from jueteng lords.1

The exposẻ immediately ignited reactions of rage. The next day, October 5, 2000, Senator Teofisto
Guingona, Jr., then the Senate Minority Leader, took the floor and delivered a fiery privilege speech
entitled "I Accuse." He accused the petitioner of receiving some P220 million in jueteng money from
Governor Singson from November 1998 to August 2000. He also charged that the petitioner took
from Governor Singson P70 million on excise tax on cigarettes intended for Ilocos Sur. The privilege
speech was referred by then Senate President Franklin Drilon, to the Blue Ribbon Committee (then
headed by Senator Aquilino Pimentel) and the Committee on Justice (then headed by Senator
Renato Cayetano) for joint investigation.2

The House of Representatives did no less. The House Committee on Public Order and Security,
then headed by Representative Roilo Golez, decided to investigate the exposẻ of Governor Singson.
On the other hand, Representatives Heherson Alvarez, Ernesto Herrera and Michael Defensor
spearheaded the move to impeach the petitioner.

Calls for the resignation of the petitioner filled the air. On October 11, Archbishop Jaime Cardinal Sin
issued a pastoral statement in behalf of the Presbyteral Council of the Archdiocese of Manila, asking
petitioner to step down from the presidency as he had lost the moral authority to govern.3 Two days
later or on October 13, the Catholic Bishops Conference of the Philippines joined the cry for the
resignation of the petitioner.4 Four days later, or on October 17, former President Corazon C. Aquino
also demanded that the petitioner take the "supreme self-sacrifice" of resignation.5 Former President
Fidel Ramos also joined the chorus. Early on, or on October 12, respondent Arroyo resigned as
Secretary of the Department of Social Welfare and Services6 and later asked for petitioner's
resignation.7 However, petitioner strenuously held on to his office and refused to resign.

The heat was on. On November 1, four (4) senior economic advisers, members of the Council of
Senior Economic Advisers, resigned. They were Jaime Augusto Zobel de Ayala, former Prime
Minister Cesar Virata, former Senator Vicente Paterno and Washington Sycip.8 On November 2,
Secretary Mar Roxas II also resigned from the Department of Trade and Industry.9 On November 3,
Senate President Franklin Drilon, and House Speaker Manuel Villar, together with some 47
representatives defected from the ruling coalition, Lapian ng Masang Pilipino.10

The month of November ended with a big bang. In a tumultuous session on November 13, House
Speaker Villar transmitted the Articles of Impeachment11 signed by 115 representatives, or more
than 1/3 of all the members of the House of Representatives to the Senate. This caused political
convulsions in both houses of Congress. Senator Drilon was replaced by Senator Pimentel as
Senate President. Speaker Villar was unseated by Representative Fuentebella.12 On November 20,
the Senate formally opened the impeachment trial of the petitioner. Twenty-one (21) senators took
their oath as judges with Supreme Court Chief Justice Hilario G. Davide, Jr., presiding.13

The political temperature rose despite the cold December. On December 7, the impeachment trial
started.14 The battle royale was fought by some of the marquee names in the legal profession.
Standing as prosecutors were then House Minority Floor Leader Feliciano Belmonte and
Representatives Joker Arroyo, Wigberto Tañada, Sergio Apostol, Raul Gonzales, Oscar Moreno,
Salacnib Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez and Antonio Nachura. They
were assisted by a battery of private prosecutors led by now Secretary of Justice Hernando Perez
and now Solicitor General Simeon Marcelo. Serving as defense counsel were former Chief Justice
Andres Narvasa, former Solicitor General and Secretary of Justice Estelito P. Mendoza, former City
Fiscal of Manila Jose Flaminiano, former Deputy Speaker of the House Raul Daza, Atty. Siegfried
Fortun and his brother, Atty. Raymund Fortun. The day to day trial was covered by live TV and
during its course enjoyed the highest viewing rating. Its high and low points were the constant
conversational piece of the chattering classes. The dramatic point of the December hearings was the
testimony of Clarissa Ocampo, senior vice president of Equitable-PCI Bank. She testified that she
was one foot away from petitioner Estrada when he affixed the signature "Jose Velarde" on
documents involving a P500 million investment agreement with their bank on February 4, 2000.15

After the testimony of Ocampo, the impeachment trial was adjourned in the spirit of Christmas.
When it resumed on January 2, 2001, more bombshells were exploded by the prosecution. On
January 11, Atty. Edgardo Espiritu who served as petitioner's Secretary of Finance took the witness
stand. He alleged that the petitioner jointly owned BW Resources Corporation with Mr. Dante Tan
who was facing charges of insider trading.16 Then came the fateful day of January 16, when by a
vote of 11-1017 the senator-judges ruled against the opening of the second envelope which allegedly
contained evidence showing that petitioner held P3.3 billion in a secret bank account under the
name "Jose Velarde." The public and private prosecutors walked out in protest of the ruling. In
disgust, Senator Pimentel resigned as Senate President.18 The ruling made at 10:00 p.m. was met
by a spontaneous outburst of anger that hit the streets of the metropolis. By midnight, thousands had
assembled at the EDSA Shrine and speeches full of sulphur were delivered against the petitioner
and the eleven (11) senators.

On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering their
collective resignation. They also filed their Manifestation of Withdrawal of Appearance with the
impeachment tribunal.19 Senator Raul Roco quickly moved for the indefinite postponement of the
impeachment proceedings until the House of Representatives shall have resolved the issue of
resignation of the public prosecutors. Chief Justice Davide granted the motion.20

January 18 saw the high velocity intensification of the call for petitioner's resignation. A 10-kilometer
line of people holding lighted candles formed a human chain from the Ninoy Aquino Monument on
Ayala Avenue in Makati City to the EDSA Shrine to symbolize the people's solidarity in demanding
petitioner's resignation. Students and teachers walked out of their classes in Metro Manila to show
their concordance. Speakers in the continuing rallies at the EDSA Shrine, all masters of the physics
of persuasion, attracted more and more people.21

On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the petitioner
informed Executive Secretary Edgardo Angara that General Angelo Reyes, Chief of Staff of the
Armed Forces of the Philippines, had defected. At 2:30 p.m., petitioner agreed to the holding of a
snap election for President where he would not be a candidate. It did not diffuse the growing crisis.
At 3:00 p.m., Secretary of National Defense Orlando Mercado and General Reyes, together with the
chiefs of all the armed services went to the EDSA Shrine.22 In the presence of former Presidents
Aquino and Ramos and hundreds of thousands of cheering demonstrators, General Reyes declared
that "on behalf of Your Armed Forces, the 130,000 strong members of the Armed Forces, we wish to
announce that we are withdrawing our support to this government."23 A little later, PNP Chief,
Director General Panfilo Lacson and the major service commanders gave a similar stunning
announcement.24 Some Cabinet secretaries, undersecretaries, assistant secretaries, and bureau
chiefs quickly resigned from their posts.25 Rallies for the resignation of the petitioner exploded in
various parts of the country. To stem the tide of rage, petitioner announced he was ordering his
lawyers to agree to the opening of the highly controversial second envelope.26 There was no turning
back the tide. The tide had become a tsunami.

January 20 turned to be the day of surrender. At 12:20 a.m., the first round of negotiations for the
peaceful and orderly transfer of power started at Malacañang'' Mabini Hall, Office of the Executive
Secretary. Secretary Edgardo Angara, Senior Deputy Executive Secretary Ramon Bagatsing,
Political Adviser Angelito Banayo, Asst. Secretary Boying Remulla, and Atty. Macel Fernandez, head
of the Presidential Management Staff, negotiated for the petitioner. Respondent Arroyo was
represented by now Executive Secretary Renato de Villa, now Secretary of Finance Alberto Romulo
and now Secretary of Justice Hernando Perez.27 Outside the palace, there was a brief encounter at
Mendiola between pro and anti-Estrada protesters which resulted in stone-throwing and caused
minor injuries. The negotiations consumed all morning until the news broke out that Chief Justice
Davide would administer the oath to respondent Arroyo at high noon at the EDSA Shrine.

At about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo as President
of the Philippines.28 At 2:30 p.m., petitioner and his family hurriedly left Malacañang Palace.29 He
issued the following press statement:30

"20 January 2001

STATEMENT FROM

PRESIDENT JOSEPH EJERCITO ESTRADA

At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as
President of the Republic of the Philippines. While along with many other legal minds of our
country, I have strong and serious doubts about the legality and constitutionality of her
proclamation as President, I do not wish to be a factor that will prevent the restoration of
unity and order in our civil society.

It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this
country, for the sake of peace and in order to begin the healing process of our nation. I leave
the Palace of our people with gratitude for the opportunities given to me for service to our
people. I will not shirk from any future challenges that may come ahead in the same service
of our country.

I call on all my supporters and followers to join me in to promotion of a constructive national

spirit of reconciliation and solidarity.

May the Almighty bless our country and beloved people.

MABUHAY!

(Sgd.) JOSEPH EJERCITO ESTRADA"

It also appears that on the same day, January 20, 2001, he signed the following letter:31

"Sir:

By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby
transmitting this declaration that I am unable to exercise the powers and duties of my office.
By operation of law and the Constitution, the Vice-President shall be the Acting President.

(Sgd.) JOSEPH EJERCITO ESTRADA"

A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m. on January 20.23 Another
copy was transmitted to Senate President Pimentel on the same day although it was received only at
9:00 p.m.33

On January 22, the Monday after taking her oath, respondent Arroyo immediately discharged the
powers the duties of the Presidency. On the same day, this Court issued the following Resolution in
Administrative Matter No. 01-1-05-SC, to wit:
 "A.M. No. 01-1-05-SC — In re: Request of Vice President Gloria Macapagal-Arroyo to Take
her Oath of Office as President of the Republic of the Philippines before the Chief Justice —
Acting on the urgent request of Vice President Gloria Macapagal-Arroyo to be sworn in as
President of the Republic of the Philippines, addressed to the Chief Justice and confirmed by
a letter to the Court, dated January 20, 2001, which request was treated as an administrative
matter, the court Resolve unanimously to confirm the authority given by the twelve (12)
members of the Court then present to the Chief Justice on January 20, 2001 to administer
the oath of office of Vice President Gloria Macapagal-Arroyo as President of the Philippines,
at noon of January 20, 2001. 1âw phi 1.nêt

This resolution is without prejudice to the disposition of any justiciable case that may be filed
by a proper party."

Respondent Arroyo appointed members of her Cabinet as well as ambassadors and special
envoys.34 Recognition of respondent Arroyo's government by foreign governments swiftly followed.
On January 23, in a reception or vin d' honneur at Malacañang, led by the Dean of the Diplomatic
Corps, Papal Nuncio Antonio Franco, more than a hundred foreign diplomats recognized the
government of respondent Arroyo.35 US President George W. Bush gave the respondent a telephone
call from the White House conveying US recognition of her government.36

On January 24, Representative Feliciano Belmonte was elected new Speaker of the House of
Representatives.37 The House then passed Resolution No. 175 "expressing the full support of the
House of Representatives to the administration of Her Excellency, Gloria Macapagal-Arroyo,
President of the Philippines."38 It also approved Resolution No. 176 "expressing the support of the
House of Representatives to the assumption into office by Vice President Gloria Macapagal-Arroyo
as President of the Republic of the Philippines, extending its congratulations and expressing its
support for her administration as a partner in the attainment of the nation's goals under the
Constitution."39

On January 26, the respondent signed into law the Solid Waste Management Act.40 A few days later,
she also signed into law the Political Advertising ban and Fair Election Practices Act.41

On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice
President.42 The next day, February 7, the Senate adopted Resolution No. 82 confirming the
nomination of Senator Guingona, Jr.43 Senators Miriam Defensor-Santiago, Juan Ponce Enrile, and
John Osmena voted "yes" with reservations, citing as reason therefor the pending challenge on the
legitimacy of respondent Arroyo's presidency before the Supreme Court. Senators Teresa Aquino-
Oreta and Robert Barbers were absent.44 The House of Representatives also approved Senator
Guingona's nomination in Resolution No. 178.45 Senator Guingona, Jr. took his oath as Vice
President two (2) days later.46

On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court
is functus officio and has been terminated.47 Senator Miriam Defensor-Santiago stated "for the
record" that she voted against the closure of the impeachment court on the grounds that the Senate
had failed to decide on the impeachment case and that the resolution left open the question of
whether Estrada was still qualified to run for another elective post.48

Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's public acceptance rating jacked
up from 16% on January 20, 2001 to 38% on January 26, 2001.49 In another survey conducted by
the ABS-CBN/SWS from February 2-7, 2001, results showed that 61% of the Filipinos nationwide
accepted President Arroyo as replacement of petitioner Estrada. The survey also revealed that
President Arroyo is accepted by 60% in Metro Manila, by also 60% in the balance of Luzon, by 71%
in the Visayas, and 55% in Mindanao. Her trust rating increased to 52%. Her presidency is accepted
by majorities in all social classes: 58% in the ABC or middle-to-upper classes, 64% in the D or mass
class, and 54% among the E's or very poor class.50

After his fall from the pedestal of power, the petitioner's legal problems appeared in clusters. Several
cases previously filed against him in the Office of the Ombudsman were set in motion. These are: (1)
OMB Case No. 0-00-1629, filed by Ramon A. Gonzales on October 23, 2000 for bribery and graft
and corruption; (2) OMB Case No. 0-00-1754 filed by the Volunteers Against Crime and Corruption
on November 17, 2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious
misconduct, violation of the Code of Conduct for Government Employees, etc; (3) OMB Case No. 0-
00-1755 filed by the Graft Free Philippines Foundation, Inc. on November 24, 2000 for plunder,
forfeiture, graft and corruption, bribery, perjury, serious misconduct; (4) OMB Case No. 0-00-1756
filed by Romeo Capulong, et al., on November 28, 2000 for malversation of public funds, illegal use
of public funds and property, plunder, etc.; (5) OMB Case No. 0-00-1757 filed by Leonard de Vera,
et al., on November 28, 2000 for bribery, plunder, indirect bribery, violation of PD 1602, PD 1829,
PD 46, and RA 7080; and (6) OMB Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on
December 4, 2000 for plunder, graft and corruption.
A special panel of investigators was forthwith created by the respondent Ombudsman to investigate
the charges against the petitioner. It is chaired by Overall Deputy Ombudsman Margarito P.
Gervasio with the following as members, viz: Director Andrew Amuyutan, Prosecutor Pelayo
Apostol, Atty. Jose de Jesus and Atty. Emmanuel Laureso. On January 22, the panel issued an
Order directing the petitioner to file his counter-affidavit and the affidavits of his witnesses as well as
other supporting documents in answer to the aforementioned complaints against him.

Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court GR No.
146710-15, a petition for prohibition with a prayer for a writ of preliminary injunction. It sought to
enjoin the respondent Ombudsman from "conducting any further proceedings in Case Nos. OMB 0-
00-1629, 1754, 1755, 1756, 1757 and 1758 or in any other criminal complaint that may be filed in his
office, until after the term of petitioner as President is over and only if legally warranted." Thru
another counsel, petitioner, on February 6, filed GR No. 146738 for Quo Warranto. He prayed for
judgment "confirming petitioner to be the lawful and incumbent President of the Republic of the
Philippines temporarily unable to discharge the duties of his office, and declaring respondent to have
taken her oath as and to be holding the Office of the President, only in an acting capacity pursuant to
the provisions of the Constitution." Acting on GR Nos. 146710-15, the Court, on the same day,
February 6, required the respondents "to comment thereon within a non-extendible period expiring
on 12 February 2001." On February 13, the Court ordered the consolidation of GR Nos. 146710-15
and GR No. 146738 and the filing of the respondents' comments "on or before 8:00 a.m. of February
15."

On February 15, the consolidated cases were orally argued in a four-hour hearing. Before the
hearing, Chief Justice Davide, Jr.51 and Associate Justice Artemio Panganiban52 recused themselves
on motion of petitioner's counsel, former Senator Rene A. Saguisag. They debunked the charge of
counsel Saguisag that they have "compromised themselves by indicating that they have thrown their
weight on one side" but nonetheless inhibited themselves. Thereafter, the parties were given the
short period of five (5) days to file their memoranda and two (2) days to submit their simultaneous
replies.

In a resolution dated February 20, acting on the urgent motion for copies of resolution and press
statement for "Gag Order" on respondent Ombudsman filed by counsel for petitioner in G.R. No.
146738, the Court resolved:

"(1) to inform the parties that the Court did not issue a resolution on January 20, 2001
declaring the office of the President vacant and that neither did the Chief Justice issue a
press statement justifying the alleged resolution;

(2) to order the parties and especially their counsel who are officers of the Court under pain
of being cited for contempt to refrain from making any comment or discussing in public the
merits of the cases at bar while they are still pending decision by the Court, and

(3) to issue a 30-day status quo order effective immediately enjoining the respondent
Ombudsman from resolving or deciding the criminal cases pending investigation in his office
against petitioner, Joseph E. Estrada and subject of the cases at bar, it appearing from news
reports that the respondent Ombudsman may immediately resolve the cases against
petitioner Joseph E. Estrada seven (7) days after the hearing held on February 15, 2001,
which action will make the cases at bar moot and academic."53

The parties filed their replies on February 24. On this date, the cases at bar were deemed submitted
for decision.

The bedrock issues for resolution of this Court are:

Whether the petitions present a justiciable controversy.

II

Assuming that the petitions present a justiciable controversy, whether petitioner Estrada is a
President on leave while respondent Arroyo is an Acting President.

III

Whether conviction in the impeachment proceedings is a condition precedent for the criminal
prosecution of petitioner Estrada. In the negative and on the assumption that petitioner is still
President, whether he is immune from criminal prosecution.
 IV

Whether the prosecution of petitioner Estrada should be enjoined on the ground of prejudicial
publicity.

We shall discuss the issues in seriatim.

Whether or not the cases

At bar involve a political question

Private respondents54 raise the threshold issue that the cases at bar pose a political question, and
hence, are beyond the jurisdiction of this Court to decide. They contend that shorn of its
embroideries, the cases at bar assail the "legitimacy of the Arroyo administration." They stress that
respondent Arroyo ascended the presidency through people power; that she has already taken her
oath as the 14th President of the Republic; that she has exercised the powers of the presidency and
that she has been recognized by foreign governments. They submit that these realities on ground
constitute the political thicket, which the Court cannot enter.

We reject private respondents' submission. To be sure, courts here and abroad, have tried to lift the
shroud on political question but its exact latitude still splits the best of legal minds. Developed by the
courts in the 20th century, the political question doctrine which rests on the principle of separation of
powers and on prudential considerations, continue to be refined in the mills of constitutional law.55 In
the United States, the most authoritative guidelines to determine whether a question is political were
spelled out by Mr. Justice Brennan in the 1962 case or Baker v. Carr,56 viz:

"x x x Prominent on the surface of any case held to involve a political question is found a
textually demonstrable constitutional commitment of the issue to a coordinate political
department or a lack of judicially discoverable and manageable standards for resolving it, or
the impossibility of deciding without an initial policy determination of a kind clearly for non-
judicial discretion; or the impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of government; or an unusual need
for unquestioning adherence to a political decision already made; or the potentiality of
embarrassment from multifarious pronouncements by various departments on question.
Unless one of these formulations is inextricable from the case at bar, there should be no
dismissal for non justiciability on the ground of a political question's presence. The doctrine
of which we treat is one of 'political questions', not of 'political cases'."

In the Philippine setting, this Court has been continuously confronted with cases calling for a firmer
delineation of the inner and outer perimeters of a political question.57 Our leading case is Tanada v.
Cuenco,58 where this Court, through former Chief Justice Roberto Concepcion, held that political
questions refer "to those questions which, under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of the government. It is concerned with issues
dependent upon the wisdom, not legality of a particular measure." To a great degree, the 1987
Constitution has narrowed the reach of the political question doctrine when it expanded the power of
judicial review of this court not only to settle actual controversies involving rights which are legally
demandable and enforceable but also to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of government.59 Heretofore, the judiciary has focused on the "thou shalt not's" of
the Constitution directed against the exercise of its jurisdiction.60 With the new provision, however,
courts are given a greater prerogative to determine what it can do to prevent grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of
government. Clearly, the new provision did not just grant the Court power of doing nothing. In
sync and symmetry with this intent are other provisions of the 1987 Constitution trimming the so
called political thicket. Prominent of these provisions is section 18 of Article VII which empowers this
Court in limpid language to "x x x review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of
the writ (of habeas corpus) or the extension thereof x x x."

Respondents rely on the case of Lawyers League for a Better Philippines and/or Oliver A.
Lozano v. President Corazon C. Aquino, et al.61 and related cases62 to support their thesis that
since the cases at bar involve the legitimacy of the government of respondent Arroyo, ergo, they
present a political question. A more cerebral reading of the cited cases will show that they are
inapplicable. In the cited cases, we held that the government of former President Aquino was the
result of a successful revolution by the sovereign people, albeit a peaceful one. No less than
the Freedom Constitution63 declared that the Aquino government was installed through a direct
exercise of the power of the Filipino people "in defiance of the provisions of the 1973
Constitution, as amended." In is familiar learning that the legitimacy of a government sired by a
successful revolution by people power is beyond judicial scrutiny for that government automatically
orbits out of the constitutional loop. In checkered contrast, the government of respondent Arroyo
is not revolutionary in character. The oath that she took at the EDSA Shrine is the oath under the
1987 Constitution.64 In her oath, she categorically swore to preserve and defend the 1987
Constitution. Indeed, she has stressed that she is discharging the powers of the presidency under
the authority of the 1987 Constitution.

In fine, the legal distinction between EDSA People Power I EDSA People Power II is clear. EDSA
I involves the exercise of the people power of revolution which overthrew the whole
government. EDSA II is an exercise of people power of freedom of speech and freedom of
assembly to petition the government for redress of grievances which only affected the office
of the President. EDSA I is extra constitutional and the legitimacy of the new government that
resulted from it cannot be the subject of judicial review, but EDSA II is intra constitutional and the
resignation of the sitting President that it caused and the succession of the Vice President as
President are subject to judicial review. EDSA I presented a political question; EDSA II involves
legal questions. A brief discourse on freedom of speech and of the freedom of assembly to petition
the government for redress of grievance which are the cutting edge of EDSA People Power II is
not inappropriate.

Freedom of speech and the right of assembly are treasured by Filipinos. Denial of these rights was
one of the reasons of our 1898 revolution against Spain. Our national hero, Jose P. Rizal, raised the
clarion call for the recognition of freedom of the press of the Filipinos and included it as among "the
reforms sine quibus non."65 The Malolos Constitution, which is the work of the revolutionary
Congress in 1898, provided in its Bill of Rights that Filipinos shall not be deprived (1) of the right to
freely express his ideas or opinions, orally or in writing, through the use of the press or other similar
means; (2) of the right of association for purposes of human life and which are not contrary to public
means; and (3) of the right to send petitions to the authorities, individually or collectively." These
fundamental rights were preserved when the United States acquired jurisdiction over the
Philippines. In the Instruction to the Second Philippine Commission of April 7, 1900 issued by
President McKinley, it is specifically provided "that no law shall be passed abridging the freedom of
speech or of the press or of the rights of the people to peaceably assemble and petition the
Government for redress of grievances." The guaranty was carried over in the Philippine Bill, the Act
of Congress of July 1, 1902 and the Jones Law, the Act of Congress of August 29, 1966.66

Thence on, the guaranty was set in stone in our 1935 Constitution,67 and the 197368 Constitution.
These rights are now safely ensconced in section 4, Article III of the 1987 Constitution, viz:

"Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the
press, or the right of the people peaceably to assemble and petition the government for
redress of grievances."

The indispensability of the people's freedom of speech and of assembly to democracy is now self-
evident. The reasons are well put by Emerson: first, freedom of expression is essential as a means
of assuring individual fulfillment; second, it is an essential process for advancing knowledge and
discovering truth; third, it is essential to provide for participation in decision-making by all members
of society; and fourth, it is a method of achieving a more adaptable and hence, a more stable
community of maintaining the precarious balance between healthy cleavage and necessary
consensus."69 In this sense, freedom of speech and of assembly provides a framework in
which the "conflict necessary to the progress of a society can take place without destroying
the society."70 In Hague v. Committee for Industrial Organization,71 this function of free speech
and assembly was echoed in the amicus curiae filed by the Bill of Rights Committee of the American
Bar Association which emphasized that "the basis of the right of assembly is the substitution of the
expression of opinion and belief by talk rather than force; and this means talk for all and by
all."72 In the relatively recent case of Subayco v. Sandiganbayan,73 this Court similar stressed that
"… it should be clear even to those with intellectual deficits that when the sovereign people
assemble to petition for redress of grievances, all should listen. For in a democracy, it is the
people who count; those who are deaf to their grievances are ciphers."

Needless to state, the cases at bar pose legal and not political questions. The principal issues for
resolution require the proper interpretation of certain provisions in the 1987 Constitution, notably
section 1 of Article II,74 and section 875 of Article VII, and the allocation of governmental powers
under section 1176 of Article VII. The issues likewise call for a ruling on the scope of presidential
immunity from suit. They also involve the correct calibration of the right of petitioner against
prejudicial publicity. As early as the 1803 case of Marbury v. Madison,77 the doctrine has been laid
down that "it is emphatically the province and duty of the judicial department to say what the
law is . . ." Thus, respondent's in vocation of the doctrine of political question is but a foray in the
dark.
 II

Whether or not the petitioner

Resigned as President

We now slide to the second issue. None of the parties considered this issue as posing a political
question. Indeed, it involves a legal question whose factual ingredient is determinable from the
records of the case and by resort to judicial notice. Petitioner denies he resigned as President or that
he suffers from a permanent disability. Hence, he submits that the office of the President was not
vacant when respondent Arroyo took her oath as President.

The issue brings under the microscope the meaning of section 8, Article VII of the Constitution which
provides:

"Sec. 8. In case of death, permanent disability, removal from office or resignation of the
President, the Vice President shall become the President to serve the unexpired term. In
case of death, permanent disability, removal from office, or resignation of both the President
and Vice President, the President of the Senate or, in case of his inability, the Speaker of the
House of Representatives, shall then act as President until the President or Vice President
shall have been elected and qualified.

x x x."

The issue then is whether the petitioner resigned as President or should be considered resigned as
of January 20, 2001 when respondent took her oath as the 14th President of the Public. Resignation
is not a high level legal abstraction. It is a factual question and its elements are beyond
quibble: there must be an intent to resign and the intent must be coupled by acts of
relinquishment.78 The validity of a resignation is not government by any formal requirement as to
form. It can be oral. It can be written. It can be express. It can be implied. As long as the resignation
is clear, it must be given legal effect.

In the cases at bar, the facts show that petitioner did not write any formal letter of resignation before
he evacuated Malacañang Palace in the afternoon of January 20, 2001 after the oath-taking of
respondent Arroyo. Consequently, whether or not petitioner resigned has to be determined from his
act and omissions before, during and after January 20, 2001 or by the totality of prior,
contemporaneous and posterior facts and circumstantial evidence bearing a material
relevance on the issue.

Using this totality test, we hold that petitioner resigned as President.

To appreciate the public pressure that led to the resignation of the petitioner, it is important to follow
the succession of events after the exposẻ of Governor Singson. The Senate Blue Ribbon Committee
investigated. The more detailed revelations of petitioner's alleged misgovernance in the Blue Ribbon
investigation spiked the hate against him. The Articles of Impeachment filed in the House of
Representatives which initially was given a near cipher chance of succeeding snowballed. In
express speed, it gained the signatures of 115 representatives or more than 1/3 of the House of
Representatives. Soon, petitioner's powerful political allies began deserting him. Respondent Arroyo
quit as Secretary of Social Welfare. Senate President Drilon and former Speaker Villar defected with
47 representatives in tow. Then, his respected senior economic advisers resigned together with his
Secretary of Trade and Industry.

As the political isolation of the petitioner worsened, the people's call for his resignation intensified.
The call reached a new crescendo when the eleven (11) members of the impeachment tribunal
refused to open the second envelope. It sent the people to paroxysms of outrage. Before the night of
January 16 was over, the EDSA Shrine was swarming with people crying for redress of their
grievance. Their number grew exponentially. Rallies and demonstration quickly spread to the
countryside like a brush fire.

As events approached January 20, we can have an authoritative window on the state of mind of the
petitioner. The window is provided in the "Final Days of Joseph Ejercito Estrada," the diary of
Executive Secretary Angara serialized in the Philippine Daily Inquirer.79 The Angara Diary reveals
that in the morning of January 19, petitioner's loyal advisers were worried about the swelling of the
crowd at EDSA, hence, they decided to create an ad hoc committee to handle it. Their worry would
worsen. At 1:20 p.m., petitioner pulled Secretary Angara into his small office at the presidential
residence and exclaimed: "Ed, seryoso na ito. Kumalas na si Angelo (Reyes) (Ed, this is serious.
Angelo has defected.)"80 An hour later or at 2:30 p.m., the petitioner decided to call for a snap
presidential election and stressed he would not be a candidate. The proposal for a snap
election for president in May where he would not be a candidate is an indicium that petitioner
had intended to give up the presidency even at that time. At 3:00 p.m., General Reyes joined the
sea of EDSA demonstrators demanding the resignation of the petitioner and dramatically announced
the AFP's withdrawal of support from the petitioner and their pledge of support to respondent Arroyo.
The seismic shift of support left petitioner weak as a president. According to Secretary Angara, he
asked Senator Pimentel to advise petitioner to consider the option of "dignified exit or
resignation."81 Petitioner did not disagree but listened intently.82 The sky was falling fast on the
petitioner. At 9:30 p.m., Senator Pimentel repeated to the petitioner the urgency of making a graceful
and dignified exit. He gave the proposal a sweetener by saying that petitioner would be allowed to
go abroad with enough funds to support him and his family.83 Significantly, the petitioner
expressed no objection to the suggestion for a graceful and dignified exit but said he would
never leave the country.84 At 10:00 p.m., petitioner revealed to Secretary Angara, "Ed, Angie
(Reyes) guaranteed that I would have five days to a week in the palace."85 This is proof that
petitioner had reconciled himself to the reality that he had to resign. His mind was already
concerned with the five-day grace period he could stay in the palace. It was a matter of time.

The pressure continued piling up. By 11:00 p.m., former President Ramos called up Secretary
Angara and requested, "Ed, magtulungan tayo para magkaroon tayo ng (let's cooperate to ensure
a) peaceful and orderly transfer of power."86 There was no defiance to the request. Secretary
Angara readily agreed. Again, we note that at this stage, the problem was already about a
peaceful and orderly transfer of power. The resignation of the petitioner was implied.

The first negotiation for a peaceful and orderly transfer of power immediately started at 12:20 a.m.
of January 20, that fateful Saturday. The negotiation was limited to three (3) points: (1) the
transition period of five days after the petitioner's resignation; (2) the guarantee of the safety of the
petitioner and his family, and (3) the agreement to open the second envelope to vindicate the name
of the petitioner.87 Again, we note that the resignation of petitioner was not a disputed point.
The petitioner cannot feign ignorance of this fact. According to Secretary Angara, at 2:30 a.m.,
he briefed the petitioner on the three points and the following entry in the Angara Diary shows the
reaction of the petitioner, viz:

"x x x

I explain what happened during the first round of negotiations. The President immediately
stresses that he just wants the five-day period promised by Reyes, as well as to open the
second envelope to clear his name.

If the envelope is opened, on Monday, he says, he will leave by Monday.

The President says. "Pagod na pagod na ako. Ayoko na masyado nang masakit. Pagod
na ako sa red tape, bureaucracy, intriga. (I am very tired. I don't want any more of this
– it's too painful. I'm tired of the red tape, the bureaucracy, the intrigue.)

I just want to clear my name, then I will go."88

Again, this is high grade evidence that the petitioner has resigned. The intent to resign is clear
when he said "x x x Ayoko na masyado nang masakit." "Ayoko na" are words of resignation.

The second round of negotiation resumed at 7:30 a.m. According to the Angara Diary, the
following happened:

"Opposition's deal

7:30 a.m. – Rene arrives with Bert Romulo and (Ms. Macapagal's spokesperson) Rene
Corona. For this round, I am accompanied by Dondon Bagatsing and Macel.

Rene pulls out a document titled "Negotiating Points." It reads:

'1. The President shall sign a resignation document within the day, 20 January 2001, that will
be effective on Wednesday, 24 January 2001, on which day the Vice President will assume
the Presidency of the Republic of the Philippines.

2. Beginning to day, 20 January 2001, the transition process for the assumption of the new
administration shall commence, and persons designated by the Vice President to various
positions and offices of the government shall start their orientation activities in coordination
with the incumbent officials concerned.

3. The Armed Forces of the Philippines and the Philippine National Police shall function
under the Vice President as national military and police authority effective immediately.
 4. The Armed Forced of the Philippines, through its Chief of Staff, shall guarantee the
security of the President and his family as approved by the national military and police
authority (Vice President).

5. It is to be noted that the Senate will open the second envelope in connection with the
alleged savings account of the President in the Equitable PCI Bank in accordance with the
rules of the Senate, pursuant to the request to the Senate President.

Our deal

We bring out, too, our discussion draft which reads:

The undersigned parties, for and in behalf of their respective principals, agree and undertake
as follows:

'1. A transition will occur and take place on Wednesday, 24 January 2001, at which time
President Joseph Ejercito Estrada will turn over the presidency to Vice President Gloria
Macapagal-Arroyo.

'2. In return, President Estrada and his families are guaranteed security and safety of their
person and property throughout their natural lifetimes. Likewise, President Estrada and his
families are guarantee freedom from persecution or retaliation from government and the
private sector throughout their natural lifetimes.

This commitment shall be guaranteed by the Armed Forces of the Philippines (AFP) through
the Chief of Staff, as approved by the national military and police authorities – Vice President
(Macapagal).

'3. Both parties shall endeavor to ensure that the Senate sitting as an impeachment court will
authorize the opening of the second envelope in the impeachment trial as proof that the
subject savings account does not belong to President Estrada.

'4. During the five-day transition period between 20 January 2001 and 24 January 2001 (the
'Transition Period"), the incoming Cabinet members shall receive an appropriate briefing
from the outgoing Cabinet officials as part of the orientation program.

During the Transition Period, the AFP and the Philippine National Police (PNP) shall function
Vice President (Macapagal) as national military and police authorities.

Both parties hereto agree that the AFP chief of staff and PNP director general shall obtain all
the necessary signatures as affixed to this agreement and insure faithful implementation and
observance thereof.

Vice President Gloria Macapagal-Arroyo shall issue a public statement in the form and tenor
provided for in "Annex A" heretofore attached to this agreement."89

The second round of negotiation cements the reading that the petitioner has resigned. It will be
noted that during this second round of negotiation, the resignation of the petitioner was again treated
as a given fact. The only unsettled points at that time were the measures to be undertaken by the
parties during and after the transition period.

According to Secretary Angara, the draft agreement, which was premised on the resignation of the
petitioner was further refined. It was then, signed by their side and he was ready to fax it to General
Reyes and Senator Pimentel to await the signature of the United Opposition. However, the signing
by the party of the respondent Arroyo was aborted by her oath-taking. The Angara diary narrates the
fateful events, viz;90

"xxx

11:00 a.m. – Between General Reyes and myself, there is a firm agreement on the five
points to effect a peaceful transition. I can hear the general clearing all these points with a
group he is with. I hear voices in the background.

Agreement.

The agreement starts: 1. The President shall resign today, 20 January 2001, which
resignation shall be effective on 24 January 2001, on which day the Vice President will
assume the presidency of the Republic of the Philippines.
xxx

The rest of the agreement follows:

2. The transition process for the assumption of the new administration shall commence on 20
January 2001, wherein persons designated by the Vice President to various government
positions shall start orientation activities with incumbent officials.

'3. The Armed Forces of the Philippines through its Chief of Staff, shall guarantee the safety
and security of the President and his families throughout their natural lifetimes as approved
by the national military and police authority – Vice President.

'4. The AFP and the Philippine National Police (PNP) shall function under the Vice President
as national military and police authorities.

'5. Both parties request the impeachment court to open the second envelope in the
impeachment trial, the contents of which shall be offered as proof that the subject savings
account does not belong to the President.

The Vice President shall issue a public statement in the form and tenor provided for in Annex
"B" heretofore attached to this agreement.

11:20 a.m. – I am all set to fax General Reyes and Nene Pimentel our agreement, signed by
our side and awaiting the signature of the United opposition.

And then it happens. General Reyes calls me to say that the Supreme Court has decided
that Gloria Macapagal-Arroyo is President and will be sworn in at 12 noon.

'Bakit hindi naman kayo nakahintay? Paano na ang agreement (why couldn't you wait? What
about the agreement)?' I asked.

Reyes answered: 'Wala na, sir (it's over, sir).'

I ask him: Di yung transition period, moot and academic na?'

And General Reyes answers: ' Oo nga, I delete na natin, sir (yes, we're deleting the part).'

Contrary to subsequent reports, I do not react and say that there was a double cross.

But I immediately instruct Macel to delete the first provision on resignation since this matter
is already moot and academic. Within moments, Macel erases the first provision and faxes
the documents, which have been signed by myself, Dondon and Macel, to Nene Pimentel
and General Reyes.

I direct Demaree Ravel to rush the original document to General Reyes for the signatures of
the other side, as it is important that the provisions on security, at least, should be respected.

I then advise the President that the Supreme Court has ruled that Chief Justice Davide will
administer the oath to Gloria at 12 noon.

The President is too stunned for words:

Final meal

12 noon – Gloria takes her oath as president of the Republic of the Philippines.

12:20 p.m. – The PSG distributes firearms to some people inside the compound.

The president is having his final meal at the presidential Residence with the few friends and
Cabinet members who have gathered.

By this time, demonstrators have already broken down the first line of defense at Mendiola.
Only the PSG is there to protect the Palace, since the police and military have already
withdrawn their support for the President.

1 p.m. – The President's personal staff is rushing to pack as many of the Estrada family's
personal possessions as they can.
 During lunch, Ronnie Puno mentions that the president needs to release a final statement
before leaving Malacañang.

The statement reads: At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo
took her oath as President of the Republic of the Philippines. While along with many other
legal minds of our country, I have strong and serious doubts about the legality and
constitutionality of her proclamation as President, I do not wish to be a factor that will prevent
the restoration of unity and order in our civil society.

It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this
country, for the sake of peace and in order to begin the healing process of our nation. I leave
the Palace of our people with gratitude for the opportunities given to me for service to our
people. I will not shirk from any future challenges that may come ahead in the same service
of our country.

I call on all my supporters and followers to join me in the promotion of a constructive national
spirit of reconciliation and solidarity.

May the Almighty bless our country and our beloved people.

MABUHAY!"'

It was curtain time for the petitioner.

In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by his
leaving Malacañang. In the press release containing his final statement, (1) he acknowledged the
oath-taking of the respondent as President of the Republic albeit with reservation about its legality;
(2) he emphasized he was leaving the Palace, the seat of the presidency, for the sake of peace and
in order to begin the healing process of our nation. He did not say he was leaving the Palace due to
any kind inability and that he was going to re-assume the presidency as soon as the disability
disappears: (3) he expressed his gratitude to the people for the opportunity to serve them. Without
doubt, he was referring to the past opportunity given him to serve the people as President (4) he
assured that he will not shirk from any future challenge that may come ahead in the same service of
our country. Petitioner's reference is to a future challenge after occupying the office of the president
which he has given up; and (5) he called on his supporters to join him in the promotion of a
constructive national spirit of reconciliation and solidarity. Certainly, the national spirit of
reconciliation and solidarity could not be attained if he did not give up the presidency. The press
release was petitioner's valedictory, his final act of farewell. His presidency is now in the part tense.

It is, however, urged that the petitioner did not resign but only took a temporary leave dated January
20, 2001 of the petitioner sent to Senate President Pimentel and Speaker Fuentebella is cited.
Again, we refer to the said letter, viz:

"Sir.

By virtue of the provisions of Section II, Article VII of the Constitution, I am hereby
transmitting this declaration that I am unable to exercise the powers and duties of my office.
By operation of law and the Constitution, the Vice President shall be the Acting president.

(Sgd.) Joseph Ejercito Estrada"

To say the least, the above letter is wrapped in mystery.91 The pleadings filed by the petitioner in the
cases at bar did not discuss, may even intimate, the circumstances that led to its preparation.
Neither did the counsel of the petitioner reveal to the Court these circumstances during the oral
argument. It strikes the Court as strange that the letter, despite its legal value, was never referred to
by the petitioner during the week-long crisis. To be sure, there was not the slightest hint of its
existence when he issued his final press release. It was all too easy for him to tell the Filipino people
in his press release that he was temporarily unable to govern and that he was leaving the reins of
government to respondent Arroyo for the time bearing. Under any circumstance, however, the
mysterious letter cannot negate the resignation of the petitioner. If it was prepared before the press
release of the petitioner clearly as a later act. If, however, it was prepared after the press released,
still, it commands scant legal significance. Petitioner's resignation from the presidency cannot be the
subject of a changing caprice nor of a whimsical will especially if the resignation is the result of his
reputation by the people. There is another reason why this Court cannot given any legal significance
to petitioner's letter and this shall be discussed in issue number III of this Decision.

