XI-XI-XI-XI-XI-XI-XI-XI-XI-XI-XI-XI-XI-XI-XI-XI-XI-XI-XI-XI-XI-XI-XI Pio S. Canta for petitioner in G.R. Nos. 66839-42.

Hermogenes Datuin, Jr. for petitioner in G.R. No. 71654.

FLORENTINA A. LOZANO, petitioner, Abinoja, Tabalingcos, Villalon & Associates for petitioner in G.R.
vs. Nos. 75122-49.
THE HONORABLE ANTONIO M. MARTINEZ, in his capacity as
Presiding Judge, Regional Trial Court, National Capital The Solicitor General for respondent in G.R. No. 63419, G.R. Nos.
Judicial Region, Branch XX, Manila, and the HONORABLE 66839-42, G.R. No. 71654, G.R. Nos. 74524-25, G.R. Nos. 75122-
JOSE B. FLAMINIANO, in his capacity as City Fiscal of
49, G.R. Nos. 75812-13, G.R. Nos. 75765-67 and counsel for
Manila, respondents. petitioner in G.R. No. 75789.

G.R. No. L-66839-42 December 18, 1986

LUZVIMINDA F. LOBATON petitioner, YAP, J.:

vs.
HONORABLE GLICERIO L. CRUZ, in his capacity as Presiding
Executive Judge, Branch V, Region IV, Regional Trial Court,
sitting at Lemery, Batangas, THE PROVINCIAL FISCAL OF
BATANGAS, and MARIA LUISA TORDECILLA, respondents.
G.R No. 71654 December 18, 1986
The constitutionality of Batas Pambansa Bilang 22 (BP 22 for
short), popularly known as the Bouncing Check Law, which was
approved on April 3, 1979, is the sole issue presented by these
petitions for decision. The question is definitely one of first
impression in our jurisdiction.

These petitions arose from cases involving prosecution of offenses

ANTONIO DATUIN and SUSAN DATUIN, petitioners, under the statute. The defendants in those cases moved
vs. seasonably to quash the informations on the ground that the acts
HONORABLE JUDGE ERNANI C. PANO, Regional Trial Court, charged did not constitute an offense, the statute being
Quezon City, Branch LXXXVIII, HONORABLE ClTY FISCAL OF unconstitutional. The motions were denied by the respondent trial
QUEZON CITY, respondents.
courts, except in one case, which is the subject of G. R. No.
75789, wherein the trial court declared the law unconstitutional and
G.R. No. 74524-25 December 18, 1986 dismissed the case. The parties adversely affected have come to
us for relief.
OSCAR VIOLAGO, petitioner,
vs. As a threshold issue the former Solicitor General in his comment
HONORABLE JUDGE ERNANI C. PAÑ;O Regional Trial Court, on the petitions, maintained the posture that it was premature for
Quezon City, Branch LXXXVIII, HONORABLE CITY FISCAL OF the accused to elevate to this Court the orders denying their
QUEZON CITY, respondents. motions to quash, these orders being interlocutory. While this is
correct as a general rule, we have in justifiable cases intervened to
review the lower court's denial of a motion to quash. 1 In view of
G.R. No. 75122-49 December 18, 1986
the importance of the issue involved here, there is no doubt in our
mind that the instant petitions should be entertained and the
ELINOR ABAD, petitioner, constitutional challenge to BP 22 resolved promptly, one way or
vs. the other, in order to put to rest the doubts and uncertainty that
THE HONORABLE NICOLAS A. GEROCHI, JR., in his capacity exist in legal and judicial circles and the general public which have
as Presiding Judge, Regional Trial Court, National Capital unnecessarily caused a delay in the disposition of cases involving
Judicial Region, Branch 139, Makati and FEDERICO L. the enforcement of the statute.
MELOCOTTON JR., in his capacity as Trial Fiscal Regional
Trial Court, Branch 139, Makati, respondents.
For the purpose of resolving the constitutional issue presented
here, we do not find it necessary to delve into the specifics of the
G.R No. 75812-13 December 18, 1986 informations involved in the cases which are the subject of the
petitions before us. 2 The language of BP 22 is broad enough to
AMABLE R. AGUILUZ VII and SYLVIA V. AGUILUZ, cover all kinds of checks, whether present dated or postdated, or
spouses, petitioners, whether issued in payment of pre-existing obligations or given in
vs. mutual or simultaneous exchange for something of value.
HONORABLE PRESIDING JUDGE OF BRANCH 154, now
vacant but temporarily presided by HONORABLE ASAALI S. I
ISNANI Branch 153, Court of First Instance of Pasig, Metro
Manila, respondent.
BP 22 punishes a person "who makes or draws and issues any
check on account or for value, knowing at the time of issue that he
G.R No. 75765-67 December 18, 1986 does not have sufficient funds in or credit with the drawee bank for
the payment of said check in full upon presentment, which check is
LUIS M. HOJAS, petitioner, subsequently dishonored by the drawee bank for insufficiency of
vs. funds or credit or would have been dishonored for the same
HON. JUDGE SENEN PENARANDA, Presiding Judge, reason had not the drawer, without any valid reason, ordered the
Regional Trial Court of Cagayan de Oro City, Branch XX, bank to stop payment." The penalty prescribed for the offense is
HONORABLE JUDGE ALFREDO LAGAMON, Presiding Judge, imprisonment of not less than 30 days nor more than one year or a
Regional Trial Court of Cagayan de Oro City, Branch XXII, fine or not less than the amount of the check nor more than double
HONORABLE CITY FISCAL NOLI T. CATHI, City Fiscal of said amount, but in no case to exceed P200,000.00, or both such
Cagayan de Oro City,respondents. fine and imprisonment at the discretion of the court. 3

G.R. No. 75789 December 18, 1986 The statute likewise imposes the same penalty on "any person
who, having sufficient funds in or credit with the drawee bank when
he makes or draws and issues a check, shall fail to keep sufficient
THE PEOPLE OF THE PHILIPPINES, petitioner, funds or to maintain a credit to cover the full amount of the check if
vs. presented within a period of ninety (90) days from the date
HON. DAVID G. NITAFAN, Presiding Judge, Regional Trial appearing thereon, for which reason it is dishonored by the drawee
Court, National Capital Judicial Region, Branch 52, Manila and bank. 4
THELMA SARMIENTO, respondents.
An essential element of the offense is "knowledge" on the part of
R.R. Nogales Law Office for petitioner in G.R. No. 63419, G.R. the maker or drawer of the check of the insufficiency of his funds in
Nos. 74524-25, G.R. Nos. 75812-13, G.R. Nos. 75765-67 and or credit with the bank to cover the check upon its presentment.
counsel for respondent in G.R. No. 75789. Since this involves a state of mind difficult to establish, the statute
itself creates a prima facie presumption of such knowledge where
payment of the check "is refused by the drawee because of
insufficient funds in or credit with such bank when presented within
ninety (90) days from the date of the check. 5 To mitigate the
harshness of the law in its application, the statute provides that
such presumption shall not arise if within five (5) banking days
from receipt of the notice of dishonor, the maker or drawer makes
arrangements for payment of the check by the bank or pays the
holder the amount of the check.
Another provision of the statute, also in the nature of a rule of
evidence, provides that the introduction in evidence of the unpaid
and dishonored check with the drawee bank's refusal to pay
"stamped or written thereon or attached thereto, giving the reason
therefor, "shall constitute prima facie proof of "the making or
issuance of said check, and the due presentment to the drawee for
payment and the dishonor thereof ... for the reason written,
stamped or attached by the drawee on such dishonored check." 6
The presumptions being merely prima facie, it is open to the
accused of course to present proof to the contrary to overcome the
said presumptions.
II
BP 22 is aimed at putting a stop to or curbing the practice of
issuing checks that are worthless, i.e. checks that end up being
rejected or dishonored for payment. The practice, as discussed
later, is proscribed by the state because of the injury it causes to t
public interests.
Before the enactment of BP 22, provisions already existed in our
statute books which penalize the issuance of bouncing or rubber
checks. Criminal law has dealth with the problem within the context
of crimes against property punished as "estafa" or crimes involving
fraud and deceit. The focus of these penal provisions is on the
damage caused to the property rights of the victim.
The Penal Code of Spain, which was in force in the Philippines
from 1887 until it was replaced by the Revised Penal Code in
1932, contained provisions penalizing, among others, the act of
defrauding another through false pretenses. Art. 335 punished a
person who defrauded another "by falsely pretending to possess
any power, influence, qualification, property, credit, agency or
business, or by means of similar deceit." Although no explicit
mention was made therein regarding checks, this provision was
deemed to cover within its ambit the issuance of worthless or
bogus checks in exchange for money. 7
In 1926, an amendment was introduced by the Philippine
Legislature, which added a new clause (paragraph 10) to Article
335 of the old Penal Code, this time referring in explicit terms to
the issuance of worthless checks. The amendment penalized any
person who 1) issues a check in payment of a debt or for other
valuable consideration, knowing at the time of its issuance that he
does not have sufficient funds in the bank to cover its amount, or
2) maliciously signs the check differently from his authentic
signature as registered at the bank in order that the latter would
refuse to honor it; or 3) issues a postdated check and, at the date
set for its payment, does not have sufficient deposit to cover the
same. 8
In 1932, as already adverted to, the old Penal Code was
superseded by the Revised Penal Code. 9 The above provisions,
in amended form, were incorporated in Article 315 of the Revised
Penal Code defining the crime of estafa. The revised text of the
provision read as follows:
Art. 315. Swindling (estafa).—Any person who shall
defraud another by any of the means mentioned
hereinbelow shall be punished by:
xxx xxx xxx
2. By means of any of the following false pretenses or
fraudulent acts executed prior to or simultaneously with
the commis sion 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;
xxx xxx xxx
(d) By postdating a check, or issuing a check in
payment of an obligation the offender knowing
that at the time he had no funds in the bank, or
the funds deposited by him were not sufficient
to cover the amount of the cheek without
informing the payee of such circumstances.
The scope of paragraph 2 (d), however, was deemed to exclude
checks issued in payment of pre-existing obligations. 10 The
rationale of this interpretation is that in estafa, the deceit causing
the defraudation must be prior to or simultaneous with the
commission of the fraud. In issuing a check as payment for a pre-
existing debt, the drawer does not derive any material benefit in
return or as consideration for its issuance. On the part of the
payee, he had already parted with his money or property before
the check is issued to him hence, he is not defrauded by means of
any "prior" or "simultaneous" deceit perpetrated on him by the
drawer of the check.
With the intention of remedying the situation and solving the
problem of how to bring checks issued in payment of pre-existing
debts within the ambit of Art. 315, an amendment was introduced
by the Congress of the Philippines in 1967, 11 which was enacted
into law as Republic Act No. 4885, revising the aforesaid proviso to
read as follows:
(d) By postdating a check, or issuing a check in payment
of an obligation when the offender had no funds in the
bank, or his funds deposited 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 or insufficiency of funds shall be
puma facie evidence of deceit constituting false pretense
or fraudulent act.
However, the adoption of the amendment did not alter the situation
materially. A divided Court held in People vs. Sabio, Jr. 12 that
Article 315, as amended by Republic Act 4885, does not cover
checks issued in payment of pre-existing obligations, again relying
on the concept underlying the crime of estafa through false
pretenses or deceit—which is, that the deceit or false pretense
must be prior to or simultaneous with the commission of the fraud.
Since statistically it had been shown that the greater bulk of
dishonored checks consisted of those issued in payment of pre-
existing debts, 13 the amended provision evidently failed to cope
with the real problem and to deal effectively with the evil that it was
intended to eliminate or minimize.
With the foregoing factual and legal antecedents as a backdrop,
the then Interim Batasan confronted the problem squarely. It opted
to take a bold step and decided to enact a law dealing with the
problem of bouncing or worthless checks, without attaching the
law's umbilical cord to the existing penal provisions on estafa. BP
22 addresses the problem directly and frontally and makes the act
of issuing a worthless check malum prohibitum. 14
The question now arises: Is B P 22 a valid law?
Previous efforts to deal with the problem of bouncing checks within
the ambit of the law on estafa did not evoke any constitutional
challenge. In contrast, BP 22 was challenged promptly.
Those who question the constitutionality of BP 22 insist that: (1) it
offends the constitutional provision forbidding imprisonment for
debt; (2) it impairs freedom of contract; (3) it contravenes the equal
protection clause; (4) it unduly delegates legislative and executive
powers; and (5) its enactment is flawed in that during its passage
the Interim Batasan violated the constitutional provision prohibiting
amendments to a bill on Third Reading.
The constitutional challenge to BP 22 posed by petitioners
deserves a searching and thorough scrutiny and the most
deliberate consideration by the Court, involving as it does the
exercise of what has been described as "the highest and most
delicate function which belongs to the judicial department of the
government." 15
As we enter upon the task of passing on the validity of an act of a
co-equal and coordinate branch of the government, we need not
be reminded of the time-honored principle, deeply ingrained in our
jurisprudence, that a statute is presumed to be valid. Every
presumption must be indulged in favor of its constitutionality. This
is not to say that we approach our task with diffidence or timidity.
Where it is clear that the legislature has overstepped the limits of
its authority under the constitution we should not hesitate to wield
the axe and let it fall heavily, as fall it must, on the offending
statute.
III
Among the constitutional objections raised against BP 22, the most
serious is the alleged conflict between the statute and the
constitutional provision forbidding imprisonment for debt. It is
contended that the statute runs counter to the inhibition in the Bill
of Rights which states, "No person shall be imprisoned for debt or
non-payment of a poll tax." 16 Petitioners insist that, since the
offense under BP 22 is consummated only upon the dishonor or
non-payment of the check when it is presented to the drawee
bank, the statute is really a "bad debt law" rather than a "bad
check law." What it punishes is the non-payment of the check, not
the act of issuing it. The statute, it is claimed, is nothing more than
a veiled device to coerce payment of a debt under the threat of
penal sanction.
First of all it is essential to grasp the essence and scope of the
constitutional inhibition invoked by petitioners. Viewed in its
historical context, the constitutional prohibition against
imprisonment for debt is a safeguard that evolved gradually during
the early part of the nineteenth century in the various states of the
American Union as a result of the people's revulsion at the cruel
and inhumane practice, sanctioned by common law, which
permitted creditors to cause the incarceration of debtors who could
not pay their debts. At common law, money judgments arising from
actions for the recovery of a debt or for damages from breach of a
contract could be enforced against the person or body of the
debtor by writ of capias ad satisfaciendum. By means of this writ, a
debtor could be seized and imprisoned at the instance of the
creditor until he makes the satisfaction awarded. As a
consequence of the popular ground swell against such a
barbarous practice, provisions forbidding imprisonment for debt
came to be generally enshrined in the constitutions of various
states of the Union. 17
This humanitarian provision was transported to our shores by the
Americans at the turn of t0he century and embodied in our organic
laws. 18 Later, our fundamental law outlawed not only
imprisonment for debt, but also the infamous practice, native to our
shore, of throwing people in jail for non-payment of the cedula or
poll tax. 19
The reach and scope of this constitutional safeguard have been
the subject of judicial definition, both by our Supreme Court 20 and
by American State courts. 21 Mr. Justice Malcolm speaking for
the Supreme Court in Ganaway vs. Queen, 22 stated: "The 'debt'
intended to be covered by the constitutional guaranty has a well-
defined meaning. Organic provisions relieving from imprisonment
for debt, were intended to prevent commitment of debtors to prison
for liabilities arising from actions ex contractu The inhibition was
never meant to include damages arising in actions ex delicto, for
the reason that damages recoverable therein do not arise from any
contract entered into between the parties but are imposed upon
the defendant for the wrong he has done and are considered as
punishment, nor to fines and penalties imposed by the courts in
criminal proceedings as punishments for crime."
The law involved in Ganaway was not a criminal statute but the
Code of Procedure in Civil Actions (1909) which authorized the
arrest of the defendant in a civil case on grounds akin to those
which justify the issuance of a writ of attachment under our present
Rules of Court, such as imminent departure of the defendant from
the Philippines with intent to defraud his creditors, or concealment,
removal or disposition of properties in fraud of creditors, etc. The
Court, in that case, declared the detention of the defendant
unlawful, being violative of the constitutional inhibition against
imprisonment for debt, and ordered his release. The Court,
however, refrained from declaring the statutory provision in
question unconstitutional.
Closer to the case at bar is People v. Vera Reyes, 23 wherein a
statutory provision which made illegal and punishable the refusal
of an employer to pay, when he can do so, the salaries of his
employees or laborers on the fifteenth or last day of every month
or on Saturday every week, was challenged for being violative of
the constitutional prohibition against imprisonment for debt. The
constitutionality of the law in question was upheld by the Court, it
being within the authority of the legislature to enact such a law in
the exercise of the police power. It was held that "one of the
purposes of the law is to suppress possible abuses on the part of
the employers who hire laborers or employees without paying
them the salaries agreed upon for their services, thus causing
them financial difficulties. "The law was viewed not as a measure
to coerce payment of an obligation, although obviously such could
be its effect, but to banish a practice considered harmful to public
welfare.
IV
Has BP 22 transgressed the constitutional inhibition against
imprisonment for debt? To answer the question, it is necessary to
examine what the statute prohibits and punishes as an offense. Is
it the failure of the maker of the check to pay a debt? Or is it the
making and issuance of a worthless check in payment of a debt?
What is the gravamen of the offense? This question lies at the
heart of the issue before us.
The gravamen of the offense punished by BP 22 is the act of
making and issuing a worthless check or a check that is
dishonored upon its presentation for payment. It is not the non-
payment of an obligation which the law punishes. The law is not
intended or designed to coerce a debtor to pay his debt. The thrust
of the law is to prohibit, under pain of penal sanctions, the making
of worthless checks and putting them in circulation. Because of its
deleterious effects on the public interest, the practice is proscribed
by the law. The law punishes the act not as an offense against
property, but an offense against public order.
Admittedly, the distinction may seem at first blush to appear
elusive and difficult to conceptualize. But precisely in the failure to
perceive the vital distinction lies the error of those who challenge
the validity of BP 22.
It may be constitutionally impermissible for the legislature to
penalize a person for non-payment of a debt ex contractu But
certainly it is within the prerogative of the lawmaking body to
proscribe certain acts deemed pernicious and inimical to public
welfare. Acts mala in se are not the only acts which the law can
punish. An act may not be considered by society as inherently
wrong, hence, not malum in se but because of the harm that it
inflicts on the community, it can be outlawed and criminally
punished as malum prohibitum. The state can do this in the
exercise of its police power.
The police power of the state has been described as "the most
essential, insistent and illimitable of powers" which enables it to
prohibit all things hurtful to the comfort, safety and welfare of
society. 24 It is a power not emanating from or conferred by the
constitution, but inherent in the state, plenary, "suitably vague and
far from precisely defined, rooted in the conception that man in
organizing the state and imposing upon the government limitations
to safeguard constitutional rights did not intend thereby to enable
individual citizens or group of citizens to obstruct unreasonably the
enactment of such salutary measures to ensure communal peace,
safety, good order and welfare." 25
The enactment of BP 22 is a declaration by the legislature that, as
a matter of public policy, the making and issuance of a worthless
check is deemed public nuisance to be abated by the imposition of
penal sanctions.
It is not for us to question the wisdom or impolicy of the statute. It
is sufficient that a reasonable nexus exists between means and
end. Considering the factual and legal antecedents that led to the
adoption of the statute, it is not difficult to understand the public
concern which prompted its enactment. It had been reported that
the approximate value of bouncing checks per day was close to
200 million pesos, and thereafter when overdrafts were banned by
the Central Bank, it averaged between 50 minion to 80 million
pesos a day. 26
By definition, a check is a bill of exchange drawn on a bank and
payable on demand. 27 It is a written order on a bank, purporting to
be drawn against a deposit of funds for the payment of all events,
of a sum of money to a certain person therein named or to his
order or to cash and payable on demand. 28 Unlike a promissory
note, a check is not a mere undertaking to pay an amount of
money. It is an order addressed to a bank and partakes of a
representation that the drawer has funds on deposit against which
the check is drawn, sufficient to ensure payment upon its
presentation to the bank. There is therefore an element of certainty
or assurance that the instrument wig be paid upon presentation.
For this reason, checks have become widely accepted as a
medium of payment in trade and commerce. Although not legal
tender, checks have come to be perceived as convenient
substitutes for currency in commercial and financial transactions.
The basis or foundation of such perception is confidence. If such
confidence is shakes the usefulness of checks as currency
substitutes would be greatly diminished or may become nit Any
practice therefore tending to destroy that confidence should be
deterred for the proliferation of worthless checks can only create
havoc in trade circles and the banking community.
Recent statistics of the Central Bank show that one-third of the
entire money supply of the country, roughly totalling P32.3 billion,
consists of peso demand deposits; the remaining two. 29 These de
deposit thirds consists of currency in circulation. ma deposits in the
banks constitute the funds against which among others,
commercial papers like checks, are drawn. The magnitude of the
amount involved amply justifies the legitimate concern of the state
in preserving the integrity of the banking system. Flooding the
system with worthless checks is like pouring garbage into the
bloodstream of the nation's economy.
The effects of the issuance of a worthless check transcends the
private interests of the parties directly involved in the transaction
and touches the interests of the community at large. The mischief
it creates is not only a wrong to the payee or holder, but also an
injury to the public. The harmful practice of putting valueless
commercial papers in circulation, multiplied a thousand fold, can
very wen pollute the channels of trade and commerce, injure the
banking system and eventually hurt the welfare of society and the
public interest. As aptly stated — 30
The 'check flasher' does a great deal more than contract
a debt; he shakes the pillars of business; and to my
mind, it is a mistaken charity of judgment to place him in
the same category with the honest man who is unable to
pay his debts, and for whom the constitutional inhibition
against' imprisonment for debt, except in cases of fraud
was intended as a shield and not a sword.
In sum, we find the enactment of BP 22 a valid exercise of the
police power and is not repugnant to the constitutional inhibition
against imprisonment for debt.
This Court is not unaware of the conflicting jurisprudence obtaining
in the various states of the United States on the constitutionality of
the "worthless check" acts. 31 It is needless to warn that foreign
jurisprudence must be taken with abundant caution. A caveat to be
observed is that substantial differences exist between our statute
and the worthless check acts of those states where the
jurisprudence have evolved. One thing to remember is that BP 22
was not lifted bodily from any existing statute. Furthermore, we
have to consider that judicial decisions must be read in the context
of the facts and the law involved and, in a broader sense, of the
social economic and political environment—in short, the milieu—
under which they were made. We recognize the wisdom of the old
saying that what is sauce for the goose may not be sauce for the
gander.
As stated elsewhere, police power is a dynamic force that enables
the state to meet the exigencies of changing times. There are
occasions when the police power of the state may even override a
constitutional guaranty. For example, there have been cases
wherein we held that the constitutional provision on non-
impairment of contracts must yield to the police power of the
state. 32 Whether the police power may override the constitutional
inhibition against imprisonment for debt is an issue we do not have
to address. This bridge has not been reached, so there is no
occasion to cross it.
We hold that BP 22 does not conflict with the constitutional
inhibition against imprisonment for debt.
V dated August 19, 1986. The petitions in G.R. Nos. 63419, 66839-
We need not detain ourselves lengthily in the examination of the
other constitutional objections raised by petitioners, some of which
are rather flimsy.
We find no valid ground to sustain the contention that BP 22
impairs freedom of contract. The freedom of contract which is
constitutionally protected is freedom to enter into "lawful"
contracts. Contracts which contravene public policy are not
lawful. 33 Besides, we must bear in mind that checks can not be
categorized as mere contracts. It is a commercial instrument
which, in this modem day and age, has become a convenient
substitute for money; it forms part of the banking system and
therefore not entirely free from the regulatory power of the state.
Neither do we find substance in the claim that the statute in
question denies equal protection of the laws or is discriminatory,
since it penalizes the drawer of the check, but not the payee. It is
contended that the payee is just as responsible for the crime as
the drawer of the check, since without the indispensable
participation of the payee by his acceptance of the check there
would be no crime. This argument is tantamount to saying that, to
give equal protection, the law should punish both the swindler and
the swindled. The petitioners' posture ignores the well-accepted
meaning of the clause "equal protection of the laws." The clause
does not preclude classification of individuals, who may be
accorded different treatment under the law as long as the
classification is no unreasonable or arbitrary. 34
It is also suggested that BP 22 constitutes undue or improper
delegation of legislative powers, on the theory that the offense is
not completed by the sole act of the maker or drawer but is made
to depend on the will of the payee. If the payee does not present
the check to the bank for payment but instead keeps it, there
would be no crime. The logic of the argument stretches to
absurdity the meaning of "delegation of legislative power." What
cannot be delegated is the power to legislate, or the power to
make laws. 35 which means, as applied to the present case, the
power to define the offense sought to be punished and to prescribe
the penalty. By no stretch of logic or imagination can it be said that
the power to define the crime and prescribe the penalty therefor
has been in any manner delegated to the payee. Neither is there
any provision in the statute that can be construed, no matter how
remotely, as undue delegation of executive power. The suggestion
that the statute unlawfully delegates its enforcement to the
offended party is farfetched.
Lastly, the objection has been raised that Section 9 (2) of Article
VII of the 1973 Constitution was violated by the legislative body
when it enacted BP 22 into law. This constitutional provision
prohibits the introduction of amendments to a bill during the Third
Reading. It is claimed that during its Third Reading, the bill which
eventually became BP 22 was amended in that the text of the
second paragraph of Section 1 of the bill as adopted on Second
Reading was altered or changed in the printed text of the bill
submitted for approval on Third Reading.
A careful review of the record of the proceedings of the Interim
Batasan on this matter shows that, indeed, there was some
confusion among Batasan Members on what was the exact text of
the paragraph in question which the body approved on Second
Reading. 36 Part of the confusion was due apparently to the fact
that during the deliberations on Second Reading (the amendment
period), amendments were proposed orally and approved by the
body or accepted by the sponsor, hence, some members might not
have gotten the complete text of the provisions of the bill as
amended and approved on Second Reading. However, it is clear
from the records that the text of the second paragraph of Section 1
of BP 22 is the text which was actually approved by the body on
Second Reading on February 7, 1979, as reflected in the approved
Minutes for that day. In any event, before the bin was submitted for
final approval on Third Reading, the Interim Batasan created a
Special Committee to investigate the matter, and the Committee in
its report, which was approved by the entire body on March 22,
1979, stated that "the clause in question was ... an authorized
amendment of the bill and the printed copy thereof reflects
accurately the provision in question as approved on Second
Reading. 37 We therefore, find no merit in the petitioners' claim that
in the enactment of BP 22 the provisions of Section 9 (2) of Article
VIII of the 1973 Constitution were violated.
WHEREFORE, judgment is rendered granting the petition in G.R.
No. 75789 and setting aside the order of the respondent Judge
42, 71654, 74524-25, 75122-49, 75812-13 and 75765-67 are
hereby dismissed and the temporary restraining order issued in
G.R. Nos. 74524-25 is lifted. With costs against private petitioners.
SO ORDERED.
 manifesting their findings and recommending
the institution of administrative and/or criminal
charges against Acting Municipal Treasurer
FELICIANO V. AGBANLOG, petitioner,
Feliciano Agbanlog.
vs.
PEOPLE OF THE PHILIPPINES AND
SANDIGANBAYAN, respondents. At the outset, the Auditors found the accused
Agbanlog short in the amount of P32,950.34,
broken down in this manner:
Michael P. Moralde for petitioner.