After petitioner contended that as a matter of fact he did not resign, he also argues that he could not
resign as a matter of law. He relies on section 12 of RA No. 3019, otherwise known as the Anti-graft
and Corrupt Practices Act, which allegedly prohibits his resignation, viz:
 "Sec. 12. No public officer shall be allowed to resign or retire pending an investigation,
criminals or administrative, or pending a prosecution against him, for any offense under this
Act or under the provisions of the Revised Penal Code on bribery."

A reading of the legislative history of RA No. 3019 will hardly provide any comfort to the petitioner.
RA No. 3019 originated form Senate Bill No. 293. The original draft of the bill, when it was submitted
to the Senate, did not contain a provision similar to section 12 of the law as it now stands. However,
in his sponsorship speech, Senator Arturo Tolentino, the author of the bill, "reserved to propose
during the period of amendments the inclusion of a provision to the effect that no public official who
is under prosecution for any act of graft or corruption, or is under administrative investigation, shall
be allowed to voluntarily resign or retire."92 During the period of amendments, the following provision
was inserted as section 15:

"Sec. 15. Termination of office – No public official shall be allowed to resign or retire pending
an investigation, criminal or administrative, or pending a prosecution against him, for any
offense under the Act or under the provisions of the Revised Penal Code on bribery.

The separation or cessation of a public official form office shall not be a bar to his
prosecution under this Act for an offense committed during his incumbency."93

The bill was vetoed by then President Carlos P. Garcia who questioned the legality of the second
paragraph of the provision and insisted that the President's immunity should extend after his tenure.

Senate Bill No. 571, which was substantially similar Senate Bill No. 293, was thereafter passed.
Section 15 above became section 13 under the new bill, but the deliberations on this particular
provision mainly focused on the immunity of the President, which was one of the reasons for the
veto of the original bill. There was hardly any debate on the prohibition against the resignation or
retirement of a public official with pending criminal and administrative cases against him. Be that as
it may, the intent of the law ought to be obvious. It is to prevent the act of resignation or retirement
from being used by a public official as a protective shield to stop the investigation of a pending
criminal or administrative case against him and to prevent his prosecution under the Anti-Graft Law
or prosecution for bribery under the Revised Penal Code. To be sure, no person can be compelled
to render service for that would be a violation of his constitutional right.94 A public official has the right
not to serve if he really wants to retire or resign. Nevertheless, if at the time he resigns or retires, a
public official is facing administrative or criminal investigation or prosecution, such resignation or
retirement will not cause the dismissal of the criminal or administrative proceedings against him. He
cannot use his resignation or retirement to avoid prosecution.

There is another reason why petitioner's contention should be rejected. In the cases at bar, the
records show that when petitioner resigned on January 20, 2001, the cases filed against him before
the Ombudsman were OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and 0-00-
1758. While these cases have been filed, the respondent Ombudsman refrained from conducting the
preliminary investigation of the petitioner for the reason that as the sitting President then, petitioner
was immune from suit. Technically, the said cases cannot be considered as pending for the
Ombudsman lacked jurisdiction to act on them. Section 12 of RA No. 3019 cannot therefore be
invoked by the petitioner for it contemplates of cases whose investigation or prosecution do not
suffer from any insuperable legal obstacle like the immunity from suit of a sitting President.

Petitioner contends that the impeachment proceeding is an administrative investigation that, under
section 12 of RA 3019, bars him from resigning. We hold otherwise. The exact nature of an
impeachment proceeding is debatable. But even assuming arguendo that it is an administrative
proceeding, it can not be considered pending at the time petitioner resigned because the process
already broke down when a majority of the senator-judges voted against the opening of the second
envelope, the public and private prosecutors walked out, the public prosecutors filed their
Manifestation of Withdrawal of Appearance, and the proceedings were postponed indefinitely. There
was, in effect, no impeachment case pending against petitioner when he resigned.

III

Whether or not the petitioner Is only temporarily unable to Act as President.

We shall now tackle the contention of the petitioner that he is merely temporarily unable to perform
the powers and duties of the presidency, and hence is a President on leave. As aforestated, the
inability claim is contained in the January 20, 2001 letter of petitioner sent on the same day to
Senate President Pimentel and Speaker Fuentebella.

Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge the inability
of the petitioner to discharge the powers and duties of the presidency. His significant submittal is that
"Congress has the ultimate authority under the Constitution to determine whether the President is
incapable of performing his functions in the manner provided for in section 11 of article VII."95 This
contention is the centerpiece of petitioner's stance that he is a President on leave and respondent
Arroyo is only an Acting President.

An examination of section 11, Article VII is in order. It provides:

"SEC. 11. Whenever the President transmits to the President of the Senate and the Speaker
of the House of Representatives his written declaration that he is unable to discharge the
powers and duties of his office, and until he transmits to them a written declaration to the
contrary, such powers and duties shall be discharged by the Vice-President as Acting
President.

Whenever a majority of all the Members of the Cabinet transmit to the President of the
Senate and to the Speaker of the House of Representatives their written declaration that the
President is unable to discharge the powers and duties of his office, the Vice-President shall
immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President of the Senate and to the Speaker
of the House of Representatives his written declaration that no inability exists, he shall
reassume the powers and duties of his office. Meanwhile, should a majority of all the
Members of the Cabinet transmit within five days to the President of the Senate and to the
Speaker of the House of Representatives their written declaration that the President is
unable to discharge the powers and duties of his office, the Congress shall decide the issue.
For that purpose, the Congress shall convene, if it is not in session, within forty-eight hours,
in accordance with its rules and without need of call.

If the Congress, within ten days after receipt of the last written declaration, or, if not in
session, within twelve days after it is required to assemble, determines by a two-thirds vote
of both Houses, voting separately, that the President is unable to discharge the powers and
duties of his office, the Vice-President shall act as President; otherwise, the President shall
continue exercising the powers and duties of his office."

That is the law. Now, the operative facts:

1. Petitioner, on January 20, 2001, sent the above letter claiming inability to the Senate
President and Speaker of the House;
2. Unaware of the letter, respondent Arroyo took her oath of office as President on
January 20, 2001 at about 12:30 p.m.;
3. Despite receipt of the letter, the House of Representatives passed on January 24,
2001 House Resolution No. 175;96

On the same date, the House of the Representatives passed House Resolution No. 17697 which
states:

"RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF REPRESENTATIVES

TO THE ASSUMPTION INTO OFFICE BY VICE PRESIDENT GLORIA MACAPAGAL-
ARROYO AS PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, EXTENDING ITS
CONGRATULATIONS AND EXPRESSING ITS SUPPORT FOR HER ADMINISTRATION
AS A PARTNER IN THE ATTAINMENT OF THE NATION'S GOALS UNDER THE
CONSTITUTION

WHEREAS, as a consequence of the people's loss of confidence on the ability of former

President Joseph Ejercito Estrada to effectively govern, the Armed Forces of the Philippines,
the Philippine National Police and majority of his cabinet had withdrawn support from him;

WHEREAS, upon authority of an en banc resolution of the Supreme Court, Vice President
Gloria Macapagal-Arroyo was sworn in as President of the Philippines on 20 January 2001
before Chief Justice Hilario G. Davide, Jr.;

WHEREAS, immediately thereafter, members of the international community had extended

their recognition to Her Excellency, Gloria Macapagal-Arroyo as President of the Republic of
the Philippines;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused a policy of

national healing and reconciliation with justice for the purpose of national unity and
development;

WHEREAS, it is axiomatic that the obligations of the government cannot be achieved if it is

divided, thus by reason of the constitutional duty of the House of Representatives as an
 institution and that of the individual members thereof of fealty to the supreme will of the
people, the House of Representatives must ensure to the people a stable, continuing
government and therefore must remove all obstacles to the attainment thereof;

WHEREAS, it is a concomitant duty of the House of Representatives to exert all efforts to

unify the nation, to eliminate fractious tension, to heal social and political wounds, and to be
an instrument of national reconciliation and solidarity as it is a direct representative of the
various segments of the whole nation;

WHEREAS, without surrending its independence, it is vital for the attainment of all the
foregoing, for the House of Representatives to extend its support and collaboration to the
administration of Her Excellency, President Gloria Macapagal-Arroyo, and to be a
constructive partner in nation-building, the national interest demanding no less: Now,
therefore, be it

Resolved by the House of Representatives, To express its support to the assumption into
office by Vice President Gloria Macapagal-Arroyo as President of the Republic of the
Philippines, to extend its congratulations and to express its support for her administration as
a partner in the attainment of the Nation's goals under the Constitution.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on January 24, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"

On February 7, 2001, the House of the Representatives passed House Resolution No. 17898 which
states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYO'S

NOMINATION OF SENATOR TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF
THE REPUBLIC OF THE PHILIPPINES

WHEREAS, there is a vacancy in the Office of the Vice President due to the assumption to
the Presidency of Vice President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President in the event
of such vacancy shall nominate a Vice President from among the members of the Senate
and the House of Representatives who shall assume office upon confirmation by a majority
vote of all members of both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate

Minority Leader Teofisto T. Guingona Jr., to the position of Vice President of the Republic of
the Philippines;

WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed with integrity,
competence and courage; who has served the Filipino people with dedicated responsibility
and patriotism;

WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of true

statesmanship, having served the government in various capacities, among others, as
Delegate to the Constitutional Convention, Chairman of the Commission on Audit, Executive
Secretary, Secretary of Justice, Senator of the Philippines – qualities which merit his
nomination to the position of Vice President of the Republic: Now, therefore, be it

Resolved as it is hereby resolved by the House of Representatives, That the House of

Representatives confirms the nomination of Senator Teofisto T. Guingona, Jr. as the Vice
President of the Republic of the Philippines.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker
This Resolution was adopted by the House of Representatives on February 7, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"

(4) Also, despite receipt of petitioner's letter claiming inability, some twelve (12) members of
the Senate signed the following:

"RESOLUTION

WHEREAS, the recent transition in government offers the nation an opportunity for
meaningful change and challenge;

WHEREAS, to attain desired changes and overcome awesome challenges the nation needs
unity of purpose and resolve cohesive resolute (sic) will;

WHEREAS, the Senate of the Philippines has been the forum for vital legislative measures in
unity despite diversities in perspectives;

WHEREFORE, we recognize and express support to the new government of President

Gloria Macapagal-Arroyo and resolve to discharge and overcome the nation's challenges." 99

On February 7, the Senate also passed Senate Resolution No. 82100 which states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL ARROYO'S

NOMINATION OF SEM. TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES

WHEREAS, there is vacancy in the Office of the Vice President due to the assumption to the
Presidency of Vice President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President in the event of
such vacancy shall nominate a Vice President from among the members of the Senate and
the House of Representatives who shall assume office upon confirmation by a majority vote
of all members of both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate

Minority Leader Teofisto T. Guingona, Jr. to the position of Vice President of the Republic of
the Philippines;

WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with integrity,
competence and courage; who has served the Filipino people with dedicated responsibility
and patriotism;

WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true statemanship,
having served the government in various capacities, among others, as Delegate to the
Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary,
Secretary of Justice, Senator of the land - which qualities merit his nomination to the position
of Vice President of the Republic: Now, therefore, be it

Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen. Teofisto
T. Guingona, Jr. as Vice President of the Republic of the Philippines.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL JR.

President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO

Secretary of the Senate"

On the same date, February 7, the Senate likewise passed Senate Resolution No.
83101 which states:

"RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS FUNCTUS

OFFICIO
 Resolved, as it is hereby resolved. That the Senate recognize that the Impeachment Court
is functus officio and has been terminated.

Resolved, further, That the Journals of the Impeachment Court on Monday, January 15,
Tuesday, January 16 and Wednesday, January 17, 2001 be considered approved.

Resolved, further, That the records of the Impeachment Court including the "second
envelope" be transferred to the Archives of the Senate for proper safekeeping and
preservation in accordance with the Rules of the Senate. Disposition and retrieval thereof
shall be made only upon written approval of the Senate president.

Resolved, finally. That all parties concerned be furnished copies of this Resolution.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL, JR.

President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO

Secretary of the Senate"

(5) On February 8, the Senate also passed Resolution No. 84 "certifying to the existence of
vacancy in the Senate and calling on the COMELEC to fill up such vacancy through election to be
held simultaneously with the regular election on May 14, 2001 and the Senatorial candidate
garnering the thirteenth (13th) highest number of votes shall serve only for the unexpired term of
Senator Teofisto T. Guingona, Jr.'

(6) Both houses of Congress started sending bills to be signed into law by respondent Arroyo
as President.

(7) Despite the lapse of time and still without any functioning Cabinet, without any recognition from
any sector of government, and without any support from the Armed Forces of the Philippines and the
Philippine National Police, the petitioner continues to claim that his inability to govern is only
momentary.

What leaps to the eye from these irrefutable facts is that both houses of Congress have
recognized respondent Arroyo as the President. Implicitly clear in that recognition is the
premise that the inability of petitioner Estrada. Is no longer temporary. Congress has clearly
rejected petitioner's claim of inability.

The question is whether this Court has jurisdiction to review the claim of temporary inability
of petitioner Estrada and thereafter revise the decision of both Houses of Congress recognizing
respondent Arroyo as president of the Philippines. Following Tañada v. Cuenco,102 we hold that this
Court cannot exercise its judicial power or this is an issue "in regard to which full discretionary
authority has been delegated to the Legislative xxx branch of the government." Or to use the
language in Baker vs. Carr,103 there is a "textually demonstrable or a lack of judicially discoverable
and manageable standards for resolving it." Clearly, the Court cannot pass upon petitioner's claim of
inability to discharge the power and duties of the presidency. The question is political in nature
and addressed solely to Congress by constitutional fiat. It is a political issue, which cannot be
decided by this Court without transgressing the principle of separation of powers.

In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully
claim that he is a President on leave on the ground that he is merely unable to govern
temporarily. That claim has been laid to rest by Congress and the decision that respondent
Arroyo is the de jure, president made by a co-equal branch of government cannot be
reviewed by this Court.

IV

Whether or not the petitioner enjoys immunity from suit.

Assuming he enjoys immunity, the extent of the immunity

Petitioner Estrada makes two submissions: first, the cases filed against him before the respondent
Ombudsman should be prohibited because he has not been convicted in the impeachment
proceedings against him; and second, he enjoys immunity from all kinds of suit, whether criminal
or civil.

Before resolving petitioner's contentions, a revisit of our legal history executive immunity will be most
enlightening. The doctrine of executive immunity in this jurisdiction emerged as a case law. In
the 1910 case of Forbes, etc. vs. Chuoco Tiaco and Crosfield,104 the respondent Tiaco, a
Chinese citizen, sued petitioner W. Cameron Forbes, Governor-General of the Philippine Islands.
J.E. Harding and C.R. Trowbridge, Chief of Police and Chief of the Secret Service of the City of
Manila, respectively, for damages for allegedly conspiring to deport him to China. In granting a writ
of prohibition, this Court, speaking thru Mr. Justice Johnson, held:

" The principle of nonliability, as herein enunciated, does not mean that the judiciary has no
authority to touch the acts of the Governor-General; that he may, under cover of his office,
do what he will, unimpeded and unrestrained. Such a construction would mean that tyranny,
under the guise of the execution of the law, could walk defiantly abroad, destroying rights of
person and of property, wholly free from interference of courts or legislatures. This does not
mean, either that a person injured by the executive authority by an act unjustifiable under the
law has n remedy, but must submit in silence. On the contrary, it means, simply, that the
governors-general, like the judges if the courts and the members of the Legislature, may not
be personally mulcted in civil damages for the consequences of an act executed in the
performance of his official duties. The judiciary has full power to, and will, when the mater is
properly presented to it and the occasion justly warrants it, declare an act of the Governor-
General illegal and void and place as nearly as possible in status quo any person who has
been deprived his liberty or his property by such act. This remedy is assured to every
person, however humble or of whatever country, when his personal or property rights have
been invaded, even by the highest authority of the state. The thing which the judiciary can
not do is mulct the Governor-General personally in damages which result from the
performance of his official duty, any more than it can a member of the Philippine Commission
of the Philippine Assembly. Public policy forbids it.

Neither does this principle of nonliability mean that the chief executive may not be personally
sued at all in relation to acts which he claims to perform as such official. On the contrary, it
clearly appears from the discussion heretofore had, particularly that portion which touched
the liability of judges and drew an analogy between such liability and that of the Governor-
General, that the latter is liable when he acts in a case so plainly outside of his power and
authority that he can not be said to have exercised discretion in determining whether or not
he had the right to act. What is held here is that he will be protected from personal liability for
damages not only when he acts within his authority, but also when he is without authority,
provided he actually used discretion and judgement, that is, the judicial faculty, in
determining whether he had authority to act or not. In other words, in determining the
question of his authority. If he decide wrongly, he is still protected provided the question of
his authority was one over which two men, reasonably qualified for that position, might
honestly differ; but he s not protected if the lack of authority to act is so plain that two such
men could not honestly differ over its determination. In such case, be acts, not as Governor-
General but as a private individual, and as such must answer for the consequences of his
act."

Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted immunity
from suit, viz "xxx. Action upon important matters of state delayed; the time and substance of the
chief executive spent in wrangling litigation; disrespect engendered for the person of one of the
highest officials of the state and for the office he occupies; a tendency to unrest and disorder
resulting in a way, in distrust as to the integrity of government itself."105

Our 1935 Constitution took effect but it did not contain any specific provision on executive immunity.
Then came the tumult of the martial law years under the late President Ferdinand E. Marcos and the
1973 Constitution was born. In 1981, it was amended and one of the amendments involved
executive immunity. Section 17, Article VII stated:

"The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever
shall lie for official acts done by him or by others pursuant to his specific orders during his
tenure.

The immunities herein provided shall apply to the incumbent President referred to in Article
XVII of this Constitution.

In his second Vicente G. Sinco professional Chair lecture entitled, "Presidential Immunity and All The
King's Men: The Law of Privilege As a Defense To Actions For Damages,"106 petitioner's learned
counsel, former Dean of the UP College of Law, Atty. Pacificao Agabin, brightened the modifications
effected by this constitutional amendment on the existing law on executive privilege. To quote his
disquisition:
 "In the Philippines, though, we sought to do the Americans one better by enlarging and
fortifying the absolute immunity concept. First, we extended it to shield the President not only
form civil claims but also from criminal cases and other claims. Second, we enlarged its
scope so that it would cover even acts of the President outside the scope of official duties.
And third, we broadened its coverage so as to include not only the President but also other
persons, be they government officials or private individuals, who acted upon orders of the
President. It can be said that at that point most of us were suffering from AIDS (or absolute
immunity defense syndrome)."

The Opposition in the then Batasan Pambansa sought the repeal of this Marcosian concept of
executive immunity in the 1973 Constitution. The move was led by them Member of Parliament, now
Secretary of Finance, Alberto Romulo, who argued that the after incumbency immunity granted to
President Marcos violated the principle that a public office is a public trust. He denounced the
immunity as a return to the anachronism "the king can do no wrong."107 The effort failed.

The 1973 Constitution ceased to exist when President Marcos was ousted from office by the People
Power revolution in 1986. When the 1987 Constitution was crafted, its framers did not reenact the
executive immunity provision of the 1973 Constitution. The following explanation was given by
delegate J. Bernas vis:108

"Mr. Suarez. Thank you.

The last question is with reference to the Committee's omitting in the draft proposal the
immunity provision for the President. I agree with Commissioner Nolledo that the Committee
did very well in striking out second sentence, at the very least, of the original provision on
immunity from suit under the 1973 Constitution. But would the Committee members not
agree to a restoration of at least the first sentence that the President shall be immune from
suit during his tenure, considering that if we do not provide him that kind of an immunity, he
might be spending all his time facing litigation's, as the President-in-exile in Hawaii is now
facing litigation's almost daily?

Fr. Bernas. The reason for the omission is that we consider it understood in present
jurisprudence that during his tenure he is immune from suit.

Mr. Suarez. So there is no need to express it here.

Fr. Bernas. There is no need. It was that way before. The only innovation made by the 1973
Constitution was to make that explicit and to add other things.

Mr. Suarez. On that understanding, I will not press for any more query, Madam President.

I think the Commissioner for the clarifications."

We shall now rule on the contentions of petitioner in the light of this history. We reject his argument
that he cannot be prosecuted for the reason that he must first be convicted in the impeachment
proceedings. The impeachment trial of petitioner Estrada was aborted by the walkout of the
prosecutors and by the events that led to his loss of the presidency. Indeed, on February 7, 2001,
the Senate passed Senate Resolution No. 83 "Recognizing that the Impeachment Court is Functus
Officio."109 Since, the Impeachment Court is now functus officio, it is untenable for petitioner to
demand that he should first be impeached and then convicted before he can be prosecuted. The
plea if granted, would put a perpetual bar against his prosecution. Such a submission has nothing to
commend itself for it will place him in a better situation than a non-sitting President who has not been
subjected to impeachment proceedings and yet can be the object of a criminal prosecution. To be
sure, the debates in the Constitutional Commission make it clear that when impeachment
proceedings have become moot due to the resignation of the President, the proper criminal and civil
cases may already be filed against him, viz:110

"xxx

Mr. Aquino. On another point, if an impeachment proceeding has been filed against the
President, for example, and the President resigns before judgement of conviction has been
rendered by the impeachment court or by the body, how does it affect the impeachment
proceeding? Will it be necessarily dropped?

Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then his
resignation would render the case moot and academic. However, as the provision says, the
criminal and civil aspects of it may continue in the ordinary courts."
This is in accord with our ruling In Re: Saturnino Bermudez111 that 'incumbent Presidents are
immune from suit or from being brought to court during the period of their incumbency and tenure"
but not beyond. Considering the peculiar circumstance that the impeachment process against the
petitioner has been aborted and thereafter he lost the presidency, petitioner Estrada cannot demand
as a condition sine qua non to his criminal prosecution before the Ombudsman that he be convicted
in the impeachment proceedings. His reliance on the case of Lecaroz vs. Sandiganbayan112 and
related cases113 are inapropos for they have a different factual milieu.

We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President.
The cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery
and graft and corruption. By no stretch of the imagination can these crimes, especially plunder which
carries the death penalty, be covered by the alleged mantle of immunity of a non-sitting president.
Petitioner cannot cite any decision of this Court licensing the President to commit criminal acts and
wrapping him with post-tenure immunity from liability. It will be anomalous to hold that immunity is an
inoculation from liability for unlawful acts and conditions. The rule is that unlawful acts of public
officials are not acts of the State and the officer who acts illegally is not acting as such but stands in
the same footing as any trespasser.114

Indeed, critical reading of current literature on executive immunity will reveal a judicial disinclination
to expand the privilege especially when it impedes the search for truth or impairs the vindication of a
right. In the 1974 case of US v. Nixon,115 US President Richard Nixon, a sitting President, was
subpoenaed to produce certain recordings and documents relating to his conversations with aids
and advisers. Seven advisers of President Nixon's associates were facing charges of conspiracy to
obstruct Justice and other offenses, which were committed in a burglary of the Democratic National
Headquarters in Washington's Watergate Hotel during the 972 presidential campaign. President
Nixon himself was named an unindicted co-conspirator. President Nixon moved to quash the
subpoena on the ground, among others, that the President was not subject to judicial process and
that he should first be impeached and removed from office before he could be made amenable to
judicial proceedings. The claim was rejected by the US Supreme Court. It concluded that "when the
ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based
only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of
due process of law in the fair administration of criminal justice." In the 1982 case of Nixon v.
Fitzgerald,116 the US Supreme Court further held that the immunity of the president from civil
damages covers only "official acts." Recently, the US Supreme Court had the occasion to reiterate
this doctrine in the case of Clinton v. Jones117 where it held that the US President's immunity from
suits for money damages arising out of their official acts is inapplicable to unofficial conduct.

There are more reasons not to be sympathetic to appeals to stretch the scope of executive immunity
in our jurisdiction. One of the great themes of the 1987 Constitution is that a public office is a public
trust.118 It declared as a state policy that "the State shall maintain honesty and integrity in the public
service and take positive and effective measures against graft and corruptio."119 it ordained that
"public officers and employees must at all times be accountable to the people, serve them with
utmost responsibility, integrity, loyalty, and efficiency act with patriotism and justice, and lead modest
lives."120 It set the rule that 'the right of the State to recover properties unlawfully acquired by public
officials or employees, from them or from their nominees or transferees, shall not be barred by
prescription, latches or estoppel."121 It maintained the Sandiganbayan as an anti-graft court.122 It
created the office of the Ombudsman and endowed it with enormous powers, among which is to
"investigate on its own, or on complaint by any person, any act or omission of any public official,
employee, office or agency, when such act or omission appears to be illegal, unjust improper or
inefficient."123 The Office of the Ombudsman was also given fiscal autonomy.124 These constitutional
policies will be devalued if we sustain petitioner's claim that a non-sitting president enjoys immunity
from suit for criminal acts committed during his incumbency.

Whether or not the prosecution of petitioner

Estrada should be enjoined due to prejudicial publicity

Petitioner also contends that the respondent Ombudsman should be stopped from conducting the
investigation of the cases filed against him due to the barrage of prejudicial publicity on his guilt. He
submits that the respondent Ombudsman has developed bias and is all set file the criminal cases
violation of his right to due process.

There are two (2) principal legal and philosophical schools of thought on how to deal with the rain of
unrestrained publicity during the investigation and trial of high profile cases.125 The British approach
the problem with the presumption that publicity will prejudice a jury. Thus, English courts readily stay
and stop criminal trials when the right of an accused to fair trial suffers a threat.126 The American
approach is different. US courts assume a skeptical approach about the potential effect of pervasive
publicity on the right of an accused to a fair trial. They have developed different strains of tests to
resolve this issue, i.e., substantial; probability of irreparable harm, strong likelihood, clear and
present danger, etc.

This is not the first time the issue of trial by publicity has been raised in this Court to stop the trials or
annul convictions in high profile criminal cases.127 In People vs. Teehankee, Jr.,128 later reiterated in
the case of Larranaga vs. court of Appeals, et al.,129 we laid down the doctrine that:

"We cannot sustain appellant's claim that he was denied the right to impartial trial due to
prejudicial publicity. It is true that the print and broadcast media gave the case at bar
pervasive publicity, just like all high profile and high stake criminal trials. Then and now, we
rule that the right of an accused to a fair trial is not incompatible to a free press. To be sure,
responsible reporting enhances accused's right to a fair trial for, as well pointed out, a
responsible press has always been regarded as the criminal field xxx. The press does not
simply publish information about trials but guards against the miscarriage of justice by
subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and
criticism.

Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere
fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by
itself prove that the publicity so permeated the mind of the trial judge and impaired his
impartiality. For one, it is impossible to seal the minds of members of the bench from pre-trial
and other off-court publicity of sensational criminal cases. The state of the art of our
communication system brings news as they happen straight to our breakfast tables and right
to our bedrooms. These news form part of our everyday menu of the facts and fictions of life.
For another, our idea of a fair and impartial judge is not that of a hermit who is out of touch
with the world. We have not installed the jury system whose members are overly protected
from publicity lest they lose there impartially. xxx xxx xxx. Our judges are learned in the law
and trained to disregard off-court evidence and on-camera performances of parties to
litigation. Their mere exposure to publications and publicity stunts does not per se fatally
infect their impartiality.

At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to
the barrage of publicity that characterized the investigation and trial of the case. In Martelino,
et al. v. Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the
test of actual prejudice as we ruled that to warrant a finding of prejudicial publicity, there
must be allegation and proof that the judges have been unduly influenced, not simply that
they might be, by the barrage of publicity. In the case at a bar, the records do not show that
the trial judge developed actual bias against appellants as a consequence of the extensive
media coverage of the pre-trial and trial of his case. The totality of circumstances of the case
does not prove that the trial judge acquired a fixed opinion as a result of prejudicial publicity,
which is incapable of change even by evidence presented during the trial. Appellant has the
burden to prove this actual bias and he has not discharged the burden.'

We expounded further on this doctrine in the subsequent case of Webb vs. Hon. Raul de Leon,
etc.130 and its companion cases, viz:

"Again petitioners raise the effect of prejudicial publicity on their right to due process while
undergoing preliminary investigation. We find no procedural impediment to its early
invocation considering the substantial risk to their liberty while undergoing a preliminary
investigation.

xxx

The democratic settings, media coverage of trials of sensational cases cannot be avoided
and oftentimes, its excessiveness has been aggravated by kinetic developments in the
telecommunications industry. For sure, few cases can match the high volume and high
velocity of publicity that attended the preliminary investigation of the case at bar. Our daily
diet of facts and fiction about the case continues unabated even today. Commentators still
bombard the public with views not too many of which are sober and sublime. Indeed, even
the principal actors in the case – the NBI, the respondents, their lawyers and their
sympathizers have participated in this media blitz. The possibility of media abuses and their
threat to a fair trial notwithstanding, criminal trials cannot be completely closed to the press
and public. In the seminal case of Richmond Newspapers, Inc. v. Virginia, it was

xxx

a. The historical evidence of the evolution of the criminal trial in Anglo-American justice
demonstrates conclusively that at the time this Nation's organic laws were adopted,
criminal trials both here and in England had long been presumptively open, thus
 giving assurance that the proceedings were conducted fairly to all concerned and
discouraging perjury, the misconduct of participants, or decisions based on secret
bias or partiality. In addition, the significant community therapeutic value of public
trials was recognized when a shocking crime occurs a community reaction of outrage
and public protest often follows, and thereafter the open processes of justice serve
an important prophylactic purpose, providing an outlet for community concern,
hostility and emotion. To work effectively, it is important that society's criminal
process satisfy the appearance of justice,' Offutt v. United States, 348 US 11, 14, 99
L ED 11, 75 S Ct 11, which can best be provided by allowing people to observe such
process. From this unbroken, uncontradicted history, supported by reasons as valid
today as in centuries past, it must be concluded that a presumption of openness
inheres in the very nature of a criminal trial under this Nation's system of justice, Cf.,
e,g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.
b. The freedoms of speech. Press and assembly, expressly guaranteed by the First
Amendment, share a common core purpose of assuring freedom of communication
on matters relating to the functioning of government. In guaranteeing freedom such
as those of speech and press, the First Amendment can be read as protecting the
right of everyone to attend trials so as give meaning to those explicit guarantees; the
First Amendment right to receive information and ideas means, in the context of
trials, that the guarantees of speech and press, standing alone, prohibit government
from summarily closing courtroom doors which had long been open to the public at
the time the First Amendment was adopted. Moreover, the right of assembly is also
relevant, having been regarded not only as an independent right but also as a
catalyst to augment the free exercise of the other First Amendment rights with which
the draftsmen deliberately linked it. A trial courtroom is a public place where the
people generally and representatives of the media have a right to be present, and
where their presence historically has been thought to enhance the integrity and
quality of what takes place.
c. Even though the Constitution contains no provision which be its terms guarantees to
the public the right to attend criminal trials, various fundamental rights, not expressly
guaranteed, have been recognized as indispensable to the enjoyment of enumerated
rights. The right to attend criminal trial is implicit in the guarantees of the First
Amendment: without the freedom to attend such trials, which people have exercised
for centuries, important aspects of freedom of speech and of the press be
eviscerated.

Be that as it may, we recognize that pervasive and prejudicial publicity under certain
circumstances can deprive an accused of his due process right to fair trial. Thus,
in Martelino, et al. vs. Alejandro, et al., we held that to warrant a finding of prejudicial
publicity there must be allegation and proof that the judges have been unduly influenced,
not simply that they might be, by the barrage of publicity. In the case at bar, we find nothing
in the records that will prove that the tone and content of the publicity that attended the
investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel.
Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of
the DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the
DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State
Prosecutors. Their long experience in criminal investigation is a factor to consider in
determining whether they can easily be blinded by the klieg lights of publicity. Indeed, their
26-page Resolution carries no indubitable indicia of bias for it does not appear that they
considered any extra-record evidence except evidence properly adduced by the parties. The
length of time the investigation was conducted despite its summary nature and the
generosity with which they accommodated the discovery motions of petitioners speak well of
their fairness. At no instance, we note, did petitioners seek the disqualification of any
member of the DOJ Panel on the ground of bias resulting from their bombardment of
prejudicial publicity." (emphasis supplied)

Applying the above ruling, we hold that there is not enough evidence to warrant this Court to
enjoin the preliminary investigation of the petitioner by the respondent Ombudsman.
Petitioner needs to offer more than hostile headlines to discharge his burden of proof.131 He needs to
show more weighty social science evidence to successfully prove the impaired capacity of a judge to
render a bias-free decision. Well to note, the cases against the petitioner are still
undergoing preliminary investigation by a special panel of prosecutors in the office of the
respondent Ombudsman. No allegation whatsoever has been made by the petitioner that the minds
of the members of this special panel have already been infected by bias because of the pervasive
prejudicial publicity against him. Indeed, the special panel has yet to come out with its findings and
the Court cannot second guess whether its recommendation will be unfavorable to the petitioner. 1âwphi1. nêt

The records show that petitioner has instead charged respondent Ombudsman himself with bias. To
quote petitioner's submission, the respondent Ombudsman "has been influenced by the barrage of
slanted news reports, and he has buckled to the threats and pressures directed at him by the
mobs."132 News reports have also been quoted to establish that the respondent Ombudsman has
already prejudged the cases of the petitioner133 and it is postulated that the prosecutors investigating
the petitioner will be influenced by this bias of their superior.

Again, we hold that the evidence proffered by the petitioner is insubstantial. The accuracy of the
news reports referred to by the petitioner cannot be the subject of judicial notice by this Court
especially in light of the denials of the respondent Ombudsman as to his alleged prejudice and the
presumption of good faith and regularity in the performance of official duty to which he is
entitled. Nor can we adopt the theory of derivative prejudice of petitioner, i.e., that the
prejudice of respondent Ombudsman flows to his subordinates. In truth, our Revised Rules of
Criminal Procedure, give investigation prosecutors the independence to make their own findings and
recommendations albeit they are reviewable by their superiors.134 They can be reversed but they can
not be compelled cases which they believe deserve dismissal. In other words, investigating
prosecutors should not be treated like unthinking slot machines. Moreover, if the respondent
Ombudsman resolves to file the cases against the petitioner and the latter believes that the findings
of probable cause against him is the result of bias, he still has the remedy of assailing it before the
proper court.

VI.

Epilogue

A word of caution to the "hooting throng." The cases against the petitioner will now acquire a
different dimension and then move to a new stage - - - the Office of the Ombudsman. Predictably,
the call from the majority for instant justice will hit a higher decibel while the gnashing of teeth of the
minority will be more threatening. It is the sacred duty of the respondent Ombudsman to balance the
right of the State to prosecute the guilty and the right of an accused to a fair investigation and trial
which has been categorized as the "most fundamental of all freedoms."135 To be sure, the duty of a
prosecutor is more to do justice and less to prosecute. His is the obligation to insure that the
preliminary investigation of the petitioner shall have a circus-free atmosphere. He has to provide the
restraint against what Lord Bryce calls "the impatient vehemence of the majority." Rights in a
democracy are not decided by the mob whose judgment is dictated by rage and not by reason. Nor
are rights necessarily resolved by the power of number for in a democracy, the dogmatism of the
majority is not and should never be the definition of the rule of law. If democracy has proved to be
the best form of government, it is because it has respected the right of the minority to convince the
majority that it is wrong. Tolerance of multiformity of thoughts, however offensive they may be, is the
key to man's progress from the cave to civilization. Let us not throw away that key just to pander to
some people's prejudice.

IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the respondent Gloria
Macapagal-Arroyo as the de jure 14th President of the Republic are DISMISSED.

SO ORDERED.

Footnotes

1 Philippine Daily Inquirer (PDI), October 5, 2000, pp. A1 and A17.

2 PDI, October 6, 2000, pp. A1 and A18.

3 Ibid., October 12, 2000, pp. A1 and A17.

4 Ibid., October 14, 2000, p. A1.

5 Ibid., October 18, 2000, p. A1.

6 Ibid., October 13, 2000, pp. A1 and A21.

7 Ibid., October 26, 2000, p. A1.

8 Ibid., November 2, 2000, p. A1.

9 Ibid., November 3, 2000, p. A1.

10 Ibid., November 4, 2000, p. A1.

11The complaint for impeachment was based on the following grounds: bribery, graft and
corruption, betrayal of public trust, and culpable violation of the Constitution.
12 Ibid., November 14, 2000, p. A1.

13 Ibid., November 21, 2000, p. A1.

14 Ibid., December 8, 2000, p. A1.

15 Ibid., December 23, 2000, pp. A1 and A19.

16 Ibid., January 12, 2001, p. A1.

Those who voted "yes" to open the envelope were: Senators Pimentel, Guingona, Drilon,
17

Cayetano, Roco, Legarda, Magsaysay, Flavier, Biazon, Osmeña III. Those who vote "no"
were Senators Ople, Defensor-Santiago, John Osmeña, Aquino-Oreta, Coseteng, Enrile,
Honasan, Jaworski, Revilla, Sotto III and Tatad.

18 Philippine Star, January 17, 2001, p. 1.

19 Ibid., January 18, 2001, p. 4.

20 Ibid., p. 1.

21 Ibid., January 19, 2001, pp. 1 and 8.

"Erap's Final Hours Told" by Edgardo Angara, (hereinafter referred to as "Angara Diary"),
22

PDI, February 4, 2001, p. A16.

23 Philippine Star, January 20, 2001, p. 4.

24 PDI, February 4, 2001, p. A16.

25 Philippine Star, January 20, 2001, pp. 1 and 11.

26 Ibid., January 20, 2001, p. 3.

27 PDI, February 5, 2001, pp. A1 and A6.

28 Philippine Star, January 21, 2001, p. 1.

29 PDI, February 6, 2001, p. A12.

30 Annex A, DOJ-OSG, Joint Comment; Rollo, G.R. Nos. 146710-15, p. 288.

31 Annex A-1, Petition, G.R. Nos. 146710-15; Rollo, p. 34.

32 Ibid.

33 Annex A, Petition, G.R. Nos. 146710-15; Rollo, p. 33.

34Philippine Star, January 21, 2001, p. 1; January 23, 2001, pp. 1 and 4; January 24, 2001,
p. 3; PDI, January 25, 2001, pp. A1 and A15.

35 Philippine Star, January 24, 2001, p. 1.

36 PDI, January 25, 2001, p. 1.

37 Ibid., p. 2.

38 Annex C, DOJ-OSG Joint Comment; Rollo, GR Nos. 146710-15, p. 290.

39 Annex D, id; ibid., p. 292.

40 PDI, January 27, 2001, p. 1.

41 PDI, February 13, 2001, p. A2.

42 Philippine Star, February 13, 2001, p. A2.

43 Annex E, id.; ibid., p. 295.

44 PDI, February 8, 2001, pp. A1 & A19.

45 Annex F, id.; ibid., p. 297.

46 PDI, February 10, 2001, p. A2.

47 Annex G, id.; ibid., p. 299.

48 PDI, February 8, 2001, p. A19.

49 Philippine Star, February 3, 2001, p. 4.

50"Acceptance of Gloria is Nationwide," Mahar Mangahas, Manila Standard, February 16,

2001, p. 14.

51See The Chief Justice's Extended Explanation for his Voluntary Inhibition; Rollo, GR Nos.
146710-15, pp. 525-527.

52See Letter of Inhibition of Associate Justice Panganiban; Rollo, GR No. 146738, pp.120-
125.

53 Rollo, G.R. No. 146738, p. 134.

54Leonard de Vera and Dennis Funa; see their Memorandum, pp. 16-27; Rollo, GR Nos.
146710-15, Vol. III, pp. 809-820.

55 Gunther and Sullivan, Constitutional law, 13th ed., pp. 45-46.

56 369 US 186, 82 S.Ct. 691, 7 L. ed 2d 663, 686 (1962).

57See e.g., Integrated Bar of the Philippines v. Hon. Zamora, et al., GR No. 141284, 15
August 2000; Miranda v. Aguirre, 314 SCRA 603 (1999); Santiago v. Guingona, 298 SCRA
756 (1998); Tatad v. Secretary of the Department of Energy, 281 SCRA 330 (1997); Marcos
v. Manglapus, 177 SCRA 668 (1989); Gonzales v. COMELEC, 129 Phil 7 (1967); Mabanag
v. Lopez Vito, 78 Phil 1 (1947); Avelino v. Cuenco 83 Phil. 17 (1949); Vera v. Avelino, 77 Phil
192 (1946); Alejandrino v. Quezon, 46 Phil 83 (1942).

58 103 Phil 1051, 1068 (1957).

59 Section 1, Article VIII, 1987 Constitution.

60Note that the early treatises on Constitutional Law are discourses on limitations of power
typical of which is, Cooley's Constitutional Limitations.

61Joint Resolution, Lawyers League for a Better Philippines and/or Oliver A. Lozano v. Pres.
Corazon C. Aquino, et al., GR No. 73748; People's Crusade for Supremacy of the
Constitution, etc. v. Mrs. Cory Aquino, et al., GR No. 73972; and Councilor Clifton U. Ganay
v. Corazon C. Aquino, et al., GR No. 73990, May 22, 1986.

62 Letter of Association Justice Reynato S. Puno, 210 SCRA 597 [1992].

63 Proclamation No. 3 (1986).

64 It states:

I, Gloria Macapagal-Arroyo, Vice President of the Philippines, do solemnly swear that I will
faithfully and conscientiously fulfill my duties as President o the Philippines, preserve and
defend its Constitution, execute its laws, do justice to every man, and consecrate myself to
the service of the nation.

So help me God.

(Annex I, Comment of the Ombudsman; Rollo, GR Nos. 146710-15, Vol. II, p. 332)

65 See "Filipinas Despues de Cien Años" (The Philippines a Century Hence), p. 62.
66The guaranty was taken from Amendment I of the US Constitution which provides:
"Congress shall make no law respecting an establishment of religion or prohibiting the free
exercise thereof or abridging the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the Government for a redress of grievance."

67 See section 8, Article IV.

68 See section 9, Article IV.

69 Emerson, The System of Freedom of Expression, 1970 ed., p. 6, et seq.

70Ibid. See also concurring opinion of Justice Branders in Whitney v. California (74 US 357,
375-76) where he said "… the greatest menace to freedom is an inert people …"

71 307 US 496 (1939).

72 Chafee, Jr., Free Speech in the United States, 1946 ed., pp. 413-415, 421.

73 260 SCRA 798 (1996).

74 Section 1, Article II of the 1987 Constitution reads:

"The Philippines is a democratic and republican State. Sovereignty resides in the people and
all government authority emanates from them."

75 Infra at 26.

76 Infra at 41.

77 1 Cranch (5 US) 137, 2 L ed 60 (1803).

78 Gonzales v. Hernandez, 2 SCRA 228 (1961).

79 See its February 4, 5, and 6, 2001 issues.

80 PDI, February 4, 2001, p. A1.

81 Ibid.

82 Ibid.

83 Ibid.

84 Ibid.

85 Ibid.

86 PDI, February 5, 2001, p. A1.

87 Ibid., p. A-1.

88 Ibid.

89 PDI, February 5, 2001, P. A6.

90 PDI, February 6, 2001, p. A1.

In the Angara diary which appeared in the PDI issue of February 5, 2001, Secretary
91

Angara stated that the letter came from Asst. Secretary Boying Remulla; that he and Political
Adviser Banayo opposed it; and that PMS head Macel Fernandez believed that the petitioner
would not sign the letter.

92 Congressional Record, 4th Congress, 2nd Session, March 4, 1959, pp. 603-604.

93 Id., May 9, 1959, p. 1988

94Section 18 (2), Article III of the 1987 Constitution provides: "No involuntary servitude in any
form shall exist except as a punishment for a crime whereof the party shall have been duly
convicted."

95 Reply Memorandum, p. 3; Rollo, GR Nos. 146710-15, Vol. IV.

96 House Resolution No. 175, 11th Congress, 3rd Session (2001), reads:

"RESOLUTION EXPRESSING THE FULL SUPPORT OF THE HOUSE OF

REPRESENTATIVES TO THE ADMINISTRATION OF HER EXCELLENCY, GLORIA
MACAPAGAL-ARROYO, PRESIDENT OF THE PHILIPPINES

WHEREAS, on January 20, 2001, Vice President Gloria Macapagal-Arroyo was sworn in as
the 14th President of the Philippines;

WHEREAS, her ascension to the highest office of the land under the dictum, "the voice of
the people is the voice of God" establishes the basis of her mandate on integrity and morality
in government;

WHEREAS, the House of Representatives joins the church, youth, labor and business
sectors in fully supporting the President's strong determination to succeed;

WHEREAS, the House of Representatives is likewise one with the people in supporting
President Gloria Macapagal-Arroyo's call to start the healing and cleansing process for a
divided nation in order to 'build an edifice of peace, progress and economic stability' for the
country: Now, therefore, be it

Resolved by the House of Representatives, To express its full support to the administration
of Her Excellency, Gloria Macapagal-Arroyo, 14th President of the Philippines.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on January 24, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General"

97 11th Congress, 3rd Session (2001).

98 11th Congress, 3rd Session (2001).

99 Annex 2, Comment of Private Respondents De Vera, et al.; Rollo, GR No. 146710-15, Vol.
II, p. 231.

100 11th Congress, 3rd Session (2001).

101 11th Congress, 3rd Session (2001).

102 103 Phil 1051, 1067 (1957).

103 Baker vs. Carr, supra at 686 headnote 29.

104 16 Phil 534 (1910).

105The logical basis for executive immunity from suit was originally founded upon the idea
that the "King can do no wrong". [R.J. Gray, Private Wrongs of Public Servants, 47 Cal. L.
Rev., 303 (1959)]. The concept thrived at the time of absolute monarchies in medieval
England when it was generally accepted that the seat of sovereignty and governmental
power resides in the throne. During that historical, juncture, it was believed that allowing the
King to be sued in his courts was a contradiction to the sovereignty of the King.
With the development of democratic thoughts and institutions, this kind of rationalization
eventually lost its moral force. In the United States, for example, the common law maxim
regarding the King's infallibility had limited reception among the framers of the Constitution.
[J. Long, How to Sue the President: A Proposal for Legislation Establishing the Extent of
Presidential Immunity, 30 Val. U. L. Rev. 283 (1995)]. Still, the doctrine of presidential
immunity found its way of surviving in modern political times, retaining both its relevance and
vitality. The privilege, however, is now justified for different reasons. First, the doctrine is
rooted in the constitutional tradition of separation of powers and supported by history. [Nixon
v. Fitzgerald, 451 U. S. 731 (1982)]. The separation of powers principle is viewed as
demanding the executive's independence from the judiciary, so that the President should not
be subject to the judiciary's whim. Second, by reason of public convenience, the grant is to
assure the exercise of presidential duties and functions free from any hindrance or
distraction, considering that the Chief Executive is a job that, aside from requiring all of the
office-holder's time, also demands undivided attention. [Soliven v. Makasiar, 167 SCRA 393
(1988)]. Otherwise, the time and substance of the chief executive will be spent on wrangling
litigation, disrespect upon his person will be generated, and distrust in the government will
soon follow. [Forbes v. Chouco Tiaco, 16 Phil. 534 (1910)]. Third, on grounds of public
policy, it was recognized that the gains from discouraging official excesses might be more
than offset by the losses from diminished zeal [Agabin, op cit., at 121.]. Without immunity,
the president would be disinclined to exercise decision-making functions in a manner that
might detrimentally affect an individual or group of individuals. [See H. Schechter, Immunity
of Presidential Aides from Criminal Prosecution, 57 Geo. Wash. L. Rev. 779 (1989)].

106 62 Phil. L.J. 113 (1987).

107 See Bulletin Today, August 16, 1984, p. 1; December 18, 1984, p. 7.

108 Records of the Constitutional Commission of 1986, Vol. II, Records, p. 423, July 29, 1986.

109 Supra at 47.

110 Records of Constitutional Commission, Vol. II, July 28, 1986, p. 355.

111 145 SCRA 160 (1986).

112 128 SCRA 324 (1984).

In Re: Raul Gonzalez, 160 SCRA 771 (1988); Cuenco v. Fernan, 158 SCRA 29 (1988);
113

and Jarque v. Desierto, A.C. No. 4509, 250 SCRA xi-xiv (1995).,

114 Wallace v. Board of Education, 280 Ala. 635, 197 So 2d 428 (1967).

115 418 US 683, 94 S. Ct. 3090, 41 L ed 1039 (1974).

116 457 US 731, 73 L ed. 349, 102 S Ct. 2690 (1982).

117 520 U.S. 681 (1997).

118 See section 1, Art. XI of the 1987 Constitution.

119 See section 27, Art. II of the 1987 Constitution.

120 See, section 1, Art. XI of the 1987 Constitution.

121 See section 15, Art. XI of the 1987 Constitution.

122 See section 4, Art. XI of the 1987 Constitution.

123 See section 13 (1), Art. XI of the 1987 Constitution.

124 See section 14, Art. XI of the 1987 Constitution.

See Brandwood, Notes: "You Say 'Fair Trial' and I say 'Free Press:' British and American
125

Approaches to Protecting Defendants' Rights in High Profile Trials," NYU Law Rev., Vol. 75,
No. 5, pp. 1412-1451 (November 2000).

126 Id., p. 1417.

 See e.g., Martelino, et al. v. Alejandro, et. al., 32 SCRA 106 (1970); People v. Teehankee,
127

249 SCRA 54 (1995)

128 249 SCRA 54 (1955)

129 287 SCRA 581 at pp. 596-597 (1998)

130 247 SCRA 652 (1995)

Extensive publicity did not result in the conviction of well known personalities. E.g., OJ
131

Simpson, John Mitchell, William Kennedy Smith and Imelda Marcos.

132 Memorandum, pp. 29-30; Rollo, GR Nos. 146710-15, Vol. III, pp. 572-573.

134 See section 4, Rule 112.

135 Estes v. Texas, 381 US 532, 540 (1965).

CONCURRING OPINION

VITUG, J.:

This nation has a great and rich history authored by its people. The EDSA Revolution of 2001 could
have been one innocuous phenomenon buried in the pages of our history but for its critical
dimensions. Now, EDSA 2 would be far from being just another event in our annals. To this day, it is
asked – Is Mr. Joseph Ejercito Estrada still the President of the Republic of the Philippines?

To retort, one is to trace the events that led to the denouement of the incumbency of Mr. Joseph
Ejercito Estrada. Mr. Estrada, herein petitioner, was elected to office by not less than 10 million
Filipinos in the elections of May 1998, served well over two years until January 2001. Formally
impeached by the Lower House of Representatives for cases of Graft and Corruption, Bribery,
Betrayal of Public Trust and Culpable violation of the Constitution, he was tried by the Senate. The
Impeachment Tribunal was tasked to decide on the fate of Mr. Estrada- if convicted, he would be
removed from office and face prosecution with the regular courts or, if acquitted, he would remain in
office. An evidence, however, presented by the prosecution tagged as the "second envelope" would
have it differently. The denial by the impeachment court of the pleas to have the dreaded envelope
opened promptly put the trial into a halt. Within hours after the controversial Senate decision, an
angered people trooped again to the site of the previous uprising in 1986 that toppled the 20-year
rule of former President Ferdinand E. Marcos - EDSA. Arriving in trickles, the motley gathering
swelled to an estimated million on the fourth day, with several hundreds more nearing Mendiola
reportedly poised to storm Malacañang.

In the morning of 20 January 2001, the people waited for Erap to step down and to heed the call for
him to resign. At this time, Estrada was a picture of a man, elected into the Presidency, but
beleaguered by solitude-empty of the support by the military and the police, abandoned most of his
cabinet members, and with hardly any firm succor from constituents. And despite the alleged
popularity that brought him to power, mass sentiment now appeared to be for his immediate ouster.

With this capsule, the constitutional successor of Estrada in the person of Gloria Macapagal-Arroyo,
then incumbent Vice-President, took the cue and requested the Chief Justice her oath-taking. In a
letter, sent through "fax" at about half past seven o'clock in the morning of 20 January 2001, read:

"The undersigned respectfully informs this Honorable Court that Joseph Ejercito Estrada is
permanently incapable of performing the duties of his office resulting in his permanent disability to
govern the serve his unexpired term. Almost all of his cabinet members have resigned and the
Philippine National police have withdrawn their support for Joseph Ejercito Estrada. Civil society has
likewise refused to recognize him as President.

"In view of this, I am assuming the position of the president of the Republic of the Philippines.
Accordingly, I would like to take my oath as President of the republic before the Honorable Chief
Justice Hilario G. Davide. Jr., today, 20 January 2001, 12:00 noon at EDSA Shrine, Quezon City,
Metro Manila.

"May I have the honor to invite the members of the Honorable Court to attend the oath-taking."
The tribunal, aware of the grave national crisis which had the marks of yet intensifying into possible
catastrophic proportion, agreed to honor the request: Therefore, the Court, cognizant that it had to
keep its doors open, had to help assure that the judicial process was seen to be functioning. As the
hours passed, however, the extremely volatile situation was getting more precarious by the minute,
and the combustible ingredients were all but ready to ignite. The country was faced with a
phenomenon --- the phenomenon of a people, who, in the exercise of sovereignty perhaps too
limitless to be explicitly contained and constrained by the limited words and phrases of the
constitution, directly sought to remove their president from office. On that morning of the 20th of
January, the his tribunal was confronted with a dilemma ----- should it choose a literal and narrow
view of the constitution, invoke the rule of strict law, and exercise its characteristics reticence? Or
was it propitious for it to itself take a hand? The first was fraught with danger and evidently too risky
to accept. The second could very well help avert imminent bloodshed. Given the realities; the Court
was left hardly with choice. Paradoxically, the first option would almost certainly imperil the
Constitution, the second could save it. The confirmatory resolution was issued following the en
banc session of the Court on 22 January 2001; it read:

"A.M. No. 01-1-05-SC- In re: Request of Vice-President Gloria Macapagal-Arroyo to take her Oath of
Office as President of the Philippines before the Chief Justice- Acting on the urgent request of Vice
President Gloria Macapagal-Arroyo to be sworn in as President of the Republic of the Philippines,
addressed to the Chief Justice and confirmed letter to the Court, dated January 20, 2001, which
request was treated as an administrative matter, the Court resolved unanimously to CONFIRM the
authority given by the twelve (12) members of the Court then present to the Chief justice on January
20, 2001 to administer the oath of office to Vice President Gloria Macapagal-Arroyo as President of
the Philippines, at noon of January 20, 2001.

"This resolution is without prejudice to the disposition of any justiceable case which may be filed by a
proper party."

At high noon on the 20th January 2001, Gloria Macapagal-Arroyo was sworn in as the 14th
President of the Republic of the Philippines. EDSA, once again, had its momentous role in yet
another "bloodless revolution." The Court could not have remained placid amidst the worsening
situation at the time. It could not in conscience allow the high-strung emotions and passions of
EDSA to reach the gates of Malacañang. The military and police defections created stigma that
could not be left unguarded by a vacuum in the presidency. The danger was simply overwhelming.
The extra-ordinariness of the reality called for an extra-ordinary solution. The court has chosen to
prevent rather than cure an enigma incapable of being recoiled.

The alarming social unrest ceased as the emergence of a new leadership so unfolded. The promise
of healing the battered nation engulfed the spirit but it was not to last. Questions were raised on the
legitimacy of Mme. Macapagal-Arroyo's assumption to office. Mr. Estrada would insist that he was
still President and that Mme. Macapagal-Arroyo took over only in an acting capacity.

So it is argued, Mr. Estrada remains to be the President because under the 1987 Constitution, the
Vice-President may assume the presidency only in its explicitly prescribed instances; to wit, firstly, in
case of death, permanent disability, removal from office, or resignation of the President,1secondly,
when the President of the Senate and the Speaker of the House of representatives his written declaration
that he is unable to discharge the powers and duties of his office, 2 and thirdly, when a majority of all the
members of the cabinet transmit to the President and to the speaker of the House of representatives their
written declaration that the President is unable to discharge the powers and duties of his office, 3 the
latter two grounds being culled as the "disability."

Mr. Estrada believes that he cannot be considered to have relinquished his office for none of the
above situations have occurred. The conditions for constitutional succession have not been met. He
states that he has merely been "temporarily incapacitated" to discharge his duties, and he invokes
his letters to both Chambers of the Congress consistent with section 11 of Article VII of the 1987
Constitution. The twin letters, dated 20 January 2001, to the two houses read:

"By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby transmitting this
declaration that I am unable to exercise the powers and duties of my office. By operation of law and
the Constitution, the Vice-President shall be acting President."

Truly, the grounds raised in the petition are as dubitable as the petitioner's real motive in filling the
case.

The pressing issue must now catapult to its end.

Resignation is an act of giving up or the act of an officer by which he renounces his office
indefinitely. In order to constitute a complete and operative act of resignation, the officer or employee
must show a clear intention to relinquish or surrender his position accompanied by an act of
relinquishment. Resignation implies, of the intention to surrender, renounce, relinquish the office. 4

Mr. Estrada imports that he did not resign from the presidency because the word "resignation" has
not once been embodied in his letters or said in his statements. I am unable to oblige. The
contemporary acts of Estrada during those four critical days of January are evident of his intention to
relinquish his office. Scarcity of words may not easily cloak reality and hide true intentions. Crippled
to discharge his duties, the embattled President acceded to have negotiations conducted for a
smooth transition of power. The belated proposals of the President to have the impeachment Court
allow the opening of the controversial envelope and to postpone his resignation until 24 January
2001 were both rejected. On the morning of 20 January 2001, the President sent to congress the
following letter ---

"By virtue of the provisions of Section II, Article VII, of the Constitution, I am hereby transmitting this
declaration that I am unable to exercise the powers and duties of my office. By operation of law and
the Constitution, the vice-president shall be the acting president."

Receipt of the letter by the Speaker of the lower house was placed at around eight o'clock in the
morning but the Senate president was said to have received a copy only on the evening of that day.
Nor this Court turn a blind eye to the paralyzing events which left petitioner to helplessness and
inutility in office – not so much by the confluence of events that forces him to step down the seat of
power in a poignant and teary farewell as the recognition of the will of the governed to whom he
owned allegiance. In his "valedictory message," he wrote:

"At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President of
the Republic of the Philippines. While along with many other legal minds of our country, I have
strong and serious doubts about the legality and constitutionality of her proclamation as President, I
do not wish to be a factor that will prevent the restoration of unity and order in our civil society.

"It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this country,
for the sake of peace and in order to begin the healing process of our nation. I leave the palace of
our people with gratitude for the opportunities given to me for service to our people. I will not shirk
from any future challenges that may come ahead in the same service of our country.

"I call on all my supporters and followers to join me in the promotion of a constructive national spirit
of reconciliation and solidarity.

"May the Almighty bless our country and our beloved people.

"MABUHAY!

Abandonment of office is a species of resignation, 5 and it connotes the giving up of the office
although not attending by the formalities normally observed in resignation. Abandonment may be
effected by a positive act or can be the result of an omission, whether deliberate or not. 6

Mr. Joseph Estrada invokes "temporary incapacity" under Section 11, Article VII of the Constitution.
This assertion is difficult to sustain since the temporary incapacity contemplated clearly envisions
those that are personal, either by physical or mental in nature, 7 and innate to the individual. If it
were otherwise, when then would the disability last? Would it be when the confluent causes which
have brought about that disability are completely set in reverse? Surely, the idea fails to register well
to the simple mind.

Neither can it be implied that the takeover has installed a revolutionary government. A revolutionary
government is one which has taken the seat of power by force or in defiance of the legal processes.
Within the political context, a revolution is a complete overthrow of the established government.8 In
its delimited concept, it is characterized often,9 albeit not always,10 by violence as a means and
specificable range of goals as ends. In contrast, EDSA 2 did not envision radical changes. The
government structure has remained intact. Succession to the presidency has been by the duly-
elected Vice-president of the Republic. The military and the police, down the line, have felt to be so
acting in obedience to their mandate as the protector of the people.

Any revolution, whether it is violent or not, involves a radical change. Huntington sees revolution as
being "a rapid, fundamental and violent domestic change in the dominant values and myths of
society in its political institution, social structure, leadership, government activity and policies.11 "
The distinguished A.J. Milne makes a differentiation between constitutional political action and
a revolutionary political action. A constitutional political action, according to him, is a political within a
legal framework and rests upon a moral commitment to uphold the authority of law. A revolutionary
political action, on the other hand, acknowledges no such moral commitment. The latter is directly
towards overthrowing the existing legal order and replacing it with something else.12 And what, one
might ask, is the "legal order" referred to? It is an authoritative code of a polity comprising enacted
rules, along with those in the Constitution13 and concerns itself with structures rather than
personalities in the establishments. Accordingly, structure would prefer to the different branches of
the government and personalities would be the power-holders. If determination would be made
whether a specific legal order is intact or not, what can be vital is not the change in the personalities
but a change in the structure.

The ascension of Mme. Macapagal-Arroyo to the presidency has resulted neither in the obligation of
the legal order. The constitutionally-established government structures, embracing various offices
under the executive branch, of the judiciary, of the legislature, of the constitutional commissions and
still other entities, including the Armed Forces of the Philippines and the Philippine National Police
and local governments as well, have all remained intact and functioning.

An insistence that the events in January 2001 transgressed the letter of the Constitution is to ignore
the basic tenet of constitutionalism and to functionalize the clearly preponderant facts.

More than just an eloquent piece of frozen document, the Constitution should be deemed to be a
living testament and memorial of the sovereign will of the people from whom all government
authority emanates. Certainly, this fundamental statement is not without meaning. Nourished by
time, it grows and copes with the changing milieu. The framers of the constitution could not have
anticipated all conditions that might arise in the aftermath of events. A constitution does not deal in
details, but enunciates the general tenets that are intended to apply to all facts that may come about
but which can be brought within its directions. 14 Behind its conciseness is its inclusiveness and its
apertures overridingly lie, not fragmented but integrated and encompassing, its spirit and its intent.
The Constitution cannot be permitted to deteriorate into just a petrified code of legal maxims and
hand-tied to its restrictive letters and wordings, rather than be the pulsating law that it is. Designed to
be an enduring instrument, its interpretation is not be confined to the conditions and outlook which
prevail at the time of its adoption15 instead, it must be given flexible to bring it in accord with the
vicissitudes of changing and advancing affairs of men.16 Technicalities and play of words cannot
frustrate the inevitable because there is an immense difference between legalism and justice. If only
to secure our democracy and to keep the social order – technicalities must give away. It has been
said that the real essence of justice does not emanate from quibblings over patchwork legal
technicality but proceeds from the spirit's gut consciousness of the dynamic role as a brick in the
ultimate development of social edifice.17 Anything else defeats the spirit and intent of the
Constitution for which it is formulated and reduces its mandate to irrelevance and obscurity.

All told the installation of Mme. Macapagal-Arroyo perhaps came close to, but not quite, the
revolutionary government that we know. The new government, now undoubtedly in effective control
of the entire country, domestically and internationally recognized to be legitimate, acknowledging a
previous pronouncement of the court, 18 is a de jure government both in fact and in law. The basic
structures, the principles, the directions, the intent and the spirit of the 1987 Constitution have been
saved and preserved. Inevitably, Gloria Macapagal-Arroyo is the President, not merely an Acting
President, of the Republic of the Philippines.

A reminder of an elder to the youth. After two non-violent civilian uprising within just a short span
of years between them, it might be said that popular mass action is fast becoming an
institutionalized enterprise. Should the streets now be the venue for the exercise of popular
democracy? Where does one draw the line between the rule of law and the rule of the mob, or
between "People Power" and "Anarchy?" If, as the sole justification for its being, the basis of the
Arroyo presidency lies alone on those who were at EDSA, then it does rest on loose and shifting
sands and might tragically open a Pandora's box more potent than the malaise it seeks to address.
Conventional wisdom dictates the indispensable need for great sobriety and extreme circumspection
on our part. In this kind of arena, let us be assumed that we are not overcome by senseless
adventurism and opportunism. The country must not grow oblivious to the innate perils of people
power for no bond can be stretched far too much to its breaking point. To abuse is to destroy that
which we may hold dear.

1 Section 8, Article VII, 1987 Constitution

2 Section 11, 1st paragraph, Article VII, 1987 Constitution

3 Ibid., 2nd paragraph

4 Ortiz vs. Comelec, 162 SCRA 812

5Sangguniang Bayan ng San Andres vs. Court of Appeals, G.R. No. 11883, 16 January
1998

6 Cruz, Carlos L., The Law on Public Officers, p. 174, 1997 Edition

7 "Mr. SUAREZ. xxx

"May we now go to Section 11, page 5. This refers to the President's written declaration of
inability to discharge the powers and duties of the Office of the President. Can this written
declaration to be done for and in behalf of the President if, for example, the President is in no
position to sign his name, like he suffers an accident and both his arms get to be amputated?

"Mr. REGALADO. We have not a situation like that even in the jurisdiction from which we
borrowed this provision, but we feel that in remote situation that the Commissioner has cited
in that the President cannot make a written declaration, I suppose an alternative would be
considered wherein he can so expressly manifest in an authentic manner what should be
contained in a written declaration. xxx

"Mr. SUAREZ. xxx I am thinking in terms of what happened to the President Wilson. Really,
the physical disability of the gentleman was never made clear to the historians. But suppose
a situation will happen in our country where the President may suffer coma and gets to be
unconscious, which is practically a total inability to discharge the powers and duties of his
office, how can he submit a written declaration of inability to perform the duties and functions
of his office?

"x x x x x x x x x

"FR. BERNAS. Precisely. The second paragraph is to take care of the Wilson situation.

"Mr. SUAREZ. I see.

"Mr. REGALADO. The Wilson situation was in 1917. Precisely, this twenty-fifth Amendment
to the American Constitution as adopted on February 10, 1967 prevent a recurrence of such
situation. Besides, it was not only the Wilson matter. As I have already mentioned here, they
have had situations in the United States, including those of President Garfield, President
Wilson, President Roosevelt and President Eisenhower."

(11 RECORDS, PP. 421-423)

8 Gitlow vs. Kiely, 44 F. 2d as cited in 46 CJS 1086

9 Ibid.

10 Ibid.

Zarocin, Theories of Revolution in Contemporary Historiography, 88 POLITICAL SCIENCE

11

QUARTERLY

Milne, Philosophy and Political Action, The Case of Civil Rights, 21 Political Studies, 453,
12

456 (1973)

Fernandez, LAW and POLITY: Towards a System Concept of Legal validity, 46 Philippines
13

Law Journal, 390-391 (1971)

14 16 American Jurisprudence 2d.

15 State ex rel Columbus vs. Keterrer, 127 Ohio St 483, 189 NE 252

16 John Hancock Mut. Life Ins. Co. vs. Ford Motors Co., 322 Mich 209, 39 NW 2d 763

17 Battles in the Supreme Court by Justice Artemio Panganiban, pp. 103-104

 Lawyers' League for a Better Philippines vs. President Corazon C. Aquino, et al., G.R. No.
18

73748, May 22, 1986.

CONCURRING OPINION

MENDOZA, J.:

In issue in these cases is the legitimacy of the presidency of respondent Gloria Macapagal-Arroyo.
In G.R. No. 146738, the petition for quo warranto seeks a declaration that petitioner Joseph Ejercito
Estrada is the lawful President of the Philippines and that respondent Gloria Macapagal-Arroyo is
merely acting President on account o the former's temporary disability. On the other hand, in G.R.
Nos. 146710-15, the petition seeks to prohibit respondent Ombudsman Aniano Desierto from
investigating charges of plunder, bribery, malversation of public funds, and graft and corruption
against petitioner Estrada on the theory that, being still President, he is immune from suit.

In both cases, a preliminary question is raised by respondents whether the legitimacy of Gloria
Macapagal-Arroyo's presidency is a justiciable controversy. Respondent Gloria Macapagal-Arroyo
contends that the matter is not justiciable because of "the virtual impossibility of undoing what has
been done, namely, the transfer of constitutional power to Gloria Macapagal-Arroyo as a result of the
events starting from the expose of Ilocos Sur Governor Luis 'Chavit' Singson in October 2000."1 In
support of this contention, respondent cites the following statements of this Court concerning the
Aquino government which it is alleged applies to her administration:

. . . [T]he legitimacy of the Aquino government is not a justiciable matter. It belongs to the realm of
politics where only the people of the Philippines are the judge. And the people have made the
judgment; they have accepted the government of President Corazon C. Aquino which is in effective
control of the entire country so that it is not merely a de facto government but is in fact and law a de
jure government. Moreover, the community of nations has recognized the legitimacy of the present
government. All the eleven members of this Court, as reorganized, have sworn to uphold the
fundamental law of the Republic under her government.2

From the natural law point of view, the right of revolution has been defined as "an inherent right of a
people to cast out their rulers, change their policy or effect radical reforms in their system of
government or institutions by force or a general uprising when the legal and constitutional methods
of making such change have proved inadequate or are so obstructed as to be unavailable." It has
been said that "the locus of positive law-making power lies with the people of the state" and from
there is derived" the right of the people to abolish, to reform and to alter any existing form of
government without regard to the existing constitution."3

But the Aquino government was a revolutionary government which was established following the
overthrow of the 1973 Constitution. The legitimacy of a revolutionary government cannot be the
subject of judicial review. If a court decides the question at all qua court, it must necessarily affirm
the existence and authority of such government under which it is exercising judicial power.4 As
Melville Weston long ago put it, "the men who were judges under the old regime and the men who
are called to be judges under the new have each to decide as individuals what they are to do; and it
may be that they choose at grave peril with the factional outcome still uncertain."5 This is what the
Court did in Javellana v. Executive Secretary6 when it held that the question of validity of the 1973
Constitution was political and affirmed that it was itself part of the new government. As the Court
said in Occena v. COMELEC7 and Mitra v. COMELEC,8 "[P]etitioners have come to the wrong
forum. We sit as a Court duty-bound to uphold and apply that Constitution. . . . It is much too late in
the day to deny the force and applicability of the 1973 Constitution."

In contrast, these cases do not involve the legitimacy of a government. They only involve the
legitimacy of the presidency of respondent Gloria Macapagal-Arroyo, and the claim of respondents is
precisely that Macapagal-Arroyo's ascension to the presidency was in accordance with the
Constitution.9

Indeed, if the government of respondent Gloria Macapagal-Arroyo is a revolutionary one, all talk
about the fact that it was brought about by succession due to resignation or permanent disability of
petitioner Joseph Ejercito Estrada is useless. All that respondents have to show is that in the contest
for power Macapagal-Arroyo's government is the successful one and is now accepted by the people
and recognized by the community of nations.

But that is not the case here. There was no revolution such as that which took place in February
1986. There was no overthrow of the existing legal order and its replacement by a new one, no
nullification of the Constitution.

What is involved in these cases is similar to what happened in 1949 in Avelino v. Cuenco.10 In that
case, in order to prevent Senator Lorenzo M. Tañada from airing charges against Senate President
Jose Avelino, the latter refused to recognize him, as a result of which tumult broke out in the Senate
gallery, as if by pre-arrangement, as the Court noted, and Avelino suddenly adjourned the session
and, followed by six senators, walked out of the session hall. The remaining senators then declared
the position of President of the Senate vacant and elected Senator Mariano Jesus Cuenco acting
president. The question was whether respondent Cuenco had been validly elected acting president
of the Senate, considering that there were only 12 senators (out of 24) present, one senator (Sen.
Confesor) being abroad while another one (Sen. Sotto) was ill in the hospital.

Although in the beginning this Court refused to take cognizance of a petition for quo warranto
brought to determine the rightful president of the Senate, among other things, in view of the political
nature of the controversy, involving as it did an internal affair of a coequal branch of the government,
in the end this Court decided to intervene because of the national crisis which developed as a result
of the unresolved question of presidency of the Senate. The situation justifying judicial intervention
was described, thus:

We can take judicial notice that legislative work has been at a standstill; the normal and ordinary
functioning of the Senate has been hampered by the non-attendance to sessions of about one-half
of the members; warrants of arrest have been issued, openly defied, and remained unexecuted like
mere scraps of paper, notwithstanding the fact that the persons to be arrested are prominent
persons with well-known addresses and residences and have been in daily contact with news
reporters and photographers. Farce and mockery have been interspersed with actions and
movements provoking conflicts which invite bloodshed.

. . . Indeed there is no denying that the situation, as obtaining in the upper chamber of Congress, is
highly explosive. It had echoed in the House of Representatives. It has already involved the
President of the Philippines. The situation has created a veritable national crisis, and it is apparent
that solution cannot be expected from any quarter other than this Supreme Court, upon which the
hopes of the people for an effective settlement are pinned.11

In voting to assume jurisdiction, Chief Justice Paras wrote: "[T]his Court has no other alternative but
to meet the challenge of the situation which demands the utmost of judicial temper and judicial
statesmanship. As herein before stated, the present crisis in the Senate is one that imperatively calls
for the intervention of this Court."12 Questions raised concerning respondent Gloria Macapagal-
Arroyo's presidency similarly justify, in my view, judicial intervention in these cases.

Nor is our power to fashion appropriate remedies in these cases in doubt. Respondents contend that
there is nothing else that can be done about the assumption into office of respondent Gloria
Macapagal-Arroyo. What has been done cannot be undone. It is like toothpaste, we are told, which,
once squeezed out of the tube, cannot be put back.

Both literally and figuratively, the argument is untenable. The toothpaste can be put back into the
tube. Literally, it can be put back by opening the bottom of the tube — that is how toothpaste is put in
tubes at manufacture in the first place. Metaphorically, the toothpaste can also be put back. In G.R.
No. 146738, a writ can be issued ordering respondent Gloria Macapagal-Arroyo to vacate the Office
of the President so that petitioner Joseph E. Estrada can be reinstated should the judgment in these
cases be in his favor. Whether such writ will be obeyed will be a test of our commitment to the rule of
law. In election cases, people accept the decisions of courts even if they be against the results as
proclaimed. Recognition given by foreign governments to the presidency poses no problem. So, as
far as the political question argument of respondents is anchored on the difficulty or impossibility of
devising effective judicial remedies, this defense should not bar inquiry into the legitimacy of the
Macapagal-Arroyo administration.

This brings me to the main issue, whether respondent Gloria Macapagal-Arroyo's ascension to the
Presidency was in accordance with the Constitution. Art. VII. §8 provides in pertinent parts:

In case of death, permanent disability, removal from office, or resignation of the President, the Vice-
President shall become the President to serve the unexpired term. In case of death, permanent
disability, removal from office, or resignation of both the President and Vice-President, the President
of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall then act
as President until the President or Vice-President shall have been elected and qualified.

The events that led to the departure of petitioner Joseph E. Estrada from office are well known and
need not be recounted in great detail here. They began in October 2000 when allegations of wrong
doings involving bribe-taking, illegal gambling (jueteng), and other forms of corruption were made
against petitioner before the Blue Ribbon Committee of the Senate. On November 13, 2000,
petitioner was impeached by the House of Representatives and, on December 7, impeachment
proceedings were begun in the Senate during which more serious allegations of graft and corruption
against petitioner were made and were only stopped on January 16, 2001 when 11 senators,
sympathetic to petitioner, succeeded in suppressing damaging evidence against petitioner. As a
result, the impeachment trial was thrown into an uproar as the entire prosecution panel walked out
and Senate President Aquilino Pimentel resigned after casting his vote against petitioner.

The events, as seen through the eyes of foreign correspondents, are vividly recounted in the
following excerpts from the Far Eastern Economic Review and Time Magazine quoted in the
Memorandum of petitioner in G.R. Nos. 146710-15, thus:

1. The decision immediately sent hundreds of Filipinos out into the streets, triggering
rallies that swelled into a massive four-day demonstration. But while anger was
apparent among the middle classes, Estrada, a master of the common touch, still
retained largely passive support among the poorest Filipinos. Citing that mandate
and exploiting the letter of the Constitution, which stipulates that a written resignation
be presented, he refused to step down even after all of the armed forced, the police
and most of his cabinet withdrew their support for him. [FAR EASTERN ECONOMIC
REVIEW, "More Power to The Powerful", id, at p. 18].
2. When an entire night passed without Estrada's resignation, tens of thousands of
frustrated protesters marched on Malacañang to demand that the president leave
office. An air force fighter jet and four military helicopters buzzed the palace to
remind the president that had lost the reins of power. [FAR EASTERN ECONOMIC
REVIEW, supra, ibid].
3. While the television cameras were focused on the rallies – and the commentators
became lost in reveries about People Power revisited – behind-the-scenes
negotiations had been going on non-stop between military factions loyal to Estrada
and those who advocated a quick coup to depose the President. Chief of Staff Reyes
and Defense Secretary Mercado had made their fateful call to Estrada after luncheon
attended by all the top commanders. The officers agreed that renouncing Estrada
was the best course, in part because some commanders were urging more drastic
resolution. If the military did not come to a consensus, there loomed the possibility of
factional fighting or, worse, civil war. [TIME, "People Power Redux", id at p. 18]
4. It finally took a controversial Supreme Court declaration that the presidency was
effectively vacant to persuade Estrada to pack up and move out to his family home in
Manila – still refusing to sign a letter of resignation and insisting that he was the legal
president [FAR EASTERN ECONOMIC REVIEW, "More Power to the
Powerful", supra, ibid.]. Petitioner then sent two letters, one to the Senate President
and the other to the Speaker of the House, indicating that he was unable to perform
the duties of his Office.13

To recall these events is to note the moral framework in which petitioner's fall from power took place.
Petitioner's counsel claimed petitioner was forced out of Malacañang Palace, seat of the Presidency,
because petitioner was "threatened with mayhem."14 What, the President of the Philippines, who
under the Constitution is the commander-in-chief of all the armed forces, threatened with mayhem?
This can only happen because he had lost his moral authority as the elected President.

Indeed, the people power movement did not just happen at the call of some ambitious politicians,
military men, businessmen and/or prelates. It came about because the people, rightly or wrongly,
believed the allegations of graft and corruption made by Luis "Chavit" Singson, Emma Lim, Edgardo
Espiritu, and other witnesses against petitioner. Their testimonies during the impeachment trial were
all televised and heard by millions of people throughout the length and breadth of this archipelago.
As a result, petitioner found himself on January 19, 2001 deserted as most of his cabinet members
resigned, members of the Armed Forces of the Philippines and the Philippine National Police
withdrew their support of the President, while civil society announced its loss of trust and confidence
in him. Public office is a public trust. Petitioner lost the public's trust and as a consequence remained
President only in name. Having lost the command of the armed forces and the national police, he
found Himself vulnerable to threats of mayhem.

This is the confession of one who is beaten. After all, the permanent disability referred to in the
Constitution can be physical, mental or moral, rendering the President unable to exercise the powers
and functions of his office. As his close adviser wrote in his diary of the final hours of petitioner's
presidency:

The President says: "Pagod na pagod na ako. Ayoko na-masyado nang masakit. Pagod na ako sa
red tape, bureaucracy, intriga. (I am very tired. I don't want any more of this-it's too painful. I'm tired
of the red tape, the bureaucracy, the intrigue.)15

Angara himself shared this view of petitioner's inability. He wrote in his diary:

"Let us be realistic," I counter. "The President does not have the capability to organize a counter-
attack. He does not have the AFP or the Philippine National Police on his side. He is not only in a
corner – he is also down."16
This is the clearest proof that petitioner was totally and permanently disabled at least as of 11 P.M.
of Friday, January 19, 2001. Hence the negotiations for the transfer of power to the respondent Vice-
President Gloria Macapagal-Arroyo. It belies petitioner's claim that he was not permanently disabled
but only temporarily unable to discharge the powers and duties of his office and therefore can only
be temporarily replaced by respondent Gloria Macapagal-Arroyo under Art. VII, §11.

From this judgment that petitioner became permanently disabled because he had lost the public's
trust, I except extravagant claims of the right of the people to change their government. While Art. II,
§1 of the Constitution says that "sovereignty resides in the people and all government authority
emanates from them," it also says that "the Philippines is a democratic and republican state." This
means that ours is a representative democracy — as distinguished from a direct democracy — in
which the sovereign will of the people is expressed through the ballot, whether in an election,
referendum, initiative, recall (in the case of local officials) or plebiscite. Any exercise of the powers of
sovereignty in any other way is unconstitutional.

Indeed, the right to revolt cannot be recognized as a constitutional principle. A constitution to provide
for the right of the people to revolt will carry with it the seeds of its own destruction. Rather, the right
to revolt is affirmed as a natural right. Even then, it must be exercised only for weighty and serious
reasons. As the Declaration of Independence of July 4, 1776 of the American Congress states:

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by
their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of
Happiness — That to secure these Rights, Governments are instituted among Men, deriving their
just Powers from the Consent of the Governed, that whenever any Form of Government becomes
destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new
Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to
them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that
Governments long established should not be changed for light and transient Causes; and
accordingly all Experience hath shewn, that Mankind are more disposed to suffer, while Evils are
sufferable, than to right themselves by abolishing the Forms to which they are accustomed. But
when a long Train of Abuses and Usurpations, pursuing invariably the same Object, evinces a
Design to reduce them under absolute Despotism, it is their Right, it is their Duty, to throw off such
Government, and to provide new Guards for their future Security.17

Here, as I have already indicated, what took place at EDSA from January 16 to 20, 2001 was not a
revolution but the peaceful expression of popular will. The operative fact which enabled Vice-
President Gloria Macapagal-Arroyo to assume the presidency was the fact that there was a crisis,
nay a vacuum, in the executive leadership which made the government rife for seizure by lawless
elements. The presidency was up for grabs, and it was imperative that the rule of succession in the
Constitution be enforced.