QUIASON, J.:
This is a petition for review on certiorari under Rule 45 of the
Revised Rules of Court and Section 7 of P.D. No. 1606 as
amended, of the decision of the Sandiganbayan (First Division)
promulgated on June 28, 1992, which found petitioner guilty
beyond reasonable doubt of Malversation of Public Funds,
penalized under paragraph 4, Article 217, of the Revised Penal
Code, and sentencing him to suffer, in the absence of mitigating
and aggravating circumstances "the indeterminate penalty of, from
ELEVEN (11) years and one (1) DAY of Prision Mayor, as
minimum to SIXTEEN (16) YEARS, FIVE (5) MONTHS and
ELEVEN (11) DAYS of Reclusion Temporal, as maximum, with the
accessory penalties of the law; to pay a fine in the amount of
P21,940.70; to suffer the penalty of perpetual special
disqualification and to pay the costs."
The Sandiganbayan made the following findings of facts :
Feliciano Agbanlog y Vinluan was the Officer-
in-Charge of the Office of the Municipal
Treasurer of Aglipay, Quirino, for the period:
March 24, 1986 to May 31, 1988. When audited
by COA Auditing Examiner Marcelina P. Reyes
of the Provincial Auditor's Office of
Cobarroguis, Quirino, on August 4, 1986 for the
aforesaid period of his incumbency as Acting
Municipal Treasurer, Feliciano Agbanlog was
found short in his cash and accounts in the sum
of P21,940.70.
The shortage was broken down in the following
manner :
a. Disallowed cash item
of Mr. Feliciano V. Agbanlog
May 31, 1986 worded as
cash
advance to defray various
expenses
which was not approved
by the Municipal Mayor
P12,504.49
Accountability:
Balance shown by your
cash book on May 31, 1986
certified correct by you
and verified by us P85,186.40
Credits to Accountability:
Cash and valid cash items
produced by you
and counted on us P52,236.06
—————
Shortage P32,950.34
Upon the finding that P11,009.64 of this
amount was chargeable to the account of
former Municipal Treasurer Carlos Pastor,
predecessor of Municipal Treasurer Ruperto
Pallaya, the said amount of P11,009.64 was
deducted from the accountability of Feliciano
Agbanlog. The Acting Municipal Treasurer was
nevertheless made accountable for the
shortage of P21,940.70, the amount for which
he is not charged.
As regards the disbursement voucher billed as
a cash advance for various expenses in the
amount of P12,504.49, Exhibit "E", this voucher
was disallowed by the auditors because there
was no appropriation for this disbursement. It is
indicated in the voucher that the giving out of
this money was in the nature of a cash
advance. The purpose for which the cash
advance was given out was, however, not
clearly indicated. The particulars of payment
merely states "to cash advance to defray
various expenditures". Only the signature of the
accused Feliciano Agbanlog may be found in
the voucher. This indicates that the amount of
P12,504.49 was given out to and received by
the accused, Feliciano V. Agbanlog, from
Roberto E. Pallaya. Vouchers of this nature, in
order to be valid, must bear the signature of the
incumbent Municipal Mayor of Aglipay, Quirino.
The signature of the then Mayor, the Hon.
Deogracias L. Prego, Sr., does not appear in
the voucher. No invoice or receipt was
presented to support the disbursement.

b. Disallowed voucher No.
101-86-04-71 dated April
18, 1986
due to under delivery of
printed forms P2,900.00
c. Disallowed voucher No.
101-86-05-144 dated
May 31, 1986 due to
under delivery of printed
forms P3,260.00
d. Unaccounted collection
P3,276.21
————
Total
P21,940.
70
A written demand to explain the shortage and
to pay the amount thereof was neither
answered nor acted upon by the accountable
officer. Consequently, a Report was made by
Examining Auditors Marcelina P. Reyes,
Asuncion G. Tamondong and Margarita B.
Eugenio to the Provincial Auditor of Quirino,
Thus, considering the fact that the accused,
Feliciano V. Agbanlog received the proceeds of
the voucher, this disbursement has, indeed,
become the accountability of the accused,
whose duty it was to liquidate the same. The
accused did not so liquidate. Accused's
allegation that the amount of money involved
was given to him to the Municipal Mayor has
not been backed up by sufficient evidence. If
this amount of money were for the Mayor's
account, the Mayor should have been made to
sign the voucher, or else, there should have
been accomplished some sort of evidence
payment for the Mayor.
Disbursement Voucher No. 101-8604-71, dated
April 18, 1986, Exhibit "F", in the amount of
P3,500.00, was partially disallowed because
printed forms for which the voucher was made
out was not actually delivered but yet paid for.
The accused was able to present proof of
delivery only of accounting forms valued at
P600.00. Consequently, the accused was
credited with the amount of P600.00. The
remaining balance of P2,900.00 was
nevertheless disallowed.
 Disbursement Voucher No. 101-8605-144,
dated May 31, 1986, Exhibit "G" in the amount
of P4,110.00 was likewise partially disallowed.
The accused was able to show proof of a
legitimate disbursement in the amount of
P850.00. Consequently, the accused was
credited with this amount and only the sum of
P3,260.00 was disallowed.
As regards the shortage in the amount of
P3,276.21, representing the accused
unaccounted collections, per Collector's Daily
Statement of Collections for the period: April to
May, 1986, Exhibits "H" to "M", We find
evidence showing that this amount, while
turned over to the accused Feliciano Agbanlog
in his capacity as Acting Municipal Treasurer by
Collectors Jane G. Domingo, Marilyn Villarta,
Danilo de Guzman, Guadalupe M. Quimpayag
and Rolando Domingo, has not been
accounted for, the accused claiming that cash
collections of the aforesaid collectors were
never remitted to him. There is ample proof,
therefore, of the fact that the accused received
these cash collections. His signatures on
various documents, Exhibits "H" to "M", "H-1",
"I-1", "J-1", "K-1", "L-1" and "M-1", virtually
indicate that the accused had actually received
the amounts indicated in these exhibits. We
cannot believe that the accused would sign
these documents if he did not receive the
amount of money corresponding thereto. The
accused's allegation, made as an afterthought,
that the collectors who were supposed to
turnover their collections to him did not actually
turnover their collections cannot be believed.
The contention that the collectors had instead
made out vales or cash advances covering the
amount of their collections, is not supported by
proof. The vale slips or cash advance papers
allegedly given to the accused in lieu of cash
could not be produced by the accused.
The accused was supposed to return these
vale slips to the collectors only after they made
good the borrowed amount. This lapse in
evidence does not speak well of the defense
herein put up by the accused. (Rollo, pp. 30-34)
Petitioner admits the shortage of the accountable funds charged
by the prosecution but claims that the prosecution failed to show
that the shortage accrued during his short stint as acting treasurer.
According to him, the audit of his funds should have been made
immediately upon his assumption as Officer-in-charge of the Office
of the Treasurer in the last week of March, 1986, instead of in
August, 1986. He further claims that while there was a turn-over of
the funds on June 2, 1986 when Municipal Treasurer Ruperto
Pallaya reported back for work, there was no turnover of the funds
when he temporarily took charge of the Office of the Treasurer.
(Rollo, pp. 5-6)
Re : Shortage of P12,504.49
Petitioner admits that he was the one who prepared the voucher,
(Exh. "E"), and who received the amount of P12,504.49 mentioned
therein. He does not deny the authenticity of his signatures
appearing thereon. No other person, other than petitioner, was
involved in the preparation of the said voucher and the receipt of
the amount of P12,504.49. He only claims that the money was
given to the Municipal Mayor, who allegedly refused to sign the
voucher.
Petitioner, having worked as a bookkeeper in the Treasurer's
Office of Cobarroguis, Quirino, since 1979 and as Assistant
Municipal Treasurer since 1982, should know that vouchers must
be signed by the claimants. If he acknowledged receipt of the
money knowing that the claimant was the Municipal Mayor, he
became a party to the fraud and assumed responsibility for the
consequences of his acts. The defense did not call the Municipal
Mayor to testify that he was the real claimant and that he received
the money from the petitioner.
Re : Shortage of P2,900.00
Petitioner admits that he was the one who prepared the voucher
dated April 18, 1986 for the payment of various forms in the
amount of P3,500.00 (Exh. "F"). He was the one who
acknowledged receipt of the supplies mentioned in the voucher
and who received the amount of P3,500.00 in payment thereof. He
even certified to the necessity and legality of the expense.
When audited, petitioner was able to show the delivery of forms
valued at only P600.00. The burden was on petitioner to explain
satisfactorily the discrepancy between the voucher and the receipt
of the delivery.
Re : Shortage of P3,260.00
Out of the amount of P4,100.00 disbursed under the voucher
marked as Exhibit "G", petitioner admits having been able to
support payment of only P850.00; hence the amount of P3,260.00
was disallowed.
Re :Shortage of P3,276.21
As to the shortage in the amount of P3,276.21 representing the
unaccounted collections of petitioner for the month of April and
May 1986, petitioner claims that the said amount was never turned
over to him. If this was true, he should not have signed the
documents marked Exhibits "H" to "M", "A-1", "Y-7", "5-1", "K-1",
"L-1" and "M-1", all acknowledging receipt of the cash collections
of the various collectors.
In all the foregoing cases of shortage, petitioner admits having
prepared and collected the amounts stated in the vouchers (Exhs.
"E", "F", "G") and having signed the collectors' daily statement of
collection, which evidence his receipt of the amounts stated therein
(Exhs. "H" to "M"). With such admissions, how can petitioner now
attribute the shortage of his accountable funds to his predecessor?
It is also difficult to comprehend how an earlier audit of petitioner's
accountability or an audit made upon assumption of office of the
Municipal Treasurer could possible explain the shortages
unearthed by the government auditor and assist him in his
defense.
The elements of malversation of public funds or property
punishable under Article 217 of the Revised Penal Code are :
a) That the offender is a public officer;.
b) That he had the custody or control of funds or property by
reason of the duties of his office;.
c) That those funds or property were public funds or property for
which he was accountable;.
d) That he appropriated, took, misappropriated or consented or,
through abandonment or negligence permitted another person to
take them. (II Reyes, The Revised Penal Code, p. 391 [1981 ed.])
The prosecution has established (a) that appellant received in his
possession public funds; (b) that he could not account for them
and did not have them in his possession when audited; and (c) that
he could not give a satisfactory explanation or reasonable excuse
for the disappearance of said funds. (Cabello v. Sandiganbayan,
197 SCRA 94 [1991]) The prosecution is not required to present
direct evidence of the misappropriation, which may be impossible
to do. (Villanueva v. Sandiganbayan, 200 SCRA 722 [1991]).
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, is a prima facie evidence that he has
put such funds or property to personal use. (Art. 217, last
paragraph, Revised Penal Code as amended by R.A. 1060).
Petitioner questions as oppressive and unconstitutional the penalty
imposed on him — that of eleven years and one day of prision
mayor, as minimum, to sixteen years, five months and eleven days
of reclusion temporal, as maximum.
He argues that considering the value of the peso in 1932 when the
Revised Penal Code was enacted and the value of peso today, the
penalty for malversation of P21,000.00 should only be an
imprisonment of one or two years. (Rollo, pp. 10-11)
Assuming arguendo that inflation has in effect made more severe
the penalty for malversing P21,000.00, the remedy cannot come
from this Court but from the Congress. The Court can intervene
and strike down a penalty as cruel, degrading or inhuman only
when it has become so flagrantly oppressive and so wholly
disproportionate to the nature of the offense as to shock the moral
senses. (People v. Dionisio, 22 SCRA 1299 [1968]; People v.
Estoista, 93 Phil. 647 [1953]; U.S. v. Borromeo, 23 Phil. 279
[1912]) Considering that malversation of public funds by a public
officer is a betrayal of the public trust, We are not prepared to say
that the penalty imposed on petitioner is so disproportionate to the
crime committed as to shock the moral sense.
WHEREFORE, the petition for review is DISMISSED and the
decision appealed from is AFFIRMED in toto, with costs against
petitioner.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. DAVID G. NITAFAN, Presiding Judge, Regional Trial
Court, Branch 52, Manila, and K.T. LIM alias MARIANO
LIM, respondents.
BELLOSILLO, J.:
Failing in his argument that B.P. 22, otherwise known as the
"Bouncing Check Law", is unconstitutional, 1 private respondent
now argues that the check he issued, a memorandum check, is in
the nature of a promissory note, hence, outside the purview of the
statute. Here, his argument must also fail.
The facts are simple. Private respondent K.T. Lim was charged
before respondent court with violation of B.P. 22 in an Information
alleging ––
That on . . . January 10, 1985, in the City of
Manila . . . the said accused did then and there
wilfully, unlawfully and feloniously make or draw
and issue to Fatima Cortez Sasaki . . .
Philippine Trust Company Check No. 117383
dated February 9, 1985 . . . in the amount of
P143,000.00, . . . well knowing that at the time
of issue he . . . did not have sufficient funds in
or credit with the drawee bank . . . which check
. . . was subsequently dishonored by the
drawee bank for insufficiency of funds, and
despite receipt of notice of such dishonor, said
accused failed to pay said Fatima Cortez
Sasaki the amount of said check or to make
arrangement for full payment of the same within
five (5) banking days after receiving said
notice. 2
On 18 July 1986, private respondent moved to quash the
Information of the ground that the facts charged did not constitute
a felony as B.P. 22 was unconstitutional and that the check he
issued was a memorandum check which was in the nature of a
promissory note, perforce, civil in nature. On 1 September 1986,
respondent judge, ruling that B.P. 22 on which the Information was
based was unconstitutional, issued the questioned Order quashing
the Information. Hence, this petition for review on certiorari filed by
the Solicitor General in behalf of the government.
Since the constitutionality of the "Bouncing Check Law" has
already been sustained by this Court in Lozano v.Martinez 3 and
the seven (7) other cases decided jointly with it, 4 the remaining
issue, as aptly stated by private respondent in his Memorandum, is
whether a memorandum check issued postdated in partial
payment of a pre-existing obligation is within the coverage of B.P.
22.
Citing U.S. v. Isham, 5 private respondent contends that although a
memorandum check may not differ in form and appearance from
an ordinary check, such a check is given by the drawer to the
payee more in the nature of memorandum of indebtedness and,
should be sued upon in a civil action.
We are not persuaded.
A memorandum check is in the form of an ordinary check, with the
word "memorandum", "memo" or "mem" written across its face,
signifying that the maker or drawer engages to pay the bona
fide holder absolutely, without any condition concerning its
presentment. 6 Such a check is an evidence of debt against the
drawer, and although may not be intended to be presented, 7 has
the same effect as an ordinary check, 8 and if passed to the third
person, will be valid in his hands like any other check. 9
From the above definition, it is clear that a memorandum check,
which is in the form of an ordinary check, is still drawn on a bank
and should therefore be distinguished from a promissory note,
which is but a mere promise to pay. If private respondent seeks to
equate memorandum check with promissory note, as he does to
skirt the provisions of B.P. 22, he could very well have issued a
promissory note, and this would be have exempted him form the
coverage of the law. In the business community a promissory note,
certainly, has less impact and persuadability than a check.
Verily, a memorandum check comes within the meaning of Sec.
185 of the Negotiable Instruments Law which defines a check as
"a bill of exchange drawn on a bank payable on demand." A check
is also defined as " [a] written order or request to a bank or
persons carrying on the business of banking, by a party having
money in their hands, desiring them to pay, on presentment, to a
person therein named or bearer, or to such person or order, a
named sum of money," citing 2 Dan. Neg. Inst. 528; Blair
v. Wilson, 28 Gratt. (Va.) 170; Deener v. Brown,1 MacArth. (D.C.)
350; In re Brown, 2 Sto. 502, Fed. Cas. No. 1,985. See Chapman
v. White, 6 N.Y. 412, 57 Am. Dec 464. 10 Another definition of
check is that is "[a] draft drawn upon a bank and payable on
demand, signed by the maker or drawer, containing an
unconditional promise to pay a sum certain in money to the order
of the payee," citing State v. Perrigoue, 81 Wash, 2d 640, 503 p.
2d 1063, 1066. 11
A memorandum check must therefore fall within the ambit of B.P.
22 which does not distinguish but merely provides that "[a]ny
person who makes or draws and issues any check knowing at the
time of issue that he does not have sufficient funds in or credit with
the drawee bank . . . which check is subsequently dishonored . . .
shall be punished by imprisonment . . ." (Emphasis supplied
). 12 Ubi lex no distinguit nec nos distinguere debemus.
But even if We retrace the enactment of the "Bouncing Check
Law" to determine the parameters of the concept of "check", We
can easily glean that the members of the then Batasang
Pambansa intended it to be comprehensive as to include all
checks drawn against banks. This was particularly the ratiocination
of Mar. Estelito P. Mendoza, co-sponsor of Cabinet Bill No. 9
which later became B.P. 22, when in response to the interpellation
of Mr. Januario T. Seño, Mr. Mendoza explained that the draft or
order must be addressed to a bank or depository, 13and accepted
the proposed amendment of Messrs. Antonio P. Roman and Arturo
M. Tolentino that the words "draft or order", and certain terms
which technically meant promissory notes, wherever they were
found in the text of the bill, should be deleted since the bill was
mainly directed against the pernicious practice of issuing checks
with insufficient or no funds, and not to drafts which were not
drawn against banks. 14
A memorandum check, upon presentment, is generally accepted
by the bank. Hence it does not matter whether the check issued is
in the nature of a memorandum as evidence of indebtedness or
whether it was issued is partial fulfillment of a pre-existing
obligation, for what the law punishes is the issuance itself of a
bouncing check15 and not the purpose for which it was issuance.
The mere act of issuing a worthless check, whether as a deposit,
as a guarantee, or even as an evidence of a pre-existing debt,
is malum prohibitum. 16
We are not unaware that a memorandum check may carry with it
the understanding that it is not be presented at the bank but will be
redeemed by the maker himself when the loan fall due. This
understanding may be manifested by writing across the check
"Memorandum", "Memo" or "Mem." However, with the
promulgation of B.P. 22, such understanding or private
arrangement may no longer prevail to exempt it from penal
sanction imposed by the law. To require that the agreement
surrounding the issuance of check be first looked into and
thereafter exempt such issuance from the punitive provision of
B.P. 22 on the basis of such agreement or understanding would
frustrate the very purpose for which the law was enacted — to
stem the proliferation of unfunded checks. After having effectively
reduced the incidence of worthless checks changing hands, the
country will once again experience the limitless circulation of
bouncing checks in the guise of memorandum checks if such
checks will be considered exempt from the operation of B.P. 22. It
is common practice in commercial transactions to require debtors
to issue checks on which creditors must rely as guarantee of
payment. To determine the reasons for which checks are issued,
or the terms and conditions for their issuance, will greatly erode
the faith the public responses in the stability and commercial value
of checks as currency substitutes, and bring about havoc in trade
and in banking communities. 17
WHEREFORE, the petition is GRANTED and the Order of
respondent Judge of 1 September 1986 is SET ASIDE.
Consequently, respondent Judge, or whoever presides over the
Regional Trial Court of Manila, Branch 52, is hereby directed
forthwith to proceed with the hearing of the case until terminated.
SO ORDERED.
G.R. No. 154037 April 30, 2003
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF
BENJAMIN VERGARA, JONA SARVIDA, MILAGROS
MAJOREMOS, MAJORIE JALALON, MAY JOY MENDOZA (@
May Joy Sandi), and JOY SABALLA (@ Josephine Saballa),
MABELYN B. VERGARA, RIO SARVIDA, FRANCISCO
MAJOREMOS, in their respective behalves and in behalf of ROY
JALALON, ROMMEL MENDOZA and DELFIN SABALLA,
petitioners,
vs.
HON. FRANCISCO C. GEDORIO, JR., Presiding Judge, Regional
Trial Court of Ormoc, Branch 12; SPO3 ANGELO S. LLENOS and
the CITY JAIL WARDEN OF ORMOC; and ELEUTERIA P.
BOLAÑO, respondents.
AUSTRIA-MARTINEZ, J.:
Petitioners are the tenants of Berlito P. Taripe on a property
located in Dr. A. Santos Ave., Parañaque City. On December 24,
2001, they were arrested by Ormoc City policemen by authority of
a Warrant of Arrest dated November 19, 2001 issued by Judge
Fortunito L. Madrona in Sp. Proc. No. 3695-0 for Issuance of
Letters of Administration, Distribution and Partition pending before
the Regional Trial Court of Ormoc City (Branch 12).1
The warrant of arrest stemmed from a motion filed by respondent
Eleuteria P. Bolaño, as Special Administratrix of the estate of the
late Anselma P. Allers, praying that petitioners be held guilty of
indirect contempt for not complying with the probate court's order
dated October 9, 1999 directing them to pay their monthly rentals
to respondent Bolaño.2
It appears that pending the settlement of the estate of the
deceased Allers, respondent Bolaño included the property leased
by Taripe to petitioners in the inventory of the estate. The probate
court issued the assailed Order dated October 5, 1999, portions of
which read as follows:
1. SUBMITTED FOR RESOLUTION is an omnibus motion
filed by the Petitioner-Administratrix, informing among others, the
submission of the Inventory of the Estate of the decedent, referred
as Motion-Annex 'A' thereof. The Inventory shows that the
properties left by the deceased consists of Real and Personal
Properties, as well as Credits and Collectibles, itemized under
letter heading A, B, and C of the Inventory, respectively.
2. The Real Properties are occupied by some lessees,
namely: Cargo Bridge Philippines Corporation, represented by its
President Mr. Bernhard Ashauer, Jr.; Mrs. Lea Amorcillo, Mrs.
Milagros Majoremos, Mr. Danilo Aguylo, Mrs. Marjorie Jalalon,
Mrs. Jona Sarvida, Mrs. Analyn Malunes, Mrs. Edna Rubi, Mrs.
Josephine Saballa, Mr. Benjamin Vergara, Mr. Jerry Peligro, Mrs.
Mary Joy Sandi, and Mr. Jaime Cabarse, all inside the Allers'
Property Compound at 8110 Dr. A. Santos Ave., San Dionisio,
Parañaque City.
xxx xxx xxx
5. It is further shown that all known intervenors, lessees and
heirs were served of the motion and notified of the hearing, with no
opposition except intervenor Berlito P. Taripe, based on his claim
against the estate, which may be treated in due time for claims
against the estate. However, the motion under consideration refers
to the return to the court of the true Inventory of the Estate of the
deceased within three (3) months as directed under Section 1,
Rule 83 which sets a specific period of time to submit, otherwise it
is violated. The opposition is not tenable.
6. Finding the motion meritorious, the same is hereby
GRANTED. As prayed for, the Inventory of the Estate attached
therewith as Motion-Annex 'A' (sic) and considered as a
compliance of the required return of the true Inventory of the estate
of the decedent.
7. Further, the lessees above-cited and listed in the
Inventory are directed to pay their respective monthly rental
regularly starting the month of August, 1999, including arrears if
any, to the duly appointed Special Administratrix Mrs. Eleuteria P.
Bolaño, until further notice.
xxx xxx xxx
Let copies of this Order together with the Inventory served to all
above-cited.
SO ORDERED.3 (Emphasis Ours)
Copies of the order were sent on October 12, 1999 to petitioners
via registered mail.4
Five months later, on motion of respondent Bolaño, as Special
Administratrix, the probate court issued a writ of execution on
March 3, 2000 to enforce the aforesaid order dated October 5,
1999. The Sheriff submitted a return dated August 10, 2000 stating
that on June 5, 2000, he met with petitioners but failed to collect
the rentals due on the property as Taripe had already collected
from them three months advance rentals.5
On August 4, 2000, respondent Bolaño filed a motion to require
petitioners to explain why they should not be cited in indirect
contempt for disobeying the October 5, 1999 order of the probate
court.6 Petitioners were served copies of the motion by registered
mail.7 The probate court granted the motion in its Resolution dated
September 7, 2000, portions of which read as follows:
The Motion to Exclude Certain Parcels of Land as part of the
Estate of the decedent is also denied for lack of merit. The
properties sought to be excluded by intervenor Bertito P. Taripe
are titled/registered in the name of the decedent and therefore they
should be included in the inventory of the intestate estate of
Anselma Allers. If intervenor has claims against the estate, he
should file a separate action against the Administratrix in
accordance with Rule 87 of the Revised Rules of Court. As it is,
intervenor cannot claim ownership over properties registered in the
name of the decedent by mere motion.
The Return of the Deputy Sheriff of the Writ of Execution is noted.
Petitioner's motion to let the lessees explain why they should not
be cited for contempt for disobeying the Court's order is granted.
All lessees listed on the Writ of Execution are hereby ordered to
explain within twenty (20) days from receipt of this order why they
should not be cited for indirect contempt of the Court for
disobeying the Court's Order dated October 5, 1999, and the Writ
of Execution dated May 29, 2000.
SO ORDERED. (Emphasis Ours)
Petitioners were furnished copies of the said Order on September
27, 2000 by registered mail.8
Six months later, in a letter dated March 18, 2001, some of the
petitioners, together with the other tenants of the property,
informed the probate court that they are "freezing" their monthly
rentals as they are in a quandary as to whom to pay the rentals.9
Respondent Bolaño then filed on March 20, 2001, a motion to cite
petitioners in contempt, which was set for hearing on May 11,
2001.10 In its Order dated May 11, 2001, the probate court found
petitioners guilty of indirect contempt and ordered them to pay a
fine of P30,000.00 each and to undergo imprisonment until they
comply with the probate court's order for them to pay rentals.11
Petitioners again wrote the probate court on June 11, 2001 asking
that the indirect contempt "slapped" against them be withdrawn.
They stated that their failure to attend the May 11, 2001 hearing
was due to financial constraints, most of them working on
construction sites, receiving minimum wages, and repeated that
the reason why they are freezing the monthly rentals is that they
are uncertain as to whom to remit it.12
Upon motion of respondent Bolaño, the probate court, per its
Order dated November 16, 2001, issued a warrant of arrest on
November 19, 2001. On December 24, 2001, petitioners were
arrested.
On December 26, 2001, petitioners filed with the Court of Appeals
a petition for the issuance of a writ of habeas corpus.13 On
January 3, 2002, the appellate court ordered the temporary
release of petitioners.14 After due proceedings, the appellate court
rendered its decision on March 26, 2002 denying the petition for
lack of merit. The dispositive portion of the decision reads:
WHEREFORE, the instant petition for issuance of a writ of habeas
corpus is hereby DENIED for lack of merit. This Court's resolution
ordering the temporary release of the lessees is hereby
RECALLED. The lessees are ordered REMANDED to the custody
of the Jail Warden of Ormoc City until they have complied with the
orders of the probate court.
No pronouncement as to costs.
SO ORDERED.15
Their motion for reconsideration having been denied, petitioners
filed herein petition for review on certiorari under Rule 45 of the
Rules of Court, based on the following grounds:
I. THE APPELLATE COURT ERRED IN NOT HOLDING
THAT THE ORDER DATED OCTOBER 5, 1999 (ANNEX "E")
PARTICULARLY THE PORTION THEREOF WHICH SUMMARILY
DIRECTED THE LESSEES TO TURNOVER THEIR MONTHLY
RENTALS OF THE APARTMENTS OF BERLITO P. TARIPE TO
ELEUTERIA P. BOLAÑO AS SPECIAL ADMINISTRATRIX, IS
UNLAWFUL;
II. THE APPELLATE COURT ERRED IN NOT HOLDING
THAT THE MOTION FOR INDIRECT CONTEMPT OF COURT
FILED BY RESPONDENT ELEUTERIA P. BOLAÑO AGAINST
THE LESSEES IS NOT THE PROPER REMEDY AND THAT THE
ORDER OF THE COURT A QUO GRANTING SAID MOTION
AND DECLARING THAT THE LESSEES ARE GUILTY OF
INDIRECT CONTEMPT IS A REVERSIBLE ERROR.
III. THE APPELLATE COURT ERRED IN NOT HOLDING
THAT THE ORDER OF THE COURT A QUO TO ISSUE
WARRANT OF ARREST AND THE SAID WARRANT SO ISSUED
AS WELL AS THE ACTUAL ARREST OF SAID LESSEES IN
COMPLIANCE THEREWITH, ARE UNLAWFUL;
IV. THE APPELLATE COURT ERRED IN NOT HOLDING
THE TEMPORARY RELEASE OF THE LESSEES
PERMANENT.16
The crux of petitioners' arguments is that they were not notified of
the motion filed by respondent Special Administratrix Bolaño,
submitting an inventory of the estate of the late Anselma P. Allers,
which includes the property occupied by them. Such being the
case, petitioners contend that the order dated October 5, 1999
granting the motion and directing them to pay the rentals to Bolaño
is unlawful hence, their refusal to comply with it is not
contumacious.17 They also assail the appointment of respondent
Bolaño as Special Administratrix for having been made without the
required bond,18 and that she has no authority to file the motion
for indirect contempt, as her powers are limited.19
When service of notice is an issue, the rule is that the person
alleging that the notice was served must prove the fact of
service.20 The burden of proving notice rests upon the party
asserting its existence.21 In civil cases, service made through
registered mail is proved by the registry receipt issued by the
mailing office and an affidavit of the person mailing of facts
showing compliance with Section 7 of Rule 13. In the present
case, as proof that petitioners were served with copies of the
omnibus motion submitting an inventory of the estate of deceased
Allers, respondent Bolaño presented photocopies of the motion
with a certification by counsel that service was made by registered
mail, together with the registry receipts.22 While the affidavit and
the registry receipts proved that petitioners were served with
copies of the motion, it does not follow, however, that petitioners in
fact received the motion. Respondent Bolaño failed to present the
registry return cards showing that petitioners actually received the
motion.23 Receipts for registered letters and return receipts do not
prove themselves, they must be properly authenticated in order to
serve as proof of receipt of the letters.24 Respondent also failed to
present a certification of the postmaster that notice was duly
issued and delivered to petitioners such that service by registered
mail may be deemed completed.25
Nonetheless, even in the absence of proof of actual receipt by the
petitioners, the subject orders issued by the probate court are valid
and enforceable. Petitioners cannot deny the fact that they had
actual knowledge of the said orders. They have admitted in their
letter dated March 18, 2001 addressed to the probate court that
they received the court's order dated October 5, 1999 "barely 2
months before," 26 or sometime in January 2001. Instead of
complying with the said order, they "froze" payment of their rentals
for the reason that they are caught in the middle of the dispute and
are not sure to whom to give the rentals. When respondent Bolaño
filed the motion to cite them in indirect contempt, setting the
hearing on May 11, 2001, again, records show that they had actual
knowledge of the same. In their second letter, dated June 11,
2001, addressed to the probate court, they acknowledged that they
knew of the hearing set on May 11, 2001, and the reason for their
failure to attend was due to financial constraints.27 They likewise
admitted in said letter that they knew of the court's order dated
May 11, 2001 finding them guilty of indirect contempt.28
Petitioners therefore cannot cry denial of due process as they were
actually notified of the proceedings before the probate court. Thus,
under the circumstances, it is not imperative to require proof of a
formal notice. It would be an idle ceremony where an adverse
party, as in this case, had actual knowledge of the proceedings.29
estate of the deceased, were ordered by the probate court to pay
the rentals to the administratrix. Petitioners did not comply with the
order for the principal reason that they were not certain as to the
rightful person to whom to pay the rentals because it was a certain
Berlito P. Taripe who had originally leased the subject property to
them. Clearly, the payment of rentals is covered by the
constitutional guarantee against imprisonment.
Moreover, petitioners cannot be validly punished for contempt
under Section 8, Rule 71 of the Rules of Court to wit:
SEC. 8. Imprisonment until order obeyed. — When the contempt
consists in the refusal or omission to do an act which is yet in the
power of the respondent to perform, he may be imprisoned by
order of the court concerned until he performs it. (7a)

When petitioners refused to remit the rentals to respondent Bolaño

per Order dated October 5, 1999, a written charge of indirect because herein subject order is not a special judgment
contempt was duly filed before the trial court and hearing on the enforceable, under Section 11, Rule 39, which provides:
motion set on May 11, 2001. As previously stated, petitioners did
not attend said hearing despite knowledge thereof; instead, they
wrote the court on June 11, 2001 asking that the contempt findings
SEC. 11. Execution of special judgment. — When a judgment
against them be withdrawn. Clearly, they were given the
requires the performance of any act other than those mention in
opportunity to be heard, and as aptly stated by the court, they were
the two preceding sections, a certified copy of judgment shall be
given more than sufficient time to comply with the Order dated
attached to the writ of execution and shall be served by the officer
October 5, 1999.30
upon the party against whom the same is rendered, or upon any
other person required thereby, or by law to obey the same, and
such party or person may be punished for contempt if he disobeys
Despite the foregoing, we find that the trial court's finding of such judgment.
contempt and the order directing the imprisonment of petitioner to
be unwarranted. The salutary rule is that the power to punish to
contempt must be exercised on the preservative, not vindictive
Section 9 of Rule 39 refers to the execution of judgments for
principle, and on the corrective and not retaliatory idea of
money, thus:
punishment. Court must exercise their contempt powers judiciously
and sparingly, with utmost self-restraint.31

SEC. 9. Execution of judgments for money, how enforced. — (a)

In Halili vs. Court of Industrial Relations,32 the Court quoted the
pronouncements of some American courts, to wit:
Except where the fundamental power of the court to imprison for
contempt has been restricted by statute, and subject to
constitutional prohibitions where a contemnor fails or refuses to
obey an order of the court for the payment of money he may be
imprisoned to compel obedience to such order. [Fla.–Revell v.
Dishong, 175 So. 905, 129 Fla. 9; Va. Branch v. Branch, 132 S.E.
303; 144 Va. 244]. (17 C.J.S. 287).
Immediate payment on demand. — The officer shall enforce an
execution of a judgment for money by demanding from the
judgment obligor the immediate payment of the full amount stated
in the writ of execution and all lawful fees. The judgment obligor
shall pay in cash, certified bank check payable to the judgment
obligee, or any other form of payment acceptable to the latter, the
amount of the judgment debt under proper receipt directly to the
judgment obligee or his authorized representative if present at the
time of payment. The lawful fees shall be handed under proper
receipt to the executing sheriff who shall turn over the said amount
within the same day to the clerk of court of the court that issued
the writ.

xxx xxx xxx If the judgment obligee or his authorized representative is not
present to receive payment, the judgment obligor shall deliver the
aforesaid payment to the executing sheriff. The latter shall turn
over all the amounts coming into his possession within the same
. . . It has been said that imprisonment for contempt as a means of
day to the clerk of court of the court that issued the writ, or if the
coercion for civil purpose cannot be resorted to until all other
same is not practicable, deposit said amounts to a fiduciary
means fail [Mich.–Atchison, etc. R. co. v. Jennison, 27 N.W. 6, 60
account in the nearest government depository bank of the
Mich. 232], but the court's power to order the contemnor's
Regional Trial court of the locality.
detension continues so long as the contumacy persists [Ark.–Lane
v. Alexander, 271 S.W. 710, 168 Ark. 700] (17 C.J.S. 289).33

The clerk of said court shall thereafter arrange for the remittance of
the deposit to the account of the court that issued the writ whose
which we hereby adopt as proper guidelines in the determination
clerk of court shall then deliver said payment to the judgment
of whether the Court of Appeals erred in affirming the order of the
obligee in satisfaction of the judgment. The excess, if any, shall be
trial court finding petitioners guilty of indirect contempt of court and
delivered to the judgment obligor while the lawful fees shall be
directing their imprisonment for their contumacious refusal to pay
retained by the clerk of court for disposition as provided by law. In
the rentals to the administratrix.
no case shall the executing sheriff demand that any payment by
check be made payable to him.