But who is to declare the President's permanent disability, petitioner asks? The answer was given by
petitioner himself when he said that he was already tired and wanted no more of popular
demonstrations and rallies against him; when he and his advisers negotiated with respondent Gloria
Macapagal-Arroyo's advisers for a transition of powers from him to her; when petitioner's own
Executive Secretary declared that petitioner was not only in a corner but was down.

Nor is it correct for petitioner to say that the present situation is similar to our situation during the
period (from 1941 to 1943) of our occupation by the Japanese, when we had two presidents,
namely, Manuel L. Quezon and Jose P. Laurel. This is turning somersault with history. The
Philippines had two presidents at that time for the simple reason that there were then two
governments — the de facto government established by Japan as belligerent occupant, of which
Laurel was president, and the de jure Commonwealth Government in exile of President Manuel L.
Quezon. That a belligerent occupant has a right to establish a government in enemy territory is a
recognized principle of international law.18 But today we have only one government, and it is the
one set up in the 1987 Constitution. Hence, there can only be one President.

Having reached the conclusion that petitioner Joseph E. Estrada is no longer President of the
Philippines, I find no need to discuss his claim of immunity from suit. I believe in the canon of
adjudication that the Court should not formulate a rule of constitutional law broader than is required
by the precise facts to which it is applied.

The only question left for resolution is whether there was massive prejudicial publicity attending the
investigation by the Ombudsman of the criminal charges against petitioner. The test in this
jurisdiction is whether there has been "actual, not merely possible, prejudice"19 caused to petitioner
as a result of publicity. There has been no proof of this, and so I think this claim should simply be
dismissed.

For the foregoing reasons, I vote to dismiss the petitions in these cases.
(Sgd.)

VICENTE V. MENDOZA

Associate Justice

Footnotes

1 Joint Memorandum of the Secretary of Justice and Solicitor General, p. 15.

2Lawyers League for a Better Philippines v. President Corazon C. Aquino, G.R. No. 73746,
May 22, 1986.

3 Letter of Associate Justice Reynato S. Puno, 210 SCRA 589, 597 (1992).

4 Luther v. Borden, 7 How. 1 (1848).

5 Political Questions, 38 Harv. L. Rev. 296, 305 (1925).

6 50 SCRA 30 (1973).

7 104 SCRA ! (1981).

8 104 SCRA 59 (1981).

9 Joint Memorandum of the Secretary of Justice and Solicitor General, p. 2.

10 83 Phil. 17 (1949).

11 83 Phil. At 76 (Perfecto, J., concurring).

12 Id. at 25-26 (concurring and dissenting).

13 Memorandum for Petitioner, G.R. Nos, 146710-15, pp. 5-6.

14 Petition, G.R. No. 146738, p. 13.

15Edgardo Angara, Erap's Final Hours Told, Philippine Daily Inquirier, p. A6, February 6,
2001.

16 Id. (emphasis added).

17 Emphasis added.

18Co Kim Cham v. Valdez, 75 Phil. 113 (1945); Peralta v. Director of Prisons, 75 Phil. 285
(1945); Laurel v. Misa, 77 Phil. 856 (1947).

19 See Martelino v. Alejandro, 32 SCRA 106 (1970).

 FIRST DIVISION

G.R. No. 142396 February 11, 2003

KHOSROW MINUCHER, petitioner,

vs.
HON. COURT OF APPEALS and ARTHUR SCALZO, respondents.

DECISION

VITUG, J.:

Sometime in May 1986, an Information for violation of Section 4 of Republic Act No. 6425, otherwise
also known as the "Dangerous Drugs Act of 1972," was filed against petitioner Khosrow Minucher
and one Abbas Torabian with the Regional Trial Court, Branch 151, of Pasig City. The criminal
charge followed a "buy-bust operation" conducted by the Philippine police narcotic agents in the
house of Minucher, an Iranian national, where a quantity of heroin, a prohibited drug, was said to
have been seized. The narcotic agents were accompanied by private respondent Arthur Scalzo who
would, in due time, become one of the principal witnesses for the prosecution. On 08 January 1988,
Presiding Judge Eutropio Migrino rendered a decision acquitting the two accused.

On 03 August 1988, Minucher filed Civil Case No. 88-45691 before the Regional Trial Court (RTC),
Branch 19, of Manila for damages on account of what he claimed to have been trumped-up charges
of drug trafficking made by Arthur Scalzo. The Manila RTC detailed what it had found to be the facts
and circumstances surrounding the case.

"The testimony of the plaintiff disclosed that he is an Iranian national. He came to the Philippines to
study in the University of the Philippines in 1974. In 1976, under the regime of the Shah of Iran, he
was appointed Labor Attaché for the Iranian Embassies in Tokyo, Japan and Manila, Philippines.
When the Shah of Iran was deposed by Ayatollah Khomeini, plaintiff became a refugee of the United
Nations and continued to stay in the Philippines. He headed the Iranian National Resistance
Movement in the Philippines.

"He came to know the defendant on May 13, 1986, when the latter was brought to his house and
introduced to him by a certain Jose Iñigo, an informer of the Intelligence Unit of the military. Jose
Iñigo, on the other hand, was met by plaintiff at the office of Atty. Crisanto Saruca, a lawyer for
several Iranians whom plaintiff assisted as head of the anti-Khomeini movement in the Philippines.

"During his first meeting with the defendant on May 13, 1986, upon the introduction of Jose Iñigo, the
defendant expressed his interest in buying caviar. As a matter of fact, he bought two kilos of caviar
from plaintiff and paid P10,000.00 for it. Selling caviar, aside from that of Persian carpets, pistachio
nuts and other Iranian products was his business after the Khomeini government cut his pension of
over $3,000.00 per month. During their introduction in that meeting, the defendant gave the plaintiff
his calling card, which showed that he is working at the US Embassy in the Philippines, as a special
agent of the Drug Enforcement Administration, Department of Justice, of the United States, and
gave his address as US Embassy, Manila. At the back of the card appears a telephone number in
defendant’s own handwriting, the number of which he can also be contacted.

"It was also during this first meeting that plaintiff expressed his desire to obtain a US Visa for his wife
and the wife of a countryman named Abbas Torabian. The defendant told him that he [could] help
plaintiff for a fee of $2,000.00 per visa. Their conversation, however, was more concentrated on
politics, carpets and caviar. Thereafter, the defendant promised to see plaintiff again.

"On May 19, 1986, the defendant called the plaintiff and invited the latter for dinner at Mario's
Restaurant at Makati. He wanted to buy 200 grams of caviar. Plaintiff brought the merchandize but
for the reason that the defendant was not yet there, he requested the restaurant people to x x x
place the same in the refrigerator. Defendant, however, came and plaintiff gave him the caviar for
which he was paid. Then their conversation was again focused on politics and business.
"On May 26, 1986, defendant visited plaintiff again at the latter's residence for 18 years at Kapitolyo,
Pasig. The defendant wanted to buy a pair of carpets which plaintiff valued at $27,900.00. After
some haggling, they agreed at $24,000.00. For the reason that defendant did not yet have the
money, they agreed that defendant would come back the next day. The following day, at 1:00 p.m.,
he came back with his $24,000.00, which he gave to the plaintiff, and the latter, in turn, gave him the
pair of carpets.1aw phi 1.nét

"At about 3:00 in the afternoon of May 27, 1986, the defendant came back again to plaintiff's house
and directly proceeded to the latter's bedroom, where the latter and his countryman, Abbas
Torabian, were playing chess. Plaintiff opened his safe in the bedroom and obtained $2,000.00 from
it, gave it to the defendant for the latter's fee in obtaining a visa for plaintiff's wife. The defendant told
him that he would be leaving the Philippines very soon and requested him to come out of the house
for a while so that he can introduce him to his cousin waiting in a cab. Without much ado, and
without putting on his shirt as he was only in his pajama pants, he followed the defendant where he
saw a parked cab opposite the street. To his complete surprise, an American jumped out of the cab
with a drawn high-powered gun. He was in the company of about 30 to 40 Filipino soldiers with 6
Americans, all armed. He was handcuffed and after about 20 minutes in the street, he was brought
inside the house by the defendant. He was made to sit down while in handcuffs while the defendant
was inside his bedroom. The defendant came out of the bedroom and out from defendant's attaché
case, he took something and placed it on the table in front of the plaintiff. They also took plaintiff's
wife who was at that time at the boutique near his house and likewise arrested Torabian, who was
playing chess with him in the bedroom and both were handcuffed together. Plaintiff was not told why
he was being handcuffed and why the privacy of his house, especially his bedroom was invaded by
defendant. He was not allowed to use the telephone. In fact, his telephone was unplugged. He
asked for any warrant, but the defendant told him to `shut up.’ He was nevertheless told that he
would be able to call for his lawyer who can defend him.

"The plaintiff took note of the fact that when the defendant invited him to come out to meet his
cousin, his safe was opened where he kept the $24,000.00 the defendant paid for the carpets and
another $8,000.00 which he also placed in the safe together with a bracelet worth $15,000.00 and a
pair of earrings worth $10,000.00. He also discovered missing upon his release his 8 pieces hand-
made Persian carpets, valued at $65,000.00, a painting he bought for P30,000.00 together with his
TV and betamax sets. He claimed that when he was handcuffed, the defendant took his keys from
his wallet. There was, therefore, nothing left in his house.

"That his arrest as a heroin trafficker x x x had been well publicized throughout the world, in various
newspapers, particularly in Australia, America, Central Asia and in the Philippines. He was identified
in the papers as an international drug trafficker. x x x

In fact, the arrest of defendant and Torabian was likewise on television, not only in the Philippines,
but also in America and in Germany. His friends in said places informed him that they saw him on
TV with said news.

"After the arrest made on plaintiff and Torabian, they were brought to Camp Crame handcuffed
together, where they were detained for three days without food and water."1

During the trial, the law firm of Luna, Sison and Manas, filed a special appearance for Scalzo and
moved for extension of time to file an answer pending a supposed advice from the United States
Department of State and Department of Justice on the defenses to be raised. The trial court granted
the motion. On 27 October 1988, Scalzo filed another special appearance to quash the summons on
the ground that he, not being a resident of the Philippines and the action being one in personam,
was beyond the processes of the court. The motion was denied by the court, in its order of 13
December 1988, holding that the filing by Scalzo of a motion for extension of time to file an answer
to the complaint was a voluntary appearance equivalent to service of summons which could likewise
be construed a waiver of the requirement of formal notice. Scalzo filed a motion for reconsideration
of the court order, contending that a motion for an extension of time to file an answer was not a
voluntary appearance equivalent to service of summons since it did not seek an affirmative relief.
Scalzo argued that in cases involving the United States government, as well as its agencies and
officials, a motion for extension was peculiarly unavoidable due to the need (1) for both the
Department of State and the Department of Justice to agree on the defenses to be raised and (2) to
refer the case to a Philippine lawyer who would be expected to first review the case. The court a quo
denied the motion for reconsideration in its order of 15 October 1989.

Scalzo filed a petition for review with the Court of Appeals, there docketed CA-G.R. No. 17023,
assailing the denial. In a decision, dated 06 October 1989, the appellate court denied the petition
and affirmed the ruling of the trial court. Scalzo then elevated the incident in a petition for review on
certiorari, docketed G.R. No. 91173, to this Court. The petition, however, was denied for its failure to
comply with SC Circular No. 1-88; in any event, the Court added, Scalzo had failed to show that the
appellate court was in error in its questioned judgment.
Meanwhile, at the court a quo, an order, dated 09 February 1990, was issued (a) declaring Scalzo in
default for his failure to file a responsive pleading (answer) and (b) setting the case for the reception
of evidence. On 12 March 1990, Scalzo filed a motion to set aside the order of default and to admit
his answer to the complaint. Granting the motion, the trial court set the case for pre-trial. In his
answer, Scalzo denied the material allegations of the complaint and raised the affirmative defenses
(a) of Minucher’s failure to state a cause of action in his complaint and (b) that Scalzo had acted in
the discharge of his official duties as being merely an agent of the Drug Enforcement Administration
of the United States Department of Justice. Scalzo interposed a counterclaim of P100,000.00 to
answer for attorneys' fees and expenses of litigation.

Then, on 14 June 1990, after almost two years since the institution of the civil case, Scalzo filed a
motion to dismiss the complaint on the ground that, being a special agent of the United States Drug
Enforcement Administration, he was entitled to diplomatic immunity. He attached to his motion
Diplomatic Note No. 414 of the United States Embassy, dated 29 May 1990, addressed to the
Department of Foreign Affairs of the Philippines and a Certification, dated 11 June 1990, of Vice
Consul Donna Woodward, certifying that the note is a true and faithful copy of its original. In an order
of 25 June 1990, the trial court denied the motion to dismiss.

On 27 July 1990, Scalzo filed a petition for certiorari with injunction with this Court, docketed G.R.
No. 94257 and entitled "Arthur W. Scalzo, Jr., vs. Hon. Wenceslao Polo, et al.," asking that the
complaint in Civil Case No. 88-45691 be ordered dismissed. The case was referred to the Court of
Appeals, there docketed CA-G.R. SP No. 22505, per this Court’s resolution of 07 August 1990. On
31 October 1990, the Court of Appeals promulgated its decision sustaining the diplomatic immunity
of Scalzo and ordering the dismissal of the complaint against him. Minucher filed a petition for review
with this Court, docketed G.R. No. 97765 and entitled "Khosrow Minucher vs. the Honorable Court of
Appeals, et. al." (cited in 214 SCRA 242), appealing the judgment of the Court of Appeals. In a
decision, dated 24 September 1992, penned by Justice (now Chief Justice) Hilario Davide, Jr., this
Court reversed the decision of the appellate court and remanded the case to the lower court for trial.
The remand was ordered on the theses (a) that the Court of Appeals erred in granting the motion to
dismiss of Scalzo for lack of jurisdiction over his person without even considering the issue of the
authenticity of Diplomatic Note No. 414 and (b) that the complaint contained sufficient allegations to
the effect that Scalzo committed the imputed acts in his personal capacity and outside the scope of
his official duties and, absent any evidence to the contrary, the issue on Scalzo’s diplomatic
immunity could not be taken up.

The Manila RTC thus continued with its hearings on the case. On 17 November 1995, the trial court
reached a decision; it adjudged:

"WHEREFORE, and in view of all the foregoing considerations, judgment is hereby rendered for the
plaintiff, who successfully established his claim by sufficient evidence, against the defendant in the
manner following:

"`Adjudging defendant liable to plaintiff in actual and compensatory damages of P520,000.00; moral
damages in the sum of P10 million; exemplary damages in the sum of P100,000.00; attorney's fees
in the sum of P200,000.00 plus costs.

`The Clerk of the Regional Trial Court, Manila, is ordered to take note of the lien of the Court on this
judgment to answer for the unpaid docket fees considering that the plaintiff in this case instituted this
action as a pauper litigant.’"2

While the trial court gave credence to the claim of Scalzo and the evidence presented by him that he
was a diplomatic agent entitled to immunity as such, it ruled that he, nevertheless, should be held
accountable for the acts complained of committed outside his official duties. On appeal, the Court of
Appeals reversed the decision of the trial court and sustained the defense of Scalzo that he was
sufficiently clothed with diplomatic immunity during his term of duty and thereby immune from the
criminal and civil jurisdiction of the "Receiving State" pursuant to the terms of the Vienna
Convention.

Hence, this recourse by Minucher. The instant petition for review raises a two-fold issue: (1) whether
or not the doctrine of conclusiveness of judgment, following the decision rendered by this Court in
G.R. No. 97765, should have precluded the Court of Appeals from resolving the appeal to it in an
entirely different manner, and (2) whether or not Arthur Scalzo is indeed entitled to diplomatic
immunity.

The doctrine of conclusiveness of judgment, or its kindred rule of res judicata, would require 1) the
finality of the prior judgment, 2) a valid jurisdiction over the subject matter and the parties on the part
of the court that renders it, 3) a judgment on the merits, and 4) an identity of the parties, subject
matter and causes of action.3 Even while one of the issues submitted in G.R. No. 97765 - "whether or
not public respondent Court of Appeals erred in ruling that private respondent Scalzo is a diplomat
immune from civil suit conformably with the Vienna Convention on Diplomatic Relations" - is also a
pivotal question raised in the instant petition, the ruling in G.R. No. 97765, however, has not
resolved that point with finality. Indeed, the Court there has made this observation -

"It may be mentioned in this regard that private respondent himself, in his Pre-trial Brief filed on 13
June 1990, unequivocally states that he would present documentary evidence consisting of DEA
records on his investigation and surveillance of plaintiff and on his position and duties as DEA
special agent in Manila. Having thus reserved his right to present evidence in support of his position,
which is the basis for the alleged diplomatic immunity, the barren self-serving claim in the belated
motion to dismiss cannot be relied upon for a reasonable, intelligent and fair resolution of the issue
of diplomatic immunity."4

Scalzo contends that the Vienna Convention on Diplomatic Relations, to which the Philippines is a
signatory, grants him absolute immunity from suit, describing his functions as an agent of the United
States Drugs Enforcement Agency as "conducting surveillance operations on suspected drug
dealers in the Philippines believed to be the source of prohibited drugs being shipped to the U.S.,
(and) having ascertained the target, (he then) would inform the Philippine narcotic agents (to) make
the actual arrest." Scalzo has submitted to the trial court a number of documents -

1. Exh. '2' - Diplomatic Note No. 414 dated 29 May 1990;

2. Exh. '1' - Certification of Vice Consul Donna K. Woodward dated 11 June 1990;

3. Exh. '5' - Diplomatic Note No. 757 dated 25 October 1991;

4. Exh. '6' - Diplomatic Note No. 791 dated 17 November 1992; and

5. Exh. '7' - Diplomatic Note No. 833 dated 21 October 1988.

6. Exh. '3' - 1st Indorsement of the Hon. Jorge R. Coquia, Legal Adviser, Department of
Foreign Affairs, dated 27 June 1990 forwarding Embassy Note No. 414 to the Clerk of Court
of RTC Manila, Branch 19 (the trial court);

7. Exh. '4' - Diplomatic Note No. 414, appended to the 1st Indorsement (Exh. '3'); and

8. Exh. '8' - Letter dated 18 November 1992 from the Office of the Protocol, Department of
Foreign Affairs, through Asst. Sec. Emmanuel Fernandez, addressed to the Chief Justice of
this Court.5

The documents, according to Scalzo, would show that: (1) the United States Embassy accordingly
advised the Executive Department of the Philippine Government that Scalzo was a member of the
diplomatic staff of the United States diplomatic mission from his arrival in the Philippines on 14
October 1985 until his departure on 10 August 1988; (2) that the United States Government was firm
from the very beginning in asserting the diplomatic immunity of Scalzo with respect to the case
pursuant to the provisions of the Vienna Convention on Diplomatic Relations; and (3) that the United
States Embassy repeatedly urged the Department of Foreign Affairs to take appropriate action to
inform the trial court of Scalzo’s diplomatic immunity. The other documentary exhibits were
presented to indicate that: (1) the Philippine government itself, through its Executive Department,
recognizing and respecting the diplomatic status of Scalzo, formally advised the "Judicial
Department" of his diplomatic status and his entitlement to all diplomatic privileges and immunities
under the Vienna Convention; and (2) the Department of Foreign Affairs itself authenticated
Diplomatic Note No. 414. Scalzo additionally presented Exhibits "9" to "13" consisting of his reports
of investigation on the surveillance and subsequent arrest of Minucher, the certification of the Drug
Enforcement Administration of the United States Department of Justice that Scalzo was a special
agent assigned to the Philippines at all times relevant to the complaint, and the special power of
attorney executed by him in favor of his previous counsel6 to show (a) that the United States
Embassy, affirmed by its Vice Consul, acknowledged Scalzo to be a member of the diplomatic staff
of the United States diplomatic mission from his arrival in the Philippines on 14 October 1985 until
his departure on 10 August 1988, (b) that, on May 1986, with the cooperation of the Philippine law
enforcement officials and in the exercise of his functions as member of the mission, he investigated
Minucher for alleged trafficking in a prohibited drug, and (c) that the Philippine Department of
Foreign Affairs itself recognized that Scalzo during his tour of duty in the Philippines (14 October
1985 up to 10 August 1988) was listed as being an Assistant Attaché of the United States diplomatic
mission and accredited with diplomatic status by the Government of the Philippines. In his Exhibit
12, Scalzo described the functions of the overseas office of the United States Drugs Enforcement
Agency, i.e., (1) to provide criminal investigative expertise and assistance to foreign law enforcement
agencies on narcotic and drug control programs upon the request of the host country, 2) to establish
and maintain liaison with the host country and counterpart foreign law enforcement officials, and 3)
to conduct complex criminal investigations involving international criminal conspiracies which affect
the interests of the United States.
The Vienna Convention on Diplomatic Relations was a codification of centuries-old customary law
and, by the time of its ratification on 18 April 1961, its rules of law had long become stable. Among
the city states of ancient Greece, among the peoples of the Mediterranean before the establishment
of the Roman Empire, and among the states of India, the person of the herald in time of war and the
person of the diplomatic envoy in time of peace were universally held sacrosanct.7 By the end of the
16th century, when the earliest treatises on diplomatic law were published, the inviolability of
ambassadors was firmly established as a rule of customary international law.8 Traditionally, the
exercise of diplomatic intercourse among states was undertaken by the head of state himself, as
being the preeminent embodiment of the state he represented, and the foreign secretary, the official
usually entrusted with the external affairs of the state. Where a state would wish to have a more
prominent diplomatic presence in the receiving state, it would then send to the latter a diplomatic
mission. Conformably with the Vienna Convention, the functions of the diplomatic mission involve, by
and large, the representation of the interests of the sending state and promoting friendly relations
with the receiving state.9

The Convention lists the classes of heads of diplomatic missions to include (a) ambassadors or
nuncios accredited to the heads of state,10 (b) envoys,11 ministers or internuncios accredited to the
heads of states; and (c) charges d' affairs12 accredited to the ministers of foreign affairs.13 Comprising
the "staff of the (diplomatic) mission" are the diplomatic staff, the administrative staff and the
technical and service staff. Only the heads of missions, as well as members of the diplomatic staff,
excluding the members of the administrative, technical and service staff of the mission, are accorded
diplomatic rank. Even while the Vienna Convention on Diplomatic Relations provides for immunity to
the members of diplomatic missions, it does so, nevertheless, with an understanding that the same
be restrictively applied. Only "diplomatic agents," under the terms of the Convention, are vested with
blanket diplomatic immunity from civil and criminal suits. The Convention defines "diplomatic agents"
as the heads of missions or members of the diplomatic staff, thus impliedly withholding the same
privileges from all others. It might bear stressing that even consuls, who represent their respective
states in concerns of commerce and navigation and perform certain administrative and notarial
duties, such as the issuance of passports and visas, authentication of documents, and
administration of oaths, do not ordinarily enjoy the traditional diplomatic immunities and privileges
accorded diplomats, mainly for the reason that they are not charged with the duty of representing
their states in political matters. Indeed, the main yardstick in ascertaining whether a person is a
diplomat entitled to immunity is the determination of whether or not he performs duties of diplomatic
nature.

Scalzo asserted, particularly in his Exhibits "9" to "13," that he was an Assistant Attaché of the
United States diplomatic mission and was accredited as such by the Philippine Government. An
attaché belongs to a category of officers in the diplomatic establishment who may be in charge of its
cultural, press, administrative or financial affairs. There could also be a class of attaches belonging
to certain ministries or departments of the government, other than the foreign ministry or department,
who are detailed by their respective ministries or departments with the embassies such as the
military, naval, air, commercial, agricultural, labor, science, and customs attaches, or the like.
Attaches assist a chief of mission in his duties and are administratively under him, but their main
function is to observe, analyze and interpret trends and developments in their respective fields in the
host country and submit reports to their own ministries or departments in the home
government.14 These officials are not generally regarded as members of the diplomatic mission, nor
are they normally designated as having diplomatic rank.

In an attempt to prove his diplomatic status, Scalzo presented Diplomatic Notes Nos. 414, 757 and
791, all issued post litem motam, respectively, on 29 May 1990, 25 October 1991 and 17 November
1992. The presentation did nothing much to alleviate the Court's initial reservations in G.R. No.
97765, viz:

"While the trial court denied the motion to dismiss, the public respondent gravely abused its
discretion in dismissing Civil Case No. 88-45691 on the basis of an erroneous assumption that
simply because of the diplomatic note, the private respondent is clothed with diplomatic immunity,
thereby divesting the trial court of jurisdiction over his person.

"x x x x x x x x x

"And now, to the core issue - the alleged diplomatic immunity of the private respondent. Setting
aside for the moment the issue of authenticity raised by the petitioner and the doubts that surround
such claim, in view of the fact that it took private respondent one (1) year, eight (8) months and
seventeen (17) days from the time his counsel filed on 12 September 1988 a Special Appearance
and Motion asking for a first extension of time to file the Answer because the Departments of State
and Justice of the United States of America were studying the case for the purpose of determining
his defenses, before he could secure the Diplomatic Note from the US Embassy in Manila, and even
granting for the sake of argument that such note is authentic, the complaint for damages filed by
petitioner cannot be peremptorily dismissed.
 "x x x x x x x x x

"There is of course the claim of private respondent that the acts imputed to him were done in his
official capacity. Nothing supports this self-serving claim other than the so-called Diplomatic Note. x
x x. The public respondent then should have sustained the trial court's denial of the motion to
dismiss. Verily, it should have been the most proper and appropriate recourse. It should not have
been overwhelmed by the self-serving Diplomatic Note whose belated issuance is even suspect and
whose authenticity has not yet been proved. The undue haste with which respondent Court yielded
to the private respondent's claim is arbitrary."

A significant document would appear to be Exhibit No. 08, dated 08 November 1992, issued by the
Office of Protocol of the Department of Foreign Affairs and signed by Emmanuel C. Fernandez,
Assistant Secretary, certifying that "the records of the Department (would) show that Mr. Arthur W.
Scalzo, Jr., during his term of office in the Philippines (from 14 October 1985 up to 10 August 1988)
was listed as an Assistant Attaché of the United States diplomatic mission and was, therefore,
accredited diplomatic status by the Government of the Philippines." No certified true copy of such
"records," the supposed bases for the belated issuance, was presented in evidence.

Concededly, vesting a person with diplomatic immunity is a prerogative of the executive branch of
the government. In World Health Organization vs. Aquino,15 the Court has recognized that, in such
matters, the hands of the courts are virtually tied. Amidst apprehensions of indiscriminate and
incautious grant of immunity, designed to gain exemption from the jurisdiction of courts, it should
behoove the Philippine government, specifically its Department of Foreign Affairs, to be most
circumspect, that should particularly be no less than compelling, in its post litem motam issuances. It
might be recalled that the privilege is not an immunity from the observance of the law of the territorial
sovereign or from ensuing legal liability; it is, rather, an immunity from the exercise of territorial
jurisdiction.16 The government of the United States itself, which Scalzo claims to be acting for, has
formulated its standards for recognition of a diplomatic agent. The State Department policy is to only
concede diplomatic status to a person who possesses an acknowledged diplomatic title and
"performs duties of diplomatic nature."17 Supplementary criteria for accreditation are the possession
of a valid diplomatic passport or, from States which do not issue such passports, a diplomatic note
formally representing the intention to assign the person to diplomatic duties, the holding of a non-
immigrant visa, being over twenty-one years of age, and performing diplomatic functions on an
essentially full-time basis.18 Diplomatic missions are requested to provide the most accurate and
descriptive job title to that which currently applies to the duties performed. The Office of the Protocol
would then assign each individual to the appropriate functional category.19

But while the diplomatic immunity of Scalzo might thus remain contentious, it was sufficiently
established that, indeed, he worked for the United States Drug Enforcement Agency and was tasked
to conduct surveillance of suspected drug activities within the country on the dates pertinent to this
case. If it should be ascertained that Arthur Scalzo was acting well within his assigned functions
when he committed the acts alleged in the complaint, the present controversy could then be
resolved under the related doctrine of State Immunity from Suit.

The precept that a State cannot be sued in the courts of a foreign state is a long-standing rule
of customary international law then closely identified with the personal immunity of a foreign
sovereign from suit20 and, with the emergence of democratic states, made to attach not just to the
person of the head of state, or his representative, but also distinctly to the state itself in its sovereign
capacity.21 If the acts giving rise to a suit are those of a foreign government done by its foreign agent,
although not necessarily a diplomatic personage, but acting in his official capacity, the complaint
could be barred by the immunity of the foreign sovereign from suit without its consent. Suing a
representative of a state is believed to be, in effect, suing the state itself. The proscription is not
accorded for the benefit of an individual but for the State, in whose service he is, under the maxim -
par in parem, non habet imperium - that all states are sovereign equals and cannot assert
jurisdiction over one another.22 The implication, in broad terms, is that if the judgment against an
official would require the state itself to perform an affirmative act to satisfy the award, such as the
appropriation of the amount needed to pay the damages decreed against him, the suit must be
regarded as being against the state itself, although it has not been formally impleaded.23

In United States of America vs. Guinto,24 involving officers of the United States Air Force and special
officers of the Air Force Office of Special Investigators charged with the duty of preventing the
distribution, possession and use of prohibited drugs, this Court has ruled -

"While the doctrine (of state immunity) appears to prohibit only suits against the state without its
consent, it is also applicable to complaints filed against officials of the state for acts allegedly
performed by them in the discharge of their duties. x x x. It cannot for a moment be imagined that
they were acting in their private or unofficial capacity when they apprehended and later testified
against the complainant. It follows that for discharging their duties as agents of the United States,
they cannot be directly impleaded for acts imputable to their principal, which has not given its
consent to be sued. x x x As they have acted on behalf of the government, and within the scope of
their authority, it is that government, and not the petitioners personally, [who were] responsible for
their acts."25

This immunity principle, however, has its limitations. Thus, Shauf vs. Court of Appeals26 elaborates:

"It is a different matter where the public official is made to account in his capacity as such for acts
contrary to law and injurious to the rights of the plaintiff. As was clearly set forth by Justice Zaldivar
in Director of the Bureau of Telecommunications, et al., vs. Aligaen, et al. (33 SCRA 368):
`Inasmuch as the State authorizes only legal acts by its officers, unauthorized acts of government
officials or officers are not acts of the State, and an action against the officials or officers by one
whose rights have been invaded or violated by such acts, for the protection of his rights, is not a suit
against the State within the rule of immunity of the State from suit. In the same tenor, it has been
said that an action at law or suit in equity against a State officer or the director of a State department
on the ground that, while claiming to act for the State, he violates or invades the personal and
property rights of the plaintiff, under an unconstitutional act or under an assumption of authority
which he does not have, is not a suit against the State within the constitutional provision that the
State may not be sued without its consent. The rationale for this ruling is that the doctrine of state
immunity cannot be used as an instrument for perpetrating an injustice.

"x x x x x x x x x

"(T)he doctrine of immunity from suit will not apply and may not be invoked where the public official
is being sued in his private and personal capacity as an ordinary citizen. The cloak of protection
afforded the officers and agents of the government is removed the moment they are sued in their
individual capacity. This situation usually arises where the public official acts without authority or in
excess of the powers vested in him. It is a well-settled principle of law that a public official may be
liable in his personal private capacity for whatever damage he may have caused by his act done with
malice and in bad faith or beyond the scope of his authority and jurisdiction."27

A foreign agent, operating within a territory, can be cloaked with immunity from suit but only as long
as it can be established that he is acting within the directives of the sending state. The consent of
the host state is an indispensable requirement of basic courtesy between the two sovereigns. Guinto
and Shauf both involve officers and personnel of the United States, stationed within Philippine
territory, under the RP-US Military Bases Agreement. While evidence is wanting to show any similar
agreement between the governments of the Philippines and of the United States (for the latter to
send its agents and to conduct surveillance and related activities of suspected drug dealers in the
Philippines), the consent or imprimatur of the Philippine government to the activities of the United
States Drug Enforcement Agency, however, can be gleaned from the facts heretofore elsewhere
mentioned. The official exchanges of communication between agencies of the government of the
two countries, certifications from officials of both the Philippine Department of Foreign Affairs and the
United States Embassy, as well as the participation of members of the Philippine Narcotics
Command in the "buy-bust operation" conducted at the residence of Minucher at the behest of
Scalzo, may be inadequate to support the "diplomatic status" of the latter but they give enough
indication that the Philippine government has given its imprimatur, if not consent, to the activities
within Philippine territory of agent Scalzo of the United States Drug Enforcement Agency. The job
description of Scalzo has tasked him to conduct surveillance on suspected drug suppliers and, after
having ascertained the target, to inform local law enforcers who would then be expected to make the
arrest. In conducting surveillance activities on Minucher, later acting as the poseur-buyer during the
buy-bust operation, and then becoming a principal witness in the criminal case against Minucher,
Scalzo hardly can be said to have acted beyond the scope of his official function or duties.

All told, this Court is constrained to rule that respondent Arthur Scalzo, an agent of the United States
Drug Enforcement Agency allowed by the Philippine government to conduct activities in the country
to help contain the problem on the drug traffic, is entitled to the defense of state immunity from suit.

WHEREFORE, on the foregoing premises, the petition is DENIED. No costs.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio and Azcuna, JJ., concur

Footnotes

1
Rollo, pp. 39-42.

2
Rollo. p. 51.
3
Linzag vs. CA, 291 SCRA 304.

4
Minucher vs. Court of Appeals, 214 SCRA 242.

5
For documentary Exhibits Nos. 1-8, see Rollo, pp. 143-155.

6
For Documentary Exhibits Nos. 9-13, See Rollo, pp. 156-168.

Eileen Denza, "Diplomatic Law, A Commentary on the Vienna Convention on Diplomatic

7

Relations," 2nd Edition, Claredon Press, Oxford, 1998, at 210.

8
Ibid.

9
Article 3 of the Vienna Convention enumerates the functions of the diplomatic mission as

(a) representing the sending State in the receiving State;

(b) protecting in the receiving State the interests of the sending State and of its
nationals, within the limits permitted by international law;

(c) negotiating with the Government of the receiving State;

(d) ascertaining by all lawful means conditions and developments in the receiving
State, and reporting thereon to the Government of the sending State;

(e) promoting friendly relations between the sending State and the receiving State,
and developing their economic, cultural and scientific relations.

Ambassadors are diplomatic agents of the first class, who deal, as a rule with the Minister
10

of Foreign Affairs or the Secretary of State, as the case may be. (Melquiades J. Gamboa,
"Elements of Diplomatic and Consular Practice, A Glossary," Central Lawbook Publishing,
Co., 1966, p. 19.)

Envoys are diplomatic agents of the second class. This is the title of the head of legation as
11

distinguished from an embassy, the head of which is called Ambassador Extraordinary and
Plenipotentiary. Like the Ambassador, the envoy is also accredited to the Head of State.
(Gamboa, p. 190.)

12
Charges d' Affairs are either en titre or ad interim. Charges d' Affairs en titre are appointed
on a permanent basis and belong to the fourth class of diplomatic envoys, the other three
being ambassadors, ministers plenipotentiary and envoys extraordinary, and ministers
resident. He is the head of the legation in his own right and is not accredited to the head of
State but to the foreign office. According to Radloric, charges d' affairs are sometimes used
to described a person who has been placed in custody of the archives and other property of
a mission in a country with which formal diplomatic relations are not maintained. Charges d'
affairs ad interim, in contrast are usually those second in command of the diplomatic mission
– minister, counselor or first secretary, who are only temporarily in charge of the mission
during the absence of the head of the mission. He is not accredited either to the Head of
State or the Foreign Office. (Gamboa, Ibid., pp. 51-52.)

The classification of diplomatic representatives was considered significant before because

13

direct communication with the head of state depended on the rank of the diplomat and,
moreover, only powerful states were regarded as entitled to send envoys of the highest rank.
At present however, diplomatic matters are usually discussed not with the head of state but
with the foreign secretary regardless of the diplomat's rank. Moreover, it has become the
practice now for even the smallest and the weakest states to send diplomatic representatives
of the highest rank, even to the major powers. (Cruz, International Law, 1985 Edition, p.
145.)

14
Gamboa, supra., pp. 32-33.

15
48 SCRA 242.

16
J.L. Brierly, "The Law of Nations," Oxford University Press, 6th Edition, 1963, p. 244.

17
Denza, supra., at 16.

18
Ibid.
19
Ibid., at 55.

Charles G. Fenwick, "International Law," Appleton-Century-Crofts, Inc., New York, 1948, p.

20

307-308.

The international law on sovereign immunity of states from suit in the courts of another
21

state has evolved from national court decisions with good deal of variance in perspectives.
Even though national cases have been the major source of pronouncements on sovereign
immunity, it should be noted that these constitute evidence of customary international law
now widely recognized. In the latter half of the 20th century, a great deal of consensus on
what is covered by sovereign immunity appears to be emerging, i.e., that state immunity
covers only acts which deal with the government functions of a state, and excludes, any of its
commercial activities, or activities not related to "sovereign acts." The consensus involves a
more defined differentiation between public acts (juri imperii) and private acts (jure gestionis).
(Gary L. Maris, "International Law, An Introduction," University Press of America, 1984, p.
119; D.W. Grieg, "International Law," London Butterworths, 1970, p. 221.)

The United States for example, does not claim immunity for its publicly owned or
operated merchant vessels. The Italian courts have rejected claims of immunity from
the US Shipping Board, although a state body, as it could not be identified with the
American government on the ground that undertaking maritime navigation and
business as a commercial enterprise do not constitute a sovereign act. (D.W. Grieg,
"International Law," London Butterworths, 1970, p. 221.)

22
See Schooner Exchange vs. McFaddon, 7 Cranch 116 (1812), cited in Charles G. Fenwick,
"International Law," New York, 3rd Edition (1948), p. 307.

23
United States of America, et al. vs. Guinto, etc., et al., G.R. No. 76607, 26 February 1990.

24
182 SCRA 644.

25
At pp. 653-659.

26
191 SCRA 713

27
At pp. 727-728.
 FIRST DIVISION

G.R. No. 125865 January 28, 2000

JEFFREY LIANG (HUEFENG), petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

YNARES-SANTIAGO, J.:

Petitioner is an economist working with the Asian Development Bank (ADB). Sometime in 1994, for
allegedly uttering defamatory words against fellow ADB worker Joyce Cabal, he was charged before
the Metropolitan Trial Court (MeTC) of Mandaluyong City with two counts of grave oral defamation
docketed as Criminal Cases Nos. 53170 and 53171. Petitioner was arrested by virtue of a warrant
issued by the MeTC. After fixing petitioner's bail at P2,400.00 per criminal charge, the MeTC
released him to the custody of the Security Officer of ADB. The next day, the MeTC judge received
an "office of protocol" from the Department of Foreign Affairs (DFA) stating that petitioner is covered
by immunity from legal process under Section 45 of the Agreement between the ADB and the
Philippine Government regarding the Headquarters of the ADB (hereinafter Agreement) in the
country. Based on the said protocol communication that petitioner is immune from suit, the MeTC
judge without notice to the prosecution dismissed the two criminal cases. The latter filed a motion for
reconsideration which was opposed by the DFA. When its motion was denied, the prosecution filed a
petition for certiorari and mandamus with the Regional Trial Court (RTC) of Pasig City which set
aside the MeTC rulings and ordered the latter court to enforce the warrant of arrest it earlier issued.
After the motion for reconsideration was denied, petitioner elevated the case to this Court via a
petition for review arguing that he is covered by immunity under the Agreement and that no
preliminary investigation was held before the criminal cases were filed in court. 1âw phi 1. nêt

The petition is not impressed with merit.

First, courts cannot blindly adhere and take on its face the communication from the DFA that
petitioner is covered by any immunity. The DFA's determination that a certain person is covered by
immunity is only preliminary which has no binding effect in courts. In receiving ex-parte the DFA's
advice and in motu propio dismissing the two criminal cases without notice to the prosecution, the
latter's right to due process was violated. It should be noted that due process is a right of the
accused as much as it is of the prosecution. The needed inquiry in what capacity petitioner was
acting at the time of the alleged utterances requires for its resolution evidentiary basis that has yet to
be presented at the proper time.1 At any rate, it has been ruled that the mere invocation of the
immunity clause does not ipso facto result in the dropping of the charges.2

Second, under Section 45 of the Agreement which provides:

Officers and staff of the Bank including for the purpose of this Article experts and consultants
performing missions for the Bank shall enjoy the following privileges and immunities:

a.) immunity from legal process with respect to acts performed by them in their
official capacity except when the Bank waives the immunity.

the immunity mentioned therein is not absolute, but subject to the exception that the acts was done
in "official capacity." It is therefore necessary to determine if petitioner's case falls within the ambit of
Section 45(a). Thus, the prosecution should have been given the chance to rebut the DFA protocol
and it must be accorded the opportunity to present its controverting evidence, should it so desire.