In Philippine jurisdiction, Section 20, Article 3 of the 1987

Philippine Constitution expressly provides that no person shall be
(b) Satisfaction by levy. — If the judgment obligor cannot
imprisoned for debt. Debt, as used in the Constitution, refers to
pay all or part of the obligation in cash, certified bank check or
civil debt or one not arising from a criminal offense.34 It means
other mode or payment acceptable to the judgment obligee, the
any liability to pay arising out of a contract, express or implied.35
officer shall levy upon the properties of the judgment obligor of
In the present case, petitioners, as recognized lessees of the
every kind and nature whatsoever which may be disposed of for
value and not otherwise exempt from execution giving the latter
the option to immediately choose which property or part thereof
may be levied upon, sufficient to satisfy the judgment. If the
judgment obligor does not exercise the option, the officer shall first
levy on the personal properties, if any, and then on the real
properties if the personal properties are insufficient to answer for
the judgment.
The sheriff shall sell only a sufficient portion of the personal or real
property of the judgment obligor which has been levied upon.
When there is more property of the judgment obligor than is
sufficient to satisfy the judgment and lawful fees, he must sell only
so much of the personal or real property as is sufficient to satisfy
the judgment and lawful fees.
Real property, stocks, shares, debts, credits, and other personal
property, or any interest in either real or personal property, may be
levied upon in like manner and with like effect as under a writ of
attachment.
(c) Garnishment of debts and credits. — The officer may
levy on debts due the judgment obligor and other credits, including
bank deposits, financial interests, royalties, commissions and other
personal property not capable of manual delivery in the possession
or control of third parties. Levy shall be made by serving notice
upon the person owing such debts or having in his possession or
control such credits to which the judgment obligor is entitled. The
garnishment shall cover only such amount as will satisfy the
judgment and all lawful fees.
The garnishee shall make a written report to the court within five
(5) days from service of the notice of garnishment stating whether
or not the judgment obligor has sufficient funds or credits to satisfy
the amount of the judgment. If not, the report shall state how much
funds or credits the garnishee holds for the judgment obligor. The
garnished amount in cash, or certified bank check issued in the
name of the judgment obligee, shall be delivered directly to the
judgment obligee within ten (10) working days from service of
notice on said garnishee requiring such delivery, except the lawful
fees which shall be paid directly to the court.
In the event there are two or more garnishees holding deposits or
credits sufficient to satisfy the judgment, the judgment obligor, if
available, shall have the right to indicate the garnishee or
garnishees who shall be required to deliver the amount due;
otherwise, the choice shall be made by the judgment obligee.
The executing sheriff shall observe the same procedure under
paragraph (a) with respect to delivery of payment to the judgment
obligee. (8a, 15a)
while Section 10 of the same Rule refers to execution of judgments
for specific acts such as conveyance, delivery of deeds or other
specific acts vesting title; sale of real or personal property, delivery
or restitution of real property, removal of improvements on property
subject of execution and delivery of personal property.
The order directing the payment of rentals falls within the purview
of Section 9 as quoted above. Until and unless all the means
provided for under Section 9, Rule 39 have been resorted to and
failed, imprisonment for contempt as a means of coercion for civil
purposes cannot be resorted to by the courts.36 In Sura vs. Martin,
Sr.,37 we held that:
Where an order for the arrest and imprisonment of defendant for
contempt of court (for failure to satisfy a judgment for support on
ground of insolvency) would, in effect, violate the Constitution.
Thus, petitioners could not be held guilty of contempt of court for
their continued refusal to comply with the probate court's order to
pay rentals to the administratrix nor could they be held guilty of
contempt for disobeying the writ of execution issued by the probate
court, which directs therein the Sheriff, thus:
Should lessees fail to pay the aforementioned amounts on rentals,
then of the goods and chattels of said lessees you may cause to
be made the sum sufficient to cover the aforestated amounts, but if
no sufficient personal properties are found thereof to satisfy this
execution, then of the real properties you make the sums of money
in the manner required by law and make return of your proceeding
under this writ within the reglementary period.38
It was the sheriff's duty to enforce the writ.39
Under Section 9(b), Rule 39, of the Rules of Court, in cases when
the execution calls for payment of money and the obligor cannot
pay all or part of the obligation in cash, certified bank check or
other mode or payment acceptable to the judgment obligee, the
officer shall levy upon the properties of the judgment obligor of
every kind and nature whatsoever which may be disposed of for
value and not otherwise exempt from execution giving the latter
the option to immediately choose which property or part thereof
may be levied upon, sufficient to satisfy the judgment. If the
judgment obligor does not exercise the option, the officer shall first
levy on the personal properties, if any, and then on the real
properties if the personal properties are insufficient to answer for
the judgment. The sheriff shall sell only a sufficient portion of the
personal or real property of the judgment obligor which has been
levied upon. When there is more property of the judgment obligor
than is sufficient to satisfy the judgment and lawful fees, he must
sell only so much of the personal or real property as is sufficient to
satisfy the judgment and lawful fees. Real property, stocks, shares,
debts, credits, and other personal property, or any interest in either
real or personal property, may be levied upon in like manner and
with like effect as under a writ of attachment.
The writ of execution issued by the trial court in this case
commanded its sheriff to collect from petitioners the rentals due
from the property, and should they fail to pay, from petitioners'
personal/real properties sufficient to cover the amounts sought to
be collected.40 It was not addressed to petitioners. It pertained to
the sheriff to whom the law entrusts the execution of judgments,41
and it was due to the latter's failure that the writ was not duly
enforced.
In fine, the Court of Appeals committed a reversible error in
affirming the Decision dated November 16, 2001 of the trial court.
WHEREFORE, finding the petition for review on certiorari to be
with merit, the decision dated March 26, 2002 rendered by the
Court of Appeals is REVERSED and SET ASIDE. Its Resolution
dated January 3, 2002 ordering the temporary release of
petitioners is made permanent. The Warrant of Arrest dated
November 19, 2001 issued by the Regional Trial Court of Ormoc
City (Branch 12) in Sp. Proc. No. 3695-0 is DEEMED RECALLED.
No costs.
SO ORDERED.
G.R. No. L-32485 October 22, 1970 (4) alters the legal rules of evidence, and authorizes
conviction upon less or different testimony than the law required at
the time of the commission of the offense;
IN THE MATTER OF THE PETITION FOR THE DECLARATION
OF THE PETITIONER'S RIGHTS AND DUTIES UNDER SEC. 8
OF R.A. No. 6132. (5) assuming to regulate civil rights and remedies only, in
effect imposes penalty or deprivation of a right for something which
when done was lawful; and
KAY VILLEGAS KAMI, INC., petitioner.

(6) deprives a person accused of a crime of some lawful

protection to which he has become entitled, such as the protection
of a former conviction or acquittal, or a proclamation of amnesty.3

MAKASIAR, J.:.
From the aforesaid definition as well as classification of ex post
facto laws, the constitutional inhibition refers only to criminal laws
which are given retroactive effect.4
This petition for declaratory relief was filed by Kay Villegas Kami,
Inc., claiming to be a duly recognized and existing non-stock and
non-profit corporation created under the laws of the land, and
While it is true that Sec. 18 penalizes a violation of any provision of
praying for a determination of the validity of Sec. 8 of R.A. No.
R.A. No. 6132 including Sec. 8(a) thereof, the penalty is imposed
6132 and a declaration of petitioner's rights and duties thereunder.
only for acts committed after the approval of the law and not those
In paragraph 7 of its petition, petitioner avers that it has printed
perpetrated prior thereto. There is nothing in the law that remotely
materials designed to propagate its ideology and program of
insinuates that Secs. 8(a) and 18, or any other provision thereof,
government, which materials include Annex B; and that in
shall apply to acts carried out prior to its approval. On the contrary,
paragraph 11 of said petition, petitioner intends to pursue its
See. 23 directs that the entire law shall be effective upon its
purposes by supporting delegates to the Constitutional Convention
approval. It was approved on August 24, 1970.
who will propagate its ideology.

WHEREFORE, the prayer of the petition is hereby denied and

Petitioner, in paragraph 7 of its petition, actually impugns because
paragraph 1 of Sec. 8(a) of R.A. No. 6132 is not unconstitutional.
it quoted, only the first paragraph of Sec. 8(a) on the ground that it
Without costs.
violates the due process clause, right of association, and freedom
of expression and that it is an ex post facto law.

G.R. No. 135080 November 28, 2007

The first three grounds were overruled by this Court when it held
that the questioned provision is a valid limitation on the due
process, freedom of expression, freedom of association, freedom ORLANDO L. SALVADOR, for and in behalf of the Presidential Ad
of assembly and equal protection clauses; for the same is Hoc Fact-Finding Committee on Behest Loans, Petitioner,
designed to prevent the clear and present danger of the twin
substantive evils, namely, the prostitution of electoral process and vs.
denial of the equal protection of the laws. Moreover, under the
PLACIDO L. MAPA, JR., RAFAEL A. SISON, ROLANDO M.
balancing-of-interests test, the cleansing of the electoral process,
ZOSA, CESAR C. ZALAMEA, BENJAMIN BAROT, CASIMIRO
the guarantee of equal change for all candidates, and the
TANEDO, J.V. DE OCAMPO, ALICIA L. REYES, BIENVENIDO R.
independence of the delegates who must be "beholden to no one
TANTOCO, JR., BIENVENIDO R. TANTOCO, SR., FRANCIS B.
but to God, country and conscience," are interests that should be
BANES, ERNESTO M. CARINGAL, ROMEO V. JACINTO, and
accorded primacy.1
MANUEL D. TANGLAO, Respondents.

The petitioner should therefore be accordingly guided by the

DECISION
pronouncements in the cases of Imbong and Gonzales. 2

NACHURA, J.:
The claim of petitioner that the challenged provision constitutes an
ex post facto law is likewise untenable.

The Presidential Ad Hoc Fact-Finding Committee on Behest

Loans, (the Committee), through Atty. Orlando L. Salvador (Atty.
An ex post facto law is one which:.
Salvador), filed this Petition for Review on Certiorari seeking to
nullify the October 9, 1997 Resolution1 of the Office of the
Ombudsman in OMB-0-96-2428, dismissing the criminal complaint
(1) makes criminal an act done before the passage of the against respondents on ground of prescription, and the July 27,
law and which was innocent when done, and punishes such an 1998 Order2 denying petitioner’s motion for reconsideration.
act;

On October 8, 1992 then President Fidel V. Ramos issued

(2) aggravates a crime, or makes it greater than it was, when Administrative Order No. 13 creating the Presidential Ad Hoc Fact-
committed; Finding Committee on Behest Loans, which reads:

(3) changes the punishment and inflicts a greater WHEREAS, Sec. 28, Article II of the 1987 Constitution provides
punishment than the law annexed to the crime when committed; that "Subject to reasonable conditions prescribed by law, the State
adopts and implements a policy of full public disclosure of all its
transactions involving public interest";
WHEREAS, Sec. 15, Article XI of the 1987 Constitution provides
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,
laches or estoppel";
WHEREAS, there have been allegations of loans, guarantees, and
other forms of financial accommodations granted, directly or
indirectly, by government-owned and controlled bank or financial
institutions, at the behest, command, or urging by previous
government officials to the disadvantage and detriment of the
Philippines government and the Filipino people;
ACCORDINGLY, an "Ad-Hoc FACT FINDING COMMITTEE ON
BEHEST LOANS" is hereby created to be composed of the
following:
Chairman of the Presidential
Commission on Good Government - Chairman
The Solicitor General - Vice-Chairman
Representative from the
Office of the Executive Secretary - Member
Representative from the
Department of Finance - Member
Representative from the
Department of Justice - Member
Representative from the
Development Bank of the Philippines - Member
Representative from the
Philippine National Bank - Member
Representative from the
Asset Privatization Trust - Member
Government Corporate Counsel - Member
Representative from the
Philippine Export and Foreign
Loan Guarantee Corporation - Member
The Ad Hoc Committee shall perform the following functions:
1. Inventory all behest loans; identify the lenders and borrowers,
including the principal officers and stockholders of the borrowing
firms, as well as the persons responsible for granting the loans or
who influenced the grant thereof;
2. Identify the borrowers who were granted "friendly waivers," as
well as the government officials who granted these waivers;
determine the validity of these waivers;
3. Determine the courses of action that the government should
take to recover those loans, and to recommend appropriate
actions to the Office of the President within sixty (60) days from the
date hereof.
The Committee is hereby empowered to call upon any department,
bureau, office, agency, instrumentality or corporation of the
government, or any officer or employee thereof, for such
assistance as it may need in the discharge of its functions.3
By Memorandum Order No. 61 dated November 9, 1992, the
functions of the Committee were subsequently expanded, viz.:
WHEREAS, among the underlying purposes for the creation of the
Ad Hoc Fact-Finding Committee on Behest Loans is to facilitate
the collection and recovery of defaulted loans owing government-
owned and controlled banking and/or financing institutions;
WHEREAS, this end may be better served by broadening the
scope of the fact-finding mission of the Committee to include all
non-performing loans which shall embrace behest and non-behest
loans;
NOW THEREFORE, I, FIDEL V. RAMOS, President of the
Republic of the Philippines, by virtue of the power vested in me by
law, do hereby order:
Sec. 1. The Ad Hoc Fact-Finding Committee on Behest Loans
shall include in its investigation, inventory, and study, all non-
performing loans which shall embrace both behest and non-behest
loans:
The following criteria may be utilized as a frame of reference in
determining a behest loan:
1. It is under-collateralized;
2. The borrower corporation is undercapitalized;
3. Direct or indirect endorsement by high government officials like
presence of marginal notes;
4. Stockholders, officers or agents of the borrower corporation are
identified as cronies;
5. Deviation of use of loan proceeds from the purpose intended;
6. Use of corporate layering;
7. Non-feasibility of the project for which financing is being sought;
and
8. Extraordinary speed in which the loan release was made.
It bears to stress that Section 11 of R.A. No. 3019 as originally
enacted, provides that the prescriptive period for violations of the
said Act (R.A. 3019) is ten (10) years. Subsequently, BP 195,
enacted on March 16, 1982, amended the period of prescription
from ten (10) years to fifteen (15) years

Moreover as enunciated in [the] case of People vs.

Moreover, a behest loan may be distinguished from a non-behest
Sandiganbayan, 211 SCRA 241, the computation of the
loan in that while both may involve civil liability for non-payment or
prescriptive period of a crime violating a special law like R.A. 3019
non-recovery, the former may likewise entail criminal liability.4
is governed by Act No. 3326 which provides, thus:

Several loan accounts were referred to the Committee for

xxxx
investigation, including the loan transactions between Metals
Exploration Asia, Inc. (MEA), now Philippine Eagle Mines, Inc.
(PEMI) and the Development Bank of the Philippines (DBP).
Section 2. Prescription shall begin to run from the day of the
commission of the violation of law, and if the same be not known at
the time, from the discovery thereof and the institution of the
After examining and studying the documents relative to the loan
judicial proceedings for its investigation and punishment.
transactions, the Committee determined that they bore the
characteristics of behest loans, as defined under Memorandum
Order No. 61 because the stockholders and officers of PEMI were
known cronies of then President Ferdinand Marcos; the loan was The prescription shall be interrupted when the proceedings are
under-collateralized; and PEMI was undercapitalized at the time instituted against the guilty person, and shall begin to run again if
the loan was granted. the proceedings are dismissed for reasons not constituting
jeopardy.

Specifically, the investigation revealed that in 1978, PEMI applied

for a foreign currency loan and bank investment on its preferred
shares with DBP. The loan application was approved on April 25,
1979 per Board Resolution (B/R) No. 1297, but the loan was never
released because PEMI failed to comply with the conditions
imposed by DBP. To accommodate PEMI, DBP subsequently
adopted B/R No. 2315 dated June 1980, amending B/R No. 1297,
authorizing the release of PEMI’s foreign currency loan proceeds,
and even increasing the same. Per B/R No. 95 dated October 16,
1980, PEMI was granted a foreign currency loan of
$19,680,267.00 or P146,601,979.00, and it was released despite
non-compliance with the conditions imposed by DBP. The
Committee claimed that the loan had no sufficient collaterals and
PEMI had no sufficient capital at that time because its acquired
assets were only valued at P72,045,700.00, and its paid up capital
was only P46,488,834.00.
Corollary thereto, the Supreme Court in the case of People vs.
Dinsay, C.A. 40 O.G. 12th Supp., 50, ruled that when there is
nothing which was concealed or needed to be discovered because
the entire series of transactions were by public instruments, the
period of prescription commenced to run from the date the said
instrument were executed.
The aforesaid principle was further elucidated in the cases of
People vs. Sandiganbayan, 211 SCRA 241, 1992, and People vs.
Villalon, 192 SCRA 521, 1990, where the Supreme Court
pronounced that when the transactions are contained in public
documents and the execution thereof gave rise to unlawful acts,
the violation of the law commences therefrom. Thus, the reckoning
period for purposes of prescription shall begin to run from the time
the public instruments came into existence.

Consequently, Atty. Orlando L. Salvador, Consultant of the Fact-

Finding Committee, and representing the Presidential Commission
In the case at bar, the subject financial accommodations were
on Good Government (PCGG), filed with the Office of the
entered into by virtue of public documents (e.g., notarized
Ombudsman (Ombudsman) a sworn complaint for violation of
contracts, board resolutions, approved letter-request) during the
Sections 3(e) and (g) of Republic Act No. 3019, or the Anti-Graft
period of 1978 to 1981 and for purposes of computing the
and Corrupt Practices Act, against the respondents Placido I.
prescriptive period, the aforementioned principles in the Dinsay,
Mapa, Jr., Rafael A. Sison; Rolando M. Zosa; Cesar C. Zalamea;
Villalon and Sandiganbayan cases will apply. Records show that
Benjamin Barot, Casimiro Tanedo, J.V. de Ocampo, Bienvenido R.
the complaint was referred and filed with this Office on October 4,
Tantoco, Jr., Francis B. Banes, Ernesto M. Caringal, Romeo V.
1996 or after the lapse of more than fifteen (15) years from the
Jacinto, Manuel D. Tanglao and Alicia Ll. Reyes.5
violation of the law. [Deductibly] therefore, the offenses charged
had already prescribed or forever barred by Statute of Limitations.

After considering the Committee’s allegation, the Ombudsman

handed down the assailed Resolution,6 dismissing the complaint.
It bears mention that the acts complained of were committed
The Ombudsman conceded that there was ground to proceed with
before the issuance of BP 195 on March 2, 1982. Hence, the
the conduct of preliminary investigation. Nonetheless, it dismissed
prescriptive period in the instant case is ten (10) years as provided
the complaint holding that the offenses charged had already
in the (sic) Section 11 of R.A. 3019, as originally enacted.
prescribed, viz.:

Equally important to stress is that the subject financial transactions

[W]hile apparently, PEMI was undercapitalized at the time the
subject loans were entered into; the financial accommodations
were undercollateralized at the time they were granted; the
stockholders and officers of the borrower corporation are identified
cronies of then President Marcos; and the release of the said loans
was made despite non-compliance by PEMI of the conditions
attached therewith, which consequently give a semblance that the
subject Foreign Currency Loans are indeed Behest Loans, the
prosecution of the offenses charged cannot, at this point, prosper
on grounds of prescription.
between 1978 and 1981 transpired at the time when there was yet
no Presidential Order or Directive naming, classifying or
categorizing them as Behest or Non-Behest Loans.
To reiterate, the Presidential Ad Hoc Committee on Behest Loans
was created on October 8, 1992 under Administrative Order No.
13. Subsequently, Memorandum Order No. 61, dated November 9,
1992, was issued defining the criteria to be utilized as a frame of
reference in determining behest loans. Accordingly, if these Orders
are to be considered the bases of charging respondents for
alleged offenses committed, they become ex-post facto laws which
are proscribed by the Constitution. The Supreme Court in the case
of People v. Sandiganbayan, supra, citing Wilensky V. Fields, Fla,
267 So 2dl, 5, held that "an ex-post facto law is defined as a law
which provides for infliction of punishment upon a person for an act
done which when it was committed, was innocent."7
Thus, the Ombudsman disposed:
WHEREFORE, premises considered, it is hereby respectfully
recommended that the instant case be DISMISSED.
SO RESOLVED.8
The Committee filed a Motion for Reconsideration, but the
Ombudsman denied it on July 27, 1998.
Hence, this petition positing these issues:
A. WHETHER OR NOT THE CRIME DEFINED BY SEC. 3(e) AND
(g) OF R.A. 3019 HAS ALREADY PRESCRIBED AT THE TIME
THE PETITIONER FILED ITS COMPLAINT.
B. WHETHER OR NOT ADMINISTRATIVE ORDER NO. 13 AND
MEMORANDUM ORDER NO. 61 ARE EX-POST FACTO
LAW[S].9
The Court shall deal first with the procedural issue.
Commenting on the petition, Tantoco, Reyes, Mapa, Zalamea and
Caringal argued that the petition suffers from a procedural infirmity
which warrants its dismissal. They claimed that the PCGG availed
of the wrong remedy in elevating the case to this Court.
Indeed, what was filed before this Court is a petition captioned as
Petition for Review on Certiorari. We have ruled, time and again,
that a petition for review on certiorari is not the proper mode by
which resolutions of the Ombudsman in preliminary investigations
of criminal cases are reviewed by this Court. The remedy from the
adverse resolution of the Ombudsman is a petition for certiorari
under Rule 65,10 not a petition for review on certiorari under Rule
45.
However, though captioned as a Petition for Review on Certiorari,
we will treat this petition as one filed under Rule 65 since a reading
of its contents reveals that petitioner imputes grave abuse of
discretion to the Ombudsman for dismissing the complaint. The
averments in the complaint, not the nomenclature given by the
parties, determine the nature of the action.11 In previous rulings,
we have treated differently labeled actions as special civil actions
for certiorari under Rule 65 for reasons such as justice, equity, and
fair play.12
Having resolved the procedural issue, we proceed to the merits of
the case.
As the Committee puts it, the issues to be resolved are: (i) whether
or not the offenses subject of its criminal complaint have
prescribed, and (ii) whether Administrative Order No. 13 and
Memorandum Order No. 61 are ex post facto laws.
The issue of prescription has long been settled by this Court in
Presidential Ad Hoc Fact-Finding Committee on Behest Loans v.
Desierto,13 thus:
[I]t is well-nigh impossible for the State, the aggrieved party, to
have known the violations of R.A. No. 3019 at the time the
questioned transactions were made because, as alleged, the
public officials concerned connived or conspired with the
"beneficiaries of the loans." Thus, we agree with the COMMITTEE
that the prescriptive period for the offenses with which the
respondents in OMB-0-96-0968 were charged should be computed
from the discovery of the commission thereof and not from the day
of such commission.14
The ruling was reiterated in Presidential Ad Hoc Fact-Finding
Committee on Behest Loans v. Ombudsman Desierto,15 wherein
the Court explained:
In cases involving violations of R.A. No. 3019 committed prior to
the February 1986 EDSA Revolution that ousted President
Ferdinand E. Marcos, we ruled that the government as the
aggrieved party could not have known of the violations at the time
the questioned transactions were made. Moreover, no person
would have dared to question the legality of those transactions.
Thus, the counting of the prescriptive period commenced from the
date of discovery of the offense in 1992 after an exhaustive
investigation by the Presidential Ad Hoc Committee on Behest
Loans.16
This is now a well-settled doctrine which the Court has applied in
subsequent cases involving the PCGG and the Ombudsman.17
Since the prescriptive period commenced to run on the date of the
discovery of the offenses, and since discovery could not have
been made earlier than October 8, 1992, the date when the
Committee was created, the criminal offenses allegedly committed
by the respondents had not yet prescribed when the complaint was
filed on October 4, 1996.
Even the Ombudsman, in its Manifestation & Motion (In Lieu of
Comment),18 conceded that the prescriptive period commenced
from the date the Committee discovered the crime, and not from
the date the loan documents were registered with the Register of
Deeds. As a matter of fact, it requested that the record of the case
be referred back to the Ombudsman for a proper evaluation of its
merit.
Likewise, we cannot sustain the Ombudsman’s declaration that
Administrative Order No. 13 and Memorandum Order No. 61
violate the prohibition against ex post facto laws for ostensibly
inflicting punishment upon a person for an act done prior to their
issuance and which was innocent when done.
The constitutionality of laws is presumed. To justify nullification of
a law, there must be a clear and unequivocal breach of the
Constitution, not a doubtful or arguable implication; a law shall not
be declared invalid unless the conflict with the Constitution is clear
beyond reasonable doubt. The presumption is always in favor of
constitutionality. To doubt is to sustain.19 Even this Court does not
decide a question of constitutional dimension, unless that question
is properly raised and presented in an appropriate case and is
necessary to a determination of the case, i.e., the issue of
constitutionality must be the very lis mota presented.201âwphi1
Furthermore, in Estarija v. Ranada,21 where the petitioner raised
the issue of constitutionality of Republic Act No. 6770 in his motion
for reconsideration of the Ombudsman’s decision, we had
occasion to state that the Ombudsman had no jurisdiction to
entertain questions on the constitutionality of a law. The SECOND DIVISION
Ombudsman, therefore, acted in excess of its jurisdiction in
declaring unconstitutional the subject administrative and
memorandum orders.
PEOPLE OF THE PHILIPPINES,

In any event, we hold that Administrative Order No. 13 and

Plaintiff-Appellee,
Memorandum Order No. 61 are not ex post facto laws.

- versus -
An ex post facto law has been defined as one — (a) which makes
an action done before the passing of the law and which was
innocent when done criminal, and punishes such action; or (b)
which aggravates a crime or makes it greater than it was when CLEMENTE CASTA y CAROLINO,
committed; or (c) which changes the punishment and inflicts a
greater punishment than the law annexed to the crime when it was
committed; or (d) which alters the legal rules of evidence and
Accused-Appellant.
receives less or different testimony than the law required at the
time of the commission of the offense in order to convict the
defendant.22 This Court added two (2) more to the list, namely: (e)
that which assumes to regulate civil rights and remedies only but in G.R. No. 172871
effect imposes a penalty or deprivation of a right which when done
was lawful; or (f) that which deprives a person accused of a crime
of some lawful protection to which he has become entitled, such as
Present:
the protection of a former conviction or acquittal, or a proclamation
of amnesty.23

QUISUMBING, J., Chairman,

The constitutional doctrine that outlaws an ex post facto law
generally prohibits the retrospectivity of penal laws. Penal laws are
those acts of the legislature which prohibit certain acts and carpio MORALES,
establish penalties for their violations; or those that define crimes,
treat of their nature, and provide for their punishment.24 The
subject administrative and memorandum orders clearly do not
come within the shadow of this definition. Administrative Order No. TINGA,
13 creates the Presidential Ad Hoc Fact-Finding Committee on
Behest Loans, and provides for its composition and functions. It
does not mete out penalty for the act of granting behest loans. VELASCO, JR., and
Memorandum Order No. 61 merely provides a frame of reference
for determining behest loans. Not being penal laws, Administrative
Order No. 13 and Memorandum Order No. 61 cannot be
characterized as ex post facto laws. There is, therefore, no basis BRION, JJ.
for the Ombudsman to rule that the subject administrative and
memorandum orders are ex post facto.
Promulgated:

One final note. Respondents Mapa and Zalamea, in their

respective comments, moved for the dismissal of the case against September 16, 2008
them. Mapa claims that he was granted transactional immunity
from all PCGG-initiated cases,25 while Zalamea denied
participation in the approval of the subject loans.26 The arguments
advanced by Mapa and Zalamea are matters of defense which x --------------------------------------------------------------------------------------
should be raised in their respective counter-affidavits. Since the --x
Ombudsman erroneously dismissed the complaint on ground of
prescription, respondents’ respective defenses were never passed
upon during the preliminary investigation. Thus, the complaint
should be referred back to the Ombudsman for proper evaluation
of its merit. DECISION

WHEREFORE, the petition is GRANTED. The assailed Resolution

and Order of the Office of Ombudsman in OMB-0-96-2428, are
SET ASIDE. The Office of the Ombudsman is directed to conduct
with dispatch an evaluation of the merits of the complaint against
the herein respondents.
SO ORDERED.
Republic of the Philippines
BRION, J.:
This is an appeal from the March 10, 2006 Decision1 of the Court
of Appeals (CA) in CA-G.R. CR-HC No. 01217. The CA affirmed
the August 18, 1999 Decision2 of the Regional Trial Court (RTC),
Branch 55, Alaminos, Pangasinan, finding the appellant Clemente
Casta y Carolino (appellant) guilty beyond reasonable doubt of the
crime of murder and sentencing him to suffer the penalty of
reclusion perpetua.

SUPREME COURT ANTECEDENT FACTS

Manila
The prosecution charged the appellant before the RTC with the
crime of murder under an Information that states:
That on or about the 20th day of August, 1989 in the afternoon, at
barangay Goyoden, municipality of Bolinao, province of
Pangasinan, New [sic]Republic of the Philippines and within the
jurisdiction of this Honorable Court, the above-named accused,
with intent to kill and by means of treachery, did, then and there,
willfully, unlawfully and feloniously, suddenly and without warning
attack and stab DANILO CAMBA with a knife, inflicting upon the
victim the following injuries to wit:
- stab wound, 3 inches in length, 4 inches in depth, located at the
back, left side, 5 inches (level) below the armpit;
At the police station, the appellant confessed to the killing of Danilo
after being informed of his constitutional rights and in the presence
of counsel, a certain Atty. Antonio V. Tiong,14 The confession was
reduced to writing and was signed by the appellant and Atty.
Tiong.15
Dionisia Camba (Dionisia), Danilo’s widow, testified that her
husband was an employee of the Office of the Register of Deeds,
Lingayen, Pangasinan at the time of his death, earning more than
P3,000.00 a month.16 They have four (4) children and that her
husband was the sole breadwinner of the family. According to her,
she spent a total of P13,500.00 for the funeral and burial expenses
of her husband17 but the receipts for these expenses have all
been lost.18

Dr. Prudencio C. de Perio (Dr. de Perio), the Municipal Health

Officer of Bolinao, Pangasinan, narrated that he conducted an
- stab wound at the left forearm, 3 cm. length and 1 inch depth.
autopsy on the remains of Danilo at the request of the police,19
and made the following findings:

which caused his instantaneous death to the damage and

prejudice of the heirs of Danilo Camba.
AUTOPSY REPORT

CONTRARY to Article 248 of the Revised Penal Code.3

xxxx

The appellant pleaded not guilty to the charge upon arraignment.

III. Findings
The prosecution presented the following witnesses in the trial on
the merits that followed: Marlyn4 Cister; Modesto Cardona;
Domingo Camba; Dionisia Camba; and Dr. Prudencio C. de Perio.
The appellant took the witness stand for the defense. A male cadaver undergoing rigor mortis, around 5’6" in height, and
around 145 lbs. in weight.

Marlyn Cister (Marlyn) testified that in the afternoon of August 20,

1989, while seated on the steps of the stairs of their house, she - Stab wound, 3 inches in length, 4 inches in depth, located at the
saw Danilo Camba (Danilo) and Modesto Cardona (Modesto) back, left side, 5 inches (level) below the armpit.
standing by the roadside.5 Suddenly, the appellant appeared from
behind Danilo and stabbed him (Danilo).6 Danilo fell and died on
the spot. Thereafter, the appellant fled.7
- Left lung injured and also the heart, causing massive
hemorrhages.