Third, slandering a person could not possibly be covered by the immunity agreement because our
laws do not allow the commission of a crime, such as defamation, in the name of official duty.3 The
imputation of theft is ultra vires and cannot be part of official functions. It is well-settled principle of
law that a public official may be liable in his personal private capacity for whatever damage he may
have caused by his act done with malice or in bad faith or beyond the scope of his authority or
jurisdiction.4 It appears that even the government's chief legal counsel, the Solicitor General, does
not support the stand taken by petitioner and that of the DFA.
Fourth, under the Vienna Convention on Diplomatic Relations, a diplomatic agent, assuming
petitioner is such, enjoys immunity from criminal jurisdiction of the receiving state except in the case
of an action relating to any professional or commercial activity exercised by the diplomatic agent in
the receiving state outside his official functions.5 As already mentioned above, the commission of a
crime is not part of official duty.

Finally, on the contention that there was no preliminary investigation conducted, suffice it to say that
preliminary investigation is not a matter of right in cases cognizable by the MeTC such as the one at
bar.6 Being purely a statutory right, preliminary investigation may be invoked only when specifically
granted by law.7 The rule on the criminal procedure is clear that no preliminary investigation is
required in cases falling within the jurisdiction of the MeTC.8 Besides the absence of preliminary
investigation does not affect the court's jurisdiction nor does it impair the validity of the information or
otherwise render it defective.9

WHEREFORE, the petition is DENIED.

SO ORDERED. 1âw phi 1.nêt

Davide, Jr., C.J., Puno, Kapunan and Pardo, JJ., concur.

Footnotes

1
See United States v. Guinto, 182 SCRA 644 [1990].

2
Chavez v. Sandiganbayan, 193 SCRA 282 [1991].

3
K.H. Wylie v. Rarang, 209 SCRA 357, 368 [1992].

4
Shauf v. CA, 191 SCRA 713 [1990]; Animos v. Phil. Veterans Affairs Office, 174 SCRA 214
[1989]; Dumlao v. CA, 114 SCRA 247 [1982].

5
Sec. 31, 1 (c); See also Minucher v. CA, 214 SCRA 242 [1992].

6
See Del Rosario, Jr. v. Bartolome, 270 SCRA 645 [1997].

7
People v. Abejuela, 38 SCRA 324 [1971].

8
Sec. 1, Rule 112, Rules of Criminal Procedure.

9
People v. Gomez, 117 SCRA 72 [1982]; People v. Casiano, 1 SCRA 478 [1961].
 EN BANC

December 5, 2017

G.R. No. 217874

OPHELIA HERNAN, Petitioner,

vs.
THE HONORABLE SANDIGANBAYAN,, Respondent

DECISION

PERALTA, J.:

Before the Court is a special civil action for certiorari under Rule 65 of the Rules of Court seeking to
reverse and set aside the Resolution1 dated February 2, 2015 and Decision2 dated November 13,
2009 of the Sandiganbayan 2nd Division which affirmed, with modification, the Decision dated June
28, 2002 of the Regional Trial Court (RTC), Branch 7, Baguio City convicting petitioner of the crime
of malversation of public funds in Criminal Case No. 15722-R.

The antecedent facts are as follows:

In October 1982, petitioner Ophelia Hernan joined the Department of Transportation and
Communication (DOTC), Cordillera Administrative Region (CAR) in Baguio City wherein she served
as an accounting clerk. In September 1984, she was promoted to the position of Supervising Fiscal
Clerk by virtue of which she was designated as cashier, disbursement and collection officer.3 As
such, petitioner received cash and other collections from customers and clients for the payment of
telegraphic transfers, toll foes, and special message fees. The collections she received were
deposited at the bank account of the DOTC at the Land Bank of the Philippines (LBP), Baguio City
Branch.4

On December 17, 1996, Maria Imelda Lopez, an auditor of the Commission on

Audit (COA), conducted a cash examination of the accounts handled by petitioner as instructed by
her superior, Sherelyn Narag. As a result, Lopez came across deposit slips dated September 19,
1996 and November 29, 1996 bearing the amounts of ₱11,300.00 and ₱81,348.20,
rcspectively.5 Upon close scrutiny, she noticed that said deposit slips did not bear a stamp of receipt
by the LBP nor was it machine validated. Suspicious about what she found, she and Narag verified
all the reports and other documents turned-over to them by petitioner.6 On the basis of said findings,
Narag sent a letter to the LBP to confirm the remittances made by petitioner. After adding all the
deposits made and upon checking with the teller's blotter, Nadelline Orallo, the resident auditor of
LBP, found that no deposits were made by petitioner for the account of DOTC on September 19,
1996 for the amount of ₱11,300.00 and November 29, 1996 for the amount of ₱81,340.20.7

Thereafter, the LBP's officer-in-charge, Rebecca R. Sanchez, instructed the bank's teller, Catalina
Ngaosi, to conduct their own independent inquiry. It was discovered that on September 19, 1996, the
only deposit in favor of the DOTC was that made by its Ifugao office in the Lagawe branch of the
LBP.8 This prompted Lopez to write to petitioner informing her that the two (2) aforesaid remittances
were not acknowledged by the bank. The auditors then found that petitioner duly accounted for the
₱81,348.20 remittance but not for the ₱11,300.00. Dissatisfied with petitioner's explanation as to the
whereabouts of the said remittance, Narag reported the matter to the COA Regional Director who, in
turn wrote to the LBP for confirmation. The LBP then denied receiving any ₱11,300.00 deposit on
September 19, 1996 from petitioner for the account of the DOTC.9 Thus, the COA demanded that
she pay the said amount. Petitioner, however, refused. Consequently, the COA filed a complaint for
malversation of public funds against petitioner with the Office of the Ombudsman for Luzon which,
after due investigation, recommended her indictment for the loss of ₱11,300.00.10 Accordingly,
petitioner was charged before the RTC of Baguio City in an Information, the accusatory portion of
which reads:

That on or about September 16, 1996, or sometime prior or subsequent thereto, in the City of
Baguio, Philippines, and within the jurisdiction of this Honourable Court, the above-named accused,
a public officer, being then the Disbursing Officer of the Department of Transportation and
Communications, Baguio City, and as such an accountable officer, entrusted with and responsible
for the amount of ₱1 1,300.00 which accused received and collected for the DOTC, and intended for
deposit under the account of DOTC with the Land Bank of the Philippines-Baguio City, by reason of
her position, while in the performance of her official functions, taking advantage of her position, did
then and there, wilfully, feloniously, and unlawfully misappropriate or consent, or through
abandonment or negligence, permit other persons to take such amount of ₱11,300.00 to the
damage and prejudice of the government.

CONTRARY TO LAW.11

Upon arraignment on July 31, 1998, petitioner pleaded not guilty to the offense charged. Hence, trial
on the merits ensued.

To establish its case, the prosecution presented the testimonies of two (2) COA auditors, namely,
Maria Lopez and Sherelyn Narag as well as three (3) LBP employees, namely, Rebecca Sanchez,
Catalina Ngaosi, and Nadelline Orallo.12 In response, the defense presented the lone testimony of
petitioner, which can be summarized as follows:

On September 19, 1996, petitioner and her supervisor, Cecilia Paraiso, went to the LBP Baguio
branch and personally deposited the exact amount of ₱11,300.00 with accomplished deposit slips in
six (6) copies.13 Since there were many clients who came ahead of her, she decided to go with her
usual arrangement of leaving the money with the teller and telling her that she would just come back
to retrieve the deposit slip. Thus, she handed the money to Teller No. 2, whom she identified as
Catalina Ngaosi. Upon her return at around 3 o'clock in the afternoon, she retrieved four (4) copies
of the deposit slip from Ngaosi. She noticed that the same had no acknowledgment mark on it. Being
contented with the initials of the teller on the deposit slips, she returned to her office and kept them
in her vault. It was only during the cash count conducted by auditor Lopez when she found out that
the said amount was not remitted to the account of the LBP. When demand was made on her to
return the amount, she requested that she be allowed to pay only after investigation of a complaint of
Estafa that she would file with the National Bureau of Investigation against some personnel of the
bank, particularly Catalina Ngaosi.14 The complaint, however, was eventually dismissed.15

After trial, the RTC found petitioner guilty beyond reasonable doubt of the crime charged in the
Information. The dispositive portion of the decision states:

WHEREFORE, in view of all the foregoing, judgment is hereby rendered convicting accused Ophelia
Hernan of Malversation and hereby sentences her, after applying the Indeterminate Sentence Law,
to suffer imprisonment from 7 years, 4 months, and 1 day of prision mayor medium period, as
minimum, to 11 years, 6 months and 21 days of prision mayor as maximum period to reclusion
temporal maximum period, as maximum, and to pay a fine of ₱11,300.00.

Accused Ophelia Hernan is further sentenced to suffer the penalty of perpetual special
disqualification.

Likewise, accused Ophelia Hernan is hereby ordered to pay back to the government the amount of
₱11,300.00 plus legal interest thereon at the rate of 12% per annum to be computed from the date of
the filing of the Information up to the time the same is actually paid.

Costs against the accused.

SO ORDERED.16

Erroneously, petitioner appealed to the Court of Appeals (CA), which affirmed her conviction but
modified the penalty imposed. Upon motion, however, the CA set aside its decision on the finding
that it has no appellate jurisdiction over the case. Instead, it is the Sandiganbayan which has
exclusive appellate jurisdiction over petitioner occupying a position lower than Salary Grade
27.17 Petitioner's new counsel, Atty. Leticia Gutierrez Hayes-Allen, then appealed the case to the
Sandiganbayan. In a Decision dated November 13, 2009, the Sandiganbayan affirmed the RTC's
judgment of conviction but modified the penalty imposed, the dispositive opinion of which reads:

WHEREFORE, in view of all the foregoing, the appealed decision is hereby AFFIRMED, with the
modifications that the indeterminate penalty to be imposed on the accused should be from 6 years
and 1 day of prision mayor as minimum, to 11 years, 6 months, and 21 days of prision mayor as
maximum, together with the accessory penalties under Article 42 of the Revised Penal Code, and
that interest of only 6% shall be imposed on the amount of ₱11,300.00 to be restored by the
accused.

SO ORDERED.18
Petitioner filed a Motion for Reconsideration dated December 21, 2009 alleging that during the trial
before the RTC, her counsel was unable to elicit many facts which would show her innocence. Said
counsel principally failed to present certain witnesses and documents that would supposedly acquit
her from the crime charged. The Sandiganbayan, however, denied the motion in a Resolution dated
August 31, 2010 on the ground that evidence not formally offered before the court below cannot be
considered on appeal.19

On June 26, 2013, the Resolution denying petitioner's Motion for Reconsideration became final and
executory and was recorded in the Book of Entries of Judgments.20 On July 26, 2013, petitioner's
new counsel, Atty. Meshack Macwes, filed an Urgent Motion to Reopen the Case with Leave of
Court and with Prayer to Stay the Execution.21 In a Resolution22 dated December 4, 2013, however,
the Sandiganbayan denied the motion and directed the execution of the judgment of conviction. It
noted the absence of the following requisites for the reopening of a case: (1) the reopening must be
before finality of a judgment of conviction; (2) the order is issued by the judge on his own initiative or
upon motion; (3) the order is issued only after a hearing is conducted; (4) the order intends to
prevent a miscarriage of justice; and (5) the presentation of additional and/or further evidence should
be terminated within thirty (30) days from the issuance of the order.23

Unfazed, petitioner filed on January 9, 2014 a Petition for Reconsideration with Prayer for Recall of
Entry of Judgment in lieu of the Prayer for Stay of Execution of Judgment praying for a
reconsideration of the Sandiganbayan' s recent Resolution, that the case be reopened for further
reception of evidence, and the recall of the Entry of Judgment dated June 26, 2013.24 In a Resolution
dated February 2, 2015, the Sandiganbayan denied the petition for lack of merit. According to the
said court, the motion is clearly a third motion for reconsideration, which is a prohibited pleading
under the Rules of Court. Also, the grounds raised therein were merely a rehash of those raised in
the two previous motions. The claims that the accused could not contact her counsel on whom she
merely relied on for appropriate remedies to be filed on her behalf, and that she has additional
evidence to present, were already thoroughly discussed in the August 31, 2010 and December 4,
2013 Resolutions. Moreover, the cases relied upon by petitioner are not on point.25

On May 14, 2015, petitioner filed the instant petition invoking the following arguments:

I.

THE SANDIGANBA YAN GRAVELY ERRED AS IT ACTED WITH GRAVE ABUSE OF

DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN CONCLUDING THAT
THE MOTION TO REOPEN WAS FILED OUT OF TIME CONSIDERING TI-IE EXTRAORDINARY
AND EXCEPTIONAL CIRCUMSTANCES SURROUNDING THE CASE.

II.

THE SANDIGANBA YAN GRAVELY ERRED AS IT ACTED WITH GRAVE ABUSE OF

DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN FINDING THAT THE
EVIDENCE INTENDED TO BE PRESENTED BY PETITIONER SHOULD HER MOTTON FOR
REOPENING BE GRANTED, WAS PASSED UPON BY THE TRIAL COURT.

III.

THE SANDIGANBA YAN GRAVELY ERRED AS IT ACTED WITH GRAVE ABUSE OF

DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN PRONOUNCING THAT
THE MOTION TO REOPEN AND THE PETITION FOR RECONSIDERATION FILED BY
PETITIONER ARE CONSIDERED AS THE SECOND AND THIRD MOTIONS TO THE DENIAL OF
THE DECISION.

Petitioner posits that her counsel, Atty. Hayes-Allen, never received the August 31, 2010 Resolution
of the Sandiganbayan denying her Motion for Reconsideration. This is because notice thereof was
erroneously sent to said counsel's previous office at Poblacion, La Trinidad, Benguet, despite the
fact that it was specifically indicated in the Motion for Reconsideration that the new office is at the
Public Attorney's Office of Tayug, Pangasinan, following her counsel's appointment as public
attorney. Thus, since her counsel was not properly notified of the subject resolution, the entry of
judgment is premature.26 In support of her assertion, she cites Our ruling in People v.
Chavez,27 wherein We held that an entry of judgment without receipt of the resolution is premature.

Petitioner also claims that during trial, she could not obtain the necessary evidence for her defense
due to the fact that the odds were against her. Because of this, she asks the Court to relax the strict
application of the rules and consider remanding the case to the lower court for further reception of
evidence.28 In particular, petitioner seeks the reception of an affidavit of a certain John L. Ziganay, an
accountant at the Depaiiment of Science and Technology (DOST), who previously worked at the
DOTC and COA, as well as two (2) deposit slips. According to petitioner, these pieces of evidence
would show that the ₱11,300.00 deposited at the Lagawe branch of the LBP was actually the
deposit made by petitioner and not by a certain Lanie Cabacungan, as the prosecution suggests.
This is because the ₱11,300.00 deposit made by Cabacungan consists of two (2) different amounts,
which, if proper accounting procedure is followed, shall be recorded in the bank statement as two (2)
separate amounts and not their total sum of ₱11,300.00.29 Thus, the Sandiganbayan's denial of
petitioner's motion to reopen the case is capricious, despotic, and whimsical since the admission of
her additional evidence will prevent a miscarriage.

Finally, petitioner denies the Sandiganbayan's ruling that her motion to reopen and petition for
reconsideration are considered as a second and third motion for reconsideration, and are thus,
prohibited pleadings. This is because the additional evidence she seeks to introduce were not
available during the trial of her case.

The petition is devoid of merit.

At the outset, the Court notes that as pointed out by respondent Office of the Special Prosecutor,
petitioner's resort to a petition for certiorari under Rule 65 of the Rules of Court is an improper
remedy. In determining the appropriate remedy or remedies available, a party aggrieved by a cou1i
order, resolution or decision must first correctly identify the nature of the order, resolution or decision
he intends to assail.30 It bears stressing that the extraordinary remedy of certiorari can be availed of
only if there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of
law.31 If the Order or Resolution sought to be assailed is in the nature of a final order, the remedy of
the aggrieved party would be to file a petition for review on certiorari under Rule 45 of the Rules of
Court. Otherwise, the appropriate remedy would be to file a petition for certiorari under Rule
65.32 Petitioner, in the instant case, seeks to assail the Sandiganbayan's Resolutions dated
December 4, 2013 and February 2, 2015 wherein said court denied her motion to reopen the
malversation case against her. Said resolutions are clearly final orders that dispose the proceedings
completely. The instant petition for certiorari under Rule 65 is, therefore, improper.

Even if We assume the propriety of petitioner's chosen action, the Court still cannot grant the reliefs
she prays for, specifically: (1) the reversal of the Sandiganbayan's December 4, 2013 and February
2, 2015 Resolutions denying her motion to reopen and petition for reconsideration; (2) the reopening
of the case for further reception of evidence; and (3) the recall of the Entry of Judgment dated June
26, 2013.33

First of all, there is no merit in petitioner's claim that since her counsel was not properly notified of
the August 31, 2010 Resolution as notice thereof was erroneously sent to her old office address, the
entry of judgment is premature. As the Court sees it, petitioner has no one but herself to blame.
Time and again, the Court has held that in the absence of a proper and adequate notice to the court
of a change of address, the service of the order or resolution of a court upon the parties must be
made at the last address of their counsel on record.34 It is the duty of the party and his counsel to
device a system for the receipt of mail intended for them, just as it is the duty of the counsel to
inform the court officially of a change in his address.35 If counsel moves to another address without
informing the court of that change, such omission or neglect is inexcusable and will not stay the
finality of the decision. The court cannot be expected to take judicial notice of the new address of a
lawyer who has moved or to ascertain on its own whether or not the counsel of record has been
changed and who the new counsel could possibly be or where he probably resides or holds office.36

Here, it is undisputed that petitioner's counsel failed to inform the court of the change in her office
address from Poblacion, La Trinidad, Benguet, to the Public Attorney's Office in Tayug, Pangasinan.
The fact that said new address was indicated in petitioner's Motion for Reconsideration does not
suffice as "proper and adequate notice" to the court. As previously stated, courts cannot be expected
to take notice of every single time the counsel of a party changes address. Besides, it must be noted
that petitioner even expressly admitted having received the subject resolution "sometime in
September or October 2010."37 Easily, she could have informed her counsel of the same. As
respondent posits, it is not as if petitioner had no knowledge of the whereabouts of her counsel
considering that at the time of the filing of her Motion for Reconsideration, said counsel was already
with the PA0.38 Moreover, the Court cannot permit petitioner's reliance on the Chavez case because
there, petitioner did not receive the resolution of the Court of Appeals through no fault or negligence
on his paii.39 Here, however, petitioner's non-receipt of the subject resolution was mainly attributable
not only to her counsel's negligence but hers, as well. Thus, the Court deems it necessary to remind
litigants, who are represented by counsel, that they should not expect that all they need to do is sit
back, relax and await the outcome of their case. They should give the necessary assistance to their
counsel for what is at stake is their interest in the case. It is, therefore, their responsibility to check
the status of their case from time to time.40

To recall, petitioner, on December 21, 2009, filed her Motion for Reconsideration seeking a reversal
of the Sandiganbayan's November 13, 2009 Decision which affirmed the RTC's ruling convicting her
of the crime of malversation. In a Resolution dated August 31, 2010, the Sandiganbayan denied
petitioner's Motion for Reconsideration. Said resolution became final in the absence of any pleading
filed thereafter, and hence, was recorded in the Book of Entries of Judgments on June 26, 2013.
Subsequently, on July 12, 2013, petitioner, through her new counsel, filed an Urgent Motion to
Reopen the Case with Leave of Court and with Prayer to Stay the Execution, which was denied
through the Sandiganbayan's Resolution dated December 4, 2013.41 Undeterred, petitioner filed
her Petition for Reconsideration with Prayer for Recall of Entry of Judgment in lieu of the Prayer for
the Stay of Execution of Judgement on January 9, 2014 which was likewise denied in the
Sandiganbayan's February 2, 2015 Resolution.

It seems, therefore, that petitioner waited almost an entire three (3) year period from the denial of
her Motion for Reconsideration to act upon the malversation case against her through the filing of
her urgent motion to reopen. In fact, her filing of said motion may very well be prompted only by her
realization that the case has finally concluded by reason of the entry of judgment. Stated otherwise,
the Court is under the impression that had she not heard of the recording of the August 31, 2010
Resolution in the Book of Entries of Judgments on June 26, 2013, petitioner would not even have
inquired about the status of her case. As respondent puts it, the urgent motion to reopen appears to
have been filed as a substitute for the lost remedy of an appeal via a petition for review
on certiorari before the Court.42 On this inexcusable negligence alone, the Court finds sufficient basis
to deny the instant petition.

Second of all, petitioner's claim that the Sandiganbayan's denial of her motion to reopen the case is
capricious, despotic, and whimsical since the admission of her additional evidence will prevent a
miscarriage has no legal nor factual leg to stand on. Section 24, Rule 119 and existing jurisprudence
provide for the following requirements for the reopening a case: (l) the reopening must be before the
finality of a judgment of conviction; (2) the order is issued by the judge on his own initiative or upon
motion; (3) the order is issued only after a hearing is conducted; (4) the order intends to prevent a
miscarriage of justice; and (5) the presentation of additional and/or further evidence should be
terminated within thirty days from the issuance of the order.43

But as the Sandiganbayan ruled, the absence of the first requisite that the reopening must be before
the finality of a judgment of conviction already cripples the motion. The records of the case clearly
1âw phi 1

reveal that the August 3l, 2010 Resolution of the Sandiganbayan denying petitioner's Motion for
Reconsideration had already become final and executory and, in fact, was already recorded in the
Entry Book of Judgments on June 26, 2013. Moreover, petitioner's supposed predicament about her
former counsel failing to present witnesses and documents should have been advanced before the
trial court.44 It is the trial court, and neither the Sandiganbayan nor the Court, which receives
evidence and rules over exhibits formally offered.45 Thus, it was, indeed, too late in the day to
advance additional allegations for petitioner had all the opportunity to do so in the lower court. An
appellate court will generally not disturb the trial court's assessment of factual matters except only
when it clearly overlooked certain facts or where the evidence fails to substantiate the lower court's
findings or when the disputed decision is based on a misapprehension of facts.46

Ultimately, it bears stressing that the Court does not find that the Sandiganbayan acted in a
capricious, despotic, or whimsical manner when it denied petitioner's motion to reopen especially in
view of the fact that the rulings it seeks to refute are legally sound and appropriately based on the
evidences presented by the parties. On this score, the elements of malversation of public funds
under Article 217 of the Revised Penal Code (RPC) are: (1) that the offender is a public officer; (2)
that he had the custody or control of funds or property by reason of the duties of his office; (3) that
those funds or property were public funds or prope1iy for which he was accountable; and (4) that he
appropriated, took, misappropriated or consented or, through abandonment or negligence, permitted
another person to take them. This article establishes a presumption that when a public officer fails to
have duly forthcoming any public funds with which he is chargeable, upon demand by any duly
authorized officer, it shall be prima facie evidence that he has put such missing funds to personal
uses.47

As duly found by the trial court, and affinned by the Sandiganbayan, petitioner's defense that she,
together with her supervisor Cecilia Paraiso, went to the LBP and handed the subject ₱11,300.00
deposit to the teller Ngaosi and, thereafter, had no idea as to where the money went failed to
overcome the presumption of law. For one, Paraiso was never presented to corroborate her version.
For another, when questioned about the subject deposit, not only did petitioner fail to make the same
readily available, she also could not satisfactorily explain its whereabouts. Indeed, in the crime of
malversation, all that is necessary for conviction is sufficient proof that the accountable officer had
received public funds, that she did not have them in her possession when demand therefor was
made, and that she could not satisfactorily explain her failure to do so.48 Thus, even if it is assumed
that it was somebody else who misappropriated the said amount, petitioner may still be held liable
for malversation. The Comi quotes, with approval, the trial court's ruling, viz.:

Even if the claim of Hernan, i.e., that she actually left the amount of ₱11,300.00 and the
corresponding deposit slip with the Bank Teller Ngaosi and she came back to retrieve the
deposit slip later, is to be believed and then it came out that the said ₱11,300.00 was not
credited to the account of DOTC with the Land Bank and was in fact missing, still accused
Hernan should be convicted of malversation because in this latter situation she permits
through her inexcusable negligence another person to take the money. And this is still
malversation under Article 217.49

Said ruling was, in fact, duly reiterated by the Sandiganbayan in its Decision, thus:

Shifting our gaze to the possibility that it was the bank teller Catalina Ngaosi who misappropriated
the amount and should therefore be held liable, as the accused would want to poltray, the Court
doubts the tenability of that position. As consistently ruled by jurisprudence, a public officer may be
held liable for malversation even if he does not use public property or funds under his custody for his
personal benefit, but consents to the taking thereof by another person, or, through abandonment or
negligence, permitted such taking. The accused, by her negligence, simply created the
opportunity for the misappropriation. Even her justification that her deposits which were not
machine-validated were nonetheless acknowledged by the bank cannot fortify her defense.
On the contrary, it all the more emphasizes her propensity for negligence each time that she
accepted deposit slips which were not machinevalidated, her only proof of receipt of her
deposits. 50

In view of the foregoing, the Court agrees with the Sandiganbayan's finding that petitioner's motion
to reopen and petition for reconsideration are practically second and third motions for
reconsideration from its Decision dated November 13, 2009. Under the rules, the motions are
already prohibited pleadings under Section 5, Rule 37 of the Rules of Court due to the fact that the
grounds raised in the petition for reconsideration are merely a rehash of those raised in the two (2)
previous motions filed before it. These grounds were already thoroughly discussed by the
Sandiganbayan in its subject resolutions. Hence, as duly noted by the Sandiganbayan, in the law of
pleading, courts are called upon to pierce the form and go into the substance, not to be misled by a
false or wrong name given to a pleading because the title thereof is not controlling and the court
should be guided by its averments.51 Thus, the fact that the pleadings filed by petitioner are
entitled Urgent Motion to Reopen the Case with Leave of Court and with Prayer to Stay
Execution and Petition for Reconsideration with Prayer for Recall of Entry of Judgment in lieu of the
Prayer for Stay of Execution of Judgment does not exempt them from the application of the rules on
prohibited pleadings.

Let it be remembered that the doctrine of finality of judgment is grounded on the fundamental
principle of public policy and sound practice that, at the risk of occasional error, the judgment of
courts and the award of quasi-judicial agencies must become final on some definite date fixed by
law. The only exceptions to the general rule are the correction of clerical errors, the so-called nunc
pro tune entries which cause no prejudice to any party, void judgments, and whenever
circumstances transpire after the finality of the decision which render its execution unjust and
inequitable.52 None of the exceptions is present in this case.

Indeed, every litigation must come to an end once a judgment becomes final, executory and
unappealable. Just as a losing party has the right to file an appeal within the prescribed period, the
winning party also has the correlative right to enjoy the finality of the resolution of his case by the
execution and satisfaction of the judgment, which is the "life of the law." To frustrate it by dilatory
schemes on the part of the losing party is to frustrate all the efforts, time and expenditure of the
courts. It is in the interest of justice that this Court should write finis to this litigation.53

The foregoing notwithstanding, the Court finds that it is still necessary to reopen the instant case and
recall the Entry of Judgment dated June 26, 2013 of the Sandiganbayan, not for further reception of
evidence, however, as petitioner prays for, but in order to modify the penalty imposed by said court.
The general rule is that a judgment that has acquired finality becomes immutable and unalterable,
and may no longer be modified in any respect even if the modification is meant to correct erroneous
conclusions of fact or law and whether it will be made by the court that rendered it or by the highest
court of the land.54 When, however, circumstances transpire after the finality of the decision rendering
its execution unjust and inequitable, the Court may sit en bane and give due regard to such
exceptional circumstance warranting the relaxation of the doctrine of immutability. The same is in
line with Section 3(c),55 Rule II of the Internal Rules of the Supreme Court, which provides that cases
raising novel questions of law are acted upon by the Court en bane. To the Court, the recent
passage of Republic Act (R.A.) No. 10951 entitled An Act Adjusting the Amount or the Value of
Property and Damage on which a Penalty is Based and the Fines Imposed Under the Revised Penal
Code Amending for the Purpose Act No. 3815 Otherwise Known as the "Revised Penal Code" as
Amended which accordingly reduced the penalty applicable to the crime charged herein is an
example of such exceptional circumstance. Section 40 of said Act provides:

SEC. 40. Article 217 of the same Act, as amended by Republic Act. No. 1060, is hereby further
amended to read as follows:

ART. 217. Malversation of public funds or property; Presumption of malversation. - Any public officer
who, by reason of the duties of his office, is accountable for public funds or property, shall
appropriate the same, or shall take or misappropriate or shall consent, through abandonment or
negligence, shall permit any other person to take such public funds, or property, wholly or partially,
or shall otherwise be guilty of the misappropriation or malversation of such funds or property, shall
suffer:

1. The penalty of pnswn correccional in its medium and maximum periods, if the amount
involved in the misappropriation or malversation docs not exceed Forty thousand pesos
(₱40,000.00).

xxxx

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special
disqualification and a fine equal to the amount of the funds malversed or equal to the total value of
the property embezzled.

Pursuant to the aforequoted provision, therefore, We have here a novel situation wherein the
judgment convicting the accused, petitioner herein, has already become final and executory and yet
the penalty imposed thereon has been reduced by virtue of the passage of said law. Because of this,
not only must petitioner's sentence be modified respecting the settled rule on the retroactive
effectivity of laws, the sentencing being favorable to the accused,56 she may even apply for
probation,57 as long as she does not possess any ground for disqualification,58 in view of recent
legislation on probation, or R.A. No. 10707 entitled An Act Amending Presidential Decree No. 968,
otherwise known as the "Probation Law of 1976," As Amended. allowing an accused to apply for
probation in the event that she is sentenced to serve a maximum term of imprisonment of not more
than six (6) years when a judgment of conviction imposing a non-probationable penalty is appealed
or reviewed, and such judgment is modified through the imposition of a probationable penalty.59

Thus, in order to effectively avoid any injustice that petitioner may suffer as well as a possible
multiplicity of suits arising therefrom, the Court deems it proper to reopen the instant case and recall
the Entry of Judgment dated June 26, 2013 of the Sandiganbayan, which imposed the penalty of six
(6) years and one (1) day of prision mayor, as minimum, to eleven (11) years, six (6) months, and
twenty-one (21) days of prision mayor, as maximum. Instead, since the amount involved herein is
₱11,300.00, which does not exceed ₱40,000.00, the new penalty that should be imposed is prision
correccional in its medium and maximum periods, which has a prison term of two (2) years, four (4)
months, and one (1) day, to six (6) years. The Court, however, takes note of the presence of the
mitigating circumstance of voluntary surrender appreciated by the Sandiganbayan in favor of
petitioner.60 Hence, taking into consideration the absence of any aggravating circumstance and the
presence of one (1) mitigating circumstance, the range of the penalty that must be imposed as the
maximum term should be prision correccional medium to prision correccional maximum in its
minimum period, or from two (2) years, four (4) months, and one (1) day, to three (3) years, six (6)
months, and twenty (20) days, in accordance with Article 6461 of the RPC. Applying the Indeterminate
Sentence Law, the range of the minimum term that should be imposed upon petitioners is anywhere
within the period of arresto mayor, maximum to prision correccional minimum with a range of four (4)
months and one (1) day to two (2) years and four (4) months. Accordingly, petitioner is sentenced to
suffer the indeterminate penalty of six (6) months of arresto mayor, as minimum, to three (3) years,
six (6) months, and twenty (20) days prision correccional, as maximum.

On a final note, judges, public prosecutors, public attorneys, private counsels, and such other
officers of the law are hereby advised to similarly apply the provisions of RA No. 10951 whenever it
is, by reason of justice and equity, called for by the facts of each case. Hence, said recent legislation
shall find application in cases where the imposable penalties of the affected crimes such as theft,
qualified theft, estafa, robbery with force upon things, malicious mischief, malversation, and such
other crimes, the penalty of which is dependent upon the value of the object in consideration thereof,
have been reduced, as in the case at hand, taking into consideration the presence of existing
circumstances attending its commission. For as long as it is favorable to the accused, said recent
legislation shall find application regardless of whether its effectivity comes after the time when the
judgment of conviction is rendered and even if service of sentence has already begun. The accused,
in these applicable instances, shall be entitled to the benefits of the new law warranting him to serve
a lesser sentence, or to his release, if he has already begun serving his previous sentence, and said
service already accomplishes the term of the modified sentence. In the latter case, moreover, the
Court, in the interest of justice and expediency, further directs the appropriate filing of an action
before the Court that seeks the reopening of the case rather than an original petition filed for a
similar purpose.

Indeed, when exceptional circumstances exist, such as the passage of the instant amendatory law
imposing penalties more lenient and favorable to the accused, the Court shall not hesitate to direct
the reopening of a final and immutable judgment, the objective of which is to correct not so much the
findings of guilt but the applicable penalties to be imposed.
Henceforth: (1) the Directors of the National Penitentiary and Correctional Institution for Women are
hereby ordered to determine if there are accused serving final sentences similarly situated as the
accused in this particular case and if there are, to coordinate and communicate with the Public
Attorney's Office and the latter, to represent and file the necessary pleading before this Court in
behalf of these convicted accused in light of this Court's pronouncement; (2) For those cases where
the accused are undergoing preventive imprisonment, either the cases against them are non-
bailable or cannot put up the bail in view of the penalties imposable under the old law, their
respective counsels are hereby ordered to file the necessary pleading before the proper courts,
whether undergoing trial in the RTC or undergoing appeal in the appellate courts and apply for bail,
for their provisional liberty; (3) For those cases where the accused are undergoing preventive
imprisonment pending trial or appeal, their respective counsels are hereby ordered to file the
necessary pleading if the accused have already served the minimum sentence of the crime charged
against them based on the penalties imposable under the new law, R.A. No. 10951, for their
immediate release in accordance with A.M. No. 12-11-2-SC or the Guidelines For Decongesting
Holding Jails By Enforcing The Rights Of Accused Persons To Bail And To Speedy Trial; 62 and (4)
Lastly, all courts, including appellate courts, are hereby ordered to give priority to those cases
covered by R.A. No. 10951 to avoid any prolonged imprisonment.

WHEREFORE, premises considered, the instant petition is DENIED. The Resolution dated February
2, 2015 and Decision dated November 13, 2009 of the Sandiganbayan 2nd Division
are AFFIRMED with MODIFICATION. Petitioner is hereby sentenced to suffer the indeterminate
penalty of six (6) months of arresto mayor, as minimum term, to three (3) years, six (6) months, and
twenty (20) days prision correccional, as maximum term.

Let copies of this Decision be furnished to the Office of the Court Administrator (OCA) for
dissemination to the First and Second Level courts, and also to the Presiding Justices of the
appellate courts, the Department of Justice, Office of the Solicitor General, Public Attorney's Office,
Prosecutor General's Office, the Directors of the National Penitentiary and Correctional Institution for
Women, and the Integrated Bar of the Philippines for their information, guidance, and appropriate
action.

Likewise, let the Office of the President, the Senate of the Philippines, and the House of
Representatives, be furnished copies of this Decision for their information.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice

WE CONCUR:

MARIA LOURDES P.A. SERENO

Associate Justice
Chairperson

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

On wellness leave
TERESITA J. LEONARDO-DE CASTRO
LUCAS P. BERSAMIN
Associate Justice
Associate Justice

MARIANO C. DEL CASTILLO ESTELA M. PERLAS-BERNABE

Associate Justice Associate Justice

On leave
MARVIC M.V.F. LEONEN
FRANCIS H. JARDELEZA
Associate Justice
Associate Justice

No part, Prior action in SB

ALFREDO BENJAMIN S. CAGUIOA
SAMUEL R. MARTIRES
Associate Justice
Associate Justice

On leave
ALEXANDER G. GESMUNDO
Associate Justice

CERTIFICATION
Pursuant to the Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the writer of the opinion
of the Court’s Division.

MARIA LOURDES P.A. SERENO

Chief Justice

Footnotes

*
On wellness leave.

**
On leave

***
No part.

1
Penned by Associate Justice Tere!iita V. Diaz-Baldos, with Associate Justices Napoleon E.
Inoturan and Maria Cristina J. Cornejo, concurring; rollo, pp. 35-39.

2
Penned by Associate Justice Teresita V. Diaz-Baldos, with Associate Justices Edilberto G.
Sandoval and Samuel R. Martires, concurring; id. at 40-49.

3
Id. at 6-7.

4
Id. at 103.

5
Id. at 41-42.

6
Id.

7
Id. at 103.

8
Id.

9
Id. at 104.

10
Id. at 43.

11
Id. at 9.

12
Id. at 105-106.

13
Id. at 7.

14
Id.at43.

15
Id.

16
Id. at 40-41.

17
Id. at 41.

18
Id. at 48.

19
Id. at 50-53.

20
Id. at 67.

21
Id. at IOI.

22
Id. at 30-34.

23
Id. at 32.
24
Id. at 33.

25
Id.at37.

26
Id. at 16-17

27
411 Phil. 482, 490 (2001).

28
Rollo, pp. 21-22.

29
Id. at 23-24.

30
Spouses Bergonia v. Court of Appeals, 680 Phil. 334, 339 (2012).

31
Id.

32
Id.

33
Rollo, p. 26.

34
Garrucho, v. Court of Appeals, et al.. 489 Phil. 150, 156 (2005).

35
Id.

Karen and Kristy Fishing Industry et al. v. The Honorable Court of Appeals, Fifth
36

Division, 562

37
Rollo, P. 18.

38
Id. at 116.

39
Id.at37.

40
Garrucho v. Court of Appeals, et al., supra note 34, at 157.

41
Rollo, p. 36.

42
Id. at 114.

43
Id. at 32.

44
Id.

45
ld. at 33.

46
Id. at 31-32.

47
Id. at 45.

48
Id. at 47.

49
Id. at 120.

50
Id. at 47. (Emphasis ours; citation omitted)

51
Id. at 38.

52
Justice Angeles v. Hon. Gaile, 661 Phil. 657. 674(2011).

53
De Leon v. Public Estates Authority, 640 Phil. 594, 612 (2010).

Apo Fruits Corporation and Hija Plantation, Inc. v. The Hon. Court of Appeals and land
54

Bank of the Philippines, 622 Phil. 215, 230 (2009).

Section 3(c) of the Internal Rules of the Supreme Court (A.M. No. 10-4-20-SC, as
55

amended) provides:
 Section 3. Court en bane matters and cases. - The Court en bane shall act on the
following matters and cases:

xxxx

(c) cases raising novel questions of law;

56
People v. Morilla, 726 Phil. 244, 255 (2014).

57
Section 1of R.A. No. 10707 provides:

SECTION I. Section 4 of Presidential Decree No. 968, as amended, is hereby further

amended to

read as follows:

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 for a probationable
penalty 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. No
application for probation shall be entertained or granted if the defendant has
perfected the appeal from the judgment of conviction: Provided, That when a
judgment of conviction imposing a non-probationable penalty is appealed or
reviewed, and such judgment is modified through the imposition of a
probationable penalty, the defendant shall be allowed to apply for probation
based on the modified decision before such decision becomes final. The
application for probation based on the modified decision shall be filed in the trial court
where the judgment of conviction imposing a non-probationable penalty was
rendered, or in the trial court where such case has since been re-raffled. In a case
involving several defendants where some have taken further appeal, the other
defendants may apply for probation by submitting a written application and attaching
thereto a certified true copy of the judgment of conviction.

58
Section 2 of R.A. No. 10707 provides:

SEC. 2. Section 9 of the same Decree, as amended, is hereby further amended to

read as follows:

SEC. 9. Disqualified Offenders. - The benefits of this Decree shall not be extended to
those:

a. sentenced to serve a maximum term of imprisonment of more than six (6)

years;

b. convicted or any crime against the national security;

c. who have previously been convicted by final judgment of an offense

punished by imprisonment or more than six (6) months and one (I) day
and/or a fine of more than one thousand pesos (₱1,000.00);

d. who have been once on probation under the provisions of this Decree; and

e. who are already serving sentence at the time the substantive provisions of
this Decree became applicable pursuant to section 33 hereof."

59
Supra note 57.

60
Rollo, p. 47.

61
Article 64 of the Revised Penal Code provides:

Article 64. Rules for the application of penalties which contain three periods. - In
cases in which the penalties prescribed by law contain three periods, whether it be a
single divisible penalty or composed of three different penalties, each one of which
forms a period in accordance with the provisions of Articles 76 and 77, the court shall
observe for the application of the penalty the following rules, according to whether
there are or are not mitigating or aggravating circumstances:
 xxxx

2. When only a mitigating circumstances is present in the commission of the act, they
shall impose the penalty in its minimum period.

Sec. 5. Release after service of minimum imposable penalty. -The accused who has been
62

detained for a period at least equal to the minimum of the penalty for the offense charged
against him shall be ordered released, motu proprio or on motion and after notice and
hearing, on his own recognizance without prejudice to the continuation of the proceedings
against him. [Sec. 16, Rule 114 of the Rules of Court and Sec. 5 (b) of R.A. 10389)
 En Banc

June 25, 2019

G.R. No. 212719

INMATES OF THE NEW BILIBID PRISON, MUNTINLUPA CITY, NAMELY: VENANCIO A.

ROXAS, SATURNINO V. PARAS, EDGARDO G. MANUEL, HERMINILDO V. CRUZ, ALLAN F.
TEJADA, ROBERTO C. MARQUEZ, JULITO P. MONDEJAR, ARMANDO M. CABUANG,
JONATHAN O. CRISANTO, EDGAR ECHENIQUE, JANMARK SARACHO, JOSENEL ALVARAN,
AND CRISENCIO NERI, JR., Petitioners vs. SECRETARY LEILA M. DE LIMA, DEPARTMENT
OF JUSTICE; AND SECRETARY MANUEL A. ROXAS II, DEPARTMENT OF THE INTERIOR AND
LOCAL GOVERNMENT, Respondents

x-----------------------x

ATTY. RENE A.V. SAGUISAG, SR., Petitioner-Intervenor

x-----------------------x

WILLIAM M. MONTINOLA, FORTUNATO P. VISTO, AND ARESENIO C. CABANILLA,

Petitioners-Intervenors

x-----------------------x

G.R. No. 214637

REYNALDO D. EDAGO, PETER R. TORIDA, JIMMY E. ACLAO, WILFREDO V. OMERES,

PASCUA B. GALLADAN, VICTOR M. MACOY, JR., EDWIN C. TRABUNCON, WILFREDO A.
PATERNO, FEDERICO ELLIOT, and ROMEO R. MACOLBAS, Petitioners vs. SECRETARY
LEILA M. DE LIMA, DEPARTMENT OF JUSTICE; SECRETARY MANUEL A. ROXAS II,
DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT; ACTING DIRECTOR
FRANKLIN JESUS B. BUCAYU, BUREAU OF CORRECTIONS; AND JAIL CHIEF
SUPERINTENDENT DIONY DACANAY MAMARIL, BUREAU OF JAIL MANAGEMENT AND
PENOLOGY, Respondents

DECISION

PERALTA, J.:

The sole issue for resolution in these consolidated cases1 is the legality of Section 4, Rule 1 of the
Implementing Rules and Regulations (IRR) of Republic Act (R.A.) No. 10592,2 which states:

SECTION 4. Prospective Application. - Considering that these Rules provide for new procedures
and standards of behavior for the grant of good conduct time allowance as provided in Section 4 of
Rule V hereof and require the creation of a Management, Screening and Evaluation Committee
(MSEC) as provided in Section 3 of the same Rule, the grant of good conduct time allowance under
Republic Act No. 10592 shall be prospective in application.

The grant of time allowance of study, teaching and mentoring and of special time allowance for
loyalty shall also be prospective in application as these privileges are likewise subject to the
management, screening and evaluation of the MSEC.3

The Case

On May 29, 2013, then President Benigno S. Aquino III signed into law R.A. No. 10592, amending
Articles 29, 94, 97, 98 and 99 of Act No. 3815, or the Revised Penal Code (RPC).4 For reference, the
modifications are underscored as follows:
ART. 29. Period of preventive imprisonment deducted from term of imprisonment. — Offenders or
accused who have undergone preventive imprisonment shall be credited in the service of their
sentence consisting of deprivation of liberty, with the full time during which they have undergone
preventive imprisonment if the detention prisoner agrees voluntarily in writing after being informed
of the effects thereof and with the assistance of counsel to abide by the same disciplinary rules
imposed upon convicted prisoners, except in the following cases:

1. When they are recidivists, or have been convicted previously twice or more times of any crime;
and

2. When upon being summoned for the execution of their sentence they have failed to surrender
voluntarily.

If the detention prisoner does not agree to abide by the same disciplinary rules imposed upon
convicted prisoners, he shall do so in writing with the assistance of a counsel and shall be
credited in the service of his sentence with four-fifths of the time during which he has undergone
preventive imprisonment.

Credit for preventive imprisonment for the penalty of reclusion perpetua shall be deducted
from thirty (30) years.

Whenever an accused has undergone preventive imprisonment for a period equal to the possible
maximum imprisonment of the offense charged to which he may be sentenced and his case is not
yet terminated, he shall be released immediately without prejudice to the continuation of the trial
thereof or the proceeding on appeal, if the same is under review. Computation of preventive
imprisonment for purposes of immediate release under this paragraph shall be the actual
period of detention with good conduct time allowance: Provided, however, That if the
accused is absent without justifiable cause at any stage of the trial, the court may motu
proprio order the rearrest of the accused: Provided, finally, That recidivists, habitual
delinquents, escapees and persons charged with heinous crimes are excluded from the
coverage of this Act. In case the maximum penalty to which the accused may be sentenced is
destierro, he shall be released after thirty (30) days of preventive imprisonment.

ART. 94. Partial extinction of criminal liability — Criminal liability is extinguished partially:

1. By conditional pardon;

2. By commutation of the sentence; and

3. For good conduct allowances which the culprit may earn while he is undergoing preventive
imprisonment or serving his sentence.

ART. 97. Allowance for good conduct. - The good conduct of any offender qualified for credit for
preventive imprisonment pursuant to Article 29 of this Code, or of any convicted prisoner in
any penal institution, rehabilitation or detention center or any other local jail shall entitle him to
the following deductions from the period of his sentence:

1. During the first two years of (his) imprisonment, he shall be allowed a deduction of twenty days
for each month of good behavior during detention;

2. During the third to the fifth year, inclusive, of his imprisonment, he shall be allowed a deduction
of twenty-three days for each month of good behavior during detention;

3. During the following years until the tenth year, inclusive, of his imprisonment, he shall be allowed
a deduction of twenty-five days for each month of good behavior during detention;

4. During the eleventh and successive years of his imprisonment, he shall be allowed a deduction
of thirty days for each month of good behavior during detention; and

5. At any time during the period of imprisonment, he shall be allowed another deduction of
fifteen days, in addition to numbers one to four hereof, for each month of study, teaching or
mentoring service time rendered.

An appeal by the accused shall not deprive him of entitlement to the above allowances for
good conduct.

ART. 98. Special time allowance for loyalty. - A deduction of one fifth of the period of his sentence
shall be granted to any prisoner who, having evaded his preventive imprisonment or the service
of his sentence under the circumstances mentioned in Article 158 of this Code, gives himself up to
the authorities within 48 hours following the issuance of a proclamation announcing the passing
away of the calamity or catastrophe referred to in said article. A deduction of two-fifths of the
period of his sentence shall be granted in case said prisoner chose to stay in the place of his
confinement notwithstanding the existence of a calamity or catastrophe enumerated in
Article 158 of this Code.

This Article shall apply to any prisoner whether undergoing preventive imprisonment or
serving sentence.

ART. 99. Who grants time allowances. - Whenever lawfully justified, the Director of the Bureau of
Corrections, the Chief of the Bureau of Jail Management and Penology and/or the Warden of
a provincial, district, municipal or city jail shall grant allowances for good conduct. Such
allowances once granted shall not be revoked. (Emphases ours)

Pursuant to the amendatory law, an IRR was jointly issued by respondents Department of Justice
(DOJ) Secretary Leila M. De Lima and Department of the Interior and Local Government (DILG)
Secretary Manuel A. Roxas II on March 26, 2014 and became effective on April 18,
2014.5 Petitioners and intervenors assail the validity of its Section 4, Rule 1 that directs the
prospective application of the grant of good conduct time allowance (GCTA), time allowance for
study, teaching and mentoring (TASTM), and special time allowance for loyalty (STAL) mainly on the
ground that it violates Article 22 of the RPC.6

G.R. No. 212719

On June 18, 2014, a Petition for Certiorari and Prohibition (with Prayer for the Issuance of a
Preliminary Injunction)7 was filed against respondents DOJ Secretary De Lima and DILG Secretary
Roxas by Atty. Michael J. Evangelista acting as the attorney-in-fact8 of convicted prisoners in the
New Bilibid Prison (NBP), namely: Venancio A. Roxas, Saturnino V. Paras, Edgardo G. Manuel,
Herminildo V. Cruz, Allan F. Tejada, Roberto C. Marquez, Julito P. Mondejar, Armando M. Cabuang,
Jonathan O. Crisanto, Edgar Echenique, Janmark Saracho, Josenel Alvaran, and Crisencio Neri, Jr.
(Roxas et al.). Petitioners filed the case as real parties-in-interest and as representatives of their
member organizations and the organizations' individual members, as a class suit for themselves and
in behalf of all who are similarly situated. They contend that the provisions of R.A. No. 10592 are
penal in nature and beneficial to the inmates; hence, should be given retroactive effect in
accordance with Article 22 of the RPC. For them, the IRR contradicts the law it implements. They
are puzzled why it would be complex for the Bureau of Corrections (BUCOR) and the Bureau of Jail
Management and Penology (BJMP) to retroactively apply the law when the prisoners' records are
complete and the distinctions between the pertinent provisions of the RPC and R.A. No. 10592 are
easily identifiable. Petitioners submit that the simple standards added by the new law, which are
matters of record, and the creation of the Management, Screening and Evaluation Committee
(MSEC) should not override the constitutional guarantee of the rights to liberty and due process of
law aside from the principle that penal laws beneficial to the accused are given retroactive effect.

Almost a month after, or on July 11, 2014, Atty. Rene A.V. Saguisag, Sr. filed a Petition (In
Intervention).9 He incorporates by reference the Roxas et al. petition, impleads the same
respondents, and adds that nowhere from the legislative history of R.A. No. 10592 that it intends to
be prospective in character. On July 22, 2014, the Court resolved to grant the leave to intervene and
require the adverse parties to comment thereon.10

Another Petition-in-Intervention11 was filed on October 21, 2014. This time, the Free Legal Assistance
Group (FLAG) served as counsel for William M. Montinola, Fortunato P. Visto, and Arsenio C.
Cabanilla (Montinola et al.), who are also inmates of the NBP. The petition argues that Section 4,
Rule I of the IRR is facially void for being contrary to the equal protection clause of the 1987
Constitution; it discriminates, without any reasonable basis, against those who would have been
benefited from the retroactive application of the law; and is also ultra vires, as it was issued beyond
the authority of respondents to promulgate. In a Resolution dated November 25, 2014, We required
the adverse parties to comment on the petition-in-intervention.12

On January 30, 2015, the Office of the Solicitor General (OSG) filed a Consolidated Comment13 to
the Petition of Roxas et al. and Petition-in-Intervention of Atty. Saguisag, Sr. More than two years
later, or on July 7, 2017, it filed a Comment14 to the Petition-in-Intervention of Montinola et al.

G.R. No. 214637

On October 24, 2014, a Petition for Certiorari and Prohibition15 was filed by Reynaldo D. Edago,
Peter R. Torida, Jimmy E. Aclao, Wilfredo V. Omeres, Pascua B. Galladan, Victor M. Macoy, Jr.,
Edwin C. Trabuncon, Wilfredo A. Paterno, Federico Elliot, and Romeo R. Macolbas (Edago et al.),
who are all inmates at the Maximum Security Compound of the NBP, against DOJ Secretary De
Lima, DILG Secretary Roxas, BUCOR Acting Director Franklin Jesus B. Bucayu, and BJMP Chief
Superintendent (Officer-in-Charge) Diony Dacanay Mamaril. The grounds of the petition are as
follows:

A.

SECTION 4, RULE I OF THE IRR PROVIDING FOR A PROSPECTIVE APPLICATION OF THE

PROVISIONS OF R.A. 10592 WAS ISSUED WITH GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR EXCESS OF JURISDICTION AND THEREBY VOID AND ILLEGAL FOR BEING
CONTRARY AND ANATHEMA TO R.A. 10592.

a. R.A. 10592 does not state that its provisions shall have prospective application.

b. Section 4 of the IRR of R.A. 10592 is contrary to Article 22 of the Revised Penal Code providing
that penal laws that are beneficial to the accused shall have retroactive application.

c. Section 4, Rule I of the IRR contravenes public policy and the intent of Congress when it enacted
R.A. 10592.

B.

SECTION 4, RULE I OF THE IRR WAS ISSUED BY RESPONDENTS WITH GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION BECAUSE IT IS
PATENTLY UNCONSTITUTIONAL.

a. Section 4, Rule I of the IRR violates the Equal Protection Clause of the Constitution.

b. Section 4, Rule I of the IRR violates substantive due process.16

Per Resolution17 dated November 11, 2014, respondents were ordered to file their comment to the
petition. In compliance, BJMP Chief Mamaril filed a Comment18 on December 10, 2014, while the
OSG did the same on February 9, 201519 in behalf of all the respondents.

Subsequently, Edago et al. filed a Motion with Leave of Court to File and Admit Reply,20 attaching
therein said Reply. On July 28, 2015, We granted the motion and noted the Reply.21

The Court's Ruling

The petition is granted.

Procedural Matters

Actual case or controversy

Respondents contend that the petition of Edago et al. did not comply with all the elements of
justiciability as the requirement of an actual case or controversy vis-a-vis the requirement of ripeness
has not been complied with. For them, the claimed injury of petitioners has not ripened to an actual
case requiring this Court's intervention: First, the MSEC has not been constituted yet so there is
effectively no authority or specialized body to screen, evaluate and recommend any applications for
time credits based on R.A. No. 10592. Second, none of petitioners has applied for the revised
credits, making their claim of injury premature, if not anticipatory. And third, the prison records
annexed to the petition are neither signed nor certified by the BUCOR Director which belie the claim
of actual injury resulting from alleged extended incarceration. What petitioners did was they
immediately filed this case after obtaining their prison records and computing the purported
application of the revised credits for GCTA under R.A. No. 10592.

We disagree.

It is well settled that no question involving the constitutionality or validity of a law or governmental act
may be heard and decided unless the following requisites for judicial inquiry are present: (a) there
must be an actual case or controversy calling for the exercise of judicial power; (b) the person
challenging the act must have the standing to question the validity of the subject act or
issuance; (c) the question of constitutionality must be raised at the earliest opportunity; and (d) the
issue of constitutionality must be the very lis mota of the case.22 As to the requirement of actual case
or controversy, the Court stated in Province of North Cotabato, et al. v. Gov't of the Rep. of the Phils.
Peace Panel on Ancestral Domain (GRP), et al.:23
The power of judicial review is limited to actual cases or controversies. Courts decline to issue
advisory opinions or to resolve hypothetical or feigned problems, or mere academic questions. The
limitation of the power of judicial review to actual cases and controversies defines the role assigned
to the judiciary in a tripartite allocation of power, to assure that the courts will not intrude into areas
committed to the other branches of government.

An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims,
susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or
dispute. There must be a contrariety of legal rights that can be interpreted and enforced on the basis
of existing law and jurisprudence, x x x.

Related to the requirement of an actual case or controversy is the requirement of ripeness. A

question is ripe for adjudication when the act being challenged has had a direct adverse effect on
the individual challenging it. For a case to be considered ripe for adjudication, it is a prerequisite that
something had then been accomplished or performed by either branch before a court may come into
the picture, and the petitioner must allege the existence of an immediate or threatened injury to itself
as a result of the challenged action. He must show that he has sustained or is immediately in danger
of sustaining some direct injury as a result of the act complained of.24

There is an actual case or controversy in the case at bar because there is a contrariety of legal rights
that can be interpreted and enforced on the basis of existing law and jurisprudence. Respondents
stand for the prospective application of the grant of GCTA, TASTM, and STAL while petitioners and
intervenors view that such provision violates the Constitution and Article 22 of the RPC. The legal
issue posed is ripe for adjudication as the challenged regulation has a direct adverse effect on
petitioners and those detained and convicted prisoners who are similarly situated. There exists an
immediate and/or threatened injury and they have sustained or are immediately in danger of
sustaining direct injury as a result of the act complained of. In fact, while the case is pending,
petitioners are languishing in jail. If their assertion proved to be true, their illegal confinement or
detention in the meantime is oppressive. With the prisoners' continued incarceration, any delay in
resolving the case would cause them great prejudice. Justice demands that they be released
soonest, if not on time.

There is no need to wait and see the actual organization and operation of the MSEC. Petitioners
Edago et al. correctly invoked Our ruling in Pimentel, Jr. v. Hon. Aguirre.25 There, We dismissed the
novel theory that people should wait for the implementing evil to befall on them before they could
question acts that are illegal or unconstitutional, and held that "[by] the mere enactment of the
questioned law or the approval of the challenged action, the dispute is said to have ripened into a
judicial controversy even without any other overt act." Similar to Pimentel, Jr., the real issue in this
case is whether the Constitution and the RPC are contravened by Section 4, Rule 1 of the IRR, not
whether they are violated by the acts implementing it. Concrete acts are not necessary to render the
present controversy ripe.26 An actual case may exist even in the absence of tangible instances when
the assailed IRR has actually and adversely affected petitioners. The mere issuance of the subject
IRR has led to the ripening of a judicial controversy even without any other overt act. If this Court
cannot await the adverse consequences of the law in order to consider the controversy actual and
ripe for judicial intervention,27 the same can be said for an IRR. Here, petitioners need not wait for the
creation of the MSEC and be individually rejected in their applications. They do not need to actually
apply for the revised credits, considering that such application would be an exercise in futility in view
of respondents' insistence that the law should be prospectively applied. If the assailed provision is
indeed unconstitutional and illegal, there is no better time than the present action to settle such
question once and for all.28

Legal standing

We do not subscribe to respondents' supposition that it is the Congress which may claim any injury
from the alleged executive encroachment of the legislative function to amend, modify or repeal laws
and that the challenged acts of respondents have no direct adverse effect on petitioners, considering
that based on records, there was no GCTA granted to them.

It is a general rule that every action must be prosecuted or defended in the name of the real party-in-
interest, who stands to be benefited or injured by the judgment in the suit, or the party entitled to the
avails of the suit.

Jurisprudence defines interest as "material interest, an interest in issue and to be affected by the
decree, as distinguished from mere interest in the question involved, or a mere incidental interest. By
real interest is meant a present substantial interest, as distinguished from a mere expectancy or a
future, contingent, subordinate, or consequential interest." "To qualify a person to be a real party-in-
interest in whose name an action must be prosecuted, he must appear to be the present real owner
of the right sought to be enforced."
"Legal standing" or locus standi calls for more than just a generalized grievance. The concept has
been defined as a personal and substantial interest in the case such that the party has sustained or
will sustain direct injury as a result of the governmental act that is being challenged. The gist of the
question of standing is whether a party alleges such personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation of issues upon
which the court depends for illumination of difficult constitutional questions.

A party challenging the constitutionality of a law, act, or statute must show "not only that the law is
invalid, but also that he has sustained or is in immediate, or imminent danger of sustaining some
direct injury as a result of its enforcement, and not merely that he suffers thereby in some indefinite
way." It must [be] shown that he has been, or is about to be, denied some right or privilege to which
he is lawfully entitled, or that he is about to be subjected to some burdens or penalties by reason of
the statute complained of.29

In this case, petitioners are directly affected by Section 4, Rule 1 of the IRR because they are
prisoners currently serving their respective sentences at the NBP. They have a personal stake in the
outcome of this case as their stay in prison will potentially be shortened (if the assailed provision of
the IRR is declared unlawful and void) or their dates of release will be delayed (if R.A. No. 10592 is
applied prospectively). It is erroneous to assert that the questioned provision has no direct adverse
effect on petitioners since there were no GCTAs granted to them. There is none precisely because
of the prospective application of R.A. No. 10592. It is a proof of the act complained of rather than an
evidence that petitioners lack legal standing. Further, the submission of certified prison records is
immaterial in determining whether or not petitioners' rights were breached by the IRR because, to
repeat, the possible violation was already fait accompli by the issuance of the IRR. The prison
records were merely furnished to show that respondents have prospectively applied R.A. No. 10592
and that petitioners will be affected thereby.

Propriety of legal remedy:

Respondents argue that the petitions for certiorari and prohibition, as well as the petitions-in-
intervention, should be dismissed because such petitions are proper only against a tribunal, board or
officer exercising judicial or quasi-judicial functions. Section 4, Rule 1 of the IRR is an administrative
issuance of respondents made in the exercise of their rule-making or quasi-legislative functions.

True, a petition for certiorari and prohibition is not an appropriate remedy to assail the validity of the
subject IRR as it was issued in the exercise of respondents' rule-making or quasi-legislative function.
Nevertheless, the Court has consistently held that "petitions for certiorari and prohibition are
appropriate remedies to raise constitutional issues and to review, prohibit or nullify the acts of
legislative and executive officials."30 In Araullo v. Aquino III,31 former Associate Justice, now Chief
Justice, Lucas P. Bersamin, explained the remedies of certiorari and prohibition, thus:

What are the remedies by which the grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government may be determined under
the Constitution?

The present Rules of Court uses two special civil actions for determining and correcting grave abuse
of discretion amounting to lack or excess of jurisdiction. These are the special civil actions
for certiorari and prohibition, and both are governed by Rule 65. A similar remedy of certiorari exists
under Rule 64, but the remedy is expressly applicable only to the judgments and final orders or
resolutions of the Commission on Elections and the Commission on Audit.

The ordinary nature and function of the writ of certiorari in our present system are aptly explained
in Delos Santos v. Metropolitan Bank and Trust Company:

In the common law, from which the remedy of certiorari evolved, the writ of certiorari was issued out
of Chancery, or the King's Bench, commanding agents or officers of the inferior courts to return the
record of a cause pending before them, so as to give the party more sure and speedy justice, for the
writ would enable the superior court to determine from an inspection of the record whether the
inferior court's judgment was rendered without authority. The errors were of such a nature that, if
allowed to stand, they would result in a substantial injury to the petitioner to whom no other remedy
was available. If the inferior court acted without authority, the record was then revised and corrected
in matters of law. The writ of certiorari was limited to cases in which the inferior court was said to be
exceeding its jurisdiction or was not proceeding according to essential requirements of law and
would lie only to review judicial or quasi-judicial acts.

The concept of the remedy of certiorari in our judicial system remains much the same as it has been
in the common law. In this jurisdiction, however, the exercise of the power to issue the writ
of certiorari is largely regulated by laying down the instances or situations in the Rules of Court in
which a superior court may issue the writ of certiorari to an inferior court or officer. Section 1, Rule
65 of the Rules of Court compellingly provides the requirements for that purpose, viz.:

xxxx

The sole office of the writ of certiorari is the correction of errors of jurisdiction, which includes the
commission of grave abuse of discretion amounting to lack of jurisdiction. In this regard, mere abuse
of discretion is not enough to warrant the issuance of the writ. The abuse of discretion must be
grave, which means either that the judicial or quasi-judicial power was exercised in an arbitrary or
despotic manner by reason of passion or personal hostility, or that the respondent judge, tribunal or
board evaded a positive duty, or virtually refused to perform the duty enjoined or to act in
contemplation of law, such as when such judge, tribunal or board exercising judicial or quasi-judicial
powers acted in a capricious or whimsical manner as to be equivalent to lack of jurisdiction.

Although similar to prohibition in that it will lie for want or excess of jurisdiction, certiorari is to be
distinguished from prohibition by the fact that it is a corrective remedy used for the re-examination of
some action of an inferior tribunal, and is directed to the cause or proceeding in the lower court and
not to the court itself, while prohibition is a preventative remedy issuing to restrain future action, and
is directed to the court itself. The Court expounded on the nature and function of the writ of
prohibition in Holy Spirit Homeowners Association, Inc. v. Defensor:

A petition for prohibition is also not the proper remedy to assail an IRR issued in the exercise of a
quasi-legislative function. Prohibition is an extraordinary writ directed against any tribunal,
corporation, board, officer or person, whether exercising judicial, quasi-judicial or ministerial
functions, ordering said entity or person to desist from further proceedings when said proceedings
are without or in excess of said entity's or person's jurisdiction, or are accompanied with grave abuse
of discretion, and there is no appeal or any other plain, speedy and adequate remedy in the ordinary
course of law. Prohibition lies against judicial or ministerial functions, but not against legislative or
quasi-legislative functions. Generally, the purpose of a writ of prohibition is to keep a lower court
within the limits of its jurisdiction in order to maintain the administration of justice in orderly channels.
Prohibition is the proper remedy to afford relief against usurpation of jurisdiction or power by an
inferior court, or when, in the exercise of jurisdiction in handling matters clearly within its cognizance
the inferior court transgresses the bounds prescribed to it by the law, or where there is no adequate
remedy available in the ordinary course of law by which such relief can be obtained. Where the
principal relief sought is to invalidate an IRR, petitioners' remedy is an ordinary action for its
nullification, an action which properly falls under the jurisdiction of the Regional Trial Court. In any
case, petitioners' allegation that "respondents are performing or threatening to perform functions
without or in excess of their jurisdiction" may appropriately be enjoined by the trial court through a
writ of injunction or a temporary restraining order.

With respect to the Court, however, the remedies of certiorari and prohibition are necessarily
broader in scope and reach, and the writ of certiorari or prohibition may be issued to correct errors of
jurisdiction committed not only by a tribunal, corporation, board or officer exercising judicial, quasi-
judicial or ministerial functions but also to set right, undo and restrain any act of grave abuse of
discretion amounting to lack or excess of jurisdiction by any branch or instrumentality of the
Government, even if the latter does not exercise judicial, quasi-judicial or ministerial functions. This
application is expressly authorized by the text of the second paragraph of Section 1, supra.

Thus, petitions for certiorari and prohibition are appropriate remedies to raise constitutional issues
and to review and/or prohibit or nullify the acts of legislative and executive officials.

Necessarily, in discharging its duty under Section 1, supra, to set right and undo any act of grave
abuse of discretion amounting to lack or excess of jurisdiction by any branch or instrumentality of the
Government, the Court is not at all precluded from making the inquiry provided the challenge was
properly brought by interested or affected parties. The Court has been thereby entrusted expressly
or by necessary implication with both the duty and the obligation of determining, in appropriate
cases, the validity of any assailed legislative or executive action. This entrustment is consistent with
the republican system of checks and balances.32

In view of the foregoing, We shall proceed to discuss the substantive issues raised herein so as to
finally resolve the question on the validity of Section 4, Rule 1 of the IRR, which is purely legal in
nature. This is also because of the public importance of the issues raised,33 and the interest of
substantial justice,34 not to mention the absence of any dispute as to any underlying fact.35

Hierarchy of courts

Respondents contend that the petition for certiorari and prohibition, as well as the petitions-in-
intervention, should still be dismissed for failure to observe the rule on hierarchy of courts. According
to them, this Court's jurisdiction over actions assailing the validity of administrative issuances is
primarily appellate in nature by virtue of Section 5(2)(a), Article VIII of the Constitution.36 An action
assailing the validity of an administrative issuance is one that is incapable of pecuniary estimation,
which, under Batas Pambansa Bilang (B.P. Blg.) 129, the Regional Trial Court (RTC) has exclusive
original jurisdiction. Further, a petition for declaratory relief filed before the RTC, pursuant to Section
1, Rule 63 of the Rules, is the proper remedy to question the validity of the IRR.37

Indeed, under Section 19(1) of B.P. Blg. 129, the question presented here is a matter incapable of
pecuniary estimation, which exclusively and originally pertained to the proper RTC.38 Fundamentally,
there is no doubt that this consolidated case captioned as petition for certiorari and prohibition seeks
to declare the unconstitutionality and illegality of Section 4 Rule 1 of the IRR; thus, partaking the
nature of a petition for declaratory relief over which We only have appellate jurisdiction pursuant to
Section 5(2)(a), Article VIII of the Constitution. In accordance with Section 1, Rule 63 of the Rules,
the special civil action of declaratory relief falls under the exclusive jurisdiction of the RTC.

Nevertheless, the judicial policy has been to entertain a direct resort to this Court in exceptional and
compelling circumstances, such as cases of national interest and of serious implications, and those
of transcendental importance and of first impression.39 As the petitions clearly and specifically set out
special and important reasons therefor, We may overlook the Rules. Here, petitioners Edago et al.
are correct in asserting that R.A. No. 10592 and its IRR affect the entire correctional system of the
Philippines. Not only the social, economic, and moral well-being of the convicts and detainees are
involved but also their victims and their own families, the jails, and the society at large. The
nationwide implications of the petitions, the extensive scope of the subject matter, the upholding of
public policy, and the repercussions on the society are factors warranting direct recourse to Us.

Yet more than anything, there is an urgent necessity to dispense substantive justice on the
numerous affected inmates. It is a must to treat this consolidated case with a circumspect leniency,
granting petitioners the fullest opportunity to establish the merits of their case rather than lose their
liberty on the basis of technicalities.40 It need not be said that while this case has been pending, their
right to liberty is on the line. An extended period of detention or one that is beyond the period
allowed by law violates the accused person's right to liberty.41 Hence, We shunt the rigidity of the
rules of procedure so as not to deprive such birthright.42 The Court zealously guards against the
curtailment of a person's basic constitutional and natural right to liberty.43 The right to liberty, which
stands second only to life in the hierarchy of constitutional rights, cannot be lightly taken away.44 At
its core, substantive due process guarantees a right to liberty that cannot be taken away or unduly
constricted, except through valid causes provided by law.45

Substantive Issues

Every new law has a prospective effect. Under Article 22 of the RPC, however, a penal law that is
favorable or advantageous to the accused shall be given retroactive effect if he is not a habitual
criminal. These are the rules, the exception, and the exception to the exception on the effectivity of
laws.46

In criminal law, the principle favorabilia sunt amplianda adiosa restrigenda (penal laws which are
favorable to the accused are given retroactive effect) is well entrenched.47 It has been sanctioned
since the old Penal Code.48

x x x as far back as the year 1884, when the Penal Code took effect in these Islands until the 31st of
December, 1931, the principle underlying our laws granting to the accused in certain cases an
exception to the general rule that laws shall not be retroactive when the law in question favors the
accused, has evidently been carried over into the Revised Penal Code at present in force in the
Philippines through article 22 x x x. This is an exception to the general rule that all laws are
prospective, not retrospective, variously contained in the following maxims: Lex prospicit, non
respicit (the law looks forward, not backward); lex defuturo, judex de proeterito (the law provides for
the future, the judge for the past); and adopted in a modified form with a prudent limitation in our
Civil Code (article 3). Conscience and good law justify this exception, which is contained in the well-
known aphorism: Favorabilia sunt amplianda, odiosa restringenda. As one distinguished author has
put it, the exception was inspired by sentiments of humanity, and accepted by science.49

According to Mr. Chief Justice Manuel Araullo, the principle is "not as a right" of the offender, "but
founded on the very principles on which the right of the State to punish and the commination of the
penalty are based, and regards it not as an exception based on political considerations, but as a rule
founded on principles of strict justice."50

Further, case law has shown that the rule on retroactivity under Article 22 of the RPC applies to said
Code51 and its amendments,52 as well as to special laws,53 such as Act No. 2126,54 Presidential
Decree No. 603,55 R.A. No. 7636,56 R.A. No. 8293,57 R.A. No. 8294,58 R.A. No. 9344,59 and R.A. No.
10586,60 to cite a few.
But what exactly is a penal law?

A penal provision or statute has been consistently defined by jurisprudence as follows:

A penal provision defines a crime or provides a punishment for one.61

Penal laws and laws which, while not penal in nature, have provisions defining offenses and
prescribing penalties for their violation.62

Properly speaking, a statute is penal when it imposes punishment for an offense committed against
the state which, under the Constitution, the Executive has the power to pardon. In common use,
however, this sense has been enlarged to include within the term "penal statutes" all statutes which
command or prohibit certain acts, and establish penalties for their violation, and even those which,
without expressly prohibiting certain acts, impose a penalty upon their commission.63

Penal laws are those acts of the Legislature which prohibit certain acts and establish penalties for
their violations; or those that define crimes, treat of their nature, and provide for their punishment.64

The "penal laws" mentioned in Article 22 of the RPC refer to substantive laws, not procedural
rules.65 Moreover, the mere fact that a law contains penal provisions does not make it penal in
nature.66

In the case at bar, petitioners assert that Article 22 of the RPC applies because R.A. No. 10592 is a
penal law. They claim that said law has become an integral part of the RPC as Articles 29, 94, 97,
1âшphi 1

98 and 99 thereof. Edago et al. further argue that if an amendment to the RPC that makes the
penalties more onerous or prejudicial to the accused cannot be applied retroactively for being an ex
post facto law, a law that makes the penalties lighter should be considered penal laws in accordance
with Article 22 of the RPC.

We concur.

While R.A. No. 10592 does not define a crime/offense or provide/prescribe/establish a penalty67 as it
addresses the rehabilitation component68 of our correctional system, its provisions have the purpose
and effect of diminishing the punishment attached to the crime. The further reduction on the length of
the penalty of imprisonment is, in the ultimate analysis, beneficial to the detention and convicted
prisoners alike; hence, calls for the application of Article 22 of the RPC.

The prospective application of the beneficial provisions of R.A. No. 10592 actually works to the
disadvantage of petitioners and those who are similarly situated. It precludes the decrease in the
penalty attached to their respective crimes and lengthens their prison stay; thus, making more
onerous the punishment for the crimes they committed. Depriving them of time off to which they are
justly entitled as a practical matter results in extending their sentence and increasing their
punishment.69 Evidently, this transgresses the clear mandate of Article 22 of the RPC.

In support of the prospective application of the grant of GCTA, TASTM, and STAL, respondents aver
that a careful scrutiny of R.A. No. 10592 would indicate the need for "new procedures and standards
of behavior" to fully implement the law by the BUCOR (as to persons serving their sentences after
conviction) and the BJMP (as to accused who are under preventive detention). It is alleged that the
amendments introduced are substantial and of utmost importance that they may not be implemented
without a thorough revision of the BUCOR and the BJMP operating manuals on jail management. In
particular, the establishment of the MSEC is said to be an administrative mechanism to address the
policy and necessity that the BUCOR superintendents and the BJMP jail wardens must follow
uniform guidelines in managing, screening and evaluating the behavior or conduct of prisoners prior
to their recommendation to the heads of the two bureaus on who may be granted time allowances.

Respondents fail to persuade Us.

Except for the benefits of TASTM and the STAL granted to a prisoner who chose to stay in the place
of his confinement despite the existence of a calamity or catastrophe enumerated in Article 158 of
the RPC, the provisions of R.A. No. 10592 are mere modifications of the RPC that have been
implemented by the BUCOR prior to the issuance of the challenged IRR. In view of this, the claim of
"new procedures and standards of behavior" for the grant of time allowances is untenable.

It appears that even prior to February 1, 1916 when Act No. 2557 was enacted,70 prisoners have
already been entitled to deduct the period of preventive imprisonment from the service of their
sentences. In addition, good conduct time allowance has been in existence since August 30, 1906
upon the passage of Act No. 1533.71 Said law provided for the diminution of sentences imposed upon
convicted prisoners in consideration of good conduct and diligence.72 Under Act No. 1533 and
subsequently under Article 97 of the RPC, the time allowance may also apply to detention prisoners
if they voluntarily offer in writing to perform such labor as may be assigned to them.73 Such
prerequisite was removed by R.A. No. 10592.

Subject to the review, and in accordance with the rules and regulations, as may be prescribed by the
Secretary of Public Instruction, the wardens or officers in charge of Insular or provincial jails or
prisons were mandated to make and keep such records and take such further actions as may be
necessary to carry out the provisions of Act No. 1533.74 When the RPC took effect on January 1,
1932,75 the Director of Prisons was empowered to grant allowances for good conduct whenever
lawfully justified.76 With the effectivity of R.A. No. 10592 on June 6, 2013, such authority is now
vested on the Director of the BUCOR, the Chief of the BJMP and/or the Warden of a provincial,
district, municipal or city jail.77

Under the IRR of R.A. No. 10592, the MSECs are established to act as the recommending body for
the grant of GCTA and TASTM.78 They are tasked to manage, screen and evaluate the behavior and
conduct of a detention or convicted prisoner and to monitor and certify whether said prisoner has
actually studied, taught or performed mentoring activities.79 The creation of the MSEC, however,
does not justify the prospective application of R.A. No. 10592. Nowhere in the amendatory law was
its formation set as a precondition before its beneficial provisions are applied. What R.A. No. 10592
only provides is that the Secretaries of the DOJ and the DILG are authorized to promulgate rules
and regulations on the classification system for good conduct and time allowances, as may be
necessary to implement its provisions.80 Clearly, respondents went outside the bounds of their legal
mandate when they provided for rules beyond what was contemplated by the law to be enforced.

Indeed, administrative IRRs adopted by a particular department of the Government under legislative
authority must be in harmony with the provisions of the law, and should be for the sole purpose of
carrying the law's general provisions into effect. The law itself cannot be expanded by such IRRSs,
because an administrative agency cannot amend an act of Congress.81

The contention of Edago et al. stands undisputed that, prior to the issuance of the assailed IRR and
even before the enactment of R.A. No. 10592, a Classification Board had been handling the
functions of the MSEC and implementing the provisions of the RPC on time allowances. While there
is a noble intent to systematize and/or institutionalize existing set-up, the administrative and
procedural restructuring should not in any way prejudice the substantive rights of current detention
and convicted prisoners.

Furthermore, despite various amendments to the law, the standard of behavior in granting GCTA
remains to be "good conduct." In essence, the definition of what constitutes "good conduct" has
been invariable through the years, thus:

Act No. 1533: "not been guilty of a violation of discipline or any of the rules of the prison, and has
labored with diligence and fidelity upon all such tasks as have been assigned to him."82

BUCOR Operating Manual dated March 30, 2000: "displays good behavior and who has no record of
breach of discipline or violation of prison rules and regulations."83

IRR of R.A. No. 10592: "the conspicuous and satisfactory behavior of a detention or convicted
prisoner consisting of active involvement in rehabilitation programs, productive participation in
authorized work activities or accomplishment of exemplary deeds coupled with faithful obedience to
all prison/jail rules and regulations"84

Among other data, an inmate's prison record contains information on his behavior or conduct while in
prison.85 Likewise, the certificate/diploma issued upon successful completion of an educational
program or course (i.e., elementary, secondary and college education as well as vocational training)
forms part of the record.86 These considered, the Court cannot but share the same sentiment of
Roxas et al. It is indeed perplexing why it is complex for respondents to retroactively apply R.A. No.
10592 when all that the MSEC has to do is to utilize the same standard of behavior for the grant of
time allowances and refer to existing prison records.

WHEREFORE, the consolidated petitions are GRANTED. Section 4, Rule 1 of the Implementing
Rules and Regulations of Republic Act No. 10592 is DECLARED invalid insofar as it provides for the
prospective application of the grant of good conduct time allowance, time allowance for study,
teaching and mentoring, and special time allowance for loyalty. The Director General of the Bureau
of Corrections and the Chief of the Bureau of Jail Management and Penology are REQUIRED to RE-
COMPUTE with reasonable dispatch the time allowances due to petitioners and all those who are
similarly situated and, thereafter, to CAUSE their immediate release from imprisonment in case of
full service of sentence, unless they are being confined thereat for any other lawful cause.

This Decision is IMMEDIATELY EXECUTORY.

 SO ORDERED.

Bersamin, C. J., Carpio, Del Castillo, Perlas-Bernabe, Caguioa, A. Reyes, Jr., Gesmundo, J. Reyes,
Jr., Hernando, Carandang, Lazaro-Javier, and Inting, JJ., concur.

Leonen, J., see separate concurring opinion.

Jardeleza, J., on wellness leave. 1âшphi 1

Footnotes

1
G.R. No. 212719 and G.R. No. 214637 were consolidated per Resolution dated June 16,
2015 (Rollo [G.R. No. 214637], pp. 281-284).

2
AN ACT AMENDING ARTICLES 29, 94, 97, 98 AND 99 OF ACT NO. 3815, AS AMENDED,
OTHERWISE KNOWN AS THE REVISED PENAL CODE.

3
Rollo (G.R. No. 212719), p. 46; rollo (G.R. No. 214637), p. 220.

4
R.A. No. 10592 took effect on June 6, 2013 (See Rollo [G.R. No. 212719], pp. 25, 29, 188,
623 and rollo [G.R. No. 214637], p. 415).

5
Rollo (G.R. No. 212719), pp. 21, 25, 188, 623; rollo (G.R. No. 214637), pp. 12, 18, 241,
415.

6
Article 22. Retroactive effect of penal laws. - Penal Laws shall have a retroactive effect
insofar as they favor the persons guilty of a felony, who is not a habitual criminal, as this term
is defined in Rule 5 of ft Article 62 of this Code, although at the time of the publication of
such laws a final sentence has been pronounced and the convict is serving the same.

7
Rollo (G.R. No. 212719), pp. 3-45.

8
Id. at 57-58.

9
Id. at 144-148.

10
Id. at 152-153-C.

11
Id. at 186-193.

12
Id. at 202-203-C.

13
Id. at 264-279.

14
Id. at 622-643; rollo (G.R. No. 214637), pp. 414-433.

15
Rollo (G.R. No. 214637), pp. 3-80.

16
Id. at 24-25.

17
Id. at 142-144.

18
Id. at 163-215.

19
Id. at 238-268.

20
Id. at 285-334.

21
Id at 335-336.

22
Ocampo, et al. v. Rear Admiral Enriquez, et al., 798 Phil. 227, 287-288 (2016).

23
589 Phil. 387 (2008).
24
Id. at 480-481.