Modesto narrated that at around 3:00 o’clock in the afternoon of

August 20, 1989, he was walking along the road at Sitio Makber,
- Stab wound at the left forearm, 3 cm. length and 1 inch depth.
Goyoden, Bolinao, Pangasinan when Danilo emerged from a small
road and joined him. Along the way, they met Marcos Gumangan
(Marcos) and Angel Gatchalian (Angel) with whom they exchanged
greetings; it was Danilo’s first time to visit Goyoden after several Wound is horizontal.20
years. They all walked towards the west with Marcos and Angel
walking behind them. Suddenly, the appellant appeared from
behind Danilo and stabbed him using a double-bladed knife.8
According to Dr. de Perio, the victim’s cause of death was "shock,
Danilo turned around and then fell; the appellant fled still holding
due to massive hemorrhage brought about by the stab wounds."21
the knife he used in stabbing Danilo.9
He added that the stab wounds were caused by a sharp-pointed
instrument such as a dagger.22

On cross-examination, he testified that he was at about "two (2)

arms length" away from Danilo when he was stabbed, while their
The appellant gave a different version of the events which the RTC
other companions were behind them.10
summarized as follows

Senior Police Officer I Domingo Camba (SPO1 Camba), a member

x x x that on August 20, 1989 in the afternoon, he went to Sitio
of the Bolinao Police Station, narrated that on August 20, 1989,
Matber, Goyoden, Bolinao, to buy fish; that before reaching the
Barangay Captain Igmedio Gatchalian went to the Bolinao Police
place where he will buy fish, he met a person whom he did not
Station to report the stabbing of Danilo by the appellant; the
know.23 This person called him by waving his hand and pointing to
incident was entered in the police blotter as Entry No. 4300.11 He
him. He responded to the call of this person by approaching him
and other police officers promptly went to Barangay Goyoden and
but when he was near him, this person boxed him but he was not
conducted an on-the-spot investigation at the crime scene.12 The
hit. They grappled with each other and he did not notice if there
next day (August 21, 1989), the appellant’s uncle came and told
were other persons around them; that he then noticed that his
him that the appellant was at his (the appellant’s) house. He went
knife was already bloody so he ran away; that there was no person
with the appellant’s uncle to the appellant’s house where the
around that he noticed when he saw his knife bloody; that at that
appellant gave himself up. He forthwith brought the appellant to
time, he did not know the identity of the person with whom he
the police station for investigation.13
grappled; that when he was already detained, he learned that the
person was Danilo Camba.24
The accused also declared that he was not arrested by the Police,
but he surrendered to Pat. Domingo Camba on August 21, 1989 to
whom his uncle relayed the information that he wanted to THE COURT’S RULING
surrender and Pat. Camba fetched him. While under Police
custody, he was investigated by Pat. Camba and said investigation
was in writing and signed by him (Exhibit D, D-1 and D-2), but he We resolve to deny the appeal but we modify the penalty imposed
said that the document was not his statement although it bears his and the amount of the awarded indemnities.
signature.25 He was forced to sign the investigation because he
was afraid of the investigator who bears the same family name as
the victim but he does not know if they are related; x x x x26
Sufficiency of Prosecution Evidence

On cross-examination, he declared that he did not plan to kill the

victim and his killing was accidental.27 He gave his affidavit in the
Bolinao dialect in questions and answers (Exhibits D and series);
that all the signatures bearing his name are his (Exhibit D-4, D-5,
D-6); that this document has an English translation (Exhibit F); x x
x that he admitted on direct examination that he stabbed Danilo
Camba and he threw the knife into the sea when he rode on a
motorboat and was confused; that he knew that the date when he
stabbed Danilo Camba was August 20, 1989 and in the afternoon
but he did no know the time.28
An established rule in appellate review is that the trial court’s
factual findings, including its assessment of the credibility of the
witnesses and the probative weight of their testimonies, as well as
the conclusions drawn from the factual findings, are accorded
respect, if not conclusive effect. These actual findings and
conclusions assume greater weight if they are affirmed by the CA.
Despite the enhanced persuasive effect of the initial RTC factual
ruling and the results of the CA’s appellate factual review, we
nevertheless fully scrutinized the records of this case as the
penalty of reclusion perpetua that the lower courts imposed on the
accused demands no less than this kind of scrutiny.34

On re-direct examination, the accused declared that the reason for

his stabbing Danilo Camba was that when they met on the road
and Camba was drunk, without any provocation on his part, A striking feature of this case is that the appellant did not deny that
Camba positioned to box him so he drew his knife and stabbed he stabbed Danilo. He expressly made this admission in his
him; that he did not know the reason why Camba wanted to box testimony of January 18, 1995:
him; that at that time, Camba was with one Fedelino Gatchalian;
that he had no previous grudge with Camba because he did not
know him; that he did not see the victim with any weapon and he ATTY. ROMIE V. BRAGA:
did not know if he was armed or not; and that he is bigger than
Camba.29 [Footnotes referring to the pertinent parts of the record
supplied]
Q: In your direct-examination, you admitted having stabbed the
deceased Danilo Camba, will you tell the Court where was that
knife which you used in stabbing Danilo Camba?
The RTC convicted the appellant of the crime of murder in its
decision of August 18, 1999 as follows:

CLEMENTE CASTA:

Wherefore, in view of the foregoing considerations, the Court

hereby renders judgment, finding the accused Clemente Casta y
Carolino, of Barangay Goyoden, Bolinao, Pangasinan, guilty A: I left it in the sea, sir.
beyond reasonable doubt of the crime of Murder for the death of
Danilo Camba, of the same place, and hereby sentences him to
suffer the penalty of reclusion perpetua and to indemnify the heirs Q: You mean you threw it into the sea?
of the deceased in the amount of P50,000.00 as compensation for
the death of the victim, P100,000.00 as moral and exemplary
damages and P13,000.00 as actual damages.
A: Yes, sir.

With costs de oficio.

Q: Will you tell the Court why you threw the knife which you used
in stabbing Danilo Camba into the sea?

SO ORDERED.30

A: Because I rode in a motor boat and then I threw it into the sea,
sir.
The records of this case were originally transmitted to this Court on
appeal. Pursuant to our ruling in People v. Mateo,31 we endorsed
the case and its records to the CA for appropriate action and
disposition.32 Q: And will you tell the Court why you threw or drop it into the sea?

The CA, in a decision dated March 10, 2006, affirmed the RTC A: Because I was confused, sir.
decision in toto.

Q: Now will you tell us what time was it more or less when you
In his brief,33 the appellant argues that the RTC erred – stabbed Danilo Camba?

1. in convicting him of the crime of murder; and A: I do not know the time, sir.

2. in imposing upon him the penalty of reclusion perpetua. Q: But it was in the afternoon of August 20, 1989, is that correct?
 xxx

A: Yes, sir. x x x35 [Emphasis ours]

Q: When you grappled with each other, who was the first who
grappled against whom?
This in-court admission confirms the separate admission he made
at the Bolinao police station on August 22, 1989 in the presence of
counsel, Atty. Antonio V. Tiong.
A: He, sir.

The petitioner sought to exculpate himself by claiming that the

stabbing was an act of self-defense. In his testimony of May 3, Q: What happened when he grappled with you and you grappled
1994, he claimed: with him, what happened next?

ATTY. TEOFILO A. HUMILDE: A: I did not notice that my knife has already blood so I ran away.

Q: After Gumangan left and you continued walking, were you able xxx
to reach the place where you were to buy fish?

Q: Did you come to know him later, that person whom you
CLEMENTE CASTA: grappled with?

A: No, sir. A: When I was in prison, sir.

Q: Why? Q: Who was that?

A: I met the person whom I don’t know, sir. A: Danilo Camba, sir.36 [Emphasis ours]

xxx Like the RTC, we do not believe that the appellant acted in self-
defense.

Q: What did you do when you saw that person by the roadside
after you have seen Gumangan? As a rule, the prosecution bears the burden of establishing the guilt
of the accused beyond reasonable doubt. However, when the
accused admits the killing and, by way of justification, pleads self-
defense, the burden of evidence shifts; he must then show by clear
A: None, sir, he called me. and convincing evidence that he indeed acted in self-defense. For
that purpose, he must rely on the strength of his own evidence and
not on the weakness of the prosecution’s case.37
xxx

Article 11(1) of the Revised Penal Code spells out the elements
Q: Will you tell us what you heard when you said that person that the accused must establish by clear and convincing evidence
called you? to successfully plead self-defense. The Article provides:

A: He called me by waving his hand and then he pointed me [sic]. Art. 11. Justifying Circumstances. – The following do not incur any
criminal liability:

Q: After that, did you respond to his hand-waving by getting near?

1. Anyone who acts in defense of his person or rights, provided
that the following circumstances concur:

A: When I got near him, he boxed me, sir.

First. Unlawful aggression;

Q: Were you hit when he boxed you?

Second. Reasonable necessity of the means to prevent or repel it;

A: No, sir.

Third. Lack of sufficient provocation on the part of the person

defending himself.
Q: What happened next after that person boxed you?

xxx
A: We fought each other by grappling, sir.
There is unlawful aggression when the peril to one’s life, limb or attack was sudden and while the victim was in an unguarded
right is either actual or imminent. There must be actual physical position: from his rear so that the unsuspecting victim had
force or actual use of a weapon. It is a statutory and doctrinal practically no chance to defend himself. The location of the thrust –
requirement to establish self-defense that unlawful aggression at the left side, below the armpit – shows that the heart was the
must be present. It is a condition sine qua non; there can be no targeted organ to immediately incapacitate the victim and render
self-defense, complete or incomplete, unless the victim commits him unable to defend against or respond to the attack. As the
unlawful aggression against the person defending himself.38 evidence shows, the victim simply fell immediately after being
stabbed, in the way that a raging bull immediately crumbles to its
knees, spent and harmless, upon being hit by the matador’s sword
thrust, delivered from above, between its shoulder blades,
We find that the appellant miserably failed to prove that he had to
targeting the heart. These mode, manner and execution of the
defend himself against an unlawful aggression. Aside from his own
attack, to our mind, bespeak of treachery.
claim (which we find under the circumstances to be self-serving),
the appellant did not present any other evidence to corroborate his
claim that the victim boxed him when they met on the road in Sitio
Makber, Barangay Goyoden, Bolinao, Pangasinan. As against his Voluntary Surrender
bald claim, two eye-witnesses - Marlyn and Modesto – saw no
unlawful aggression by the victim against the appellant. Marlyn
testified that at the time he was stabbed, Danilo was merely
Voluntary surrender, properly undertaken, is a mitigating
standing near the roadside fronting her (Marlyn’s) house. Modesto,
circumstance that lowers the imposable penalty. It is present when
on the other hand, narrated that, he, Danilo and several others
the following elements concur: a) the offender has not been
were simply walking slowly along the Sitio Makber, Goyoden road
actually arrested; b) the offender surrenders himself to a person in
towards the west when the appellant suddenly approached from
authority or to the latter’s agent; and c) the surrender is voluntary.
behind and stabbed Danilo.
To be sufficient, the surrender must be spontaneous and made in
a manner clearly indicating the intent of the accused to surrender
unconditionally, either because he acknowledges his guilt or
We find no reason to disbelieve these straightforward narration of wishes to save the authorities the trouble and expense attendant
the events surrounding the stabbing that led to Danilo’s death. Nor to the efforts of searching for and capturing him.43
do we see anything on the record showing any improper motive
that would lead the witnesses to testify as they did. In fact, the
appellant never imputed any such motive on Marlyn and Modesto.
We find all the requisites present in this case. The appellant
The established rule, laid down in an already long line of cases, is
testified that he had asked his uncle, Ediom Casta, to go to the
that in the absence of evidence showing any reason or motive for
police to signify his intention to surrender. At around 7:00 o’clock in
the prosecution witnesses to falsely testify, their testimony can be
the morning of August 21, 1989, SPO1 (then Patrolman) Camba
given full faith and credit.39 Thus, no actual or imminent threat to
came to his house to bring him back to the Bolinao Police Station
the appellant’s life or limb existed when he stabbed Danilo to
for investigation. The appellant’s testimony that he voluntarily
death.
surrendered was corroborated by the November 21, 1991
testimony of SPO1 Camba, which we quote:

The Crime Committed

ATTY. ROMIE V. BRAGA

Article 248 of the Revised Penal Code defines the crime of murder
as follows:
Q: Now, as police investigator, will you inform the Court if
Clemente Casta, the accused herein, ever presented himself to
your office?
Article 248. Murder. – Any person who not falling within the
provisions of Article 246, shall kill another, shall be guilty of murder
and shall be punished by reclusion temporal in its maximum period
DOMINGO CAMBA
to death, if committed with any of the following attendant
circumstances:

A: Yes, sir.
1. With treachery x x x x 40

Q: And in relation with this incident and that appearance of

Clemente Casta in your office, was it reflected and entered in your
Treachery, the qualifying circumstance alleged against the
police blotter?
appellant, exists when an offender commits any of the crimes
against persons, employing means, methods or forms which tend
directly or especially to ensure its execution, without risk to the
offender, arising from the defense that the offended party might A: Yes, sir.
make.41 This definition sets out what must be shown by evidence
to conclude that treachery existed, namely: (1) the employment of
such means of execution as would give the person attacked no
Q: Now, will you go over your police blotter and read into the
opportunity for self-defense or retaliation; and (2) the deliberate
record the fact of the appearance of Clemente in your office in
and conscious adoption of the means of execution. To reiterate,
relation with this incident?
the essence of qualifying circumstance is the suddenness, surprise
and the lack of expectation that the attack will take place, thus
depriving the victim of any real opportunity for self-defense while
ensuring the commission of the crime without risk to the A: On entry 4302 21 August, 1989 07 hundred hours Clemente
aggressor.42 Casta y Carolino, 21 years old, single, fisherman, resident of
Goyuden Bolinao, Pangasinan was brought into this station for
investigation following his voluntary surrender to have allegedly
killed Danilo Camba on or about 1500 hundred hours 20 August
The evidence in the case shows that Danilo was by the roadside
1989 in Goyuden this municipality.44
when the appellant, wielding a deadly weapon - a double-bladed
knife - suddenly appeared from behind and stabbed him. The
unsuspecting victim was hit at the back below the left armpit,
puncturing his heart and lungs. As the witnesses testified, the
That the appellant surrendered only in the morning of August 21, award of P50,000.00 as moral damages in order in accordance
1989 (or a day after the stabbing incident) does not diminish nor with established jurisprudence. 51
affect the voluntariness of his surrender. For voluntary surrender to
mitigate an offense, it is not required that the accused surrender at
the first opportunity.45 Here, the appellant went voluntarily went
The award of exemplary damages is justified by the duly proven
with SPO1 Camba to the police station within a day after the killing
qualifying circumstance of treachery; when a crime is committed
to own up to the killing. Thus, the police did not devote time and
with an aggravating circumstance, either qualifying or generic, an
effort to the investigation of the killing and to the search and
award of P25,000.00 as exemplary damages is justified under
capture of the assailant.
Article 2230 of the New Civil Code.52

Based on these considerations, we hold that the mitigating

We cannot award loss of earning capacity to the victim’s heirs
circumstance of voluntary surrender should be appreciated in
since no documentary evidence was presented to substantiate this
appellant’s favor.
claim. As a rule, documentary evidence should be presented to
substantiate a claim for damages for loss of earning capacity.
While there are exceptions to the rule, these exceptions do not
The Proper Penalty apply as the victim, Danilo, was an employee of the Office of the
Register of Deeds of Lingayen, Pangasinan when he died; he was
not a worker earning less than the minimum wage under the
prevailing labor laws.53
The Information in this case indicates that the crime of murder was
committed by the appellant on August 20, 1989 which was before
the effectivity of Republic Act No. 7659 on December 31, 1993
amending Article 248 of the Revised Penal Code on murder, We affirm the P50,000.00 death indemnity awarded to the victim’s
raising the penalty to reclusion perpetua to death. Prior to its heirs, in accordance with prevailing jurisprudence.54
amendment the penalty for the crime of murder under Article 248
of the Revised Penal Code was reclusion temporal in its maximum
period to death.
WHEREFORE, in light of all the foregoing, we hereby AFFIRM the
March 10, 2006 Decision of the Court of Appeals in CA-G.R. CR-
HC
In light of the greater penalty that attaches under the amendment,
the previous penalty of reclusion temporal in its maximum period to
death will have to be imposed in order not to run afoul of the
No. 01217 with the following MODIFICATIONS:
constitutional prohibition against ex post facto laws. Under Section
22 of Article III of the 1987 Constitution, no ex post facto law or bill
of attainder shall be enacted. An ex post facto law, among others,
is one that changes the penalty and inflicts a greater punishment (1) the appellant is sentenced to suffer the indeterminate penalty of
than what the law annexed to the crime when committed46 - the imprisonment for (10) years and one (1) day of prision mayor
situation that would obtain if the amendment under Republic Act maximum, as minimum, to seventeen (17) years four (4) months
No. 7659 would be applied. and one (1) day of reclusion temporal maximum, as maximum;

Considering that the appellant has in his favor the mitigating (2) moral damages is REDUCED to P50,000.00;
circumstance of voluntary surrender with no aggravating
circumstance to offset it, the imposable penalty should be in the
minimum period, i.e., reclusion temporal in its maximum period.
(3) exemplary damages is REDUCED to P25,000.00;
Under the Indeterminate Sentence Law,47 the maximum sentence
shall be reclusion temporal in its maximum period (17 years, 4
months and 1 day to 20 years) and the minimum shall be taken
from the next lower penalty, which is prision mayor maximum to (4) the award of actual damages is DELETED; and
reclusion temporal medium (10 years and 1 day to 17 years and 4
months).
(5) the appellant is ORDERED to PAY the victim’s heirs the
amount of P25,000.00 as temperate damages.
Civil Liability

Costs against the appellant Clemente Casta.

The RTC awarded the amount of P13,000.00 to the victim’s heirs
as actual damages in light of established jurisprudence that allows
only expenses duly supported by receipts as proof of actual
SO ORDERED.
damages.48 This RTC ruling has however been overtaken by our
rulings in the landmark cases of People v. Abrazaldo49 and
People v. Villanueva.50 In Abrazaldo, we ruled that where the
amount of the actual damages cannot be determined because of
the absence of supporting and duly presented receipts but
evidence confirming the heirs’ entitlement to actual damages, G.R. No. 176169 November 14, 2008
temperate damages in the amount of P25,000.00 may be
awarded. This ruling was reiterated, with slight modification in
Villanueva, where we held that when the actual damages proven ROSARIO NASI-VILLAR, petitioner,
by receipts during the trial amount to less than P25,000.00, we can
nevertheless award temperate damages of P25,000.00. Thus, the vs.
heirs’ entitlement is P25,000.00 of temperate damages.
PEOPLE OF THE PHILIPPINES, respondent.

We also modify the award of P100,000.00 as moral and exemplary

damages which the RTC lumped together. Moral damages are DECISION
mandatory in cases of murder and homicide without need of
allegation and proof other than the death of the victim. We find the
TINGA, J.:
This is a Petition for Review1 under Rule 45 of the Rules of Court
filed by petitioner Rosario Nasi-Villar assailing the Decision2 dated
27 June 2005 and Resolution3 dated 28 November 2006 of the
Court of Appeals. This case originated from an Information4 for
Illegal Recruitment as defined under Sections 6 and 7 of Republic
Act (R.A.)
No. 80425 filed by the Office of the Provincial Prosecutor of Davao
del Sur on 5 October 1998 for acts committed by petitioner and
one Dolores Placa in or about January 1993. The Information
reads:
That on [sic] or about the month of [January 1993], in the
Municipality of Sta. Cruz, Province of Davao del Sur, Philippines
and within the jurisdiction of the Honorable Court, the aforenamed
accused, conspiring together, confederating with and mutually
helping one another through fraudulent representation and
deceitful machination, did then and there [willfully], unlawfully and
feloniously recruit Nila Panilag for employment abroad[,] demand
and receive the amount of P6,500.00 Philippine Currency [sic] as
placement fee[,] the said accused being a non-licensee or non-
holder of authority to engage in the recruitment of workers abroad
to the damage and prejudice of the herein offended party.
CONTRARY TO LAW.6
On 3 July 2002, after due trial, the Regional Trial Court (RTC), Br.
18, Digos City, Davao del Sur found the evidence presented by the
prosecution to be more credible than that presented by the
defense and thus held petitioner liable for the offense of illegal
recruitment under the Labor Code, as amended.7 The dispositive
portion of the decision reads:
WHEREFORE, premises considered, the Court hereby finds
accused ROSARIO NASI-VILLAR GUILTY BEYOND
REASONABLE DOUBT of Illegal Recruitment and, in accordance
with the penalty set forth under the Labor Code, as amended, said
accused is hereby sentenced to an indeterminate penalty ranging
from FOUR YEARS as minimum to FIVE YEARS as maximum.
On the civil aspect of the case, there being no substantial proof
presented to justify a grant of civil damages, this Court makes no
pronouncement thereon.
With respect to accused Ma. Dolores Placa, who is still at large,
the records of this case are hereby sent to the archives to be
retrieved in the event that said accused would be apprehended.
Issue an alias warrant of arrest for the apprehension of said
accused.
SO ORDERED.8
Petitioner appealed to the Court of Appeals raising as sole issue
the alleged error by the trial court in finding her guilty of illegal
recruitment on the basis of the trial court's appreciation of the
evidence presented by the prosecution.
The Court of Appeals, in its Decision dated 27 June 2005,9
following the principle that an appeal in a criminal case throws the
whole case wide open for review, noted that the criminal acts
alleged to have been committed happened sometime in 1993.
However, R.A. No. 8042, under which petitioner was charged, was
approved only on 7 June 1995 and took effect on 15 July 1995.
Thus, the Court of Appeals declared that petitioner should have
been charged under the Labor Code, in particular Art. 13(b)
thereof, and not under R.A. No. 8042. Accordingly, it made its
findings on the basis of the provisions of the Labor Code and
found petitioner liable under Art. 38, in relation to Art. 13(b), and
Art. 39 of the Labor Code. The appellate court affirmed with
modification the decision of the RTC, decreeing in the dispositive
portion, thus:
WHEREFORE, in view of all the foregoing, the appealed Decision
of the Regional Trial Court, 11th Judicial Region, Br. 18, City of
Digos, Province of Davao del Sur, finding Rosario Nasi-Villar guilty
beyond reasonable doubt o the crime of Illegal Recruitment is
AFFIRMED with MODIFICATION in that Rosario Nasi-Villar is
ORDERED to pay Nila Panilag the sum of P10,000.00 as
temperate damages.
SO ORDERED.10
On 28 November 2006, the appellate court denied petitioner's
motion for reconsideration.11
Hence, petitioner filed the instant petition for review.
Petitioner alleges that the Court of Appeals erred in failing to
consider that R.A. No. 8042 cannot be given retroactive effect and
that the decision of the RTC constitutes a violation of the
constitutional prohibition against ex post facto law. Since R.A. No.
8042 did not yet exist in January 1993 when the crime was
allegedly committed, petitioner argues that law cannot be used as
the basis of filing a criminal action for illegal recruitment. What was
applicable in 1993 is the Labor Code, where under Art. 38, in
relation to Art. 39, the violation of the Code is penalized with
imprisonment of not less than four (4) years nor more than eight
(8) years or a fine of not less than P20,000.00 and not more than
P100,000.00 or both. On the other hand, Sec. 7(c) of R.A. No.
8042 penalizes illegal recruitment with a penalty of imprisonment
of not less than six (6) years and one (1) day but not more than
twelve (12) years and a fine not less than P200,000.00 nor more
than P500,000.00. Thus, the penalty of imprisonment provided in
the Labor Code was raised or increased by R.A. No. 8042.
Petitioner concludes that the charge and conviction of an offense
carrying a penalty higher than that provided by the law at the time
of its commission constitutes a violation of the prohibition against
ex post facto law and the retroactive application of R.A. No. 8042.
In its Comment12 dated 7 September 2007, the Office of the
Solicitor General (OSG) argues that the Court of Appeals'
conviction of petitioner under the Labor Code is correct. While
conceding that there was an erroneous designation of the law
violated by petitioner, the OSG stresses that the designation of the
offense in the Information is not determinative of the nature and
character of the crime charged against her but the acts alleged in
the Information. The allegations in the Information clearly charge
petitioner with illegal recruitment as defined in Art. 38, in relation to
Art. 13(b) of the Labor Code, and penalized under Art. 39(c) of the
same Code. The evidence on record substantiates the charge to a
moral certainty. Thus, while there was an erroneous specification
of the law violated by petitioner in the Information, the CA was
correct in affirming the RTC's imposition of the penalty for simple
illegal recruitment under the Labor Code, the OSG concludes.
The petition is denied. We find no reversible error in the decision
arrived at by the Court of Appeals.
In Gabriel v. Court of Appeals,13 we held that the real nature of
the crime charged is determined, not from the caption or preamble
of the information nor from the specification of the law alleged to
have been violated–these being conclusions of law–but by the
actual recital of facts in the complaint or information. What controls G.R. Nos. L-32613-14 December 27, 1972
is not the designation but the description of the offense charged.
From a legal point of view, and in a very real sense, it is of no
concern to the accused what the technical name of the crime of
PEOPLE OF THE PHILIPPINES, petitioner,
which he stands charged is. If the accused performed the acts
alleged in the body of the information, in the manner stated, then vs.
he ought to be punished and punished adequately, whatever may
be the name of the crime which those acts constitute.14 HON. SIMEON. FERRER (in his capacity as Judge of the Court of
First Instance of Tarlac, Branch I), FELICIANO CO alias LEONCIO
CO alias "Bob," and NILO S. TAYAG alias Romy Reyes alias
"Taba," respondents.
In the case at bar, the prosecution established beyond reasonable
doubt that petitioner had performed the acts constituting the
offense defined in Art. 38, in relation to Art. 13(b) and punished by
Art. 39 of the Labor Code, as alleged in the body of the Solicitor R. Mutuc for respondent Feliciano Co.
Information. To prove illegal recruitment, two elements must be
shown, namely: (1) the person charged with the crime must have
undertaken recruitment activities, or any of the activities
Jose W. Diokno for respondent Nilo Tayag.
enumerated in Article 34 of the Labor Code, as amended; and (2)
said person does not have a license or authority to do so.15 Art.
13(b) defines "recruitment and placement" as "any act of
canvassing, enlisting, contracting, transporting, utilizing, hiring, or
procuring workers, and includes referrals, contract services,
promising, or advertising for employment, locally or abroad,
whether for profit or not; Provided that any person or entity which,
CASTRO, J.:p
in any manner, offers or promises for a fee employment to two or
more persons, is considered engaged in recruitment and
placement." The trial court found these two elements had been
proven in the case at bar. Petitioner has not offered any argument I. Statement of the Case
or proof that countervails such findings.

Posed in issue in these two cases is the constitutionality of the

The basic rule is that a criminal act is punishable under the law in
force at the time of its commission. Thus, petitioner can only be
charged and found guilty under the Labor Code which was in force
in 1993 when the acts attributed to her were committed. Petitioner
was charged in 1998 under an Information that erroneously
designated the offense as covered by R.A. No. 8042, but alleged
in its body acts which are punishable under the Labor Code. As it
was proven that petitioner had committed the acts she was
charged with, she was properly convicted under the Labor Code,
and not under R.A. No. 8042.
There is no violation of the prohibition against ex post facto law nor
a retroactive application of R.A. No. 8042, as alleged by petitioner.
An ex post facto law is one which, among others, aggravates a
crime or makes it greater than it was when committed or changes
the punishment and inflicts a greater punishment than the law
annexed to the crime when committed.16 Penal laws and laws
which, while not penal in nature, nonetheless have provisions
defining offenses and prescribing penalties for their violation
operate prospectively. Penal laws cannot be given retroactive
effect, except when they are favorable to the accused.17
R.A. No. 8042 amended pertinent provisions of the Labor Code
and gave a new definition of the crime of illegal recruitment and
provided for its higher penalty. There is no indication in R.A. No.
8042 that said law, including the penalties provided therein, would
take effect retroactively. A law can never be considered ex post
facto as long as it operates prospectively since its strictures would
cover only offenses committed after and not before its
enactment.18 Neither did the trial court nor the appellate court give
R.A. No. 8042 a retroactive application since both courts passed
upon petitioner's case only under the aegis of the Labor Code. The
proceedings before the trial court and the appellate court did not
violate the prohibition against ex post facto law nor involved a
retroactive application of R.A. No. 8042 in any way.
Anti-Subversion
Act, 1 which outlaws the Communist Party of the Philippines and
other "subversive associations," and punishes any person who
"knowingly, willfully and by overt acts affiliates himself with,
becomes or remains a member" of the Party or of any other similar
"subversive" organization.
On March 5, 1970 a criminal complaint for violation of section 4 of
the Anti-Subversion Act was filed against the respondent Feliciano
Co in the Court of First Instance of Tarlac. On March 10 Judge
Jose C. de Guzman conducted a preliminary investigation and,
finding a prima facie case against Co, directed the Government
prosecutors to file the corresponding information. The twice-
amended information, docketed as Criminal Case No. 27, recites:
That on or about May 1969 to December 5, 1969, in the
Municipality of Capas, Province of Tarlac, Philippines, and within
the jurisdiction of this Honorable Court, the abovenamed accused,
feloniously became an officer and/or ranking leader of the
Communist Party of the Philippines, an outlawed and illegal
organization aimed to overthrow the Government of the Philippines
by means of force, violence, deceit, subversion, or any other illegal
means for the purpose of establishing in the Philippines a
totalitarian regime and placing the government under the control
and domination of an alien power, by being an instructor in the
Mao Tse Tung University, the training school of recruits of the New
People's Army, the military arm of the said Communist Party of the
Philippines.
That in the commission of the above offense, the following
aggravating circumstances are present, to wit:

(a) That the crime has been committed in contempt of or

with insult to public authorities;
WHEREFORE, the petition is DENIED. The assailed Decision
dated 27 June 2005 and Resolution dated 28 November 2006 of
the Court of Appeals are AFFIRMED.
(b) That the crime was committed by a band; and afford
impunity.