391 Phil. 84 (2000). The case was cited in John Hay Peoples Alternative Coalition v. Lim,
25

460 Phil. 530, 546 (2003); La Bugal-B'laan Tribal Ass'n., Inc. v. Ramos, 486 Phil. 754, 789-
790 (2004); Didipio Earth-Savers' Multi-Purpose Ass'n., Inc. v. Sec. Gozun, 520 Phil. 457,
472 (2006); Province of North Cotabato, et al. v. Gov't of the Rep. of the Phils. Peace Panel
on Ancestral Domain (GRP), et al., supra note 23, at 483-484; and Chamber of Real Estate
and Builders' Ass'n., Inc. v. Hon. Executive Sec. Romulo, et al., 628 Phil. 508, 524 (2010).

See Province of North Cotabato, et al. v. Gov't of the Rep. of the Phils. Peace Panel on
26

Ancestral Domain (GRP), et al., supra note 23, at 483-484.

27
See Didipio Earth-Savers' Multi-Purpose Ass'n., Inc. v. Sec. Gozun, supra note 25.

28
See Chamber of Real Estate and Builders' Ass'n., Inc. v. Hon. Executive Sec. Romulo, et
al., supra note 25.

Rosales, et al. v. Energy Regulatory Board (ERC), et al., 783 Phil. 774, 788 (2016), citing
29

Ferrer, Jr. v. Mayor Bautista, et al., 762 Phil. 233, 248-249 (2015).

Tañada v. Angara, 338 Phil. 546, 575 (1997); Ermita v. Aldecoa-Delorino, 666 Phil. 122,
30

132 (2011).

31
Araullo v. Aquino III, 131 Phil. 457 (2014).

32
Id. at 528-531. (Citations omitted; italics in the original)

See GMA Network, Inc. v. COMELEC, 742 Phil. 174, 210 (2014), citing Dela Llana v. The
33

Chairperson, Commission on Audit, et al., 681 Phil. 186, 193-195 (2012).

34
See The Chairman and Executive Director, Palawan Council for Sustainable Development,
et al. v. Lim, 793 Phil. 690, 698-701 (2016); Quinto, et al. v. COMELEC, 621 Phil. 236, 259-
260 (2009); and Metropolitan Bank and Trust Co., Inc. v. National Wages and Productivity
Commission, 543 Phil. 318, 328-332 (2007).

Gios-Samar, Inc., represented by its Chairperson Gerardo M. Malinao v. Department of

35

Transportation and Communications, and Civil Aviation Authority of the Philippines, G.R. No.
217158, March 12, 2019.

36
SECTION 5. The Supreme Court shall have the following powers: x x x x

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the
Rules of Court may provide, final judgments and orders of lower courts in:

(a) All cases in which the constitutionality or validity of any treaty, international or
executive agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.

xxx

37
Section 1. Who may file petition. - Any person interested under a deed, will, contract or
other written instrument, or whose rights are affected by a statute, executive order or
regulation, ordinance, or any other governmental regulation may, before breach or violation
thereof bring an action in the appropriate Regional Trial Court to determine any question of
construction or validity arising, and for a declaration of his rights or duties, thereunder.

xxx

38
See The Chairman and Executive Director, Palawan Council for Sustainable Development,
et al. v. Lim, supra note 34.

39
See Provincial Bus Operators Association of the Philippines v. Department of Labor and
Employment, G.R. No. 202275, July 17, 2018; Clark Investors and Locators Ass'n., Inc. v.
Sec. of Finance, et al., 763 Phil. 79, 94 (2015); and Holy Spirit Homeowners Association, Inc.
v. Sec. Defensor, 529 Phil. 573, 586 (2006).

40
See Five Star Mktg Co., Inc. v. Booc, 561 Phil. 167, 184 (2007).
41
See Gov't of Hongkong Special Administrative Region v. Hon. Olalia, Jr., 550 Phil. 63
(2007) and Integrated Bar of the Philippines Pangasinan Legal Aid v. Department of Justice,
G.R. No. 232413, July 25, 2017, 832 SCRA 396.

42
See Bongalon v. People, 707 Phil. 11, 19 (2013).

43
See People v. De los Santos, 277 Phil. 493, 502 (1991). It is not amiss to point further that
aside from being constitutionally protected, the right to liberty is recognized by the Universal
Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political
Rights (ICCPR), both of which the Philippines is a signatory (See Secretary of National
Defense v. Manalo, et al., 589 Phil 1, 51 [2008] and Barbieto v, The Hon. Court of Appeals,
et al., 619 Phil. 819, 840 [2009]).

44
Quidet v. People, 632 Phil. 1, 12 (2010); People v. Jesalva, 811 Phil. 299, 307
(2017); Rimando v. People, G.R. No. 229701, November 29, 2017; People v. Gimpaya, G.R.
No. 227395, January 10, and Villarosa v. People, G.R. Nos. 233155-63, July 17, 2018 (En
Banc Resolution).

45
Brown Madonna Press, Inc., et al. v. Casas, 759 Phil. 479, 501 (2015).

46
See Sr. Insp. Valeroso v. People, 570 Phil. 58, 61-62 (2008) and People v. Alcaraz, 56
Phil. 522 (1932). See also United States v. Macasaet, 11 Phil. 447, 449-450 (1908); People
v. Carballo, 62 651, 653 (1935); Benedicto v. Court of Appeals, 416 Phil. 722, 749 (2001);
and Nasi-Villar v. People, Phil. 804, 811 (2008).

47
People v. Quiachon, 532 Phil. 414, 427 (2006), as cited in Ortega v. People, 584 Phil. 429,
(2008); People v. Tinsay, 587 Phil. 615, 630 (2008); and People v. Adviento, et al., 684 Phil.
507, (2012). See also People v. Bagares, 305 Phil. 31, 39 (1994); People v. Zervoulakos,
311 Phil. 724, (1995); and People v. Canuto, 555 Phil. 337, 348 (2007).

48
Escalante v. Santos, 56 Phil. 483, 488 (1932), citing Laceste v. Santos, 56 Phil. 472
(1932).

49
Laceste v. Santos, supra, at 475.

50
Sr. Insp Valeroso v. People, supra note 46, at 77, citing People v. Moran, 44 Phil. 387, 408
(1923).

51
In Escalante v. Santos (supra note 48, at 487-488), the Court held:

And lest it be doubted that article 22 of the Revised Penal Code applies to said
Code, Representative Quintin Paredes adds the following:

"The use of the words 'penal laws' in general, instead of 'this Revised Penal Code
and any other penal laws' in article 22, may give room for a doubt as to whether said
article meant to include in the phrase 'penal laws' the same Revised Penal Code that
was establishing the provision. But this doubt, I think, should not be entertained
inasmuch as the Revised Penal Code is itself a penal law and the phrase 'penal laws'
is broad enough to include all laws that are penal in character."

See Laceste v. Santos (supra note 46), wherein the last paragraph of Article 344 of
the RPC was applied instead of Section 2 of Act No. 1773 and Article 448 of the old
Penal Code; and Escalante v. Santos (56 Phil. 483 [1932]) and Rodriguez v. Director
of Prisons (57 Phil. 133 [1932]), wherein Article 315 Paragraph 3 of the RPC was
applied instead of Article 534 Paragraph No. 3 of the old Penal Code.

52
See People v. Avila (283 Phil. 995 [1992]) on Article 135 of the RPC, as amended by R.A.
No. 6968; Lamen v. Dir. of Bureau of Corrections (311 Phil. 656 [1995]), People v.
Zervoulakos (311 Phil. 724 [1995]), Danao v. CA (313 Phil. 354 [1995]), People v.
Flores (313 Phil. 227 [1995]), Villa v. Court of Appeals, 377 Phil. 830 (1999), and People v.
Alao (379 Phil. 402 [2000]) on R.A. No. 7659 or the Death Penalty Law; and People v.
Quiachon (532 Phil. 414 [2006]), People v. Camito (555 Phil. 337 [2007]), People v.
Tinsay (587 Phil. 615 [2008]), People v. Isang (593 Phil. 549 [2008]), People v. Adviento, et
al. (684 Phil. 507 [2012]), and People v. Buado, Jr. (701 Phil. 72 [2013]) on R.A. No. 9346 or
the Anti-Death Penalty Law.

53
Go v. Dimagiba, 499 Phil. 445, 460 (2005).

54
United States v. Almencion, 25 Phil. 648 (1913).
55
People v. Garcia, et al., 192 Phil. 311 (1981).

56
People v. Hon. Pimentel, 351 Phil. 781 (1998).

57
Savage v. Judge Taypin, 387 Phil. 718 (2000).

58
People v. Narvasa, 359 Phil. 168 (1998); Cadua v. Court of Appeals, 371 Phil. 627
(1999); People v. Valdez, 401 Phil. 19 (2000); People v. Monlinola, 413 Phil. 176 (2001);
and Sr. Insp. Vaieroso v. People, 570 Phil. 58 (2008).

Estioca v. People, 578 Phil. 853 (2008); Ortega v. People, 584 Phil. 429 (2008);
59

and Madali, et al. v. People, 612 Phil. 582 (2009).

60
Sydeco v. People, 746 Phil. 916 (2014).

See United States v. Parrom, 24 Phil, 29, 35 (1913), as cited in People v. Moran, supra
61

note 50, at 398.

See Benedicto v. Court of Appeals, supra note 46, as cited in Nasi-Villar v. People, supra
62

note 46.

Lorenzo v. Posadas, 64 Phil. 353, 367 (1937). See also Hernandez v. Albano, et al., 125
63

Phil. 513, 520-521.

64
Lacson v. The Executive Secretary, 361 Phil. 251, 275 (1999), citing Lorenzo v.
Posadas, supra note 63 and Hernandez v. Albano, et al., supra note 63. Lacson was cited
in Yu Oh v. Court of Appeals, 451 Phil. 380, 387 (2003) and Salvador v. Mapa, Jr., 564 Phil.
31, 45 (2007), which was cited in Presidential Ad Hoc Fact-finding Committee on Behest
Loans v. Hon. Desierto, et al., 572 Phil. 71, (2008).

65
See Magtoto v. Hon. Manguera, 159 Phil. 611, 629 (1975) and subsequent cases wherein
the Court held that Section 20 Article IV of the 1973 Constitution, which declared
inadmissible a confession obtained from a person under investigation for an offense who has
not been informed of his right to remain silent and to counsel, applies only to those obtained
after the Constitution took effect on January 17, 1973.

66
See Juarez v. Court of Appeals, 289 Phil. 81, 91 (1992).

67
Good conduct allowances that may be earned while serving sentence are under Chapter 2
Title 4 (on partial extinction of criminal liability), not Title 3 (on penalties), of Book 1 of the
RPC (See Article 94, RPC). On the other hand, the arrest and temporary detention of
accused persons is not considered as a penalty but one of the measures of prevention or
safety (See Article 24[1], RPC).

68
Section 1, Rule II of the IRR of R.A. No. 10592 states:

The credit for preventive imprisonment, as well as the increase in the time allowance
granted for good conduct and exemplary services rendered or for loyalty, seek to:

a. redeem and uplift valuable human material towards economic and social
usefulness;

b. level the field of opportunity by giving an increased time allowance to motivate

prisoners to pursue a productive and law-abiding life; and

c. implement the state policy of restorative and compassionate justice by promoting

the reformation and rehabilitation of prisoners, strengthening their moral fiber and
facilitating their success reintegration into the mainstream of society.

In Frank v. Wolfe (11 Phil. 466, 471 [1908]), this Court held that Act No. 1533, which
is the predecessor of Article 97 of the RPC, has a double purpose: it is intended to
encourage the convict in an effort to reform, and to induce him to acquire habits of
industry and good conduct which will not be forgotten after he has served his
sentence; and it is intended as an aid to discipline within the various jails and
penitentiaries.

During the period of interpellations. Senator Joker P. Arroyo inquired on the purpose
of Senate Bill No. 3064, which eventually became R.A. No. 10592. Senator Francis
 G. Escudero replied that (1) it is to decongest the jails; (2) to put a premium reward
to inmates for good behavior; and (3) to emphasize a rehabilitative rather than a
purely penal system as far as the service of sentence of certain accused concerned
(See Senate Journal, Session No. 17, September 11, 2012, p. 332).

69
See Greenfield v. Scafati, 277 F. Supp. 644 (1967).

70
AN ACT PROVIDING FOR THE ALLOWANCE TO PERSONS SENTENCED IN ANY
CRIMINAL CAUSE, WITH THE EXCEPTION OF CERTAIN CLASSES OF CRIMES, OF
ONE-HALF OF THE PREVENTIVE IMPRISONMENT UNDERGONE BY THEM,
REPEALING SECTION NINETY-THREE OF THE "PROVISIONAL LAW FOR THE
APPLICATION OF THE PROVISIONS OF THE PENAL CODE TO THE PHILIPPINE
ISLANDS" AND FOR OTHER PURPOSES.

AN ACT PROVIDING FOR THE DIMINUTION OF SENTENCES IMPOSED UPON

71

PRISONERS CONVICTED OF ANY OFFENSE AND SENTENCED FOR A DEFINITE

TERM OF MORE THAN THIRTY DAYS AND LESS THAN LIFE IN CONSIDERATION OF
GOOD CONDUCT AND DILIGENCE.

72
All prisoners who were actually undergoing sentence when the Act took effect were entitled
to diminution of their sentences for the time served since January 1, 1900 (See Section 6,
Act No. 1533).

See Section 5 of Act No. 1533; Section 4, Chapter 4, Part III, Book 1, BUCOR Operating
73

Manual dated March 30, 2000 (Rollo [G.R. No. 212719], p. 81); and City Warden of the
Manila Gity Jail v. Estrella, 416 Phil. 634, 657 (2001), citing Baking, et al., v. The Director of
Prisons, 139 Phil. 110 (1969). In such case, the credit shall be deducted from the sentence
as may be imposed in the event of conviction (See Section 5 of Act No. 1533 and Section 4,
Chapter 4, Part III, Book 1, BUCOR Operating Manual dated March 30, 2000, Rollo [G.R.
No. 212719], p. 81).

74
Act No. 1533, Sec. 7.

75
Capulong v. People, 806 Phil. 465, 477 (2017) and Basilonia, et al. v. Judge Villaruz, et
al., 766 Phil. 1, 8 (2015).

76
RPC, Art. 99.

77
R.A. No. 10592, Sec. 5.

78
The composition of the MSEC shall be determined by the Director of the BUCOR, Chief of
the BJMP or Wardens of Provincial and Sub-Provincial, District, City and Municipal Jails,
respectively. Membership shall not be less than five (5) and shall include a Probation and
Parole Officer, and if available, a psychologist and a social worker (See Sections 3[b], 4[c]
and 7[c], Rule V, IRR of R.A. No. 10592).

79
See Sections 4(b) and 7(b), Rule V, IRR of R.A. No. 10592.

80
R.A. No. 10592, Sec. 7.

81
GMA Network, Inc. v. COMELEC, supra note 33, at 227.

82
Sec. 1(a).

83
Sec. 1, Chapter 4, Part III, Book 1 (Rollo [G.R. No. 212719], p. 81).

84
Rule III, Sec. 1(p).

Section 3(n), Part I, Book 1, BUCOR Operating Manual dated March 30, 2000 (Rollo [G.R.
85

No. 212719], p. 70).

86
Section 19, Chapter 2, Part V, BUCOR Operating Manual dated March 30, 2000
(Rollo [G.R. No. 212719], p. 94).
 Republic of the Philippines
SUPREME COURT
Baguio City

EN BANC

G.R. No. 180016 April 29, 2014

LITO CORPUZ, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

PERALTA, J.:

This is to resolve the Petition for Review on Certiorari, under Rule 45 of the Rules of Court, dated
November 5, 2007, of petitioner Lito Corpuz (petitioner), seeking to reverse and set aside the
Decision1 dated March 22, 2007 and Resolution2 dated September 5, 2007 of the Court of Appeals
(CA), which affirmed with modification the Decision3 dated July 30, 2004 of the Regional Trial Court
(RTC), Branch 46, San Fernando City, finding the petitioner guilty beyond reasonable doubt of the
crime of Estafa under Article 315, paragraph (1), sub-paragraph (b) of the Revised Penal Code.

The antecedent facts follow.

Private complainant Danilo Tangcoy and petitioner met at the Admiral Royale Casino in Olongapo
City sometime in 1990. Private complainant was then engaged in the business of lending money to
casino players and, upon hearing that the former had some pieces of jewelry for sale, petitioner
approached him on May 2, 1991 at the same casino and offered to sell the said pieces of jewelry on
commission basis. Private complainant agreed, and as a consequence, he turned over to petitioner
the following items: an 18k diamond ring for men; a woman's bracelet; one (1) men's necklace and
another men's bracelet, with an aggregate value of ₱98,000.00, as evidenced by a receipt of even
date. They both agreed that petitioner shall remit the proceeds of the sale, and/or, if unsold, to return
the same items, within a period of 60 days. The period expired without petitioner remitting the
proceeds of the sale or returning the pieces of jewelry. When private complainant was able to meet
petitioner, the latter promised the former that he will pay the value of the said items entrusted to him,
but to no avail.

Thus, an Information was filed against petitioner for the crime of estafa, which reads as follows:

That on or about the fifth (5th) day of July 1991, in the City of Olongapo, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, after having received from one
Danilo Tangcoy, one (1) men's diamond ring, 18k, worth ₱45,000.00; one (1) three-baht men's
bracelet, 22k, worth ₱25,000.00; one (1) two-baht ladies' bracelet, 22k, worth ₱12,000.00, or in the
total amount of Ninety-Eight Thousand Pesos (₱98,000.00), Philippine currency, under expressed
obligation on the part of said accused to remit the proceeds of the sale of the said items or to return
the same, if not sold, said accused, once in possession of the said items, with intent to defraud, and
with unfaithfulness and abuse of confidence, and far from complying with his aforestated obligation,
did then and there wilfully, unlawfully and feloniously misappropriate, misapply and convert to his
own personal use and benefit the aforesaid jewelries (sic) or the proceeds of the sale thereof, and
despite repeated demands, the accused failed and refused to return the said items or to remit the
amount of Ninety- Eight Thousand Pesos (₱98,000.00), Philippine currency, to the damage and
prejudice of said Danilo Tangcoy in the aforementioned amount.

CONTRARY TO LAW.

On January 28, 1992, petitioner, with the assistance of his counsel, entered a plea of not guilty.
Thereafter, trial on the merits ensued.

The prosecution, to prove the above-stated facts, presented the lone testimony of Danilo Tangcoy.
On the other hand, the defense presented the lone testimony of petitioner, which can be
summarized, as follows:

Petitioner and private complainant were collecting agents of Antonio Balajadia, who is engaged in
the financing business of extending loans to Base employees. For every collection made, they earn
a commission. Petitioner denied having transacted any business with private complainant.

However, he admitted obtaining a loan from Balajadia sometime in 1989 for which he was made to
sign a blank receipt. He claimed that the same receipt was then dated May 2, 1991 and used as
evidence against him for the supposed agreement to sell the subject pieces of jewelry, which he did
not even see.

After trial, the RTC found petitioner guilty beyond reasonable doubt of the crime charged in the
Information. The dispositive portion of the decision states:

WHEREFORE, finding accused LITO CORPUZ GUILTY beyond reasonable doubt of the felony of
Estafa under Article 315, paragraph one (1), subparagraph (b) of the Revised Penal Code;

there being no offsetting generic aggravating nor ordinary mitigating circumstance/s to vary the
penalty imposable;

accordingly, the accused is hereby sentenced to suffer the penalty of deprivation of liberty consisting
of an imprisonment under the Indeterminate Sentence Law of FOUR (4) YEARS AND TWO (2)
MONTHS of Prision Correccional in its medium period AS MINIMUM, to FOURTEEN (14) YEARS
AND EIGHT (8) MONTHS of Reclusion Temporal in its minimum period AS MAXIMUM; to indemnify
private complainant Danilo Tangcoy the amount of ₱98,000.00 as actual damages, and to pay the
costs of suit.

SO ORDERED.

The case was elevated to the CA, however, the latter denied the appeal of petitioner and affirmed
the decision of the RTC, thus:

WHEREFORE, the instant appeal is DENIED. The assailed Judgment dated July 30, 2004 of the
RTC of San Fernando City (P), Branch 46, is hereby AFFIRMED with MODIFICATION on the
imposable prison term, such that accused-appellant shall suffer the indeterminate penalty of 4 years
and 2 months of prision correccional, as minimum, to 8 years of prision mayor, as maximum, plus 1
year for each additional ₱10,000.00, or a total of 7 years. The rest of the decision stands.

SO ORDERED.

Petitioner, after the CA denied his motion for reconsideration, filed with this Court the present
petition stating the following grounds:

A. THE HONORABLE COURT OF APPEALS ERRED IN CONFIRMING THE ADMISSION AND

APPRECIATION BY THE LOWER COURT OF PROSECUTION EVIDENCE, INCLUDING ITS
EXHIBITS, WHICH ARE MERE MACHINE COPIES, AS THIS VIOLATES THE BEST EVIDENCE
RULE;

B. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S

FINDING THAT THE CRIMINAL INFORMATION FOR ESTAFA WAS NOT FATALLY DEFECTIVE
ALTHOUGH THE SAME DID NOT CHARGE THE OFFENSE UNDER ARTICLE 315 (1) (B) OF THE
REVISED PENAL CODE IN THAT -

1. THE INFORMATION DID NOT FIX A PERIOD WITHIN WHICH THE SUBJECT
[PIECES OF] JEWELRY SHOULD BE RETURNED, IF UNSOLD, OR THE MONEY
TO BE REMITTED, IF SOLD;

2. THE DATE OF THE OCCURRENCE OF THE CRIME ALLEGED IN THE

INFORMATION AS OF 05 JULY 1991 WAS MATERIALLY DIFFERENT FROM THE
ONE TESTIFIED TO BY THE PRIVATE COMPLAINANT WHICH WAS 02 MAY
1991;

C. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S

FINDING THAT DEMAND TO RETURN THE SUBJECT [PIECES OF] JEWELRY, IF UNSOLD, OR
REMIT THE PROCEEDS, IF SOLD – AN ELEMENT OF THE OFFENSE – WAS PROVED;

D. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE LOWER COURT'S

FINDING THAT THE PROSECUTION'S CASE WAS PROVEN BEYOND REASONABLE DOUBT
ALTHOUGH -

1. THE PRIVATE COMPLAINANT TESTIFIED ON TWO (2) VERSIONS OF THE

INCIDENT;

2. THE VERSION OF THE PETITIONER – ACCUSED IS MORE

STRAIGHTFORWARD AND LOGICAL, CONSISTENT WITH HUMAN
EXPERIENCE;
 3. THE EQUIPOISE RULE WAS NOT APPRECIATED IN AND APPLIED TO THIS
CASE;

4. PENAL STATUTES ARE STRICTLY CONSTRUED AGAINST THE STATE.

In its Comment dated May 5, 2008, the Office of the Solicitor General (OSG) stated the following
counter-arguments:

The exhibits were properly admitted inasmuch as petitioner failed to object to their admissibility.

The information was not defective inasmuch as it sufficiently established the designation of the
offense and the acts complained of.

The prosecution sufficiently established all the elements of the crime charged.

This Court finds the present petition devoid of any merit.

The factual findings of the appellate court generally are conclusive, and carry even more weight
when said court affirms the findings of the trial court, absent any showing that the findings are totally
devoid of support in the records, or that they are so glaringly erroneous as to constitute grave abuse
of discretion.4 Petitioner is of the opinion that the CA erred in affirming the factual findings of the trial
court. He now comes to this Court raising both procedural and substantive issues.

According to petitioner, the CA erred in affirming the ruling of the trial court, admitting in evidence a
receipt dated May 2, 1991 marked as Exhibit "A" and its submarkings, although the same was
merely a photocopy, thus, violating the best evidence rule. However, the records show that petitioner
never objected to the admissibility of the said evidence at the time it was identified, marked and
testified upon in court by private complainant. The CA also correctly pointed out that petitioner also
failed to raise an objection in his Comment to the prosecution's formal offer of evidence and even
admitted having signed the said receipt. The established doctrine is that when a party failed to
interpose a timely objection to evidence at the time they were offered in evidence, such objection
shall be considered as waived.5

Another procedural issue raised is, as claimed by petitioner, the formally defective Information filed
against him. He contends that the Information does not contain the period when the pieces of jewelry
were supposed to be returned and that the date when the crime occurred was different from the one
testified to by private complainant. This argument is untenable. The CA did not err in finding that the
Information was substantially complete and in reiterating that objections as to the matters of form
and substance in the Information cannot be made for the first time on appeal. It is true that the
gravamen of the crime of estafa under Article 315, paragraph 1, subparagraph (b) of the RPC is the
appropriation or conversion of money or property received to the prejudice of the owner6 and that the
time of occurrence is not a material ingredient of the crime, hence, the exclusion of the period and
the wrong date of the occurrence of the crime, as reflected in the Information, do not make the latter
fatally defective. The CA ruled:

x x x An information is legally viable as long as it distinctly states the statutory designation of the
offense and the acts or omissions constitutive thereof. Then Section 6, Rule 110 of the Rules of
Court provides that a complaint or information is sufficient if it states the name of the accused;

the designation of the offense by the statute; the acts or omissions complained of as constituting the
offense; the name of the offended party; the approximate time of the commission of the offense, and
the place wherein the offense was committed. In the case at bar, a reading of the subject Information
shows compliance with the foregoing rule. That the time of the commission of the offense was stated
as " on or about the fifth (5th) day of July, 1991" is not likewise fatal to the prosecution's cause
considering that Section 11 of the same Rule requires a statement of the precise time only when the
same is a material ingredient of the offense. The gravamen of the crime of estafa under Article 315,
paragraph 1 (b) of the Revised Penal Code (RPC) is the appropriation or conversion of money or
property received to the prejudice of the offender. Thus, aside from the fact that the date of the
commission thereof is not an essential element of the crime herein charged, the failure of the
prosecution to specify the exact date does not render the Information ipso facto defective. Moreover,
the said date is also near the due date within which accused-appellant should have delivered the
proceeds or returned the said [pieces of jewelry] as testified upon by Tangkoy, hence, there was
sufficient compliance with the rules. Accused-appellant, therefore, cannot now be allowed to claim
that he was not properly apprised of the charges proferred against him.7

It must be remembered that petitioner was convicted of the crime of Estafa under Article 315,
paragraph 1 (b) of the RPC, which reads:
ART. 315. Swindling (estafa). – Any person who shall defraud another by any of the means
mentioned hereinbelow.

1. With unfaithfulness or abuse of confidence, namely:

xxxx

(b) By misappropriating or converting, to the prejudice of another, money, goods, or any other
personal property received by the offender in trust or on commission, or for administration, or under
any other obligation involving the duty to make delivery of or to return the same, even though such
obligation be totally or partially guaranteed by a bond; or by denying having received such money,
goods, or other property; x x x

The elements of estafa with abuse of confidence are as follows: (a) that money, goods or other
personal property is received by the offender in trust, or on commission, or for administration, or
under any other obligation involving the duty to make delivery of, or to return the same; (b) that there
be misappropriation or conversion of such money or property by the offender or denial on his part of
such receipt; (c) that such misappropriation or conversion or denial is to the prejudice of another;
and (d) that there is a demand made by the offended party on the offender.8

Petitioner argues that the last element, which is, that there is a demand by the offended party on the
offender, was not proved. This Court disagrees. In his testimony, private complainant narrated how
he was able to locate petitioner after almost two (2) months from the time he gave the pieces of
jewelry and asked petitioner about the same items with the latter promising to pay them. Thus:

PROS. MARTINEZ

q Now, Mr. Witness, this was executed on 2 May 1991, and this transaction could have been
finished on 5 July 1991, the question is what happens (sic) when the deadline came?

a I went looking for him, sir.

q For whom?

a Lito Corpuz, sir.

q Were you able to look (sic) for him?

a I looked for him for a week, sir.

q Did you know his residence?

a Yes, sir.

q Did you go there?

a Yes, sir.

q Did you find him?

a No, sir.

q Were you able to talk to him since 5 July 1991?

a I talked to him, sir.

q How many times?

a Two times, sir.

q What did you talk (sic) to him?

a About the items I gave to (sic) him, sir.

q Referring to Exhibit A-2?

a Yes, sir, and according to him he will take his obligation and I asked him where the items are and
he promised me that he will pay these amount, sir.

q Up to this time that you were here, were you able to collect from him partially or full?

a No, sir.9

No specific type of proof is required to show that there was demand.10 Demand need not even be
formal; it may be verbal.11 The specific word "demand" need not even be used to show that it has
indeed been made upon the person charged, since even a mere query as to the whereabouts of the
money [in this case, property], would be tantamount to a demand.12 As expounded in Asejo v.
People:13

With regard to the necessity of demand, we agree with the CA that demand under this kind of estafa
need not be formal or written. The appellate court observed that the law is silent with regard to the
form of demand in estafa under Art. 315 1(b), thus:

When the law does not qualify, We should not qualify. Should a written demand be necessary, the
law would have stated so. Otherwise, the word "demand" should be interpreted in its general
meaning as to include both written and oral demand. Thus, the failure of the prosecution to present a
written demand as evidence is not fatal.

In Tubb v. People, where the complainant merely verbally inquired about the money entrusted to the
accused, we held that the query was tantamount to a demand, thus:

x x x [T]he law does not require a demand as a condition precedent to the existence of the crime of
embezzlement. It so happens only that failure to account, upon demand for funds or property held in
trust, is circumstantial evidence of misappropriation. The same way, however, be established by
other proof, such as that introduced in the case at bar.14

In view of the foregoing and based on the records, the prosecution was able to prove the existence
of all the elements of the crime. Private complainant gave petitioner the pieces of jewelry in trust, or
on commission basis, as shown in the receipt dated May 2, 1991 with an obligation to sell or return
the same within sixty (60) days, if unsold. There was misappropriation when petitioner failed to remit
the proceeds of those pieces of jewelry sold, or if no sale took place, failed to return the same pieces
of jewelry within or after the agreed period despite demand from the private complainant, to the
prejudice of the latter.

Anent the credibility of the prosecution's sole witness, which is questioned by petitioner, the same is
unmeritorious. Settled is the rule that in assessing the credibility of witnesses, this Court gives great
respect to the evaluation of the trial court for it had the unique opportunity to observe the demeanor
of witnesses and their deportment on the witness stand, an opportunity denied the appellate courts,
which merely rely on the records of the case.15 The assessment by the trial court is even conclusive
and binding if not tainted with arbitrariness or oversight of some fact or circumstance of weight and
influence, especially when such finding is affirmed by the CA.16 Truth is established not by the
number of witnesses, but by the quality of their testimonies, for in determining the value and
credibility of evidence, the witnesses are to be weighed not numbered.17

As regards the penalty, while this Court's Third Division was deliberating on this case, the question
of the continued validity of imposing on persons convicted of crimes involving property came up. The
legislature apparently pegged these penalties to the value of the money and property in 1930 when it
enacted the Revised Penal Code. Since the members of the division reached no unanimity on this
question and since the issues are of first impression, they decided to refer the case to the Court en
banc for consideration and resolution. Thus, several amici curiae were invited at the behest of the
Court to give their academic opinions on the matter. Among those that graciously complied were
Dean Jose Manuel Diokno, Dean Sedfrey M. Candelaria, Professor Alfredo F. Tadiar, the Senate
President, and the Speaker of the House of Representatives. The parties were later heard on oral
arguments before the Court en banc, with Atty. Mario L. Bautista appearing as counsel de oficio of
the petitioner.

After a thorough consideration of the arguments presented on the matter, this Court finds the
following:

There seems to be a perceived injustice brought about by the range of penalties that the courts
continue to impose on crimes against property committed today, based on the amount of damage
measured by the value of money eighty years ago in 1932. However, this Court cannot modify the
said range of penalties because that would constitute judicial legislation. What the legislature's
perceived failure in amending the penalties provided for in the said crimes cannot be remedied
through this Court's decisions, as that would be encroaching upon the power of another branch of
the government. This, however, does not render the whole situation without any remedy. It can be
appropriately presumed that the framers of the Revised Penal Code (RPC) had anticipated this
matter by including Article 5, which reads:

ART. 5. Duty of the court in connection with acts which should be repressed but which are not
covered by the law, and in cases of excessive penalties. - Whenever a court has knowledge of any
act which it may deem proper to repress and which is not punishable by law, it shall render the
proper decision, and shall report to the Chief Executive, through the Department of Justice, the
reasons which induce the court to believe that said act should be made the subject of penal
legislation.

In the same way, the court shall submit to the Chief Executive, through the Department of Justice,
such statement as may be deemed proper, without suspending the execution of the sentence, when
a strict enforcement of the provisions of this Code would result in the imposition of a clearly
excessive penalty, taking into consideration the degree of malice and the injury caused by the
offense.18

The first paragraph of the above provision clearly states that for acts bourne out of a case which is
not punishable by law and the court finds it proper to repress, the remedy is to render the proper
decision and thereafter, report to the Chief Executive, through the Department of Justice, the
reasons why the same act should be the subject of penal legislation. The premise here is that a
deplorable act is present but is not the subject of any penal legislation, thus, the court is tasked to
inform the Chief Executive of the need to make that act punishable by law through legislation. The
second paragraph is similar to the first except for the situation wherein the act is already punishable
by law but the corresponding penalty is deemed by the court as excessive. The remedy therefore, as
in the first paragraph is not to suspend the execution of the sentence but to submit to the Chief
Executive the reasons why the court considers the said penalty to be non-commensurate with the
act committed. Again, the court is tasked to inform the Chief Executive, this time, of the need for a
legislation to provide the proper penalty.

In his book, Commentaries on the Revised Penal Code,19 Guillermo B. Guevara opined that in Article
5, the duty of the court is merely to report to the Chief Executive, with a recommendation for an
amendment or modification of the legal provisions which it believes to be harsh. Thus:

This provision is based under the legal maxim "nullum crimen, nulla poena sige lege," that is, that
there can exist no punishable act except those previously and specifically provided for by penal
statute.

No matter how reprehensible an act is, if the law-making body does not deem it necessary to prohibit
its perpetration with penal sanction, the Court of justice will be entirely powerless to punish such act.

Under the provisions of this article the Court cannot suspend the execution of a sentence on the
ground that the strict enforcement of the provisions of this Code would cause excessive or harsh
penalty. All that the Court could do in such eventuality is to report the matter to the Chief Executive
with a recommendation for an amendment or modification of the legal provisions which it believes to
be harsh.20

Anent the non-suspension of the execution of the sentence, retired Chief Justice Ramon C. Aquino
and retired Associate Justice Carolina C. Griño-Aquino, in their book, The Revised Penal
Code,21 echoed the above-cited commentary, thus:

The second paragraph of Art. 5 is an application of the humanitarian principle that justice must be
tempered with mercy. Generally, the courts have nothing to do with the wisdom or justness of the
penalties fixed by law. "Whether or not the penalties prescribed by law upon conviction of violations
of particular statutes are too severe or are not severe enough, are questions as to which
commentators on the law may fairly differ; but it is the duty of the courts to enforce the will of the
legislator in all cases unless it clearly appears that a given penalty falls within the prohibited class of
excessive fines or cruel and unusual punishment." A petition for clemency should be addressed to
the Chief Executive.22

There is an opinion that the penalties provided for in crimes against property be based on the current
inflation rate or at the ratio of ₱1.00 is equal to ₱100.00 . However, it would be dangerous as this
would result in uncertainties, as opposed to the definite imposition of the penalties. It must be
remembered that the economy fluctuates and if the proposed imposition of the penalties in crimes
against property be adopted, the penalties will not cease to change, thus, making the RPC, a self-
amending law. Had the framers of the RPC intended that to be so, it should have provided the same,
instead, it included the earlier cited Article 5 as a remedy. It is also improper to presume why the
present legislature has not made any moves to amend the subject penalties in order to conform with
the present times. For all we know, the legislature intends to retain the same penalties in order to
deter the further commission of those punishable acts which have increased tremendously through
the years. In fact, in recent moves of the legislature, it is apparent that it aims to broaden the
coverage of those who violate penal laws. In the crime of Plunder, from its original minimum amount
of ₱100,000,000.00 plundered, the legislature lowered it to ₱50,000,000.00. In the same way, the
legislature lowered the threshold amount upon which the Anti-Money Laundering Act may apply,
from ₱1,000,000.00 to ₱500,000.00.

It is also worth noting that in the crimes of Theft and Estafa, the present penalties do not seem to be
excessive compared to the proposed imposition of their corresponding penalties. In Theft, the
provisions state that:

Art. 309. Penalties. — Any person guilty of theft shall be punished by:

1. The penalty of prision mayor in its minimum and medium periods, if the value of the thing
stolen is more than 12,000 pesos but does not exceed 22,000 pesos, but if the value of the
thing stolen exceeds the latter amount the penalty shall be the maximum period of the one
prescribed in this paragraph, and one year for each additional ten thousand pesos, but the
total of the penalty which may be imposed shall not exceed twenty years. In such cases, and
in connection with the accessory penalties which may be imposed and for the purpose of the
other provisions of this Code, the penalty shall be termed prision mayor or reclusion
temporal, as the case may be.

2. The penalty of prision correccional in its medium and maximum periods, if the value of the
thing stolen is more than 6,000 pesos but does not exceed 12,000 pesos.

3. The penalty of prision correccional in its minimum and medium periods, if the value of the
property stolen is more than 200 pesos but does not exceed 6,000 pesos.

4. Arresto mayor in its medium period to prision correccional in its minimum period, if the
value of the property stolen is over 50 pesos but does not exceed 200 pesos.

5. Arresto mayor to its full extent, if such value is over 5 pesos but does not exceed 50
pesos.

6. Arresto mayor in its minimum and medium periods, if such value does not exceed 5
pesos.

7. Arresto menor or a fine not exceeding 200 pesos, if the theft is committed under the
circumstances enumerated in paragraph 3 of the next preceding article and the value of the
thing stolen does not exceed 5 pesos. If such value exceeds said amount, the provision of
any of the five preceding subdivisions shall be made applicable.

8. Arresto menor in its minimum period or a fine not exceeding 50 pesos, when the value of
the thing stolen is not over 5 pesos, and the offender shall have acted under the impulse of
hunger, poverty, or the difficulty of earning a livelihood for the support of himself or his family.

In a case wherein the value of the thing stolen is ₱6,000.00, the above-provision states that the
penalty is prision correccional in its minimum and medium periods (6 months and 1 day to 4 years
and 2 months). Applying the proposal, if the value of the thing stolen is ₱6,000.00, the penalty is
imprisonment of arresto mayor in its medium period to prision correccional minimum period (2
months and 1 day to 2 years and 4 months). It would seem that under the present law, the penalty
imposed is almost the same as the penalty proposed. In fact, after the application of the
Indeterminate Sentence Law under the existing law, the minimum penalty is still lowered by one
degree; hence, the minimum penalty is arresto mayor in its medium period to maximum period (2
months and 1 day to 6 months), making the offender qualified for pardon or parole after serving the
said minimum period and may even apply for probation. Moreover, under the proposal, the minimum
penalty after applying the Indeterminate Sentence Law is arresto menor in its maximum period to
arresto mayor in its minimum period (21 days to 2 months) is not too far from the minimum period
under the existing law. Thus, it would seem that the present penalty imposed under the law is not at
all excessive. The same is also true in the crime of Estafa.23

Moreover, if we apply the ratio of 1:100, as suggested to the value of the thing stolen in the crime of
Theft and the damage caused in the crime of Estafa, the gap between the minimum and the
maximum amounts, which is the basis of determining the proper penalty to be imposed, would be
too wide and the penalty imposable would no longer be commensurate to the act committed and the
value of the thing stolen or the damage caused:

I. Article 309, or the penalties for the crime of Theft, the value would be modified but the penalties
are not changed:
 1. ₱12,000.00 to ₱22,000.00 will become ₱1,200,000.00 to ₱2,200,000.00, punished by
prision mayor minimum to prision mayor medium (6 years and 1 day to 10 years).

2. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00 to ₱1,200,000.00, punished by prision

correccional medium and to prision correccional maximum (2 years, 4 months and 1 day to 6
years).24

3. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to ₱600,000.00, punishable by prision

correccional minimum to prision correccional medium (6 months and 1 day to 4 years and 2
months).

4. ₱50.00 to ₱200.00 will become ₱5,000.00 to ₱20,000.00, punishable by arresto mayor

medium to prision correccional minimum (2 months and 1 day to 2 years and 4 months).

5. ₱5.00 to ₱50.00 will become ₱500.00 to ₱5,000.00, punishable by arresto mayor (1 month
and 1 day to 6 months).