SO ORDERED.
(c) With the aid of armed men or persons who insure or
afford impunity.
Co moved to quash on the ground that the Anti-Subversion Act is a
bill of attainder.
Meanwhile, on May 25, 1970, another criminal complaint was filed
with the same court, sharing the respondent Nilo Tayag and five
others with subversion. After preliminary investigation was had, an
information was filed, which, as amended, reads:
The undersigned provincial Fiscal of Tarlac and State Prosecutors
duly designated by the Secretary of Justice to collaborate with the
Provincial Fiscal of Tarlac, pursuant to the Order dated June 5,
above entitled case, hereby accuse Nilo S. Tayag, alias Romy
Reyes alias TABA, ARTHUR GARCIA, RENATO (REY) CASIPE,
ABELARDO GARCIA, MANUEL ALAVADO, BENJAMIN BIE alias
COMMANDER MELODY and several JOHN DOES, whose
identities are still unknown, for violation of REPUBLIC ACT No.
1700, otherwise known as the Anti-Subversion Law, committed as
follows:
That in or about March 1969 and for sometime prior thereto and
thereafter, in the Province of Tarlac, within the jurisdiction of this
Honorable Court, and elsewhere in the Philippines, the above-
named accused knowingly, willfully and by overt acts organized,
joined and/or remained as offices and/or ranking leaders, of the
KABATAANG MAKABAYAN, a subversive organization as defined
in Republic Act No. 1700; that BENJAMIN BIE and COMMANDER
MELODY, in addition thereto, knowingly, willfully and by over acts
joined and/or remained as a member and became an officer and/or
ranking leader not only of the Communist Party of the Philippines
but also of the New People's Army, the military arm of the
Communist Party of the Philippines; and that all the above-named
accused, as such officers and/or ranking leaders of the aforestated
subversive organizations, conspiring, confederating and mutually
helping one another, did then and there knowingly, willfully and
feloniously commit subversive and/or seditious acts, by inciting,
instigating and stirring the people to unite and rise publicly and
tumultuously and take up arms against the government, and/or
engage in rebellious conspiracies and riots to overthrow the
government of the Republic of the Philippines by force, violence,
deceit, subversion and/or other illegal means among which are the
following:
1. On several occasions within the province of Tarlac, the
accused conducted meetings and/or seminars wherein the said
accused delivered speeches instigating and inciting the people to
unite, rise in arms and overthrow the Government of the Republic
of the Philippines, by force, violence, deceit, subversion and/or
other illegal means; and toward this end, the said accused
organized, among others a chapter of the KABATAANG
MAKABAYAN in barrio Motrico, La Paz, Tarlac for the avowed
purpose of undertaking or promoting an armed revolution,
subversive and/or seditious propaganda, conspiracies, and/or riots
and/or other illegal means to discredit and overthrow the
Government of the Republic of the Philippines and to established
in the Philippines a Communist regime.
2. The accused NILO TAYAG alias ROMY REYES alias
TABA, together with FRANCISCO PORTEM alias KIKO Gonzales
and others, pursued the above subversive and/or seditious
activities in San Pablo City by recruiting members for the New
People's Army, and/or by instigating and inciting the people to
organize and unite for the purpose of overthrowing the
Government of the Republic of the Philippines through armed
revolution, deceit, subversion and/or other illegal means, and
establishing in the Philippines a Communist Government.
That the following aggravating circumstances attended the
commission of the offense: (a) aid of armed men or persons to
insure or afford impunity; and (b) craft, fraud, or disguise was
employed.
On July 21, 1970 Tayag moved to quash, impugning the validity of
the statute on the grounds that (1) it is a bill of attainder; (2) it is
vague; (3) it embraces more than one subject not expressed in the
title thereof; and (4) it denied him the equal protection of the laws.
Resolving the constitutional issues raised, the trial court, in its
resolution of September 15, 1970, declared the statute void on the
grounds that it is a bill of attainder and that it is vague and
overboard, and dismissed the informations against the two
accused. The Government appealed. We resolved to treat its
appeal as a special civil action for certiorari.
II. Is the Act a Bill of Attainder?
Article III, section 1 (11) of the Constitution states that "No bill of
attainder or ex port facto law shall be enacted." 2 A bill of attainder
is a legislative act which inflicts punishment without trial. 3 Its
essence is the substitution of a legislative for a judicial
determination of guilt. 4 The constitutional ban against bills of
attainder serves to implement the principle of separation of powers
5 by confining legislatures to
rule-making 6 and thereby forestalling legislative usurpation of the
judicial function. 7 History in perspective, bills of attainder were
employed to suppress unpopular causes and political minorities, 8
and it is against this evil that the constitutional prohibition is
directed. The singling out of a definite class, the imposition of a
burden on it, and a legislative intent, suffice to stigmatizea statute
as a bill of attainder. 9
In the case at bar, the Anti-Subversion Act was condemned by the
court a quo as a bill of attainder because it "tars and feathers" the
Communist Party of the Philippines as a "continuing menace to the
freedom and security of the country; its existence, a 'clear, present
and grave danger to the security of the Philippines.'" By means of
the Act, the trial court said, Congress usurped "the powers of the
judge," and assumed "judicial magistracy by pronouncing the guilt
of the CCP without any of the forms or safeguards of judicial trial."
Finally, according to the trial court, "if the only issue [to be
determined] is whether or not the accused is a knowing and
voluntary member, the law is still a bill of attainder because it has
expressly created a presumption of organizational guilt which the
accused can never hope to overthrow."
1. When the Act is viewed in its actual operation, it will be
seen that it does not specify the Communist Party of the
Philippines or the members thereof for the purpose of punishment.
What it does is simply to declare the Party to be an organized
conspiracy for the overthrow of the Government for the purposes
of the prohibition, stated in section 4, against membership in the
outlawed organization. The term "Communist Party of the
Philippines" issued solely for definitional purposes. In fact the Act
applies not only to the Communist Party of the Philippines but also
to "any other organization having the same purpose and their
successors." Its focus is not on individuals but on conduct. 10
This feature of the Act distinguishes it from section 504 of the U.S.
Federal Labor-Management Reporting and Disclosure Act of 1959
11 which, in U.S. vs. Brown, 12 was held to be a bill of attainder
and therefore unconstitutional. Section 504 provided in its pertinent
parts as follows:
(a) No person who is or has been a member of the
Communist
Party ... shall serve —

(1) as an officer, director, trustee, member of any executive
board or similar governing body, business agent, manager,
organizer, or other employee (other than as an employee
performing exclusively clerical or custodial duties) of any labor
organization.
during or for five years after the termination of his membership in
the Communist Party....
(b) Any person who willfully violates this section shall be
fined not more than $10,000 or imprisoned for not more than one
year, or both.
This statute specified the Communist Party, and imposes disability
and penalties on its members. Membership in the Party, without
more, ipso facto disqualifies a person from becoming an officer or
a member of the governing body of any labor organization. As the
Supreme Court of the United States pointed out:
Under the line of cases just outlined, sec. 504 of the Labor
Management Reporting and Disclosure Act plainly constitutes a bill
of attainder. Congress undoubtedly possesses power under the
Commerce Clause to enact legislation designed to keep from
positions affecting interstate commerce persons who may use of
such positions to bring about political strikes. In section 504,
however, Congress has exceeded the authority granted it by the
Constitution. The statute does not set forth a generally applicable
rule decreeing that any person who commits certain acts or
possesses certain characteristics (acts and characteristics which,
in Congress' view, make them likely to initiate political strikes) shall
not hold union office, and leaves to courts and juries the job of
deciding what persons have committed the specified acts or
possessed the specified characteristics. Instead, it designates in
no uncertain terms the persons who possess the feared
characteristics and therefore cannot hold union office without
incurring criminal liability — members of the Communist Party.
Communist Party v. Subversive Activities Control Board, 367 US 1,
6 L ed 2d 625, 81 S CT 1357, lend a support to our conclusion.
That case involved an appeal from an order by the Control Board
ordering the Communist Party to register as a "Communist-action
organization," under the Subversive Activities Control Act of 1950,
64 Stat 987, 50 USC sec. 781 et seq. (1958 ed). The definition of
"Communist-action organization" which the Board is to apply is set
forth in sec. 3 of the Act:
[A]ny organization in the United States ... which (i)is substantially
directed, dominated, or controlled by the foreign government or
foreign organization controlling the world Communist movement
referred to in section 2 of this title, and(ii) operates primarily to
advance the objectives of such world Communist movement... 64
Stat 989, 50 USC sec. 782 (1958 ed.)
activities, after it is once registered pursuant to sec. 7, the Act
provides adequate means of relief. (367 US, at 87, 6 L ed 2d at
683)
Indeed, were the Anti-Subversion Act a bill of attainder, it would be
totally unnecessary to charge Communists in court, as the law
alone, without more, would suffice to secure their punishment. But
the undeniable fact is that their guilt still has to be judicially
established. The Government has yet to prove at the trial that the
accused joined the Party knowingly, willfully and by overt acts, and
that they joined the Party, knowing its subversive character and
with specific intent to further its basic objective, i.e., to overthrow
the existing Government by force deceit, and other illegal means
and place the country under the control and domination of a
foreign power.
As to the claim that under the statute organizationl guilt is
nonetheless imputed despite the requirement of proof of knowing
membership in the Party, suffice it to say that is precisely the
nature of conspiracy, which has been referred to as a "dragneet
device" whereby all who participate in the criminal covenant are
liable. The contention would be correct if the statute were
construed as punishing mere membership devoid of any specific
intent to further the unlawful goals of the Party. 13 But the statute
specifically required that membership must be knowing or active,
with specific intent to further the illegal objectives of the Party. That
is what section 4 means when it requires that membership, to be
unlawful, must be shown to have been acquired "knowingly,
willfully and by overt acts." 14 The ingredient of specific intent to
pursue the unlawful goals of the Party must be shown by "overt
acts." 15 This constitutes an element of "membership" distinct from
the ingredient of guilty knowledge. The former requires proof of
direct participation in the organization's unlawful activities, while
the latter requires proof of mere adherence to the organization's
illegal objectives.
2. Even assuming, however, that the Act specifies
individuals and not activities, this feature is not enough to render it
a bill of attainder. A statute prohibiting partners or employees of
securities underwriting firms from serving as officers or employees
of national banks on the basis of a legislative finding that the
persons mentioned would be subject to the temptation to commit
acts deemed inimical to the national economy, has been declared
not to be a bill of attainder. 16 Similarly, a statute requiring every
secret, oath-bound society having a membership of at least twenty
to register, and punishing any person who becomes a member of
such society which fails to register or remains a member thereof,
was declared valid even if in its operation it was shown to apply
only to the members of the Ku Klux Klan. 17
In the Philippines the validity of section 23 (b) of the Industrial
Peace Act, 18 requiring labor unions to file with the Department of
Labor affidavits of union officers "to the effect that they are not
members of the Communist Party and that they are not members
of any organization which teaches the overthrow of the
Government by force or by any illegal or unconstitutional method,"
was upheld by this Court. 19

Indeed, it is only when a statute applies either to named individuals

or to easily ascertainable members of a group in such a way as to
A majority of the Court rejected the argument that the Act was a
inflict punishment on them without a judicial trial does it become a
bill of attainder, reasoning that sec. 3 does not specify the persons
bill of attainder. 20 It is upon this ground that statutes which
or groups upon which the deprivations setforth in the Act are to be
disqualified those who had taken part in the rebellion against the
imposed, but instead sets forth a general definition. Although the
Government of the United States during the Civil War from holding
Board has determined in 1953 that the Communist Party was a
office, 21 or from exercising their profession, 22 or which
"Communist-action organization," the Court found the statutory
prohibited the payment of further compensation to individuals
definition not to be so narrow as to insure that the Party would
named in the Act on the basis of a finding that they had engages in
always come within it:
subversive activities, 23 or which made it a crime for a member of
the Communist Party to serve as an officer or employee of a labor
union, 24 have been invalidated as bills of attainder.
In this proceeding the Board had found, and the Court of Appeals
has sustained its conclusion, that the Communist Party, by virtud
of the activities in which it now engages, comes within the terms of
the Act. If the Party should at anytime choose to abandon these
But when the judgment expressed in legislation is so universally
acknowledged to be certain as to be "judicially noticeable," the
legislature may apply its own rules, and judicial hearing is not
needed fairly to make such determination. 25
In New York ex rel. Bryant vs. Zimmerman, 26 the New York
legislature passed a law requiring every secret, oath-bound society
with a membership of at least twenty to register, and punishing any
person who joined or remained a member of such a society failing
to register. While the statute did not specify the Ku Klux Klan, in its
operation the law applied to the KKK exclusively. In sustaining the
statute against the claim that it discriminated against the Ku Klux
Klan while exempting other secret, oath-bound organizations like
masonic societies and the Knights of Columbus, the United States
Supreme Court relied on common knowledge of the nature and
activities of the Ku Klux Klan. The Court said:
The courts below recognized the principle shown in the cases just
cited and reached the conclusion that the classification was
justified by a difference between the two classes of associations
shown by experience, and that the difference consisted (a) in a
manifest tendency on the part of one class to make the secrecy
surrounding its purpose and membership a cloak for acts and
conduct inimical to personal rights and public welfare, and (b) in
the absence of such a tendency on the part of the other class. In
pointing out this difference one of the courts said of the Ku Klux
Klan, the principal association in the included class: "It is a matter
of common knowledge that this organization functions largely at
night, its members disguised by hoods and gowns and doing
things calculated to strike terror into the minds of the people;" and
later said of the other class: "These organizations and their
purposes are well known, many of them having been in existence
for many years. Many of them are oath-bound and secret. But we
hear no complaint against them regarding violation of the peace or
interfering with the rights of others." Another of the courts said: "It
is a matter of common knowledge that the association or
organization of which the relator is concededly a member
exercises activities tending to the prejudice and intimidation of
sundry classes of our citizens. But the legislation is not confined to
this society;" and later said of the other class: "Labor unions have
a recognized lawful purpose. The benevolent orders mentioned in
the Benevolent Orders Law have already received legislative
scrutiny and have been granted special privileges so that the
legislature may well consider them beneficial rather than harmful
agencies." The third court, after recognizing "the potentialities of
evil in secret societies," and observing that "the danger of certain
organizations has been judicially demonstrated," — meaning in
that state, — said: "Benevolent orders, labor unions and college
fraternities have existed for many years, and, while not immune
from hostile criticism, have on the whole justified their existence."
We assume that the legislature had before it such information as
was readily available including the published report of a hearing,
before a committee of the House of Representatives of the 57th
Congress relating to the formation, purposes and activities of the
Klu Klux Klan. If so it was advised — putting aside controverted
evidence — that the order was a revival of the Ku Klux Klan of an
earlier time with additional features borrowed from the Know
Nothing and the A. P. A. orders of other periods; that its
memberships was limited to native-born, gentile, protestant whites;
that in part of its constitution and printed creed it proclaimed the
widest freedom for all and full adherence to the Constitution of the
United States; in another exacted of its member an oath to shield
and preserve "white supremacy;" and in still another declared any
person actively opposing its principles to be "a dangerous
ingredient in the body politic of our country and an enemy to the
weal of our national commonwealth;" that it was conducting a
crusade against Catholics, Jews, and Negroes, and stimulating
hurtful religious and race prejudices; that it was striving for political
power and assuming a sort of guardianship over the administration
of local, state and national affairs; and that at times it was taking
into its own hands the punishment of what some of its members
conceived to be crimes. 27
In the Philippines the character of the Communist Party has been
the object of continuing scrutiny by this Court. In 1932 we found
the Communist Party of the Philippines to be an illegal association.
28 In 1969 we again found that the objective of the Party was the
"overthrow of the Philippine Government by armed struggle and to
establish in the Philippines a communist form of government
similar to that of Soviet Russia and Red China." 29 More recently,
in Lansang vs. Garcia, 30 we noted the growth of the Communist
Party of the Philippines and the organization of Communist fronts
among youth organizations such as the Kabataang Makabayan
(KM) and the emergence of the New People's Army. After
meticulously reviewing the evidence, we said: "We entertain,
therefore, no doubts about the existence of a sizeable group of
men who have publicly risen in arms to overthrow the government
and have thus been and still are engaged in rebellion against the
Government of the Philippines.
3. Nor is it enough that the statute specify persons or
groups in order that it may fall within the ambit of the prohibition
against bills of attainder. It is also necessary that it must apply
retroactively and reach past conduct. This requirement follows
from the nature of a bill of attainder as a legislative adjudication of
guilt. As Justice Frankfurter observed, "frequently a bill of attainder
was ... doubly objectionable because of its ex post facto features.
This is the historic explanation for uniting the two mischiefs in one
clause — 'No Bill of Attainder or ex post facto law shall be passed.'
... Therefore, if [a statute] is a bill of attainder it is also an ex post
facto law. But if it is not an ex post facto law, the reasons that
establish that it is not are persuasive that it cannot be a bill of
attainder." 31
Thus in Gardner vs. Board of Public Works, 32 the U.S. Supreme
Court upheld the validity of the Charter of the City of Los Angeles
which provided:
... [N]o person shall hold or retain or be eligible for any public office
or employment in the service of the City of Los Angeles, in any
office or department thereof, either elective or appointive, who has
within five (5) years prior to the effective date of this section
advised, advocated, or taught, or who may, after this section
becomes effective, become a member of or affiliated with any
group, society, association, organization or party which advises,
advocates or teaches or has within said period of five (5) years
advised, advocated, or taught the overthrow by force or violence of
the Government of the United States of America or of the State of
California.
In upholding the statute, the Court stressed the prospective
application of the Act to the petitioner therein, thus:
... Immaterial here is any opinion we might have as to the charter
provision insofar as it purported to apply restrospectively for a five-
year period to its effective date. We assume that under the Federal
Constitution the Charter Amendment is valid to the extent that it
bars from the city's public service persons who, subsequently to its
adoption in 1941, advise, advocate, or reach the violent overthrow
of the Government or who are or become affiliated with any group
doing so. The provisions operating thus prospectively were a
reasonable regulation to protect the municipal service by
establishing an employment qualification of loyalty to the State and
the United States.
... Unlike the provisions of the charter and ordinance under which
petitioners were removed, the statute in the Lovett case did not
declare general and prospectively operative standards of
qualification and eligibility for public employment. Rather, by its
terms it prohibited any further payment of compensationto named
individuals or employees. Under these circumstances, viewed
against the legislative background, the statutewas held to have
imposed penalties without judicial trial.
Indeed, if one objection to the bill of attainder is thatCongress In truth, the constitutionality of the Act would be opento question if,
thereby assumed judicial magistracy, them it mustbe demonstrated instead of making these findings in enactingthe statute, Congress
that the statute claimed to be a bill of attainderreaches past omitted to do so.
conduct and that the penalties it imposesare inescapable. As the
U.S. Supreme Court observedwith respect to the U.S. Federal
Subversive Activities ControlAct of 1950:
In saying that by means of the Act Congress has assumed judicial
magistracy, the trial courd failed to takeproper account of the
distinction between legislative fact and adjudicative fact. Professor
Nor is the statute made an act of "outlawry" or of attainderby the Paul Freund elucidatesthe crucial distinction, thus:
fact that the conduct which it regulates is describedwith such
particularity that, in probability, few organizationswill come within
the statutory terms. Legislatures may act tocurb behaviour which
... A law forbidding the sale of beverages containingmore than 3.2
they regard as harmful to the public welfare,whether that conduct
per cent of alcohol would raise a question of legislativefact, i.e.,
is found to be engaged in by manypersons or by one. So long as
whether this standard has a reasonable relationto public health,
the incidence of legislation issuch that the persons who engage in
morals, and the enforcement problem. Alaw forbidding the sale of
the regulated conduct, bethey many or few, can escape regulation
intoxicating beverages (assuming itis not so vague as to require
merely by altering thecourse of their own present activities, there
supplementation by rule-making)would raise a question of
can be no complaintof an attainder. 33
adjudicative fact, i.e., whether thisor that beverage is intoxicating
within the meaning of the statuteand the limits on governmental
action imposed by the Constitution. Of course what we mean by
This statement, mutatis mutandis, may be said of theAnti- fact in each case is itselfan ultimate conclusion founded on
Subversion Act. Section 4 thereof expressly statesthat the underlying facts and oncriteria of judgment for weighing them.
prohibition therein applies only to acts committed"After the
approval of this Act." Only those who "knowingly,willfully and by
overt acts affiliate themselves with,become or remain members of
A conventional formulation is that legislative facts — those facts
the Communist Party of thePhilippines and/or its successors or of
which are relevant to the legislative judgment — will not be
any subversive association"after June 20, 1957, are punished.
canvassed save to determine whether there is a rationalbasis for
Those whowere members of the Party or of any other subversive
believing that they exist, while adjudicativefacts — those which tie
associationat the time of the enactment of the law, weregiven the
the legislative enactment to the litigant — are to be demonstrated
opportunity of purging themselves of liability byrenouncing in
and found according to the ordinarystandards prevailing for judicial
writing and under oath their membershipin the Party. The law
trials. 36
expressly provides that such renunciationshall operate to exempt
such persons from penalliability. 34 The penalties prescribed by
the Act are thereforenot inescapable.
The test formulated in Nebbia vs. new York, 37 andadopted by this
Court in Lansang vs. Garcia, 38 is that 'if laws are seen to have a
reasonable relation to a proper legislative purpose, and are neither
III. The Act and the Requirements of Due Process
arbitrary nor discriminatory, the requirements of due process are
satisfied, and judicial determination to that effect renders a court
functus officio." The recital of legislative findings implements this
1. As already stated, the legislative declaration in section 2 test.
of the Act that the Communist Party of the Philippinesis an
organized conspiracy for the overthrow of theGovernment is
inteded not to provide the basis for a legislativefinding of guilt of
With respect to a similar statement of legislative findingsin the U.S.
the members of the Party butrather to justify the proscription
Federal Subversive Activities Control Actof 1950 (that
spelled out in section 4. Freedom of expression and freedom of
"Communist-action organizations" are controlledby the foreign
association are sofundamental that they are thought by some to
government controlling the worldCommunist movement and that
occupy a"preferred position" in the hierarchy of constitutional
they operate primarily to"advance the objectives of such world
values. 35 Accordingly, any limitation on their exercise mustbe
Communist movement"),the U.S. Supreme Court said:
justified by the existence of a substantive evil. This isthe reason
why before enacting the statute in question Congressconducted
careful investigations and then stated itsfindings in the preamble,
thus: It is not for the courts to reexamine the validity of theselegislative
findings and reject them....They are the productof extensive
investigation by Committes of Congress over morethan a decade
and a half. Cf. Nebbia v. New York, 291 U.S.502, 516, 530. We
... [T]he Communist Party of the Philippines althoughpurportedly a
certainly cannot dismiss them as unfoundedirrational imaginings.
political party, is in fact an organized conspiracyto overthrow the
... And if we accept them, as we mustas a not unentertainable
Government of the Republic of the Philippinesnot only by force and
appraisal by Congress of the threatwhich Communist
violence but also by deceit, subversionand other illegal means, for
organizations pose not only to existing governmentin the United
the purpose of establishing in thePhilippines a totalitarian regime
States, but to the United States as asovereign, independent
subject to alien dominationand control;
Nation. ...we must recognize that thepower of Congress to regulate
Communist organizations of thisnature is

... [T]he continued existence and activities of the CommunistParty extensive. 39

of the Philippines constitutes a clear, present andgrave danger to
the security of the Philippines;
... [I]n the face of the organized, systematice and
persistentsubversion, national in scope but international in
direction,posed by the Communist Party of the Philippines and its
activities,there is urgent need for special legislation to cope
withthis continuing menace to the freedom and security of the
country.
This statement, mutatis mutandis, may be said of thelegislative
findings articulated in the Anti-Subversion Act.
That the Government has a right to protect itself againstsubversion
is a proposition too plain to require elaboration.Self-preservation is
the "ultimate value" of society. It surpasses and transcendes every
other value, "forif a society cannot protect its very structure from
armedinternal attack, ...no subordinate value can be protected" 40
As Chief Justice Vinson so aptly said in Dennis vs. United States:
41
Whatever theoretical merit there may be to the argumentthat there outweighed by the overriding considerationsof national security
is a 'right' to rebellion against dictatorial governmentsis without and the preservartion of democraticinstitutions in his country.
force where the existing structure of government provides for
peaceful and orderly change. We rejectany principle of
governmental helplessness in the face of preparationfor revolution,
The membership clause of the U.S. Federal Smith Actis similar in
which principle, carried to its logical conclusion,must lead to
many respects to the membership provision ofthe Anti-Subversion
anarchy. No one could conceive that it isnot within the power of
Act. The former provides:
Congress to prohibit acts intended tooverthrow the government by
force and violence.

Whoever organizes or helps or attempts to organize anysociety,

group, or assembly of persons who teach, advocate, orencourage
2. By carefully delimiting the reach of the Act to conduct (as
the overthrow or destruction of any such governmentby force or
explicitly described in sectin 4 thereof), Congressreaffirmed its
violence; or becomes or is a member of, or affiliatedwith, any such
respect for the rule that "even throughthe governmental purpose
society, group or assembly of persons, knowingthe purpose
be legitimate and substantial,that purpose cannot be pursued by
thereof —
means that broadly stiflefundamental personal liberties when the
end can be more narrowly achieved." 42 The requirement of
knowing membership,as distinguished from nominal membership,
hasbeen held as a sufficient basis for penalizing membershipin a Shall be fined not more than $20,000 or imprisoned notmore than
subversive organization. 43 For, as has been stated: twenty years, or both, and shall be ineligible for emplymentby the
United States or any department or agencythereof, for the five
years next following his conviction.... 46
Membership in an organization renders aid and encouragement to
the organization; and when membership is acceptedor retained
with knowledge that the organization is engaged inan unlawful In sustaining the validity of this provision, the "Court said in Scales
purpose, the one accepting or retaining membershipwith such vs. United States: 47
knowledge makes himself a party to the unlawfulenterprise in
which it is engaged. 44
It was settled in Dennis that advocacy with which we arehere
concerned is not constitutionally protected speech, and itwas
3. The argument that the Act is unconstitutionallyoverbroad further established that a combination to promote suchadvocacy,
because section 2 merely speaks of "overthrow"of the Government albeit under the aegis of what purports to be a politicalparty, is not
and overthrow may be achieved by peaceful means, misconceives such association as is protected by the firstAmendment. We can
the function of the phrase"knowingly, willfully and by overt acts" in discern no reason why membership, whenit constitutes a
section 4. Section 2 is merely a legislative declaration; the purposeful form of complicity in a group engagingin this same
definitionsof and the penalties prescribed for the different acts forbidden advocacy, should receive anygreater degree of
prescribedare stated in section 4 which requires that protection from the guarantees of that Amendment.
membershipin the Communist Party of the Philippines, to be
unlawful, must be acquired "knowingly, willfully and by overt acts."
Indeed, the first "whereas" clause makes clear thatthe overthrow
Moreover, as was held in another case, where the problemsof
contemplated is "overthrow not only by forceand violence but also
accommodating the exigencies of self-preservationand the values
be deceit, subversion and other illegalmeans." The absence of this
of liberty are as complex and intricate as inthe situation described
qualificatio in section 2 appearsto be due more to an oversight
in the legislative findings stated inthe U.S. Federal Subversive
rather than to deliberateomission.
Activities Control Act of 1950,the legislative judgment as to how
that threat may best bemet consistently with the safeguards of
personal freedomsis not to be set aside merely because the
Moreover, the word "overthrow' sufficiently connotesthe use of judgment of judgeswould, in the first instance, have chosen other
violent and other illegal means. Only in a metaphoricalsense may methods. 48 For in truth, legislation, "whether it restrains freedom
one speak of peaceful overthrow ofgovernments, and certainly the tohire or freedom to speak, is itself an effort at
law does not speak in metaphors.In the case of the Anti- compromisebetween the claims of the social order and individual
Subversion Act, the use ofthe word "overthrow" in a metaphorical freedom,and when the legislative compromise in either case
sense is hardlyconsistent with the clearly delineated objective of isbrought to the judicial test the court stands one step
the "overthrow,"namely, "establishing in the Philippines a removedfrom the conflict and its resolution through law." 49
totalitarianregime and place [sic] the Government under thecontrol
and domination of an alien power." What thisCourt once said in a
prosecution for sedition is appropos: "The language used by the
V. The Act and its Title
appellant clearly imported anoverthrow of the Government by
violence, and it should beinterpreted in the plain and obvious
sense in which it wasevidently intended to be understood. The
word 'overthrow'could not have been intended as referring to an The respondent Tayag invokes the constitutional commandthat "no
ordinarychange by the exercise of the elective franchise. The bill which may be enacted into law shall embrace more than one
useof the whip [which the accused exhorted his audience to subject which shall be expressed in the title of the bill." 50
useagainst the Constabulary], an instrument designed toleave
marks on the sides of adversaries, is inconsistentwith the mild
interpretation which the appellant wouldhave us impute to the
What is assailed as not germane to or embraced in thetitle of the
language." 45
Act is the last proviso of section 4 which reads:

IV. The Act and the Guaranty of Free Expression

As already pointed out, the Act is aimed against conspiracies to
overthrow the Government by force, violence orother illegal
means. Whatever interest in freedom of speechand freedom of
association is infringed by the prohibitionagainst knowing
membership in the Communist Party ofthe Philippines, is so
indirect and so insubstantial as to beclearly and heavily
And provided, finally, That one who conspires with anyother
person to overthrow the Government of the Republic ofthe
Philippines, or the government of any of its political subdivisionsby
force, violence, deceit, subversion or illegal means,for the purpose
of placing such Government or political subdivisionunder the
control and domination of any lien power, shallbe punished by
prision correccional to prision mayor with allthe accessory
penalties provided therefor in the same code.
It is argued that the said proviso, in reality, punishes notonly
membership in the Communist Party of the Philippinesor similar
associations, but as well "any conspiracyby two persons to
overthrow the national or any local governmentby illegal means,
even if their intent is not to establisha totalitarian regime, burt a
democratic regime, evenif their purpose is not to place the nation
under an aliencommunist power, but under an alien democratic
power likethe United States or England or Malaysia or even an
anti-communistpower like Spain, Japan, Thailand or Taiwanor
Indonesia."
G.R. No. 149927 March 30, 2004
REPUBLIC OF THE PHILIPPINES, Represented by the
Department of Environment and Natural Resources (DENR)
Under then Minister ERNESTO R. MACEDA; and Former
Government Officials CATALINO MACARAIG, FULGENCIO S.
FACTORAN, ANGEL C. ALCALA, BEN MALAYANG, ROBERTO
PAGDANGANAN, MARIANO Z. VALERA and ROMULO SAN
JUAN, petitioners,

vs.
The Act, in addition to its main title ("An Act to Outlawthe
Communist Party of the Philippines and SimilarAssociations, ROSEMOOR MINING AND DEVELOPMENT CORPORATION,
Penalizing Membership Therein, and forOther Purposes"), has a PEDRO DEL CONCHA, and ALEJANDRO and RUFO DE
short title. Section 1 providesthat "This Act shall be known as the GUZMAN, respondents.
Anti-Subversion Act."Together with the main title, the short title of
the statuteunequivocally indicates that the subject matter is
subversionin general which has for its fundamental purpose the DECISION
substitutionof a foreign totalitarian regime in place of theexisting
Government and not merely subversion by
Communistconspiracies..
PANGANIBAN, J.:

The title of a bill need not be a catalogue or an indexof its

A mining license that contravenes a mandatory provision of the law
contents, and need not recite the details of the Act. 51 It is a valid
under which it is granted is void. Being a mere privilege, a license
title if it indicates in broad but clear termsthe nature, scope, and
does not vest absolute rights in the holder. Thus, without offending
consequences of the proposed lawand its operation. 52 A narrow
the due process and the non-impairment clauses of the
or technical construction isto be avoided, and the statute will be
Constitution, it can be revoked by the State in the public interest.
read fairly and reasonablyin order not to thwart the legislative
intent. We holdthat the Anti-Subversion Act fully satisfies these
requirements.
The Case

VI. Conclusion and Guidelines

Before us is a Petition for Review1 under Rule 45 of the Rules of
Court, seeking to nullify the May 29, 2001 Decision2 and the
September 6, 2001 Resolution3 of the Court of Appeals (CA) in
In conclusion, even as we uphold the validity of theAnti-Subversion
CA-GR SP No. 46878. The CA disposed as follows:
Act, we cannot overemphasize the needfor prudence and
circumspection in its enforcement, operatingas it does in the
sensitive area of freedom of expressionand belief. Accordingly, we
set the following basic guidelines to be observed in any "WHEREFORE, premises considered, the appealed Decision is
prosecution under the Act.The Government, in addition to proving hereby AFFIRMED in toto."4
such circumstancesas may affect liability, must establish the
following elementsof the crime of joining the Communist Party of
the Philippinesor any other subversive association:
The questioned Resolution denied petitioners’ Motion for
Reconsideration.

(1) In the case of subversive organizations other thanthe

Communist Party of the Philippines, (a) that thepurpose of the
On the other hand, trial court’s Decision, which was affirmed by the
organization is to overthrow the presentGovernment of the
CA, had disposed as follows:
Philippines and to establish in thiscountry a totalitarian regime
under the domination of aforeign power; (b) that the accused
joined such organization;and (c) that he did so knowingly, willfully
and byovert acts; and "WHEREFORE, judgment is hereby rendered as follows:

(2) In the case of the Communist Party of the Philippines,(a)
that the CPP continues to pursue the objectiveswhich led
Congress in 1957 to declare it to be an organizedconspiracy for
the overthrow of the Government by illegalmeans for the purpose
of placing the country under thecontrol of a foreign power; (b) that
the accused joined theCPP; and (c) that he did so willfully,
knowingly and byovert acts.
We refrain from making any pronouncement as to thecrime or
remaining a member of the Communist Party ofthe Philippines or
of any other subversive association: weleave this matter to future
determination.
‘1. Declaring that the cancellation of License No. 33 was done
without jurisdiction and in gross violation of the Constitutional right
of the petitioners against deprivation of their property rights without
due process of law and is hereby set aside.
‘2. Declaring that the petitioners’ right to continue the exploitation
of the marble deposits in the area covered by License No. 33 is
maintained for the duration of the period of its life of twenty-five
(25) years, less three (3) years of continuous operation before
License No. 33 was cancelled, unless sooner terminated for
violation of any of the conditions specified therein, with due
process.

ACCORDINGLY, the questioned resolution of September15, 1970 ‘3. Making the Writ of preliminary injunction and the Writ of
is set aside, and these two cases are herebyremanded to the court Preliminary Mandatory Injunction issued as permanent.
a quo for trial on the merits. Costs de oficio.
‘4. Ordering the cancellation of the bond filed by the Petitioners in
the sum of 1 Million.
‘5. Allowing the petitioners to present evidence in support of the
damages they claim to have suffered from, as a consequence of
the summary cancellation of License No. 33 pursuant to the
agreement of the parties on such dates as maybe set by the Court;
and
‘6. Denying for lack of merit the motions for contempt, it appearing
that actuations of the respondents were not contumacious and
intended to delay the proceedings or undermine the integrity of the
Court.
‘No pronouncement yet as to costs.’"5
The Facts
The CA narrated the facts as follows:
"The four (4) petitioners, namely, Dr. Lourdes S. Pascual, Dr.
Pedro De la Concha, Alejandro De La Concha, and Rufo De
Guzman, after having been granted permission to prospect for
marble deposits in the mountains of Biak-na-Bato, San Miguel,
Bulacan, succeeded in discovering marble deposits of high quality
and in commercial quantities in Mount Mabio which forms part of
the Biak-na-Bato mountain range.
"Having succeeded in discovering said marble deposits, and as a
result of their tedious efforts and substantial expenses, the
petitioners applied with the Bureau of Mines, now Mines and
Geosciences Bureau, for the issuance of the corresponding
license to exploit said marble deposits.
xxxxxxxxx
"After compliance with numerous required conditions, License No.
33 was issued by the Bureau of Mines in favor of the herein
petitioners.
xxxxxxxxx
"Shortly after Respondent Ernesto R. Maceda was appointed
Minister of the Department of Energy and Natural Resources
(DENR), petitioners’ License No. 33 was cancelled by him through
his letter to ROSEMOOR MINING AND DEVELOPMENT
CORPORATION dated September 6, 1986 for the reasons stated
therein. Because of the aforesaid cancellation, the original petition
was filed and later substituted by the petitioners’ AMENDED
PETITION dated August 21, 1991 to assail the same.
"Also after due hearing, the prayer for injunctive relief was granted
in the Order of this Court dated February 28, 1992. Accordingly,
the corresponding preliminary writs were issued after the
petitioners filed their injunction bond in the amount of ONE
MILLION PESOS (P1,000,000.00).
xxxxxxxxx
"On September 27, 1996, the trial court rendered the herein
questioned decision."6
The trial court ruled that the privilege granted under respondents’
license had already ripened into a property right, which was
protected under the due process clause of the Constitution. Such
right was supposedly violated when the license was cancelled
without notice and hearing. The cancellation was said to be
unjustified, because the area that could be covered by the four
separate applications of respondents was 400 hectares. Finally,
according to the RTC, Proclamation No. 84, which confirmed the
cancellation of the license, was an ex post facto law; as such, it
violated Section 3 of Article XVIII of the 1987 Constitution.
On appeal to the Court of Appeals, herein petitioners asked
whether PD 463 or the Mineral Resources Development Decree of
1974 had been violated by the award of the 330.3062 hectares to
respondents in accordance with Proclamation No. 2204. They also
questioned the validity of the cancellation of respondents’ Quarry
License/Permit (QLP) No. 33.
Ruling of the Court of Appeals
Sustaining the trial court in toto, the CA held that the grant of the
quarry license covering 330.3062 hectares to respondents was
authorized by law, because the license was embraced by four (4)
separate applications -- each for an area of 81 hectares. Moreover,
it held that the limitation under Presidential Decree No. 463 -- that
a quarry license should cover not more than 100 hectares in any
given province -- was supplanted by Republic Act No. 7942,7
which increased the mining areas allowed under PD 463.
It also ruled that the cancellation of respondents’ license without
notice and hearing was tantamount to a deprivation of property
without due process of law. It added that under the clause in the
Constitution dealing with the non-impairment of obligations and
contracts, respondents’ license must be respected by the State.
Hence, this Petition.8
Issues
Petitioners submit the following issues for the Court’s
consideration:
"(1) [W]hether or not QLP No. 33 was issued in blatant
contravention of Section 69, P.D. No. 463; and (2) whether or not
Proclamation No. 84 issued by then President Corazon Aquino is
valid. The corollary issue is whether or not the Constitutional
prohibition against ex post facto law applies to Proclamation No.
84"9
The Court’s Ruling
The Petition has merit.
First Issue:
Validity of License
Respondents contend that the Petition has no legal basis, because
PD 463 has already been repealed.10 In effect, they ask for the
dismissal of the Petition on the ground of mootness.
PD 463, as amended, pertained to the old system of exploration,
development and utilization of natural resources through licenses,
concessions or leases.11 While these arrangements were
provided under the 193512 and the 197313 Constitutions, they
have been omitted by Section 2 of Article XII of the 1987
Constitution.14
With the shift of constitutional policy toward "full control and
supervision of the State" over natural resources, the Court in
Miners Association of the Philippines v. Factoran Jr. 15 declared
the provisions of PD 463 as contrary to or violative of the express
mandate of the 1987 Constitution. The said provisions dealt with
the lease of mining claims; quarry permits or licenses covering
privately owned or public lands; and other related provisions on
lease, licenses and permits.
RA 7942 or the Philippine Mining Act of 1995 embodies the new
constitutional mandate. It has repealed or amended all laws,
executive orders, presidential decrees, rules and regulations -- or
parts thereof -- that are inconsistent with any of its provisions.16
It is relevant to state, however, that Section 2 of Article XII of the
1987 Constitution does not apply retroactively to a "license,
concession or lease" granted by the government under the 1973
Constitution or before the effectivity of the 1987 Constitution on
February 2, 1987.17 As noted in Miners Association of the
Philippines v. Factoran Jr., the deliberations of the Constitutional
Commission18 emphasized the intent to apply the said
constitutional provision prospectively.
While RA 7942 has expressly repealed provisions of mining laws
that are inconsistent with its own, it nonetheless respects
previously issued valid and existing licenses, as follows:
"SECTION 5. Mineral Reservations. — When the national interest
so requires, such as when there is a need to preserve strategic
raw materials for industries critical to national development, or
certain minerals for scientific, cultural or ecological value, the
President may establish mineral reservations upon the
recommendation of the Director through the Secretary. Mining
operations in existing mineral reservations and such other
reservations as may thereafter be established, shall be undertaken
by the Department or through a contractor: Provided, That a small
scale-mining cooperative covered by Republic Act No. 7076 shall
be given preferential right to apply for a small-scale mining
agreement for a maximum aggregate area of twenty-five percent
(25%) of such mineral reservation, subject to valid existing
mining/quarrying rights as provided under Section 112 Chapter XX
hereof. All submerged lands within the contiguous zone and in the
exclusive economic zone of the Philippines are hereby declared to
be mineral reservations.
"x x x x x x x x x
"SECTION 7. Periodic Review of Existing Mineral Reservations. —
The Secretary shall periodically review existing mineral
reservations for the purpose of determining whether their
continued existence is consistent with the national interest, and
upon his recommendation, the President may, by proclamation,
alter or modify the boundaries thereof or revert the same to the
public domain without prejudice to prior existing rights."
"SECTION 18. Areas Open to Mining Operations. — Subject to
any existing rights or reservations and prior agreements of all
parties, all mineral resources in public or private lands, including
timber or forestlands as defined in existing laws, shall be open to
mineral agreements or financial or technical assistance agreement
applications. Any conflict that may arise under this provision shall
be heard and resolved by the panel of arbitrators."
"SECTION 19. Areas Closed to Mining Applications. -- Mineral
agreement or financial or technical assistance agreement
applications shall not be allowed:
(a) In military and other government reservations, except upon
prior written clearance by the government agency concerned;
(b) Near or under public or private buildings, cemeteries,
archeological and historic sites, bridges, highways, waterways,
railroads, reservoirs, dams or other infrastructure projects, public
or private works including plantations or valuable crops, except
upon written consent of the government agency or private entity
concerned;
(c) In areas covered by valid and existing mining rights;
(d) In areas expressly prohibited by law;
(e) In areas covered by small-scale miners as defined by law
unless with prior consent of the small-scale miners, in which case
a royalty payment upon the utilization of minerals shall be agreed
upon by the parties, said royalty forming a trust fund for the
socioeconomic development of the community concerned; and
(f) Old growth or virgin forests, proclaimed watershed forest
reserves, wilderness areas, mangrove forests, mossy forests,
national parks, provincial/municipal forests, parks, greenbelts,
game refuge and bird sanctuaries as defined by law and in areas
expressly prohibited under the National Integrated Protected Areas
System (NIPAS) under Republic Act No. 7586, Department
Administrative Order No. 25, series of 1992 and other laws."
"SECTION 112. Non-impairment of Existing Mining/ Quarrying
Rights. — All valid and existing mining lease contracts,
permits/licenses, leases pending renewal, mineral production-
sharing agreements granted under Executive Order No. 279, at the
date of effectivity of this Act, shall remain valid, shall not be
impaired, and shall be recognized by the Government: Provided,
That the provisions of Chapter XIV on government share in mineral
production-sharing agreement and of Chapter XVI on incentives of
this Act shall immediately govern and apply to a mining lessee or
contractor unless the mining lessee or contractor indicates his
intention to the secretary, in writing, not to avail of said provisions:
Provided, further, That no renewal of mining lease contracts shall
be made after the expiration of its term: Provided, finally, That
such leases, production-sharing agreements, financial or technical
assistance agreements shall comply with the applicable provisions
of this Act and its implementing rules and regulations.
"SECTION 113. Recognition of Valid and Existing Mining Claims
and Lease/Quarry Application. — Holders of valid and existing
mining claims, lease/quarry applications shall be given preferential
rights to enter into any mode of mineral agreement with the
government within two (2) years from the promulgation of the rules
and regulations implementing this Act." (Underscoring supplied)
Section 3(p) of RA 7942 defines an existing mining/quarrying right
as "a valid and subsisting mining claim or permit or quarry permit
or any mining lease contract or agreement covering a mineralized
area granted/issued under pertinent mining laws." Consequently,
determining whether the license of respondents falls under this
definition would be relevant to fixing their entitlement to the rights
and/or preferences under RA 7942. Hence, the present Petition
has not been mooted.
Petitioners submit that the license clearly contravenes Section 69
of PD 463, because it exceeds the maximum area that may be
granted. This incipient violation, according to them, renders the
license void ab initio.
Respondents, on the other hand, argue that the license was validly
granted, because it was covered by four separate applications for
areas of 81 hectares each.
The license in question, QLP No. 33,19 is dated August 3, 1982,
and it was issued in the name of Rosemoor Mining Development
Corporation. The terms of the license allowed the corporation to
extract and dispose of marbleized limestone from a 330.3062-
hectare land in San Miguel, Bulacan. The license is, however,
subject to the terms and conditions of PD 463, the governing law
at the time it was granted; as well as to the rules and regulations
promulgated thereunder.20 By the same token, Proclamation No.
2204 -- which awarded to Rosemoor the right of development,
exploitation, and utilization of the mineral site -- expressly
cautioned that the grant was subject to "existing policies, laws,
rules and regulations."21
The license was thus subject to Section 69 of PD 463, which
reads:
"Section 69. Maximum Area of Quarry License – Notwithstanding
the provisions of Section 14 hereof, a quarry license shall cover an
area of not more than one hundred (100) hectares in any one
province and not more than one thousand (1,000) hectares in the
entire Philippines." (Italics supplied)
The language of PD 463 is clear. It states in categorical and
mandatory terms that a quarry license, like that of respondents,
should cover a maximum of 100 hectares in any given province.
This law neither provides any exception nor makes any reference
to the number of applications for a license. Section 69 of PD 463
must be taken to mean exactly what it says. Where the law is
clear, plain, and free from ambiguity, it must be given its literal
meaning and applied without attempted interpretation.22
Moreover, the lower courts’ ruling is evidently inconsistent with the
fact that QLP No. 33 was issued solely in the name of Rosemoor
Mining and Development Corporation, rather than in the names of
the four individual stockholders who are respondents herein. It
likewise brushes aside a basic postulate that a corporation has a
separate personality from that of its stockholders.23
The interpretation adopted by the lower courts is contrary to the
purpose of Section 69 of PD 463. Such intent to limit, without
qualification, the area of a quarry license strictly to 100 hectares in
any one province is shown by the opening proviso that reads:
"Notwithstanding the provisions of Section 14 hereof x x x." The
mandatory nature of the provision is also underscored by the use
of the word shall. Hence, in the application of the 100-hectare-per-
province limit, no regard is given to the size or the number of
mining claims under Section 14, which we quote:
"SECTION 14. Size of Mining Claim. -- For purposes of registration
of a mining claim under this Decree, the Philippine territory and its
shelf are hereby divided into meridional blocks or quadrangles of
one-half minute (1/2) of latitude and longitude, each block or
quadrangle containing area of eighty-one (81) hectares, more or
less.
"A mining claim shall cover one such block although a lesser area
may be allowed if warranted by attendant circumstances, such as
geographical and other justifiable considerations as may be
determined by the Director: Provided, That in no case shall the
locator be allowed to register twice the area allowed for lease
under Section 43 hereof." (Italics supplied)
Clearly, the intent of the law would be brazenly circumvented by
ruling that a license may cover an area exceeding the maximum by
the mere expediency of filing several applications. Such ruling
would indirectly permit an act that is directly prohibited by the law.
Second Issue:
Validity of Proclamation No. 84
Petitioners also argue that the license was validly declared a nullity
and consequently withdrawn or terminated. In a letter dated
September 15, 1986, respondents were informed by then Minister
Ernesto M. Maceda that their license had illegally been issued,
because it violated Section 69 of PD 463; and that there was no
more public interest served by the continued existence or renewal
of the license. The latter reason, they added, was confirmed by the
language of Proclamation No. 84. According to this law, public
interest would be served by reverting the parcel of land that was
excluded by Proclamation No. 2204 to the former status of that
land as part of the Biak-na-Bato national park.
They also contend that Section 74 of PD 463 would not apply,
because Minister Maceda’s letter did not cancel or revoke QLP No.
33, but merely declared the latter’s nullity. They further argue that
respondents waived notice and hearing in their application for the
license.
On the other hand, respondents submit that, as provided for in
Section 74 of PD 463, their right to due process was violated when
their license was cancelled without notice and hearing. They
likewise contend that Proclamation No. 84 is not valid for the
following reasons: 1) it violates the clause on the non-impairment
of contracts; 2) it is an ex post facto law and/or a bill of attainder;
and 3) it was issued by the President after the effectivity of the
1987 Constitution.
This Court ruled on the nature of a natural resource exploration
permit, which was akin to the present respondents’ license, in
Southeast Mindanao Gold Mining Corporation v. Balite Portal
Mining Cooperative,24 which held:
"x x x. As correctly held by the Court of Appeals in its challenged
decision, EP No. 133 merely evidences a privilege granted by the
State, which may be amended, modified or rescinded when the
national interest so requires. This is necessarily so since the
exploration, development and utilization of the country’s natural
mineral resources are matters impressed with great public interest.
Like timber permits, mining exploration permits do not vest in the
grantee any permanent or irrevocable right within the purview of
the non-impairment of contract and due process clauses of the
Constitution, since the State, under its all-encompassing police
power, may alter, modify or amend the same, in accordance with
the demands of the general welfare."25
This same ruling had been made earlier in Tan v. Director of
Forestry26 with regard to a timber license, a pronouncement that
was reiterated in Ysmael v. Deputy Executive Secretary,27 the
pertinent portion of which reads:
"x x x. Timber licenses, permits and license agreements are the
principal instruments by which the State regulates the utilization
and disposition of forest resources to the end that public welfare is
promoted. And it can hardly be gainsaid that they merely evidence
a privilege granted by the State to qualified entities, and do not
vest in the latter a permanent or irrevocable right to the particular
concession area and the forest products therein. They may be
validly amended, modified, replaced or rescinded by the Chief
Executive when national interests so require. Thus, they are not
deemed contracts within the purview of the due process of law
clause [See Sections 3(ee) and 20 of Pres. Decree No. 705, as
amended. Also, Tan v. Director of Forestry, G.R. No. L-24548,
October 27, 1983, 125 SCRA 302]."28 (Italics supplied)
In line with the foregoing jurisprudence, respondents’ license may
be revoked or rescinded by executive action when the national
interest so requires, because it is not a contract, property or a
property right protected by the due process clause of the
Constitution.29 Respondents themselves acknowledge this
condition of the grant under paragraph 7 of QLP No. 33, which we
quote:
"7. This permit/license may be revoked or cancelled at any time by
the Director of Mines and Geo-Sciences when, in his opinion
public interests so require or, upon failure of the permittee/licensee
to comply with the provisions of Presidential Decree No. 463, as
amended, and the rules and regulations promulgated thereunder,
as well as with the terms and conditions specified herein;
Provided, That if a permit/license is cancelled, or otherwise
terminated, the permittee/licensee shall be liable for all unpaid
rentals and royalties due up to the time of the termination or
cancellation of the permit/license[.]"30 (Italics supplied)
The determination of what is in the public interest is necessarily
vested in the State as owner of all mineral resources. That
determination was based on policy considerations formally
enunciated in the letter dated September 15, 1986, issued by then
Minister Maceda and, subsequently, by the President through
Proclamation No. 84. As to the exercise of prerogative by Maceda,
suffice it to say that while the cancellation or revocation of the
license is vested in the director of mines and geo-sciences, the
latter is subject to the former’s control as the department head. We
also stress the clear prerogative of the Executive Department in
the evaluation and the consequent cancellation of licenses in the
process of its formulation of policies with regard to their utilization.
Courts will not interfere with the exercise of that discretion without
any clear showing of grave abuse of discretion.31
Moreover, granting that respondents’ license is valid, it can still be
validly revoked by the State in the exercise of police power.32 The
exercise of such power through Proclamation No. 84 is clearly in
accord with jura regalia, which reserves to the State ownership of
all natural resources.33 This Regalian doctrine is an exercise of its
sovereign power as owner of lands of the public domain and of the
patrimony of the nation, the mineral deposits of which are a
valuable asset.34
Proclamation No. 84 cannot be stigmatized as a violation of the
non-impairment clause. As pointed out earlier, respondents’
license is not a contract to which the protection accorded by the
non-impairment clause may extend.35 Even if the license were, it
is settled that provisions of existing laws and a reservation of
police power are deemed read into it, because it concerns a
subject impressed with public welfare.36 As it is, the non-
impairment clause must yield to the police power of the state.37
We cannot sustain the argument that Proclamation No. 84 is a bill
of attainder; that is, a "legislative act which inflicts punishment
without judicial trial."38 Its declaration that QLP No. 33 is a patent
nullity39 is certainly not a declaration of guilt. Neither is the
cancellation of the license a punishment within the purview of the
constitutional proscription against bills of attainder.
Too, there is no merit in the argument that the proclamation is an
ex post facto law. There are six recognized instances when a law
is considered as such: 1) it criminalizes and punishes an action
that was done before the passing of the law and that was innocent
when it was done; 2) it aggravates a crime or makes it greater than
it was when it was committed; 3) it changes the punishment and
inflicts one that is greater than that imposed by the law annexed to
the crime when it was committed; 4) it alters the legal rules of
evidence and authorizes conviction upon a less or different
testimony than that required by the law at the time of the
commission of the offense; 5) it assumes the regulation of civil
rights and remedies only, but in effect imposes a penalty or a
deprivation of a right as a consequence of something that was
considered lawful when it was done; and 6) it deprives a person
accused of a crime of some lawful protection to which he or she
become entitled, such as the protection of a former conviction or
an acquittal or the proclamation of an amnesty.40 Proclamation
No. 84 does not fall under any of the enumerated categories;
hence, it is not an ex post facto law.
It is settled that an ex post facto law is limited in its scope only to
matters criminal in nature.41 Proclamation 84, which merely
restored the area excluded from the Biak-na-Bato national park by
canceling respondents’ license, is clearly not penal in character.
Finally, it is stressed that at the time President Aquino issued
Proclamation No. 84 on March 9, 1987, she was still validly
exercising legislative powers under the Provisional Constitution of
1986.42 Section 1 of Article II of Proclamation No. 3, which
promulgated the Provisional Constitution, granted her legislative
power "until a legislature is elected and convened under a new
Constitution." The grant of such power is also explicitly recognized
and provided for in Section 6 of Article XVII of the 1987
Constitution.43
WHEREFORE, this Petition is hereby GRANTED and the
appealed Decision of the Court of Appeals SET ASIDE. No costs.
SO ORDERED.
G.R. No. 181704 December 6, 2011
BUREAU OF CUSTOMS EMPLOYEES ASSOCIATION (BOCEA),
represented by its National President (BOCEA National Executive
Council) Mr. Romulo A. Pagulayan, Petitioner,
vs.
HON. MARGARITO B. TEVES, in his capacity as Secretary of the
Department of Finance, HON. NAPOLEON L. MORALES, in his
capacity as Commissioner of the Bureau of Customs, HON.
LILIAN B. HEFTI, in her capacity as Commissioner of the Bureau
of Internal Revenue, Respondents.
DECISION
VILLARAMA, JR., J.:
Before this Court is a petition1 for certiorari and prohibition with
prayer for injunctive relief/s under Rule 65 of the 1997 Rules of
Civil Procedure, as amended, to declare Republic Act (R.A.) No.
9335,2 otherwise known as the Attrition Act of 2005, and its
Implementing Rules and Regulations3 (IRR) unconstitutional, and
the implementation thereof be enjoined permanently.

The Facts
On January 25, 2005, former President Gloria Macapagal-Arroyo
signed into law R.A. No. 9335 which took effect on February 11,
2005.
In Abakada Guro Party List v. Purisima4 (Abakada), we said of
R.A. No. 9335:
RA [No.] 9335 was enacted to optimize the revenue-generation
capability and collection of the Bureau of Internal Revenue (BIR)
and the Bureau of Customs (BOC). The law intends to encourage
BIR and BOC officials and employees to exceed their revenue
targets by providing a system of rewards and sanctions through
the creation of a Rewards and Incentives Fund (Fund) and a
Revenue Performance Evaluation Board (Board). It covers all
officials and employees of the BIR and the BOC with at least six
months of service, regardless of employment status.
The Fund is sourced from the collection of the BIR and the BOC in
excess of their revenue targets for the year, as determined by the
Development Budget and Coordinating Committee (DBCC). Any
incentive or reward is taken from the fund and allocated to the BIR
and the BOC in proportion to their contribution in the excess
collection of the targeted amount of tax revenue.
The Boards in the BIR and the BOC are composed of the
Secretary of the Department of Finance (DOF) or his/her
Undersecretary, the Secretary of the Department of Budget and
Management (DBM) or his/her Undersecretary, the Director
General of the National Economic Development Authority (NEDA)
or his/her Deputy Director General, the Commissioners of the BIR
and the BOC or their Deputy Commissioners, two representatives
from the rank-and-file employees and a representative from the
officials nominated by their recognized organization.
Each Board has the duty to (1) prescribe the rules and guidelines
for the allocation, distribution and release of the Fund; (2) set
criteria and procedures for removing from the service officials and
employees whose revenue collection falls short of the target; (3)
terminate personnel in accordance with the criteria adopted by the
Board; (4) prescribe a system for performance evaluation; (5)
perform other functions, including the issuance of rules and
regulations and (6) submit an annual report to Congress.
The DOF, DBM, NEDA, BIR, BOC and the Civil Service
Commission (CSC) were tasked to promulgate and issue the
implementing rules and regulations of RA [No.] 9335, to be
approved by a Joint Congressional Oversight Committee created
for such purpose.5
The Joint Congressional Oversight Committee approved the
assailed IRR on May 22, 2006. Subsequently, the IRR was
published on May 30, 2006 in two newspapers of general
circulation, the Philippine Star and the Manila Standard, and
became effective fifteen (15) days later.6
Contending that the enactment and implementation of R.A. No.
9335 are tainted with constitutional infirmities in violation of the
fundamental rights of its members, petitioner Bureau of Customs
Employees Association (BOCEA), an association of rank-and-file
employees of the Bureau of Customs (BOC), duly registered with
the Department of Labor and Employment (DOLE) and the Civil
Service Commission (CSC), and represented by its National
President, Mr. Romulo A. Pagulayan (Pagulayan), directly filed the
present petition before this Court against respondents Margarito B.
Teves, in his capacity as Secretary of the Department of Finance
(DOF), Commissioner Napoleon L. Morales (Commissioner
Morales), in his capacity as BOC Commissioner, and Lilian B.
Hefti, in her capacity as Commissioner of the Bureau of Internal
Revenue (BIR). In its petition, BOCEA made the following
averments:
Sometime in 2008, high-ranking officials of the BOC pursuant to
the mandate of R.A. No. 9335 and its IRR, and in order to comply
with the stringent deadlines thereof, started to disseminate
Collection District Performance Contracts7 (Performance
Contracts) for the lower ranking officials and rank-and-file
employees to sign. The Performance Contract pertinently
provided:
xxxx
WHEREAS, pursuant to the provisions of Sec. 25 (b) of the
Implementing Rules and Regulations (IRR) of the Attrition Act of
2005, that provides for the setting of criteria and procedures for
removing from the service Officials and Employees whose revenue
collection fall short of the target in accordance with Section 7 of
Republic Act 9335.
xxxx
NOW, THEREFORE, for and in consideration of the foregoing
premises, parties unto this Agreement hereby agree and so
agreed to perform the following:
xxxx
2. The "Section 2, PA/PE" hereby accepts the allocated Revenue
Collection Target and further accepts/commits to meet the said
target under the following conditions:
a.) That he/she will meet the allocated Revenue Collection Target
and thereby undertakes and binds himself/herself that in the event
the revenue collection falls short of the target with due
consideration of all relevant factors affecting the level of collection
as provided in the rules and regulations promulgated under the Act
and its IRR, he/she will voluntarily submit to the provisions of Sec.
25 (b) of the IRR and Sec. 7 of the Act; and
b.) That he/she will cascade and/or allocate to respective
Appraisers/Examiners or Employees under his/her section the said
Revenue Collection Target and require them to execute a
Performance Contract, and direct them to accept their individual
target. The Performance Contract executed by the respective
Examiners/Appraisers/Employees shall be submitted to the Office
of the Commissioner through the LAIC on or before March 31,
2008.
x x x x8
BOCEA opined that the revenue target was impossible to meet
due to the Government’s own policies on reduced tariff rates and
tax breaks to big businesses, the occurrence of natural calamities
and because of other economic factors. BOCEA claimed that
some BOC employees were coerced and forced to sign the
Performance Contract. The majority of them, however, did not
sign. In particular, officers of BOCEA were summoned and
required to sign the Performance Contracts but they also refused.
To ease the brewing tension, BOCEA claimed that its officers sent
letters, and sought several dialogues with BOC officials but the
latter refused to heed them.
In addition, BOCEA alleged that Commissioner Morales exerted
heavy pressure on the District Collectors, Chiefs of Formal Entry
Divisions, Principal Customs Appraisers and Principal Customs
Examiners of the BOC during command conferences to make
them sign their Performance Contracts. Likewise, BOC Deputy
Commissioner Reynaldo Umali (Deputy Commissioner Umali)
individually spoke to said personnel to convince them to sign said
contracts. Said personnel were threatened that if they do not sign
their respective Performance Contracts, they would face possible
reassignment, reshuffling, or worse, be placed on floating status.
Thus, all the District Collectors, except a certain Atty. Carlos So of
the Collection District III of the Ninoy Aquino International Airport
(NAIA), signed the Performance Contracts.
Consolidate15 the present case with Abakada on April 16, 2008.
However, pending action on said motion, the Court rendered its
decision in Abakada on August 14, 2008. Thus, the consolidation
of this case with Abakada was rendered no longer possible.16
In Abakada, this Court, through then Associate Justice, now Chief
Justice Renato C. Corona, declared Section 1217 of R.A. No. 9335
creating a Joint Congressional Oversight Committee to approve
the IRR as unconstitutional and violative of the principle of
separation of powers. However, the constitutionality of the
remaining provisions of R.A. No. 9335 was upheld pursuant to
Section 1318 of R.A. No. 9335. The Court also held that until the
contrary is shown, the IRR of R.A. No. 9335 is presumed valid and
effective even without the approval of the Joint Congressional
Oversight Committee.19

Notwithstanding our ruling in Abakada, both parties complied with

BOCEA further claimed that Pagulayan was constantly harassed our Resolution20 dated February 10, 2009, requiring them to
and threatened with lawsuits. Pagulayan approached Deputy submit their respective Memoranda.
Commissioner Umali to ask the BOC officials to stop all forms of
harassment, but the latter merely said that he would look into the
matter. On February 5, 2008, BOCEA through counsel wrote the
The Issues
Revenue Performance Evaluation Board (Board) to desist from
implementing R.A. No. 9335 and its IRR and from requiring rank-
and-file employees of the BOC and BIR to sign Performance
Contracts.9 In his letter-reply10 dated February 12, 2008, Deputy BOCEA raises the following issues:
Commissioner Umali denied having coerced any BOC employee to
sign a Performance Contract. He also defended the BOC, invoking
its mandate of merely implementing the law. Finally, Pagulayan
I.
and BOCEA’s counsel, on separate occasions, requested for a
certified true copy of the Performance Contract from Deputy
Commissioner Umali but the latter failed to furnish them a copy.11
WHETHER OR NOT THE ATTRITION LAW, REPUBLIC ACT
[NO.] 9335, AND ITS IMPLEMENTING RULES AND
REGULATIONS ARE UNCONSTITUTIONAL AS THESE
This petition was filed directly with this Court on March 3, 2008.
VIOLATE THE RIGHT TO DUE PROCESS OF THE COVERED
BOCEA asserted that in view of the unconstitutionality of R.A. No.
BIR AND BOC OFFICIALS AND EMPLOYEES[;]
9335 and its IRR, and their adverse effects on the constitutional
rights of BOC officials and employees, direct resort to this Court is
justified. BOCEA argued, among others, that its members and
other BOC employees are in great danger of losing their jobs II.
should they fail to meet the required quota provided under the law,
in clear violation of their constitutional right to security of tenure,
and at their and their respective families’ prejudice.
WHETHER OR NOT THE ATTRITION LAW, REPUBLIC ACT
[NO.] 9335, AND ITS IMPLEMENTING RULES AND
REGULATIONS ARE UNCONSTITUTIONAL AS THESE
In their Comment,12 respondents, through the Office of the VIOLATE THE RIGHT OF BIR AND BOC OFFICIALS AND
Solicitor General (OSG), countered that R.A. No. 9335 and its IRR EMPLOYEES TO THE EQUAL PROTECTION OF THE LAWS[;]
do not violate the right to due process and right to security of
tenure of BIR and BOC employees. The OSG stressed that the
guarantee of security of tenure under the 1987 Constitution is not a
III.
guarantee of perpetual employment. R.A. No. 9335 and its IRR
provided a reasonable and valid ground for the dismissal of an
employee which is germane to the purpose of the law. Likewise,
R.A. No. 9335 and its IRR provided that an employee may only be WHETHER OR NOT REPUBLIC ACT [NO.] 9335 AND ITS
separated from the service upon compliance with substantive and IMPLEMENTING RULES AND REGULATIONS VIOLATE THE
procedural due process. The OSG added that R.A. No. 9335 and RIGHT TO SECURITY OF TENURE OF BIR AND BOC
its IRR must enjoy the presumption of constitutionality. OFFICIALS AND EMPLOYEES AS ENSHRINED UNDER
SECTION 2 (3), ARTICLE IX (B) OF THE CONSTITUTION[;]

In its Reply,13 BOCEA claimed that R.A. No. 9335 employs means
that are unreasonable to achieve its stated objectives; that the law IV.
is unduly oppressive of BIR and BOC employees as it shifts the
extreme burden upon their shoulders when the Government itself
has adopted measures that make collection difficult such as
reduced tariff rates to almost zero percent and tax exemption of WHETHER OR NOT REPUBLIC ACT [NO.] 9335 AND ITS
big businesses; and that the law is discriminatory of BIR and BOC IMPLEMENTING RULES AND REGULATIONS ARE
employees. BOCEA manifested that only the high-ranking officials UNCONSTITUTIONAL AS THEY CONSTITUTE UNDUE
of the BOC benefited largely from the reward system under R.A. DELEGATION OF LEGISLATIVE POWERS TO THE REVENUE
No. 9335 despite the fact that they were not the ones directly PERFORMANCE EVALUATION BOARD IN VIOLATION OF THE
toiling to collect revenue. Moreover, despite the BOCEA’s PRINCIPLE OF SEPARATION OF POWERS ENSHRINED IN
numerous requests,14 BOC continually refused to provide BOCEA THE CONSTITUTION[; AND]
the Expenditure Plan on how such reward was distributed.