6. ₱5.00 will become ₱500.00, punishable by arresto mayor minimum to arresto mayor
medium.

x x x x.

II. Article 315, or the penalties for the crime of Estafa, the value would also be modified but the
penalties are not changed, as follows:

1st. ₱12,000.00 to ₱22,000.00, will become ₱1,200,000.00 to ₱2,200,000.00, punishable by

prision correccional maximum to prision mayor minimum (4 years, 2 months and 1 day to 8
years).25

2nd. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00 to ₱1,200,000.00, punishable by

prision correccional minimum to prision correccional medium (6 months and 1 day to 4 years
and 2 months).26

3rd. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to ₱600,000.00, punishable by arresto

mayor maximum to prision correccional minimum (4 months and 1 day to 2 years and 4
months).

4th. ₱200.00 will become ₱20,000.00, punishable by arresto mayor maximum (4 months and
1 day to 6 months).

An argument raised by Dean Jose Manuel I. Diokno, one of our esteemed amici curiae, is that the
incremental penalty provided under Article 315 of the RPC violates the Equal Protection Clause.

The equal protection clause requires equality among equals, which is determined according to a
valid classification. The test developed by jurisprudence here and yonder is that of
reasonableness,27 which has four requisites:

(1) The classification rests on substantial distinctions;

(2) It is germane to the purposes of the law;

(3) It is not limited to existing conditions only; and

(4) It applies equally to all members of the same class.28

According to Dean Diokno, the Incremental Penalty Rule (IPR) does not rest on substantial
distinctions as ₱10,000.00 may have been substantial in the past, but it is not so today, which
violates the first requisite; the IPR was devised so that those who commit estafa involving higher
amounts would receive heavier penalties; however, this is no longer achieved, because a person
who steals ₱142,000.00 would receive the same penalty as someone who steals hundreds of
millions, which violates the second requisite; and, the IPR violates requisite no. 3, considering that
the IPR is limited to existing conditions at the time the law was promulgated, conditions that no
longer exist today.

Assuming that the Court submits to the argument of Dean Diokno and declares the incremental
penalty in Article 315 unconstitutional for violating the equal protection clause, what then is the
penalty that should be applied in case the amount of the thing subject matter of the crime exceeds
₱22,000.00? It seems that the proposition poses more questions than answers, which leads us even
more to conclude that the appropriate remedy is to refer these matters to Congress for them to
exercise their inherent power to legislate laws.

Even Dean Diokno was of the opinion that if the Court declares the IPR unconstitutional, the remedy
is to go to Congress. Thus:

xxxx

JUSTICE PERALTA:

Now, your position is to declare that the incremental penalty should be struck down as
unconstitutional because it is absurd.

DEAN DIOKNO:

Absurd, it violates equal protection, Your Honor, and cruel and unusual punishment.

JUSTICE PERALTA:

Then what will be the penalty that we are going to impose if the amount is more than Twenty-Two
Thousand (₱22,000.00) Pesos.

DEAN DIOKNO:

Well, that would be for Congress to ... if this Court will declare the incremental penalty rule
unconstitutional, then that would ... the void should be filled by Congress.

JUSTICE PERALTA:

But in your presentation, you were fixing the amount at One Hundred Thousand (₱100,000.00)
Pesos ...

DEAN DIOKNO:

Well, my presen ... (interrupted)

JUSTICE PERALTA:

For every One Hundred Thousand (₱100,000.00) Pesos in excess of Twenty-Two Thousand
(₱22,000.00) Pesos you were suggesting an additional penalty of one (1) year, did I get you right?

DEAN DIOKNO:

Yes, Your Honor, that is, if the court will take the route of statutory interpretation.

JUSTICE PERALTA:

Ah ...

DEAN DIOKNO:

If the Court will say that they can go beyond the literal wording of the law...

JUSTICE PERALTA:

But if we de ... (interrupted)

DEAN DIOKNO:

....then....

JUSTICE PERALTA:

Ah, yeah. But if we declare the incremental penalty as unsconstitutional, the court cannot fix the
amount ...
DEAN DIOKNO:

No, Your Honor.

JUSTICE PERALTA:

... as the equivalent of one, as an incremental penalty in excess of Twenty-Two Thousand

(₱22,000.00) Pesos.

DEAN DIOKNO:

No, Your Honor.

JUSTICE PERALTA:

The Court cannot do that.

DEAN DIOKNO:

Could not be.

JUSTICE PERALTA:

The only remedy is to go to Congress...

DEAN DIOKNO:

Yes, Your Honor.

JUSTICE PERALTA:

... and determine the value or the amount.

DEAN DIOKNO:

Yes, Your Honor.

JUSTICE PERALTA:

That will be equivalent to the incremental penalty of one (1) year in excess of Twenty-Two Thousand
(₱22,000.00) Pesos.

DEAN DIOKNO:

Yes, Your Honor.

JUSTICE PERALTA:

The amount in excess of Twenty-Two Thousand (₱22,000.00) Pesos.

Thank you, Dean.

DEAN DIOKNO:

Thank you.

x x x x29

Dean Diokno also contends that Article 315 of the Revised Penal Code constitutes cruel and
unusual punishment. Citing Solem v. Helm,30 Dean Diokno avers that the United States Federal
Supreme Court has expanded the application of a similar Constitutional provision prohibiting cruel
and unusual punishment, to the duration of the penalty, and not just its form. The court therein ruled
that three things must be done to decide whether a sentence is proportional to a specific crime, viz.;
(1) Compare the nature and gravity of the offense, and the harshness of the penalty; (2) Compare
the sentences imposed on other criminals in the same jurisdiction, i.e., whether more serious crimes
are subject to the same penalty or to less serious penalties; and (3) Compare the sentences
imposed for commission of the same crime in other jurisdictions.
However, the case of Solem v. Helm cannot be applied in the present case, because in Solem what
respondent therein deemed cruel was the penalty imposed by the state court of South Dakota after it
took into account the latter’s recidivist statute and not the original penalty for uttering a "no account"
check. Normally, the maximum punishment for the crime would have been five years imprisonment
and a $5,000.00 fine. Nonetheless, respondent was sentenced to life imprisonment without the
possibility of parole under South Dakota’s recidivist statute because of his six prior felony
convictions. Surely, the factual antecedents of Solem are different from the present controversy.

With respect to the crime of Qualified Theft, however, it is true that the imposable penalty for the
offense is high. Nevertheless, the rationale for the imposition of a higher penalty against a domestic
servant is the fact that in the commission of the crime, the helper will essentially gravely abuse the
trust and confidence reposed upon her by her employer. After accepting and allowing the helper to
be a member of the household, thus entrusting upon such person the protection and safekeeping of
the employer’s loved ones and properties, a subsequent betrayal of that trust is so repulsive as to
warrant the necessity of imposing a higher penalty to deter the commission of such wrongful acts.

There are other crimes where the penalty of fine and/or imprisonment are dependent on the subject
matter of the crime and which, by adopting the proposal, may create serious implications. For
example, in the crime of Malversation, the penalty imposed depends on the amount of the money
malversed by the public official, thus:

Art. 217. Malversation of public funds or property; Presumption of malversation. — Any public officer
who, by reason of the duties of his office, is accountable for public funds or property, shall
appropriate the same or shall take or misappropriate or shall consent, through abandonment or
negligence, shall permit any other person to take such public funds, or property, wholly or partially,
or shall otherwise be guilty of the misappropriation or malversation of such funds or property, shall
suffer:

1. The penalty of prision correccional in its medium and maximum periods, if the amount
involved in the misappropriation or malversation does not exceed two hundred pesos.

2. The penalty of prision mayor in its minimum and medium periods, if the amount involved is
more than two hundred pesos but does not exceed six thousand pesos.

3. The penalty of prision mayor in its maximum period to reclusion temporal in its minimum
period, if the amount involved is more than six thousand pesos but is less than twelve
thousand pesos.

4. The penalty of reclusion temporal, in its medium and maximum periods, if the amount
involved is more than twelve thousand pesos but is less than twenty-two thousand pesos. If
the amount exceeds the latter, the penalty shall be reclusion temporal in its maximum period
to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special
disqualification and a fine equal to the amount of the funds malversed or equal to the total value of
the property embezzled.

The failure of a public officer to have duly forthcoming any public funds or property with which he is
chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has
put such missing funds or property to personal use.

The above-provisions contemplate a situation wherein the Government loses money due to the
unlawful acts of the offender. Thus, following the proposal, if the amount malversed is ₱200.00
(under the existing law), the amount now becomes ₱20,000.00 and the penalty is prision
correccional in its medium and maximum periods (2 years 4 months and 1 day to 6 years). The
penalty may not be commensurate to the act of embezzlement of ₱20,000.00 compared to the acts
committed by public officials punishable by a special law, i.e., Republic Act No. 3019 or the Anti-
Graft and Corrupt Practices Act, specifically Section 3,31 wherein the injury caused to the government
is not generally defined by any monetary amount, the penalty (6 years and 1 month to 15
years)32 under the Anti-Graft Law will now become higher. This should not be the case, because in
the crime of malversation, the public official takes advantage of his public position to embezzle the
fund or property of the government entrusted to him.

The said inequity is also apparent in the crime of Robbery with force upon things (inhabited or
uninhabited) where the value of the thing unlawfully taken and the act of unlawful entry are the
bases of the penalty imposable, and also, in Malicious Mischief, where the penalty of imprisonment
or fine is dependent on the cost of the damage caused.
In Robbery with force upon things (inhabited or uninhabited), if we increase the value of the thing
unlawfully taken, as proposed in the ponencia, the sole basis of the penalty will now be the value of
the thing unlawfully taken and no longer the element of force employed in entering the premises. It
may likewise cause an inequity between the crime of Qualified Trespass to Dwelling under Article
280, and this kind of robbery because the former is punishable by prision correccional in its medium
and maximum periods (2 years, 4 months and 1 day to 6 years) and a fine not exceeding ₱1,000.00
(₱100,000.00 now if the ratio is 1:100) where entrance to the premises is with violence or
intimidation, which is the main justification of the penalty. Whereas in the crime of Robbery with force
upon things, it is punished with a penalty of prision mayor (6 years and 1 day to 12 years) if the
intruder is unarmed without the penalty of Fine despite the fact that it is not merely the illegal entry
that is the basis of the penalty but likewise the unlawful taking.

Furthermore, in the crime of Other Mischiefs under Article 329, the highest penalty that can be
imposed is arresto mayor in its medium and maximum periods (2 months and 1 day to 6 months) if
the value of the damage caused exceeds ₱1,000.00, but under the proposal, the value of the
damage will now become ₱100,000.00 (1:100), and still punishable by arresto mayor (1 month and 1
day to 6 months). And, if the value of the damaged property does not exceed ₱200.00, the penalty is
arresto menor or a fine of not less than the value of the damage caused and not more than ₱200.00,
if the amount involved does not exceed ₱200.00 or cannot be estimated. Under the proposal,
₱200.00 will now become ₱20,000.00, which simply means that the fine of ₱200.00 under the
existing law will now become ₱20,000.00. The amount of Fine under this situation will now become
excessive and afflictive in nature despite the fact that the offense is categorized as a light felony
penalized with a light penalty under Article 26 of the RPC.33 Unless we also amend Article 26 of the
RPC, there will be grave implications on the penalty of Fine, but changing the same through Court
decision, either expressly or impliedly, may not be legally and constitutionally feasible.

There are other crimes against property and swindling in the RPC that may also be affected by the
proposal, such as those that impose imprisonment and/or Fine as a penalty based on the value of
the damage caused, to wit: Article 311 (Theft of the property of the National Library and National
Museum), Article 312 (Occupation of real property or usurpation of real rights in property), Article
313 (Altering boundaries or landmarks), Article 316 (Other forms of swindling), Article 317 (Swindling
a minor), Article 318 (Other deceits), Article 328 (Special cases of malicious mischief) and Article
331 (Destroying or damaging statues, public monuments or paintings). Other crimes that impose
Fine as a penalty will also be affected, such as: Article 213 (Frauds against the public treasury and
similar offenses), Article 215 (Prohibited Transactions),

Article 216 (Possession of prohibited interest by a public officer), Article 218 (Failure of accountable
officer to render accounts), Article 219 (Failure of a responsible public officer to render accounts
before leaving the country).

In addition, the proposal will not only affect crimes under the RPC. It will also affect crimes which are
punishable by special penal laws, such as Illegal Logging or Violation of Section 68 of Presidential
Decree No. 705, as amended.34 The law treats cutting, gathering, collecting and possessing timber or
other forest products without license as an offense as grave as and equivalent to the felony of
qualified theft.35 Under the law, the offender shall be punished with the penalties imposed under
Articles 309 and 31036 of the Revised Penal Code, which means that the penalty imposable for the
offense is, again, based on the value of the timber or forest products involved in the offense. Now, if
we accept the said proposal in the crime of Theft, will this particular crime of Illegal Logging be
amended also in so far as the penalty is concerned because the penalty is dependent on Articles
309 and 310 of the RPC? The answer is in the negative because the soundness of this particular law
is not in question.

With the numerous crimes defined and penalized under the Revised Penal Code and Special Laws,
and other related provisions of these laws affected by the proposal, a thorough study is needed to
determine its effectivity and necessity. There may be some provisions of the law that should be
amended; nevertheless, this Court is in no position to conclude as to the intentions of the framers of
the Revised Penal Code by merely making a study of the applicability of the penalties imposable in
the present times. Such is not within the competence of the Court but of the Legislature which is
empowered to conduct public hearings on the matter, consult legal luminaries and who, after due
proceedings, can decide whether or not to amend or to revise the questioned law or other laws, or
even create a new legislation which will adopt to the times.

Admittedly, Congress is aware that there is an urgent need to amend the Revised Penal Code.
During the oral arguments, counsel for the Senate informed the Court that at present, fifty-six (56)
bills are now pending in the Senate seeking to amend the Revised Penal Code,37 each one
proposing much needed change and updates to archaic laws that were promulgated decades ago
when the political, socio-economic, and cultural settings were far different from today’s conditions.

Verily, the primordial duty of the Court is merely to apply the law in such a way that it shall not usurp
legislative powers by judicial legislation and that in the course of such application or construction, it
should not make or supervise legislation, or under the guise of interpretation, modify, revise, amend,
distort, remodel, or rewrite the law, or give the law a construction which is repugnant to its
terms.38 The Court should apply the law in a manner that would give effect to their letter and spirit,
especially when the law is clear as to its intent and purpose. Succinctly put, the Court should shy
away from encroaching upon the primary function of a co-equal branch of the Government;
otherwise, this would lead to an inexcusable breach of the doctrine of separation of powers by
means of judicial legislation.

Moreover, it is to be noted that civil indemnity is, technically, not a penalty or a Fine; hence, it can be
increased by the Court when appropriate. Article 2206 of the Civil Code provides:

Art. 2206. The amount of damages for death caused by a crime or quasi-delict shall be at least three
thousand pesos, even though there may have been mitigating circumstances. In addition:

(1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the
indemnity shall be paid to the heirs of the latter; such indemnity shall in every case be
assessed and awarded by the court, unless the deceased on account of permanent physical
disability not caused by the defendant, had no earning capacity at the time of his death;

(2) If the deceased was obliged to give support according to the provisions of Article 291, the
recipient who is not an heir called to the decedent's inheritance by the law of testate or
intestate succession, may demand support from the person causing the death, for a period
not exceeding five years, the exact duration to be fixed by the court;

(3) The spouse, legitimate and illegitimate descendants and ascendants of the deceased
may demand moral damages for mental anguish by reason of the death of the deceased.

In our jurisdiction, civil indemnity is awarded to the offended party as a kind of monetary restitution or
compensation to the victim for the damage or infraction that was done to the latter by the accused,
which in a sense only covers the civil aspect. Precisely, it is civil indemnity. Thus, in a crime where a
person dies, in addition to the penalty of imprisonment imposed to the offender, the accused is also
ordered to pay the victim a sum of money as restitution. Clearly, this award of civil indemnity due to
the death of the victim could not be contemplated as akin to the value of a thing that is unlawfully
taken which is the basis in the imposition of the proper penalty in certain crimes. Thus, the reasoning
in increasing the value of civil indemnity awarded in some offense cannot be the same reasoning
that would sustain the adoption of the suggested ratio. Also, it is apparent from Article 2206 that the
law only imposes a minimum amount for awards of civil indemnity, which is ₱3,000.00. The law did
not provide for a ceiling. Thus, although the minimum amount for the award cannot be changed,
increasing the amount awarded as civil indemnity can be validly modified and increased when the
present circumstance warrants it. Corollarily, moral damages under Article 222039 of the Civil Code
also does not fix the amount of damages that can be awarded. It is discretionary upon the court,
depending on the mental anguish or the suffering of the private offended party. The amount of moral
damages can, in relation to civil indemnity, be adjusted so long as it does not exceed the award of
civil indemnity.

In addition, some may view the penalty provided by law for the offense committed as tantamount to
cruel punishment. However, all penalties are generally harsh, being punitive in nature. Whether or
not they are excessive or amount to cruel punishment is a matter that should be left to lawmakers. It
is the prerogative of the courts to apply the law, especially when they are clear and not subject to
any other interpretation than that which is plainly written.

Similar to the argument of Dean Diokno, one of Justice Antonio Carpio’s opinions is that the
incremental penalty provision should be declared unconstitutional and that the courts should only
impose the penalty corresponding to the amount of ₱22,000.00, regardless if the actual amount
involved exceeds ₱22,000.00. As suggested, however, from now until the law is properly amended
by Congress, all crimes of Estafa will no longer be punished by the appropriate penalty. A
conundrum in the regular course of criminal justice would occur when every accused convicted of
the crime of estafa will be meted penalties different from the proper penalty that should be imposed.
Such drastic twist in the application of the law has no legal basis and directly runs counter to what
the law provides.

It should be noted that the death penalty was reintroduced in the dispensation of criminal justice by
the Ramos Administration by virtue of Republic Act No. 765940 in December 1993. The said law has
been questioned before this Court. There is, arguably, no punishment more cruel than that of death.
Yet still, from the time the death penalty was re-imposed until its lifting in June 2006 by Republic Act
No. 9346,41 the Court did not impede the imposition of the death penalty on the ground that it is a
"cruel punishment" within the purview of Section 19 (1),42 Article III of the Constitution. Ultimately, it
was through an act of Congress suspending the imposition of the death penalty that led to its non-
imposition and not via the intervention of the Court.
Even if the imposable penalty amounts to cruel punishment, the Court cannot declare the provision
of the law from which the proper penalty emanates unconstitutional in the present action. Not only is
it violative of due process, considering that the State and the concerned parties were not given the
opportunity to comment on the subject matter, it is settled that the constitutionality of a statute
cannot be attacked collaterally because constitutionality issues must be pleaded directly and not
collaterally,43 more so in the present controversy wherein the issues never touched upon the
constitutionality of any of the provisions of the Revised Penal Code.

Besides, it has long been held that the prohibition of cruel and unusual punishments is generally
aimed at the form or character of the punishment rather than its severity in respect of duration or
amount, and applies to punishments which public sentiment has regarded as cruel or obsolete, for
instance, those inflicted at the whipping post, or in the pillory, burning at the stake, breaking on the
wheel, disemboweling, and the like. Fine and imprisonment would not thus be within the prohibition.44

It takes more than merely being harsh, excessive, out of proportion, or severe for a penalty to be
obnoxious to the Constitution. The fact that the punishment authorized by the statute is severe does
not make it cruel and unusual. Expressed in other terms, it has been held that to come under the
ban, the punishment must be "flagrantly and plainly oppressive," "wholly disproportionate to the
nature of the offense as to shock the moral sense of the community."45

Cruel as it may be, as discussed above, it is for the Congress to amend the law and adapt it to our
modern time.

The solution to the present controversy could not be solved by merely adjusting the questioned
monetary values to the present value of money based only on the current inflation rate. There are
other factors and variables that need to be taken into consideration, researched, and deliberated
upon before the said values could be accurately and properly adjusted. The effects on the society,
the injured party, the accused, its socio-economic impact, and the likes must be painstakingly
evaluated and weighed upon in order to arrive at a wholistic change that all of us believe should be
made to our existing law. Dejectedly, the Court is ill-equipped, has no resources, and lacks sufficient
personnel to conduct public hearings and sponsor studies and surveys to validly effect these
changes in our Revised Penal Code. This function clearly and appropriately belongs to Congress.
Even Professor Tadiar concedes to this conclusion, to wit:

xxxx

JUSTICE PERALTA:

Yeah, Just one question. You are suggesting that in order to determine the value of Peso you have
to take into consideration several factors.

PROFESSOR TADIAR:

Yes.

JUSTICE PERALTA:

Per capita income.

PROFESSOR TADIAR:

Per capita income.

JUSTICE PERALTA:

Consumer price index.

PROFESSOR TADIAR:

Yeah.

JUSTICE PERALTA:

Inflation ...

PROFESSOR TADIAR:

Yes.
JUSTICE PERALTA:

... and so on. Is the Supreme Court equipped to determine those factors?

PROFESSOR TADIAR:

There are many ways by which the value of the Philippine Peso can be determined utilizing all of
those economic terms.

JUSTICE PERALTA:

Yeah, but ...

PROFESSOR TADIAR:

And I don’t think it is within the power of the Supreme Court to pass upon and peg the value to One
Hundred (₱100.00) Pesos to ...

JUSTICE PERALTA:

Yeah.

PROFESSOR TADIAR:

... One (₱1.00.00) Peso in 1930.

JUSTICE PERALTA:

That is legislative in nature.

PROFESSOR TADIAR:

That is my position that the Supreme Court ...

JUSTICE PERALTA:

Yeah, okay.

PROFESSOR TADIAR:

... has no power to utilize the power of judicial review to in order to adjust, to make the adjustment
that is a power that belongs to the legislature.

JUSTICE PERALTA:

Thank you, Professor.

PROFESSOR TADIAR:

Thank you.46

Finally, the opinion advanced by Chief Justice Maria Lourdes P. A. Sereno echoes the view that the
role of the Court is not merely to dispense justice, but also the active duty to prevent injustice. Thus,
in order to prevent injustice in the present controversy, the Court should not impose an obsolete
penalty pegged eighty three years ago, but consider the proposed ratio of 1:100 as simply
compensating for inflation. Furthermore, the Court has in the past taken into consideration "changed
conditions" or "significant changes in circumstances" in its decisions.

Similarly, the Chief Justice is of the view that the Court is not delving into the validity of the
substance of a statute. The issue is no different from the Court’s adjustment of indemnity in crimes
against persons, which the Court had previously adjusted in light of current times, like in the case of
People v. Pantoja.47 Besides, Article 10 of the Civil Code mandates a presumption that the
lawmaking body intended right and justice to prevail.

With due respect to the opinions and proposals advanced by the Chief Justice and my Colleagues,
all the proposals ultimately lead to prohibited judicial legislation. Short of being repetitious and as
extensively discussed above, it is truly beyond the powers of the Court to legislate laws, such
immense power belongs to Congress and the Court should refrain from crossing this clear-cut
divide. With regard to civil indemnity, as elucidated before, this refers to civil liability which is
awarded to the offended party as a kind of monetary restitution. It is truly based on the value of
money. The same cannot be said on penalties because, as earlier stated, penalties are not only
based on the value of money, but on several other factors. Further, since the law is silent as to the
maximum amount that can be awarded and only pegged the minimum sum, increasing the amount
granted as civil indemnity is not proscribed. Thus, it can be adjusted in light of current conditions.

Now, with regard to the penalty imposed in the present case, the CA modified the ruling of the RTC.
The RTC imposed the indeterminate penalty of four (4) years and two (2) months of prision
correccional in its medium period, as minimum, to fourteen (14) years and eight (8) months of
reclusion temporal in its minimum period, as maximum. However, the CA imposed the indeterminate
penalty of four (4) years and two (2) months of prision correccional, as minimum, to eight (8) years of
prision mayor, as maximum, plus one (1) year for each additional ₱10,000.00, or a total of seven (7)
years.

In computing the penalty for this type of estafa, this Court's ruling in Cosme, Jr. v. People48 is highly
instructive, thus:

With respect to the imposable penalty, Article 315 of the Revised Penal Code provides:

ART. 315 Swindling (estafa). - Any person who shall defraud another by any of the means
mentioned hereinbelow shall be punished by:

1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period,
if the amount of the fraud is over 12,000 but does not exceed 22,000 pesos, and if such amount
exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum
period, adding one year for each additional 10,000 pesos; but the total penalty which may be
imposed shall not exceed twenty years. In such case, and in connection with the accessory penalties
which may be imposed and for the purpose of the other provisions of this Code, the penalty shall be
termed prision mayor or reclusion temporal, as the case may be.

The penalty prescribed by Article 315 is composed of only two, not three, periods, in which case,
Article 65 of the same Code requires the division of the time included in the penalty into three equal
portions of time included in the penalty prescribed, forming one period of each of the three portions.
Applying the latter provisions, the maximum, medium and minimum periods of the penalty prescribed
are:

Maximum - 6 years, 8 months, 21 days to 8 years

Medium - 5 years, 5 months, 11 days to 6 years, 8 months, 20 days

Minimum - 4 years, 2 months, 1 day to 5 years, 5 months, 10 days49

To compute the maximum period of the prescribed penalty, prisión correccional maximum to prisión
mayor minimum should be divided into three equal portions of time each of which portion shall be
deemed to form one period in accordance with Article 6550 of the RPC.51 In the present case, the
amount involved is ₱98,000.00, which exceeds ₱22,000.00, thus, the maximum penalty imposable
should be within the maximum period of 6 years, 8 months and 21 days to 8 years of prision mayor.
Article 315 also states that a period of one year shall be added to the penalty for every additional
₱10,000.00 defrauded in excess of ₱22,000.00, but in no case shall the total penalty which may be
imposed exceed 20 years.

Considering that the amount of ₱98,000.00 is ₱76,000.00 more than the ₱22,000.00 ceiling set by
law, then, adding one year for each additional ₱10,000.00, the maximum period of 6 years, 8 months
and 21 days to 8 years of prision mayor minimum would be increased by 7 years. Taking the
maximum of the prescribed penalty, which is 8 years, plus an additional 7 years, the maximum of the
indeterminate penalty is 15 years.

Applying the Indeterminate Sentence Law, since the penalty prescribed by law for the estafa charge
against petitioner is prision correccional maximum to prision mayor minimum, the penalty next lower
would then be prision correccional in its minimum and medium periods.

Thus, the minimum term of the indeterminate sentence should be anywhere from 6 months and 1
day to 4 years and 2 months.

One final note, the Court should give Congress a chance to perform its primordial duty of lawmaking.
The Court should not pre-empt Congress and usurp its inherent powers of making and enacting
laws. While it may be the most expeditious approach, a short cut by judicial fiat is a dangerous
proposition, lest the Court dare trespass on prohibited judicial legislation.

WHEREFORE, the Petition for Review on Certiorari dated November 5, 2007 of petitioner Lito
Corpuz is hereby DENIED. Consequently, the Decision dated March 22, 2007 and Resolution dated
September 5, 2007 of the Court of Appeals, which affirmed with modification the Decision dated July
30, 2004 of the Regional Trial Court, Branch 46, San Fernando City, finding petitioner guilty beyond
reasonable doubt of the crime of Estafa under Article 315, paragraph (1), sub-paragraph (b) of the
Revised Penal Code, are hereby AFFIRMED with MODIFICATION that the penalty imposed is the
indeterminate penalty of imprisonment ranging from THREE (3) YEARS, TWO (2) MONTHS and
ELEVEN DAYS of prision correccional, as minimum, to FIFTEEN (15) YEARS of reclusion temporal
as maximum.

Pursuant to Article 5 of the Revised Penal Code, let a Copy of this Decision be furnished the
President of the Republic of the Philippines, through the Department of Justice.

Also, let a copy of this Decision be furnished the President of the Senate and the Speaker of the
House of Representatives.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice

WE CONCUR:

See Concurring and Dissenting Opinion

MARIA LOURDES P.A. SERENO
Chief Justice

See Dissenting Opinion

PRESBITERO J. VELASCO, JR.
ANTONIO T. CARPIO
Associate Justice
Associate Justice

See: Concurring Opinion

TERESITA J. LEONARDO-DE CASTRO
ARTURO D. BRION
Associate Justice
Associate Justice

I take no part due to prior action in the CA I join the Dissent of J. Abad
LUCAS P. BERSAMIN* MARIANO C. DEL CASTILLO
Associate Justice Associate Justice

See Dissenting Opinion

MARTIN S. VILLARAMA, JR.
ROBERTO A. ABAD
Associate Justice
Associate Justice

JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA

Associate Justice Associate Justice

No Part
BVIENVENIDO L. REYES
ESTELA M. PERLAS-BERNABE*
Associate Justice
Associate Justice

MARVIC MARIO VICTOR F. LEONEN

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
Decision were reached in consultation before the case was assigned to the writer of the opinion of
the Court.

MARIA LOURDES P. A. SERENO

Chief Justice
Footnotes

* No part.

1
Penned by Associate Justice Estela M. Perlas-Bernabe (now a member of the Supreme
Court), with Associate Justices Rodrigo V. Cosico and Lucas P. Bersamin (now a member of
the Supreme Court), concurring; rollo, pp. 31-41.

2
Rollo, p. 43.

3
Id. at 48-52.

4
Libuit v. People, 506 Phil. 591, 599 (2005).

5
Blas v. Angeles- Hutalla, 482 Phil. 485, 501 (2004).

6
Quinto v. People, 365 Phil. 259, 270 (1999).

7
Rollo, p. 37. (Citations omitted.)

8
Diaz v. People, 585 Phil. 318, 332 (2008), citing Pangilinan v. Court of Appeals, 378 Phil.
670, 675 (1999).

9
TSN, December 17, 1992, pp. 9-10. (Emphasis supplied.)

10
Tan v. People, 542 Phil. 188, 201 (2007).

11
Id., citing Lee v. People, 495 Phil. 239, 250 (2005).

12
Id.

13
555 Phil. 106 (2007).

14
Id. at 114. (Citations omitted.)

Cosme, Jr. v. People, 538 Phil. 52, 66 (2006), citing People v. Garillo, 446 Phil. 163, 174-
15

175 (2003).

16
Id., citing Sullon v. People, 500 Phil. 39, 45 (2005) ; People v. Bulan, 498 Phil. 586, 598
(2005).

17
Id. at 67, citing People v. Gaspar, 376 Phil. 762, 779 (1999).

18
Emphasis supplied.

19
Third Edition, 1940.

20
Id. at 16. (Emphasis supplied)

21
1997 Edition.

Id. at 93, citing United States v. Valera Ang Y, 26 Phil. 598 (1914); People v. Salazar y
22

Gabriel, 102 Phil. 1184 (1958); Tiu Ua, 51 O.G. 1863; Limaco, 99 Phil. 35 (1956), and
People v. Del Rosario y Natividad, 62 Phil. 824 (1936). (Emphasis supplied.)

Art. 315. Swindling (estafa). — Any person who shall defraud another by any of the means
23

mentioned hereinbelow shall be punished by:

1st. The penalty of prision correccional in its maximum period to prision

mayor in its minimum period, if the amount of the fraud is over 12,000 pesos
but does not exceed 22,000 pesos, and if such amount exceeds the latter
sum, the penalty provided in this paragraph shall be imposed in its maximum
period, adding one year for each additional 10,000 pesos; but the total
penalty which may be imposed shall not exceed twenty years. In such cases,
and in connection with the accessory penalties which may be imposed under
the provisions of this Code, the penalty shall be termed prision mayor or
reclusion temporal, as the case may be.
 2nd. The penalty of prision correccional in its minimum and medium periods,
if the amount of the fraud is over 6,000 pesos but does not exceed 12,000
pesos;

3rd. The penalty of arresto mayor in its maximum period to prision

correccional in its minimum period if such amount is over 200 pesos but does
not exceed 6,000 pesos; and

4th. By arresto mayor in its maximum period, if such amount does not exceed
200 pesos, provided that in the four cases mentioned, the fraud be
committed by any of the following means:

1. With unfaithfulness or abuse of confidence, namely:

(a) By altering the substance, quantity, or quality or anything of value which

the offender shall deliver by virtue of an obligation to do so, even though
such obligation be based on an immoral or illegal consideration.

(b) By misappropriating or converting, to the prejudice of another, money,

goods, or any other personal property received by the offender in trust or on
commission, or for administration, or under any other obligation involving the
duty to make delivery of or to return the same, even though such obligation
be totally or partially guaranteed by a bond; or by denying having received
such money, goods, or other property.

(c) By taking undue advantage of the signature of the offended party in blank,
and by writing any document above such signature in blank, to the prejudice
of the offended party or of any third person.

2. By means of any of the following false pretenses or fraudulent acts executed prior
to or simultaneously with the commission of the fraud:

(a) By using fictitious name, or falsely pretending to possess power,

influence, qualifications, property, credit, agency, business or imaginary
transactions, or by means of other similar deceits.

(b) By altering the quality, fineness or weight of anything pertaining to his art
or business.

(c) By pretending to have bribed any Government employee, without

prejudice to the action for calumny which the offended party may deem
proper to bring against the offender. In this case, the offender shall be
punished by the maximum period of the penalty.

(d) [By post-dating a check, or issuing a check in payment of an obligation

when the offender therein were not sufficient to cover the amount of the
check. The failure of the drawer of the check to deposit the amount
necessary to cover his check within three (3) days from receipt of notice from
the bank and/or the payee or holder that said check has been dishonored for
lack of insufficiency of funds shall be prima facie evidence of deceit
constituting false pretense or fraudulent act. (As amended by R.A. 4885,
approved June 17, 1967.)]

(e) By obtaining any food, refreshment or accommodation at a hotel, inn,

restaurant, boarding house, lodging house, or apartment house and the like
without paying therefor, with intent to defraud the proprietor or manager
thereof, or by obtaining credit at hotel, inn, restaurant, boarding house,
lodging house, or apartment house by the use of any false pretense, or by
abandoning or surreptitiously removing any part of his baggage from a hotel,
inn, restaurant, boarding house, lodging house or apartment house after
obtaining credit, food, refreshment or accommodation therein without paying
for his food, refreshment or accommodation.

3. Through any of the following fraudulent means:

(a) By inducing another, by means of deceit, to sign any document.

(b) By resorting to some fraudulent practice to insure success in a gambling

game.
 (c) By removing, concealing or destroying, in whole or in part, any court
record, office files, document or any other papers.

24
May be entitled to Probation.

25
May be entitled to Probation if the maximum penalty imposed is 6 years.

26
May be entitled to Probation.

Quinto v. Commission on Elections, G.R. No. 189698, February 22, 2010, 613 SCRA 385,
27

414.

28
People v. Cayat, 68 Phil. 12, 18 (1939).

29
TSN, Oral Arguments, February 25, 2014, pp. 192-195.

30
463 U.S. 277 (1983)

31
Section 3. Corrupt practices of public officers. - In addition to acts or omissions of public
officers already penalized by existing law, the following shall constitute corrupt practices of
any public officer and are hereby declared to be unlawful:

(a) Persuading, inducing or influencing another public officer to perform an act

constituting a violation of rules and regulations duly promulgated by competent
authority or an offense in connection with the official duties of the latter, or allowing
himself to be persuaded, induced, or influenced to commit such violation or offense.

(b) Directly or indirectly requesting or receiving any gift, present, share, percentage,
or benefit, for himself or for any other person, in connection with any contract or
transaction between the Government and any other part, wherein the public officer in
his official capacity has to intervene under the law.

(c) Directly or indirectly requesting or receiving any gift, present or other pecuniary or
material benefit, for himself or for another, from any person for whom the public
officer, in any manner or capacity, has secured or obtained, or will secure or obtain,
any Government permit or license, in consideration for the help given or to be given,
without prejudice to Section thirteen of this Act.

(d) Accepting or having any member of his family accept employment in a private
enterprise which has pending official business with him during the pendency thereof
or within one year after its termination.

(e) Causing any undue injury to any party, including the Government, or giving any
private party any unwarranted benefits, advantage or preference in the discharge of
his official administrative or judicial functions through manifest partiality, evident bad
faith or gross inexcusable negligence. This provision shall apply to officers and
employees of offices or government corporations charged with the grant of licenses
or permits or other concessions.

(f) Neglecting or refusing, after due demand or request, without sufficient justification,
to act within a reasonable time on any matter pending before him for the purpose of
obtaining, directly or indirectly, from any person interested in the matter some
pecuniary or material benefit or advantage, or for the purpose of favoring his own
interest or giving undue advantage in favor of or discriminating against any other
interested party.

(g) Entering, on behalf of the Government, into any contract or transaction manifestly
and grossly disadvantageous to the same, whether or not the public officer profited
or will profit thereby.

(h) Director or indirectly having financing or pecuniary interest in any business,

contract or transaction in connection with which he intervenes or takes part in his
official capacity, or in which he is prohibited by the Constitution or by any law from
having any interest.

(i) Directly or indirectly becoming interested, for personal gain, or having a material
interest in any transaction or act requiring the approval of a board, panel or group of
which he is a member, and which exercises discretion in such approval, even if he
 votes against the same or does not participate in the action of the board, committee,
panel or group.

Interest for personal gain shall be presumed against those public officers responsible
for the approval of manifestly unlawful, inequitable, or irregular transaction or acts by
the board, panel or group to which they belong.

(j) Knowingly approving or granting any license, permit, privilege or benefit in favor of
any person not qualified for or not legally entitled to such license, permit, privilege or
advantage, or of a mere representative or dummy of one who is not so qualified or
entitled.

(k) Divulging valuable information of a confidential character, acquired by his office or

by him on account of his official position to unauthorized persons, or releasing such
information in advance of its authorized release date.

The person giving the gift, present, share, percentage or benefit referred to in
subparagraphs (b) and (c); or offering or giving to the public officer the employment
mentioned in subparagraph (d); or urging the divulging or untimely release of the
confidential information referred to in subparagraph (k) of this section shall, together
with the offending public officer, be punished under Section nine of this Act and shall
be permanently or temporarily disqualified in the discretion of the Court, from
transacting business in any form with the Government.

32
R.A. No. 3019, Sec. 9.

33
Art. 26. When afflictive, correctional, or light penalty. — A fine, whether imposed as a
single of as an alternative penalty, shall be considered an afflictive penalty, if it exceeds
6,000 pesos; a correctional penalty, if it does not exceed 6,000 pesos but is not less than
200 pesos; and a light penalty if it less than 200 pesos.

34
Revised Forestry Code, as amended by E.O. No. 277, Series of 1987.

35
Taopa v. People, 592 Phil. 341, 345 (2005).

36
Art. 310. Qualified theft. — The crime of theft shall be punished by the penalties next
higher by two degrees than those respectively specified in the next preceding article, if
committed by a domestic servant, or with grave abuse of confidence, or if the property stolen
is motor vehicle, mail matter or large cattle or consists of coconuts taken from the premises
of the plantation or fish taken from a fishpond or fishery, or if property is taken on the
occasion of fire, earthquake, typhoon, volcanic erruption, or any other calamity, vehicular
accident or civil disturbance.

37
TSN, Oral Arguments, February 25, 2014, p. 167.

38
People v. Quijada, 328 Phil. 505, 548 (1996).

39
Art. 2220. Willful injury to property may be a legal ground for awarding moral damages if
the court should find that, under the circumstances, such damages are justly due. The same
rule applies to breaches of contract where the defendant acted fraudulently or in bad faith.

AN ACT TO IMPOSE THE DEATH PENALTY ON CERTAIN HEINOUS CRIMES,

40

AMENDING FOR THAT PURPOSE THE REVISED PENAL LAWS, AS AMENDED, OTHER
SPECIAL PENAL LAWS, AND FOR OTHER PURPOSES.

41
AN ACT PROHIBITING THE IMPOSITION OF DEATH PENALTY IN THE PHILIPPINES.

42
Section 19.

1. Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment
inflicted. x x x.

Gutierrez v. Department of Budget and Management, G.R. No. 153266, 159007, 159029,
43

170084, 172713, 173119, 176477, 177990, A.M. No. 06-4-02-SB, March 18, 2010, 616
SCRA 1, 25.

44
People v. De la Cruz, 92 Phil. 906, 908 (1953); People v. Tongko, 353 Phil. 37, 43 (1998).
 People v. Estoista, 93 Phil. 647, 655 (1953); People v. Dionisio, No. L-15513, March 27,
45

1968, 22 SCRA 1299, 1301-1302.

46
TSN, Oral Arguments, February 25, 2014, pp. 183-185.

47
No. L-18793, October 11, 1968, 25 SCRA 468.

48
Supra note 15.

49
Id. at 71-72.

50
ART. 65. Rule in Cases in Which the Penalty is Not Composed of Three Periods. – In
cases in which the penalty prescribed by law is not composed of three periods, the courts
shall apply the rules contained in the foregoing articles, dividing into three equal portions the
time included in the penalty prescribed, and forming one period of each of the three portions.

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People v. Temporada, G.R. No. 173473, December 17, 2008, 574 SCRA 258, 284