V.
Since BOCEA was seeking similar reliefs as that of the petitioners
in Abakada Guro Party List v. Purisima, BOCEA filed a Motion to
WHETHER OR NOT REPUBLIC ACT [NO.] 9335 IS A BILL OF
ATTAINDER AND HENCE[,] UNCONSTITUTIONAL BECAUSE IT
INFLICTS PUNISHMENT THROUGH LEGISLATIVE FIAT UPON
A PARTICULAR GROUP OR CLASS OF OFFICIALS AND
EMPLOYEES WITHOUT TRIAL.21
BOCEA manifested that while waiting for the Court to give due
course to its petition, events unfolded showing the patent
unconstitutionality of R.A. No. 9335. It narrated that during the first
year of the implementation of R.A. No. 9335, BOC employees
exerted commendable efforts to attain their revenue target of P196
billion which they surpassed by as much as P2 billion for that year
alone. However, this was attained only because oil companies
made advance tax payments to BOC. Moreover, BOC employees
were given their "reward" for surpassing said target only in 2008,
the distribution of which they described as unjust, unfair, dubious
and fraudulent because only top officials of BOC got the huge sum
of reward while the employees, who did the hard task of collecting,
received a mere pittance of around P8,500.00. In the same
manner, the Bonds Division of BOC-NAIA collected 400+% of its
designated target but the higher management gave out to the
employees a measly sum of P8,500.00 while the top level officials
partook of millions of the excess collections. BOCEA relies on a
piece of information revealed by a newspaper showing the list of
BOC officials who apparently earned huge amounts of money by
way of reward.22 It claims that the recipients thereof included
lawyers, support personnel and other employees, including a
dentist, who performed no collection functions at all. These alleged
anomalous selection, distribution and allocation of rewards was
due to the failure of R.A. No. 9335 to set out clear guidelines.23
In addition, BOCEA avers that the Board initiated the first few
cases of attrition for the Fiscal Year 2007 by subjecting five BOC
officials from the Port of Manila to attrition despite the fact that the
Port of Manila substantially complied with the provisions of R.A.
No. 9335. It is thus submitted that the selection of these officials
for attrition without proper investigation was nothing less than
arbitrary. Further, the legislative and executive departments’
promulgation of issuances and the Government’s accession to
regional trade agreements have caused a significant diminution of
the tariff rates, thus, decreasing over-all collection. These
unrealistic settings of revenue targets seriously affect BIR and
BOC employees tasked with the burden of collection, and worse,
subjected them to attrition.24
BOCEA assails the constitutionality of R.A. No. 9335 and its IRR
on the following grounds:
1. R.A. No. 9335 and its IRR violate the BIR and BOC employees’
right to due process because the termination of employees who
had not attained their revenue targets for the year is peremptory
and done without any form of hearing to allow said employees to
ventilate their side. Moreover, R.A. No. 9335 and its IRR do not
comply with the requirements under CSC rules and regulations as
the dismissal in this case is immediately executory. Such
immediately executory nature of the Board’s decision negates the
remedies available to an employee as provided under the CSC
rules.
2. R.A. No. 9335 and its IRR violate the BIR and BOC employees’
right to equal protection of the law because R.A. No. 9335 and its
IRR unduly discriminates against BIR and BOC employees as
compared to employees of other revenue generating government
agencies like the Philippine Amusement and Gaming Corporation,
Department of Transportation and Communication, the Air
Transportation Office, the Land Transportation Office, and the
Philippine Charity Sweepstakes Office, among others, which are
not subject to attrition.
3. R.A. No. 9335 and its IRR violate the BIR and BOC employees’
right to security of tenure because R.A. No. 9335 and its IRR
effectively removed remedies provided in the ordinary course of
administrative procedure afforded to government employees. The
law likewise created another ground for dismissal, i.e., non-
attainment of revenue collection target, which is not provided
under CSC rules and which is, by its nature, unpredictable and
therefore arbitrary and unreasonable.
4. R.A. No. 9335 and its IRR violate the 1987 Constitution because
Congress granted to the Revenue Performance Evaluation Board
(Board) the unbridled discretion of formulating the criteria for
termination, the manner of allocating targets, the distribution of
rewards and the determination of relevant factors affecting the
targets of collection, which is tantamount to undue delegation of
legislative power.
5. R.A. No. 9335 is a bill of attainder because it inflicts punishment
upon a particular group or class of officials and employees without
trial. This is evident from the fact that the law confers upon the
Board the power to impose the penalty of removal upon
employees who do not meet their revenue targets; that the same is
without the benefit of hearing; and that the removal from service is
immediately executory. Lastly, it disregards the presumption of
regularity in the performance of the official functions of a public
officer.25
On the other hand, respondents through the OSG stress that
except for Section 12 of R.A. No. 9335, R.A. No. 9335 and its IRR
are constitutional, as per our ruling in Abakada. Nevertheless, the
OSG argues that the classification of BIR and BOC employees as
public officers under R.A. No. 9335 is based on a valid and
substantial distinction since the revenue generated by the BIR and
BOC is essentially in the form of taxes, which is the lifeblood of the
State, while the revenue produced by other agencies is merely
incidental or secondary to their governmental functions; that in
view of their mandate, and for purposes of tax collection, the BIR
and BOC are sui generis; that R.A. No. 9335 complies with the
"completeness" and "sufficient standard" tests for the permissive
delegation of legislative power to the Board; that the Board
exercises its delegated power consistent with the policy laid down
in the law, that is, to optimize the revenue generation capability
and collection of the BIR and the BOC; that parameters were set in
order that the Board may identify the officials and employees
subject to attrition, and the proper procedure for their removal in
case they fail to meet the targets set in the Performance Contract
were provided; and that the rights of BIR and BOC employees to
due process of law and security of tenure are duly accorded by
R.A. No. 9335. The OSG likewise maintains that there was no
encroachment of judicial power in the enactment of R.A. No. 9335
amounting to a bill of attainder since R.A. No. 9335 and its IRR
merely defined the offense and provided for the penalty that may
be imposed. Finally, the OSG reiterates that the separation from
the service of any BIR or BOC employee under R.A. No. 9335 and
its IRR shall be done only upon due consideration of all relevant
factors affecting the level of collection, subject to Civil Service
laws, rules and regulations, and in compliance with substantive
and procedural due process. The OSG opines that the
Performance Contract, far from violating the BIR and BOC
employees’ right to due process, actually serves as a notice of the
revenue target they have to meet and the possible consequences
of failing to meet the same. More, there is nothing in the law which
prevents the aggrieved party from appealing the unfavorable
decision of dismissal.26
In essence, the issues for our resolution are:
1. Whether there is undue delegation of legislative power to the
Board;
2. Whether R.A. No. 9335 and its IRR violate the rights of
BOCEA’s members to: (a) equal protection of laws, (b) security of
tenure and (c) due process; and
3. Whether R.A. No. 9335 is a bill of attainder.
Our Ruling
Prefatorily, we note that it is clear, and in fact uncontroverted, that
BOCEA has locus standi. BOCEA impugns the constitutionality of
R.A. No. 9335 and its IRR because its members, who are rank-
and-file employees of the BOC, are actually covered by the law
and its IRR. BOCEA’s members have a personal and substantial
interest in the case, such that they have sustained or will sustain,
direct injury as a result of the enforcement of R.A. No. 9335 and its
IRR.27
However, we find no merit in the petition and perforce dismiss the
same.
It must be noted that this is not the first time the constitutionality of
R.A. No. 9335 and its IRR are being challenged. The Court already
settled the majority of the same issues raised by BOCEA in our
decision in Abakada, which attained finality on September 17,
2008. As such, our ruling therein is worthy of reiteration in this
case.
We resolve the first issue in the negative.
The principle of separation of powers ordains that each of the
three great branches of government has exclusive cognizance of
and is supreme in matters falling within its own constitutionally
allocated sphere.28 Necessarily imbedded in this doctrine is the
principle of non-delegation of powers, as expressed in the Latin
maxim potestas delegata non delegari potest, which means "what
has been delegated, cannot be delegated." This doctrine is based
on the ethical principle that such delegated power constitutes not
only a right but a duty to be performed by the delegate through the
instrumentality of his own judgment and not through the
intervening mind of another.29 However, this principle of non-
delegation of powers admits of numerous exceptions,30 one of
which is the delegation of legislative power to various specialized
administrative agencies like the Board in this case.
The rationale for the aforementioned exception was clearly
explained in our ruling in Gerochi v. Department of Energy,31 to
wit:
In the face of the increasing complexity of modern life, delegation
of legislative power to various specialized administrative agencies
is allowed as an exception to this principle. Given the volume and
variety of interactions in today’s society, it is doubtful if the
legislature can promulgate laws that will deal adequately with and
respond promptly to the minutiae of everyday life. Hence, the need
to delegate to administrative bodies — the principal agencies
tasked to execute laws in their specialized fields — the authority to
promulgate rules and regulations to implement a given statute and
effectuate its policies. All that is required for the valid exercise of
this power of subordinate legislation is that the regulation be
germane to the objects and purposes of the law and that the
regulation be not in contradiction to, but in conformity with, the
standards prescribed by the law. These requirements are
denominated as the completeness test and the sufficient standard
test.32
Thus, in Abakada, we held,
Two tests determine the validity of delegation of legislative power:
(1) the completeness test and (2) the sufficient standard test. A law
is complete when it sets forth therein the policy to be executed,
carried out or implemented by the delegate. It lays down a
sufficient standard when it provides adequate guidelines or
limitations in the law to map out the boundaries of the delegate’s
authority and prevent the delegation from running riot. To be
sufficient, the standard must specify the limits of the delegate’s
authority, announce the legislative policy and identify the
conditions under which it is to be implemented.
RA [No.] 9335 adequately states the policy and standards to guide
the President in fixing revenue targets and the implementing
agencies in carrying out the provisions of the law. Section 2 spells
out the policy of the law:
"SEC. 2. Declaration of Policy. — It is the policy of the State to
optimize the revenue-generation capability and collection of the
Bureau of Internal Revenue (BIR) and the Bureau of Customs
(BOC) by providing for a system of rewards and sanctions through
the creation of a Rewards and Incentives Fund and a Revenue
Performance Evaluation Board in the above agencies for the
purpose of encouraging their officials and employees to exceed
their revenue targets."
Section 4 "canalized within banks that keep it from overflowing" the
delegated power to the President to fix revenue targets:
"SEC. 4. Rewards and Incentives Fund. — A Rewards and
Incentives Fund, hereinafter referred to as the Fund, is hereby
created, to be sourced from the collection of the BIR and the BOC
in excess of their respective revenue targets of the year, as
determined by the Development Budget and Coordinating
Committee (DBCC), in the following percentages:
Excess of Collection [Over] the Revenue Targets
Percent (%) of the Excess Collection to Accrue to the
Fund
30% or below — 15%
More than 30% — 15% of the first 30% plus 20% of the
remaining excess
The Fund shall be deemed automatically appropriated the year
immediately following the year when the revenue collection target
was exceeded and shall be released on the same fiscal year.
Revenue targets shall refer to the original estimated revenue
collection expected of the BIR and the BOC for a given fiscal year
as stated in the Budget of Expenditures and Sources of Financing
(BESF) submitted by the President to Congress. The BIR and the
BOC shall submit to the DBCC the distribution of the agencies’
revenue targets as allocated among its revenue districts in the
case of the BIR, and the collection districts in the case of the BOC.
xxx xxx x x x"
Revenue targets are based on the original estimated revenue
collection expected respectively of the BIR and the BOC for a
given fiscal year as approved by the DBCC and stated in the BESF
submitted by the President to Congress. Thus, the determination
of revenue targets does not rest solely on the President as it also
undergoes the scrutiny of the DBCC.
On the other hand, Section 7 specifies the limits of the Board’s
authority and identifies the conditions under which officials and
employees whose revenue collection falls short of the target by at
least 7.5% may be removed from the service:
"SEC. 7. Powers and Functions of the Board. — The Board in the
agency shall have the following powers and functions:
xxx xxx xxx
(b) To set the criteria and procedures for removing from service
officials and employees whose revenue collection falls short of the
target by at least seven and a half percent (7.5%), with due
consideration of all relevant factors affecting the level of collection
as provided in the rules and regulations promulgated under this
Act, subject to civil service laws, rules and regulations and
compliance with substantive and procedural due process:
Provided, That the following exemptions shall apply:
1. Where the district or area of responsibility is newly-created, not
exceeding two years in operation, and has no historical record of
collection performance that can be used as basis for evaluation;
and
2. Where the revenue or customs official or employee is a recent
transferee in the middle of the period under consideration unless
the transfer was due to nonperformance of revenue targets or
potential nonperformance of revenue targets: Provided, however,
That when the district or area of responsibility covered by revenue
or customs officials or employees has suffered from economic
difficulties brought about by natural calamities or force majeure or
economic causes as may be determined by the Board, termination
shall be considered only after careful and proper review by the
Board.
(c) To terminate personnel in accordance with the criteria adopted
in the preceding paragraph: Provided, That such decision shall be
immediately executory: Provided, further, That the application of
the criteria for the separation of an official or employee from
service under this Act shall be without prejudice to the application
of other relevant laws on accountability of public officers and
employees, such as the Code of Conduct and Ethical Standards of
Public Officers and Employees and the Anti-Graft and Corrupt
Practices Act;
xxx xxx x x x"
At any rate, this Court has recognized the following as sufficient
standards: "public interest", "justice and equity", "public
convenience and welfare" and "simplicity, economy and welfare".
In this case, the declared policy of optimization of the revenue-
generation capability and collection of the BIR and the BOC is
infused with public interest.33
We could not but deduce that the completeness test and the
sufficient standard test were fully satisfied by R.A. No. 9335, as
evident from the aforementioned Sections 2, 4 and 7 thereof.
Moreover, Section 534 of R.A. No. 9335 also provides for the
incentives due to District Collection Offices. While it is apparent
that the last paragraph of Section 5 provides that "[t]he allocation,
distribution and release of the district reward shall likewise be
prescribed by the rules and regulations of the Revenue
Performance and Evaluation Board," Section 7 (a)35 of R.A. No.
9335 clearly mandates and sets the parameters for the Board by
providing that such rules and guidelines for the allocation,
distribution and release of the fund shall be in accordance with
Sections 4 and 5 of R.A. No. 9335. In sum, the Court finds that
R.A. No. 9335, read and appreciated in its entirety, is complete in
all its essential terms and conditions, and that it contains sufficient
standards as to negate BOCEA’s supposition of undue delegation
of legislative power to the Board.
Similarly, we resolve the second issue in the negative.
Equal protection simply provides that all persons or things similarly
situated should be treated in a similar manner, both as to rights
conferred and responsibilities imposed. The purpose of the equal
protection clause is to secure every person within a state’s
jurisdiction against intentional and arbitrary discrimination, whether
occasioned by the express terms of a statute or by its improper
execution through the state’s duly constituted authorities. In other
words, the concept of equal justice under the law requires the state
to govern impartially, and it may not draw distinctions between
individuals solely on differences that are irrelevant to a legitimate
governmental objective.361awphil
Thus, on the issue on equal protection of the laws, we held in
Abakada:
The equal protection clause recognizes a valid classification, that
is, a classification that has a reasonable foundation or rational
basis and not arbitrary. With respect to RA [No.] 9335, its
expressed public policy is the optimization of the revenue-
generation capability and collection of the BIR and the BOC. Since
the subject of the law is the revenue-generation capability and
collection of the BIR and the BOC, the incentives and/or sanctions
provided in the law should logically pertain to the said agencies.
Moreover, the law concerns only the BIR and the BOC because
they have the common distinct primary function of generating
revenues for the national government through the collection of
taxes, customs duties, fees and charges.
The BIR performs the following functions:
"Sec. 18. The Bureau of Internal Revenue. — The Bureau of
Internal Revenue, which shall be headed by and subject to the
supervision and control of the Commissioner of Internal Revenue,
who shall be appointed by the President upon the recommendation
of the Secretary [of the DOF], shall have the following functions:
(1) Assess and collect all taxes, fees and charges and account for
all revenues collected;
(2) Exercise duly delegated police powers for the proper
performance of its functions and duties;
(3) Prevent and prosecute tax evasions and all other illegal
economic activities;
(4) Exercise supervision and control over its constituent and
subordinate units; and
(5) Perform such other functions as may be provided by law.
xxx xxx x x x"
On the other hand, the BOC has the following functions:
"Sec. 23. The Bureau of Customs. — The Bureau of Customs
which shall be headed and subject to the management and control
of the Commissioner of Customs, who shall be appointed by the
President upon the recommendation of the Secretary [of the DOF]
and hereinafter referred to as Commissioner, shall have the
following functions:
(1) Collect custom duties, taxes and the corresponding fees,
charges and penalties;
(2) Account for all customs revenues collected;
(3) Exercise police authority for the enforcement of tariff and
customs laws;
(4) Prevent and suppress smuggling, pilferage and all other
economic frauds within all ports of entry;
(5) Supervise and control exports, imports, foreign mails and the
clearance of vessels and aircrafts in all ports of entry;
(6) Administer all legal requirements that are appropriate;
(7) Prevent and prosecute smuggling and other illegal activities in
all ports under its jurisdiction;
(8) Exercise supervision and control over its constituent units;
(9) Perform such other functions as may be provided by law.
xxx xxx x x x"
Both the BIR and the BOC are bureaus under the DOF. They
principally perform the special function of being the
instrumentalities through which the State exercises one of its great
inherent functions — taxation. Indubitably, such substantial
distinction is germane and intimately related to the purpose of the
law. Hence, the classification and treatment accorded to the BIR
and the BOC under RA [No.] 9335 fully satisfy the demands of
equal protection.37
As it was imperatively correlated to the issue on equal protection,
the issues on the security of tenure of affected BIR and BOC
officials and employees and their entitlement to due process were
also settled in Abakada:
Clearly, RA [No.] 9335 in no way violates the security of tenure of
officials and employees of the BIR and the BOC. The guarantee of
security of tenure only means that an employee cannot be
dismissed from the service for causes other than those provided
by law and only after due process is accorded the employee. In the
case of RA [No.] 9335, it lays down a reasonable yardstick for
removal (when the revenue collection falls short of the target by at
least 7.5%) with due consideration of all relevant factors affecting
the level of collection. This standard is analogous to inefficiency
and incompetence in the performance of official duties, a ground
for disciplinary action under civil service laws. The action for
removal is also subject to civil service laws, rules and regulations
and compliance with substantive and procedural due process.38
In addition, the essence of due process is simply an opportunity to
be heard, or as applied to administrative proceedings, a fair and
reasonable opportunity to explain one’s side.39 BOCEA’s
apprehension of deprivation of due process finds its answer in
Section 7 (b) and (c) of R.A. No. 9335.40 The concerned BIR or
BOC official or employee is not simply given a target revenue
collection and capriciously left without any quarter. R.A. No. 9335
and its IRR clearly give due consideration to all relevant factors41
that may affect the level of collection. In the same manner,
exemptions42 were set, contravening BOCEA’s claim that its
members may be removed for unattained target collection even
due to causes which are beyond their control. Moreover, an
employee’s right to be heard is not at all prevented and his right to
appeal is not deprived of him.43 In fine, a BIR or BOC official or
employee in this case cannot be arbitrarily removed from the
service without according him his constitutional right to due
process. No less than R.A. No. 9335 in accordance with the 1987
Constitution guarantees this.
We have spoken, and these issues were finally laid to rest. Now,
the Court proceeds to resolve the last, but new issue raised by
BOCEA, that is, whether R.A. No. 9335 is a bill of attainder
proscribed under Section 22,44 Article III of the 1987 Constitution.
On this score, we hold that R.A. No. 9335 is not a bill of attainder.
A bill of attainder is a legislative act which inflicts punishment on
individuals or members of a particular group without a judicial trial.
Essential to a bill of attainder are a specification of certain
individuals or a group of individuals, the imposition of a
punishment, penal or otherwise, and the lack of judicial
trial.451avvphi1
In his Concurring Opinion in Tuason v. Register of Deeds,
Caloocan City,46 Justice Florentino P. Feliciano traces the roots of
a Bill of Attainder, to wit:
Bills of attainder are an ancient instrument of tyranny. In England a
few centuries back, Parliament would at times enact bills or
statutes which declared certain persons attainted and their blood
corrupted so that it lost all heritable quality (Ex Parte Garland, 4
Wall. 333, 18 L.Ed. 366 [1867]). In more modern terms, a bill of
attainder is essentially a usurpation of judicial power by a
legislative body. It envisages and effects the imposition of a
penalty — the deprivation of life or liberty or property — not by the
ordinary processes of judicial trial, but by legislative fiat. While cast
in the form of special legislation, a bill of attainder (or bill of pains
and penalties, if it prescribed a penalty other than death) is in
intent and effect a penal judgment visited upon an identified
person or group of persons (and not upon the general community)
without a prior charge or demand, without notice and hearing,
without an opportunity to defend, without any of the civilized forms
and safeguards of the judicial process as we know it (People v.
Ferrer, 48 SCRA 382 [1972]; Cummings and Missouri, 4 Wall. 277,
18 L. Ed. 356 [1867]; U.S. v. Lovett, 328, U.S. 303, 90 L.Ed. 1252
[1945]; U.S. v. Brown, 381 U.S. 437, 14 L.Ed. 2d. 484 [1965]. Such
is the archetypal bill of attainder wielded as a means of legislative
oppression. x x x47
R.A. No. 9335 does not possess the elements of a bill of attainder.
It does not seek to inflict punishment without a judicial trial. R.A.
No. 9335 merely lays down the grounds for the termination of a
BIR or BOC official or employee and provides for the
consequences thereof. The democratic processes are still followed
and the constitutional rights of the concerned employee are amply
protected.
A final note.
We find that BOCEA’s petition is replete with allegations of defects
and anomalies in allocation, distribution and receipt of rewards.
While BOCEA intimates that it intends to curb graft and corruption
in the BOC in particular and in the government in general which is
nothing but noble, these intentions do not actually pertain to the
constitutionality of R.A. No. 9335 and its IRR, but rather in the
faithful implementation thereof. R.A. No. 9335 itself does not
tolerate these pernicious acts of graft and corruption.48 As the
Court is not a trier of facts, the investigation on the veracity of, and
the proper action on these anomalies are in the hands of the
Executive branch. Correlatively, the wisdom for the enactment of
this law remains within the domain of the Legislative branch. We
merely interpret the law as it is. The Court has no discretion to give
statutes a meaning detached from the manifest intendment and
language thereof.49 Just like any other law, R.A. No. 9335 has in
its favor the presumption of constitutionality, and to justify its
nullification, there must be a clear and unequivocal breach of the
Constitution and not one that is doubtful, speculative, or
argumentative.50 We have so declared in Abakada, and we now
reiterate that R.A. No. 9335 and its IRR are constitutional.
WHEREFORE, the present petition for certiorari and prohibition
with prayer for injunctive relief/s is DISMISSED.
No costs.
SO ORDERED.
G.R. No. 75271-73 June 27, 1988
CATALINO N. SARMIENTO and 71 other striking workers of
ASIAN TRANSMISSION CORPORATION,petitioners,
vs.
THE HON. JUDGE ORLANDO R. TUICO of the Municipal Trial
Court of Calamba, Laguna, ROBERTO PIMENTEL, NELSON C.
TEJADA, and the COMMANDING OFFICER, 224th PC
Company at Los Baños Laguna, respondents.
No. L-77567 June 27, 1988
ASIAN TRANSMISSION, CORPORATION (ATC), petitioner,
vs.
THE NATIONAL LABOR RELATIONS COMMISSION
(NLRC), respondent.
Jose C. Espinas for petitioners in G.R. Nos. 75271-73.
Augusto Gatmaytan for petitioner ATC.
Emilio C. Capulong, Jr. for private respondents in G.R. Nos.
75271-73.
CRUZ, J.:
Two basic questions are presented in these cases, to wit:
1. Whether or not a return-to-work order may be validly issued by
the National Labor Relations Commission pending determination
of the legality of the strike; and
2. Whether or not, pending such determination, the criminal
prosecution of certain persons involved in the said strike may be
validly restrained.
The first issue was submitted to the Court in G.R. No. 77567, to
which we gave due course on July 1, 1987. 1 The case arose when
on May 7, 1986, petitioner Asian Transmission Corporation
terminated the services of Catalino Sarmiento, vice-president of
the Bisig ng Asian Transmission Labor Union (BATU), for allegedly
carrying a deadly weapon in the company premises. 2 As a result,
the BATU filed a notice of strike on May 26, 1986, claiming that the
ATC had committed an unfair labor practice. 3 The conciliatory
conference held on June 5, 1986, failed to settle the dispute. The
ATC then filed a petition asking the Ministry of Labor and
Employment to assume jurisdiction over the matter or certify the
same to the NLRC for compulsory arbitration. 4 Noting that the
impending strike would prejudice the national interest as well as
the welfare of some 350 workers and their families, the MOLE
issued an order on June 3, 1986, certifying the labor dispute to the
NLRC. 5 At the same time, it enjoined the management from
locking out its employees and the union from declaring a strike or
similar concerted action. This order was reiterated on June 13,
1986, upon the representation of the ATC that some 40 workers
had declared a strike and were picketing the company
premises. 6 Proceedings could not continue in the NLRC, however,
because of the acceptance by President Aquino of the resignations
of eight of its members, leaving only the vice-chairman in
office. 7 For this reason, the MOLE, on September 9, 1986, set
aside the orders of June 9 and 13, 1986, and directly assumed
jurisdiction of the dispute, at the same time enjoining the company
to accept all returning workers. 8 This order was itself set aside on
November 24,1986, upon motion of both the BATU and the ATC in
view of the appointment of new commissioners in the NLRC. The
MOLE then returned the case to the respondent NLRC and
directed it to expeditiously resolve all issues relating to the dispute,
"adding that the union and the striking workers are ordered to
return to work immediately." 9 Conformably, the NLRC issued on
January 13, 1987 the following resolution, which it affirmed in its
resolution of February 12, 1987, denying the motion for
reconsideration:
CERTIFIED CASE No. NCR-NS-5-214-86,
entitled Asian Transmission Corporation,
Petitioner versus Bisig ng Asian Transmission
Labor Union (BATU), et al., Respondents.-
Considering that the petitioner, despite the
order dated 24 November 1986 of the Acting
Minister, "to accept all the returning workers"
continues to defy the directive insofar as 44 of
the workers are concerned, the Commission,
sitting en banc, resolved to order the petitioner
to accept the said workers, or, to reinstate them
on payroll immediately upon receipt of the
resolution.
It is these orders of January 13 and February 12, 1987, that are
challenged by the ATC in this petition for certiorari and are the
subject of the temporary restraining order issued by this Court on
March 23, 1987. 10
The second issue was raised in G.R. Nos. 75271-73, which we
have consolidated with the first- mentioned petition because of the
Identity of their factual antecedents. This issue was provoked by
three criminal complaints filed against the petitioning workers in
the municipal trial court of Calamba, Laguna, two by the personnel
administrative officer of the ATC and the third by the Philippine
Constabulary. The first two complaints, filed on July 11 and July
15, 1986, were for "Violation of Article 265, par. 1, in relation to
Article 273 of the Labor Code of the Philippines." 11 The third, filed
on July 17, 1986, was for coercion. 12 In all three complaints, the
defendants were charged with staging an illegal strike, barricading
the gates of the ATC plant and preventing the workers through
intimidation, harassment and force from reporting for work. Acting
on Criminal Case No. 15984, Judge Orlando Tuico issued a
warrant of arrest against the petitioners and committed 72 of them
to jail although he later ordered the release of 61 of them to the
custody of the municipal mayor of Calamba, Laguna. 13 The
petitioners had earlier moved for the lifting of the warrant of arrest
and the referral of the coercion charge to the NLRC and, later, for
the dismissal of Criminal Cases Nos. 15973 and 15981 on the
ground that they came under the primary jurisdiction of the
NLRC. 14 As the judge had not ruled on these motions, the
petitioners came to this Court in this petition for certiorari and
prohibition. On August 12, 1986, we issued a temporary restraining
order to prevent Judge Tuico from enforcing the warrant of arrest
and further proceeding with the case.15 This order was reiterated
on September 21, 1987, "to relieve tensions that might prevent an
amicable settlement of the dispute between the parties in the
compulsory arbitration proceedings now going on in the
Department of Labor," and made to apply to Judge Paterno Lustre,
who had succeeded Judge Tuico. 16
That is the background. Now to the merits.
It is contended by the ATC that the NLRC had no jurisdiction in
issuing the return-to-work order and that in any case the same
should be annulled for being oppressive and violative of due
process.
The question of competence is easily resolved. The authority for
the order is found in Article 264(g) of the Labor Code, as amended
by B.P. Blg. 227, which provides as follows:
When in his opinion there exists a labor dispute
causing or likely to cause strikes or lockouts
adversely affecting the national interest, such
as may occur in but not limited to public utilities,
companies engaged in the generation or
distribution of energy, banks, hospitals, and
export- oriented industries, including those
within export processing zones, the Minister of
 Labor and Employment shall assume
jurisdiction over the dispute and decide it or
certify the same to the Commission for
compulsory arbitration. Such assumption or
certification shall have the effect of
automatically enjoining the intended or
impending strike or lockout as specified in the
assumption order. If one has already taken
place at the time of assumption or certification,
all striking or locked out employees shall
immediately return to work and the employer
shall immediately resume operations and
readmit all workers under the same terms and
conditions prevailing before the strike or
lockout. The Minister may seek the assistance
of law-enforcement agencies to ensure
compliance with this provision as well as such
orders as he may issue to enforce the same.
The justification of the MOLE for such order was embodied therein,
thus:
Asian Transmission Corporation is an export-
oriented enterprise and its annual export
amounts to 90% of its sales generating more
than twelve (12) million dollars per year. The
corporation employs three hundred fifty (350)
workers with a total monthly take home pay or
approximately P1,300,000.00 a month.
Any disruption of company operations will
cause the delay of shipments of export finished
products which have been previously
committed to customers abroad, thereby
seriously hampering the economic recovery
program which is being pursued by the
government. It wig also affect gravely the
livelihood of three hundred fifty (350) families
who will be deprived of their incomes.
This Office is therefore of the opinion that a
strike or any disruption in the normal operation
of the company will adversely affect the
national interest. It is in the interest of both
labor and management that the dispute be
certified for compulsory arbitration to National
Labor Relations Commission.
WHEREFORE, this Office hereby certifies the
labor dispute to the National Labor Relations
Commission in accordance with Article 264(g)
of the Labor Code, as amended. In line with
this Certification, the management is enjoined
from locking out its employees and the union
from declaring a strike, or any concerted action
which will disrupt the harmonious labor-
management relations at the company. 17
There can be no question that the MOLE acted correctly in
certifying the labor dispute to the NLRC, given the predictable
prejudice the strike might cause not only to the parties but more
especially to the national interest. Affirming this fact, we conclude
that the return-to-work order was equally valid as a statutory part
and parcel of the certification order issued by the MOLE on
November 24, 1986. The law itself provides that "such assumption
or certification shall have the effect of automatically enjoining the
intended or impending strike. If one has already taken place at the
time of assumption or certification, all striking or locked out
employees shall immediately return to work and the employer shall
immediately resume operations and readmit all workers under the
same terms and conditions prevailing before the strike or lockout."
The challenged order of the NLRC was actually only an
implementation of the above provision of the Labor Code and a
reiteration of the directive earlier issued by the MOLE in its own
assumption order of September 9, 1986.
It must be stressed that while one purpose of the return-to-work
order is to protect the workers who might otherwise be locked out
by the employer for threatening or waging the strike, the more
important reason is to prevent impairment of the national interest in
case the operations of the company are disrupted by a refusal of
the strikers to return to work as directed. In the instant case,
stoppage of work in the firm will be hurtful not only to both the
employer and the employees. More particularly, it is the national
economy that will suffer because of the resultant reduction in our
export earnings and our dollar reserves, not to mention possible
cancellation of the contracts of the company with foreign importers.
It was particularly for the purpose of avoiding such a development
that the labor dispute was certified to the NLRC, with the return-to-
work order following as a matter of course under the law.
It is also important to emphasize that the return-to-work order not
so much confers a right as it imposes a duty; and while as a right it
may be waived, it must be discharged as a duty even against the
worker's will. Returning to work in this situation is not a matter of
option or voluntariness but of obligation. The worker must return to
his job together with his co-workers so the operations of the
company can be resumed and it can continue serving the public
and promoting its interest. That is the real reason such return can
be compelled. So imperative is the order in fact that it is not even
considered violative of the right against involuntary servitude, as
this Court held in Kaisahan ng Mga Manggagawa sa Kahoy v.
Gotamco Sawmills. 18 The worker can of course give up his work,
thus severing his ties with the company, if he does not want to
obey the order; but the order must be obeyed if he wants to retain
his work even if his inclination is to strike.
If the worker refuses to obey the return-to-work order, can it be
said that he is just suspending the enjoyment of a right and he is
entitled to assert it later as and when he sees fit? In the meantime
is the management required to keep his position open, unable to
employ replacement to perform the work the reluctant striker is
unwilling to resume because he is still manning the picket lines?
While the ATC has manifested its willingness to accept most of the
workers, and has in fact already done so, it has balked at the
demand of the remaining workers to be also allowed to return to
work. 19 Its reason is that these persons, instead of complying with
the return-to-work order, as most of the workers have done,
insisted on staging the restrained strike and defiantly picketed the
company premises to prevent the resumption of operations. By so
doing, the ATC submits, these strikers have forfeited their right to
be readmitted, having abandoned their positions, and so could be
validly replaced.
The Court agrees.
The records show that the return-to-work order was first issued on
June 3, 1986, and was reiterated on June 13, 1986. The strike was
declared thereafter, if we go by the criminal complaints in G.R.
Nos. 75271-73, where the alleged acts are claimed to have been
done on June 9,1986, and July 15,1986.
These dates are not denied. In fact, the petitioners argue in their
pleadings that they were engaged only in peaceful
picketing, 20 which would signify that they had not on those dates
returned to work as required and had decided instead to ignore the
said order. By their own acts, they are deemed to have abandoned
their employment and cannot now demand the right to return
thereto by virtue of the very order they have defied.
One other point that must be underscored is that the return-to-work
order is issued pending the determination of the legality or illegality
of the strike. It is not correct to say that it may be enforced only if
the strike is legal and may be disregarded if the strike is illegal, for
the purpose precisely is to maintain the status quo while the
determination is being made. Otherwise, the workers who contend
that their strike is legal can refuse to return to their work and cause
a standstill in the company operations while retaining the positions
they refuse to discharge or allow the management to fill. Worse,
they win also claim payment for work not done, on the ground that
they are still legally employed although actually engaged in
activities inimical to their employer's interest.
This is like eating one's cake and having it too, and at the expense
of the management. Such an unfair situation surely was not
contemplated by our labor laws and cannot be justified under the
social justice policy, which is a policy of fairness to both labor and
management. Neither can this unseemly arrangement be
sustained under the due process clause as the order, if thus
interpreted, would be plainly oppressive and arbitrary.
Accordingly, the Court holds that the return-to-work order should
benefit only those workers who complied therewith and, regardless
of the outcome of the compulsory arbitration proceedings, are
entitled to be paid for work they have actually performed.
Conversely, those workers who refused to obey the said order and
instead waged the restrained strike are not entitled to be paid for
work not done or to reinstatement to the positions they have
abandoned by their refusal to return thereto as ordered.
Turning now to the second issue, we hold that while as a general
rule the prosecution of criminal offenses is not subject to
injunction, the exception must apply in the case at bar. The
suspension of proceedings in the criminal complaints filed before
the municipal court of Calamba, Laguna, is justified on the ground
of prematurity as there is no question that the acts complained of
are connected with the compulsory arbitration proceedings still
pending in the NLRC. The first two complaints, as expressly
captioned, are for "violation of Art. 265, par. 2, in relation to Art.
273, of the Labor Code of the Philippines," and the third complaint
relates to the alleged acts of coercion committed by the
defendants in blocking access to the premises of the ATC. Two of
the criminal complaints were filed by the personnel administrative
officer of the ATC although he vigorously if not convincingly insists
that he was acting in his personal capacity.
In view of this, the three criminal cases should be suspended until
the completion of the compulsory arbitration proceedings in the
NLRC, conformably to the policy embodied in Circular No. 15,
series of 1982, and Circular No. 9, series of 1986, issued by the
Ministry of Justice in connection with the implementation of B.P.
Blg. 227. 21These circulars, briefly stated, require fiscals and other
government prosecutors to first secure the clearance of the
Ministry of Labor and/or the Office of the President "before taking
cognizance of complaints for preliminary investigation and the filing
in court of the corresponding informations of cases arising out of or
related to a labor dispute," including "allegations of violence,
coercion, physical injuries, assault upon a person in authority and
other similar acts of intimidation obstructing the free ingress to and
egress from a factory or place of operation of the machines of such
factory, or the employer's premises." It does not appear from the
record that such clearance was obtained, conformably to the
procedure laid down "to attain the industrial peace which is the
primordial objectives of this law," before the three criminal cases
were filed.
The Court makes no findings on the merits of the labor dispute and
the criminal cases against the workers as these are not in issue in
the petitions before it. What it can only express at this point is the
prayerful hope that these disagreements will be eventually
resolved with justice to all parties and in that spirit of mutual
accommodation that should always characterize the relations
between the workers and their employer. Labor and management
are indispensable partners in the common endeavor for individual
dignity and national prosperity. There is no reason why they
cannot pursue these goals with open hands rather than clenched
fists, striving with rather than against each other, that they may
together speed the dawning of a richer day for all in this amiable
land of ours.
WHEREFORE, judgment is hereby rendered as follows:
1. In G.R. No. 77567, the petition is DENIED and the challenged
Orders of the NLRC dated January 13, 1986, and February 12,
1986, are AFFIRMED as above interpreted. The temporary
restraining order dated March 23, 1987, is LIFTED.
2. In G.R. Nos. 75271-73, the temporary restraining order of
August 12,1986, and September 21, 1986, are CONTINUED IN
FORCE until completion of the compulsory arbitration proceedings
in the NLRC.
No costs. It is so ordered.
G.R. No. L-5790 April 17, 1953
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PABLO DE LA CRUZ, defendant-appellant.
Claro M. Recto for appellant.
Assistant Solicitor General Guillermo E. Torres and Solicitor
Felixberto Milambiling for appellee.
BENGZON, J.:
Having retailed a can of milk at ten centavos more than the ceiling
price, Pablo de la Cruz was sentenced, after trial, in the court of
first instance of Manila, to imprisonment for five years, and to pay
a fine of five thousand pesos plus costs. He was also barred from
engaging in wholesale and retail business for five years.
In this appeal he argues that the trial judge erred: (a) in not holding
that the charge was fabricated; (b) in imposing a punishment
wholly disproportionate to the offense and therefore
unconstitutional and (c) in not invalidating Republic Act No. 509 in
so far as it prescribed excessive penalties.
The evidence shows that in the morning of October 14, 1950,
Eduardo Bernardo, Jr. went to the defendant's store in Sampaloc,
Manila, and purchased from him a six-ounce tin of "Carnation" milk
for thirty centavos. As the purchase had been made for Ruperto
Austria, who was not in good terms with Pablo de la Cruz the
matter reached the City Fiscal's office and resulted in this criminal
prosecution, because Executive Order No. 331 (issued by
authority of Republic Act No. 509) fixed 20 centavos as the
maximum price for that kind of commodity.
The record is now before us, and from a reading thereof, we find it
difficult to accept appellants contention that the charge had no
foundation in fact. The People's case has been established
beyond reasonable doubt.
And his argument based on the principles of entrapment, may not
be upheld, because he was selling to the public, i.e., to anybody
who would come to his store to buy his commodities, and no
special circumstances are shown to support the claim that he was
led or induced to commit the offense.
However, appellant's extensive discussion of his two propositions
about the penalty, deserves serious consideration.
Republic Act No. 509 provides in part as follows:
SEC. 12. Imprisonment for a period of not less two
months nor more than twelve years or a fine of not less
than two thousand pesos nor more than ten thousand
pesos, or both, shall be imposed upon any person who
sells any article, goods, or commodity in excess of the
maximum selling price fixed by the president; . . . .
In addition to the penalties prescribed above, the
persons, corporations, partnerships, or associations
found guilty of any violation of this Act or of any rule or
regulations issued by the president pursuant to this Act
shall be barred from the wholesome and retail business
for a period of five years for a first offense, and shall be
permanently barred for the second or succeeding
offenses.
The constitution directs that "Excessive fines shall not be imposed,
nor cruel and unusual punishment inflicted." 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 apply to punishment which never existed
in America of which public sentiment has regarded as cruel or
obsolete (15 Am. Jur., p. 172), for instance those inflicted at the
whipping post, or in the pillory, burning at the stake, breaking on
the wheel, disemboweling, and the like (15 Am. Jur., supra, Note
35 L.R.A. p. 561). Fine and imprisonment would not thus be within
the prohibition.
However, there are respectable authorities holding that the
inhibition applies as well to punishments that although not cruel
and unusual in nature, may be so severe as to fall within the
fundamental restriction. (15 Am. Jur., p. 178.) These authorities
explain, nevertheless, that to justify a court's declaration of conflict
with the Constitution, the prison term must be so disproportionate
to the offense committed as to shock the moral sense of all
reasonable men as to what is right and proper under the
circumstances (lb.). And seldom has a sentence been declared to
be cruel and unusual solely on account of its duration (15 Am. Jur.,
p. 179).
Because it expressly enjoins the imposition of "excessive fines" the
Constitution might have contemplated the latter school of thought
assessing punishments not only by their character but also by their
duration or extent. And yet, having applied "excessive" to fines,
and "cruel and unusual" to punishment did it not intend to
distinguish "excessive" from "cruel" or "unusual"? And then, it has
been heretofore the practice that when a court finds the penalty to
be "clearly excessive" it enforces the law but makes a
recommendation to the Chief Executive for clemency (Art. 5
Revised Penal Code). Did the Constitutional Convention intend to
stop that practice? Or is that article unconstitutional?
So far as the writer of this opinion has been able to ascertain,
these questions have not been definitely passed upon by this
court,1 although in U.S. vs. Borromeo, 23 Phil., 279 it was said that
the prohibition of the Philippine Bill on punishments refer not only
to the mode but to the extent thereto.
For the purposes of this decision, we may assume, without actually
holding, that too long a prison term might clash with the Philippine
Constitution.
But that brings up again two opposing theories. On one side we
are told the prohibition applies to legislation only, and not to the
courts' decision imposing penalties within the limits of the statute
(15 Am. Jur., "Criminal Law" sec. 526). On the other, authorities
are not lacking to the effect that the fundamental prohibition
likewise restricts the judge's power and authority (State vs. Ross
55 Or. 450, 104 Pac. 596; State vs. Whitaker, 48 La. Am. 527, 19
So. 457). (See also U.S. vs. Borromeo, 23 Phil., 279.)
In other words, and referring to the penalty provided in Republic
Act No. 509, under the first theory the section would violate the
Constitution, if the penalty is excessive under any and all
circumstances, the minimum being entirely out of proportion to the
kind of offenses prescribed. If it is not, the imposition by the judge
of a stiff penalty — but within the limits of the section — will not be
deemed unconstitutional.2 The second theory would contrast the
penalty imposed by the court with the gravity of the particular crime
or misdemeanor, and if notable disparity results, it would apply the
constitutional brake, even if the statute would, under other
circumstances, be not extreme or oppressive.
Now therefore, if we adopt the first doctrine the present issue
would be: Is imprisonment for two months or fine of two thousand
pesos too excessive for a merchant who sells goods at prices
beyond the ceilings established in the Executive Order? Obviously
a negative answer must be returned, because in overstepping the
price barriers he might derive, in some instances, profits
amounting to thousands of pesos. Therefore under that doctrine,
the penalty imposed in this case would not be susceptible of valid
attack, it being within the statutory limits.
Under the second theory the inquiry should be: Is five years and
five thousand pesos, cruel and unusual for a violation that merely
netted a ten-centavo profit to the accused? Many of us do not
regard such punishment unusual and cruel, remembering the
national policy against profiteering in the matter of foodstuffs
affecting the people's health, the need of stopping speculation in
such essentials and of safeguarding public welfare in times of food
scarcity or similar stress. In our opinion the damage caused to the
State is not measured exclusively by the gains obtained by the
accused, inasmuch as one violation would mean others, and the
consequential breakdown of the beneficial system of price
controls.
Some of us however are deeply moved by the plight of this modest
store-owner with a family to support, who will serve in Muntinglupa
a stretch of five years, for having attempted to earn a few extra
centavos.
Fortunately there is an area of compromise, skirting the
constitutional issue, yet executing substantial justice: We may
decrease the penalty, exercising that discretion vested in the
courts by the same statutory enactment.
Wherefore, reducing the imprisonment to six months and the fine
to two thousand pesos, we hereby affirm the appealed decision in
all other respects.
G.R. No. L-45127 May 5, 1989
PEOPLE OF THE PHILIPPINES, represented by the Provincial
Fiscal of Leyte, petitioner,
vs.
HON. JUDGE AUXENCIO C. DACUYCUY, CELESTINO S.
MATONDO, SEGUNDINO A, CAVAL and CIRILO M.
ZANORIA, respondents.
The Office of the Solicitor General for petitioner.
Adelino B. Sitoy for private respondents.
REGALADO, J.:
Involved in this special civil action is the unique situation, to use an
euphemistic phrase, of an alternative penal sanction of
imprisonment imposed by law but without a specification as to the
term or duration thereof.
As a consequence of such legislative faux pas or oversight, the
petition at bar seeks to set aside the decision of the then Court of
First Instance of Leyte, Branch IV, dated September
8,1976, 1 penned by herein respondent judge and granting the
petition for certiorari and prohibition with preliminary injunction filed
by herein private respondents and docketed therein as Civil Case
No. 5428, as well as his resolution of October 19, 1976 2 denying
the motions for reconsideration filed by the parties therein. Subject
of said decision were the issues on jurisdiction over violations of
Republic Act No. 4670, otherwise known as the Magna Carta for
Public School Teachers, and the constitutionality of Section 32
thereof.
In a complaint filed by the Chief of Police of Hindang, Leyte on
April 4, 1975, herein private respondents Celestino S. Matondo,
Segundino A. Caval and Cirilo M. Zanoria, public school officials of
Leyte, were charged before the Municipal Court of Hindang, Leyte
in Criminal Case No. 555 thereof for violation of Republic Act No.
4670. The case was set for arraignment and trial on May 29, 1975.
At the arraignment, the herein private respondents, as the accused
therein, pleaded not guilty to the charge. Immediately thereafter,
they orally moved to quash the complaint for lack of jurisdiction
over the offense allegedly due to the correctional nature of the
penalty of imprisonment prescribed for the offense. The motion to
quash was subsequently reduced to writing on June 13,
1975. 3 On August 21, 1975, the municipal court denied the motion
to quash for lack of merit. 4 On September 2, 1975, private
respondents filed a motion for the reconsideration of the aforesaid
denial order on the same ground of lack of jurisdiction, but with the
further allegation that the facts charged do not constitute an
offense considering that Section 32 of Republic Act No. 4670 is
null and void for being unconstitutional. In an undated order
received by the counsel for private respondents on October
20,1975, the motion for reconsideration was denied. 5
On October 26, 1975, private respondents filed a petitions 6 for
certiorari and prohibition with preliminary injunction before the
former Court of First Instance of Leyte, Branch VIII, where it was
docketed as Civil Case No. B-622, to restrain the Municipal Judge,
Provincial Fiscal and Chief of Police of Hindang, Leyte from
proceeding with the trial of said Criminal Case No. 555 upon the
ground that the former Municipal Court of Hindang had no
jurisdiction over the offense charged. Subsequently, an amended
petition 7 alleged the additional ground that the facts charged do
not constitute an offense since the penal provision, which is
Section 32 of said law, is unconstitutional for the following reasons:
(1) It imposes a cruel and unusual punishment, the term of
imprisonment being unfixed and may run to reclusion perpetua;
and (2) It also constitutes an undue delegation of legislative power,
the duration of the penalty of imprisonment being solely left to the
discretion of the court as if the latter were the legislative
department of the Government.
On March 30, 1976, having been advised that the petition of herein
private respondents was related to Criminal Case No. 1978 for
violation of Presidential Decree No. 442 previously transferred
from Branch VIII to Branch IV of the erstwhile Court of First
Instance of Leyte, Judge Fortunate B. Cuna of the former branch
transferred the said petition to the latter branch for further
proceedings and where it was subsequently docketed therein as
Civil Case No. 5428. 8 On March 15, 1976, the petitioner herein
filed an opposition to the admission of the said amended
petitions 9but respondent judge denied the same in his resolution
of April 20, 1976. 10 On August 2, 1976, herein petitioner filed a
supplementary memorandum in answer to the amended petition. 11
On September 8, 1976, respondent judge rendered the aforecited
challenged decision holding in substance that Republic Act No.
4670 is valid and constitutional but cases for its violation fall
outside of the jurisdiction of municipal and city courts, and
remanding the case to the former Municipal Court of Hindang,
Leyte only for preliminary investigation.
As earlier stated, on September 25, 1976, petitioner filed a motion the first of the cases it decided after the last
for reconsideration. 12 Likewise, private respondents filed a motion world war is appropriate here:
for reconsideration of the lower court's decision but the same was
limited only to the portion thereof which sustains the validity of
The Constitution directs that
Section 32 of Republic Act No. 4670. 13 Respondent judge denied 'Excessive fines shall not be
both motions for reconsideration in a resolution dated October 19, imposed, nor cruel and
1976. 14 unusual punishment
inflicted.' The prohibition of
The instant petition to review the decision of respondent judge cruel and unusual
poses the following questions of law: (1) Whether the municipal punishments is generally
and city courts have jurisdiction over violations of Republic Act No. aimed at the form or
4670; and (2) Whether Section 32 of said Republic Act No. 4670 is character of the punishment
constitutional. rather than its severity in
respect of duration or
We shall resolve said queries in inverse order, since prior amount, and apply to
determination of the constitutionality of the assailed provision of punishments which never
existed in America, or which
the law involved is necessary for the adjudication of the
jurisdictional issue raised in this petition. public sentiment has
regarded as cruel or
obsolete (15 Am. Jur., p.
1. The disputed section of Republic Act No. 172), for instance there (sic)
4670 provides: inflicted at the whipping
post, or in the pillory,
Sec. 32. Penal Provision. — A person who burning at the stake,
shall wilfully interfere with, restrain or coerce breaking on the wheel,
any teacher in the exercise of his rights disemboweling, and the like
guaranteed by this Act or who shall in any other (15 Am. Jur. Supra, Note 35
manner commit any act to defeat any of the L.R.A. p. 561). Fine and
provisions of this Act shall, upon conviction, be imprisonment would not
punished by a fine of not less than one hundred thus be within the
pesos nor more than one thousand pesos, or prohibition.' (People vs. de
by imprisonment, in the discretion of the court. la Cruz, 92 Phil. 906). 16
(Emphasis supplied).
The question that should be asked, further, is whether the
Two alternative and distinct penalties are consequently imposed, constitutional prohibition looks only to the form or nature of the
to wit: (a) a fine ranging from P100.00 to P1,000.00; or (b) penalty and not to the proportion between the penalty and the
imprisonment. It is apparent that the law has no prescribed period crime.
or term for the imposable penalty of imprisonment. While a
minimum and maximum amount for the penalty of fine is specified, The answer thereto may be gathered from the pronouncement
there is no equivalent provision for the penalty of imprisonment, in People vs. Estoista, 17 where an "excessive" penalty was upheld
although both appear to be qualified by the phrase "in the as constitutional and was imposed but with a recommendation for
discretion of the court. executive clemency, thus:

Private respondents contend that a judicial determination of what
Congress intended to be the duration of the penalty of
imprisonment would be violative of the constitutional prohibition
against undue delegation of legislative power, and that the
absence of a provision on the specific term of imprisonment
constitutes that penalty into a cruel and unusual form of
punishment. Hence, it is vigorously asserted, said Section 32 is
unconstitutional.
The basic principle underlying the entire field of legal concepts
pertaining to the validity of legislation is that in the enactment of
legislation a constitutional measure is thereby created. In every
case where a question is raised as to the constitutionality of an act,
the court employs this doctrine in scrutinizing the terms of the law.
In a great volume of cases, the courts have enunciated the
fundamental rule that there is a presumption in favor of the
constitutionality of a legislative enactment. 15
It is contended that Republic Act No. 4670 is unconstitutional on
the ground that the imposable but indefinite penalty of
imprisonment provided therein constitutes a cruel and unusual
punishment, in defiance of the express mandate of the
Constitution. This contention is inaccurate and should be rejected.
We note with approval the holding of respondent judge that —
The rule is established beyond question that a
punishment authorized by statute is not cruel or
unusual or disproportionate to the nature of the
offense unless it is a barbarous one unknown
to the law or so wholly disproportionate to the
nature of the offense as to shock the moral
sense of the community. Based on the
principle, our Supreme Court has consistently
overruled contentions of the defense that the
punishment of fine or imprisonment authorized
by the statute involved is cruel and unusual.
(Legarda vs. Valdez, 1 Phil. 146; U.S. vs. Pico,
18 Phil. 386; People vs. Garay, 2 ACR 149;
People vs. Estoista 93 Phil. 647; People vs. Tiu
Ua. 96 Phil. 738; People vs. Dionisio, 22 SCRA
1299). The language of our Supreme Court in
... If imprisonment from 5 to 10 years is out of
proportion to the present case in view of certain
circumstances, the law is not to be declared
unconstitutional for this reason. The
constitutionality of an act of the legislature is
not to be judged in the light of exceptional
cases. Small transgressors for which the heavy
net was not spread are, like small fishes, bound
to be caught, and it is to meet such a situation
as this that courts are advised to make a
recommendation to the Chief Executive for
clemency or reduction of the penalty...
That the penalty is grossly disproportionate to the crime is an
insufficient basis to declare the law unconstitutional on the ground
that it is cruel and unusual. The fact that the punishment
authorized by the statute is severe does not make it cruel or
unusual. 18 In addition, what degree of disproportion the Court will
consider as obnoxious to the Constitution has still to await
appropriate determination in due time since, to the credit of our
legislative bodies, no decision has as yet struck down a penalty for
being "cruel and unusual" or "excessive."
We turn now to the argument of private respondents that the entire
penal provision in question should be invalidated as an 49 "undue
delegation of legislative power, the duration of penalty of
imprisonment being solely left to the discretion of the court as if the
lattter were the legislative department of the government."
Petitioner counters that the discretion granted therein by the
legislature to the courts to determine the period of imprisonment is
a matter of statutory construction and not an undue delegation of
legislative power. It is contended that the prohibition against undue
delegation of legislative power is concerned only with the
delegation of power to make laws and not to interpret the same. It
is also submitted that Republic Act No. 4670 vests in the courts the
discretion, not to fix the period of imprisonment, but to choose
which of the alternative penalties shall be imposed.
Respondent judge sustained these theses of petitioner on his
theory that "the principle of separation of powers is not violated by
vesting in courts discretion as to the length of sentence or amount
of fine between designated limits in sentencing persons convicted
of crime. In such instance, the exercise of judicial discretion by the
courts is not an attempt to use legislative power or to prescribe
and create a law but is an instance of the administration of justice
and the application of existing laws to the facts of particular
cases." 19 What respondent judge obviously overlooked is his own
reference to penalties "between designated limits."
In his commentary on the Constitution of the United States, Corwin
wrote:
.. At least three distinct ideas have contributed
to the development of the principle that
legislative power cannot be delegated. One is
the doctrine of separation of powers: Why go to
the trouble of separating the three powers of
government if they can straightway remerge on
their own motion? The second is the concept of
due process of laws which precludes the
transfer of regulatory functions to private
persons. Lastly, there is the maxim of agency
"Delegata potestas non potest delegari." 20
An apparent exception to the general rule forbidding the delegation
of legislative authority to the courts exists in cases where
discretion is conferred upon said courts. It is clear, however, that
when the courts are said to exercise a discretion, it must be a
mere legal discretion which is exercised in discerning the course
prescribed by law and which, when discerned, it is the duty of the
court to follow. 21
So it was held by the Supreme Court of the United States that the
principle of separation of powers is not violated by vesting in courts
discretion as to the length of sentence or the amount of fine
between designated limits in sentencing persons convicted of a
crime. 22
In the case under consideration, the respondent judge
erronneously assumed that since the penalty of imprisonment has
been provided for by the legislature, the court is endowed with the
discretion to ascertain the term or period of imprisonment. We
cannot agree with this postulate. It is not for the courts to fix the
term of imprisonment where no points of reference have been
provided by the legislature. What valid delegation presupposes
and sanctions is an exercise of discretion to fix the length of
service of a term of imprisonment which must be encompassed
within specific or designated limits provided by law, the absence of
which designated limits well constitute such exercise as an undue
delegation, if not-an outright intrusion into or assumption, of
legislative power.
Section 32 of Republic Act No. 4670 provides for an
indeterminable period of imprisonment, with neither a minimum nor
a maximum duration having been set by the legislative authority.
The courts are thus given a wide latitude of discretion to fix the
term of imprisonment, without even the benefit of any sufficient
standard, such that the duration thereof may range, in the words of
respondent judge, from one minute to the life span of the accused.
Irremissibly, this cannot be allowed. It vests in the courts a power
and a duty essentially legislative in nature and which, as applied to
this case, does violence to the rules on separation of powers as
well as the non-delegability of legislative powers. This time, the
preumption of constitutionality has to yield.
On the foregoing considerations, and by virtue of the separability
clause in Section 34 of Republic Act No. 4670, the penalty of
imprisonment provided in Section 32 thereof should be, as it is
hereby, declared unconstitutional.
It follows, therefore, that a ruling on the proper interpretation of the
actual term of imprisonment, as may have been intended by
Congress, would be pointless and academic. It is, however, worth
mentioning that the suggested application of the so-called rule or
principle of parallelism, whereby a fine of P1,000.00 would be
equated with one year of imprisonment, does not merit judicial
acceptance. A fine, whether imposed as a single or as an
alternative penalty, should not and cannot be reduced or converted
into a prison term; it is to be considered as a separate and
independent penalty consonant with Article 26 of the Revised
Penal Code. 23 It is likewise declared a discrete principal penalty in
the graduated scales of penalties in Article 71 of said Code. There
is no rule for transmutation of the amount of a fine into a term of
imprisonment. Neither does the Code contain any provision that a
fine when imposed in conjunction with imprisonment is subordinate
to the latter penalty. In sum, a fine is as much a principal penalty
as imprisonment. Neither is subordinate to the other. 24
2. It has been the consistent rule that the criminal jurisdiction of the
court is determined by the statute in force at the time of the
commencement of the action. 25
With the deletion by invalidation of the provision on imprisonment
in Section 32 of Republic Act No. 4670, as earlier discussed, the
imposable penalty for violations of said law should be limited to a
fine of not less than P100.00 and not more than P1,000.00, the
same to serve as the basis in determining which court may
properly exercise jurisdiction thereover. When the complaint
against private respondents was filed in 1975, the pertinent law
then in force was Republic Act No. 296, as amended by Republic
Act No. 3828, under which crimes punishable by a fine of not more
than P 3,000.00 fall under the original jurisdiction of the former
municipal courts. Consequently, Criminal Case No. 555 against
herein private respondents falls within the original jurisdiction of
the Municipal Trial Court of Hindang, Leyte.
WHEREFORE, the decision and resolution of respondent judge
are hereby REVERSED and SET ASIDE. Criminal Case No. 555
filed against private respondents herein is hereby ordered to be
remanded to the Municipal Trial Court of Hindang, Leyte for trial on
the merits.
SO ORDERED.
G.R. No. 105907 May 24, 1993
FELICIANO V. AGBANLOG, petitioner,
vs.
PEOPLE OF THE PHILIPPINES AND
SANDIGANBAYAN, respondents.
Michael P. Moralde for petitioner.
QUIASON, J.:
This is a petition for review on certiorari under Rule 45 of the
Revised Rules of Court and Section 7 of P.D. No. 1606 as
amended, of the decision of the Sandiganbayan (First Division)
promulgated on June 28, 1992, which found petitioner guilty
beyond reasonable doubt of Malversation of Public Funds,
penalized under paragraph 4, Article 217, of the Revised Penal
Code, and sentencing him to suffer, in the absence of mitigating
and aggravating circumstances "the indeterminate penalty of, from
ELEVEN (11) years and one (1) DAY of Prision Mayor, as
minimum to SIXTEEN (16) YEARS, FIVE (5) MONTHS and
ELEVEN (11) DAYS of Reclusion Temporal, as maximum, with the
accessory penalties of the law; to pay a fine in the amount of
P21,940.70; to suffer the penalty of perpetual special
disqualification and to pay the costs."
The Sandiganbayan made the following findings of facts :
Feliciano Agbanlog y Vinluan was the Officer-
in-Charge of the Office of the Municipal
Treasurer of Aglipay, Quirino, for the period:
March 24, 1986 to May 31, 1988. When audited
by COA Auditing Examiner Marcelina P. Reyes
of the Provincial Auditor's Office of
Cobarroguis, Quirino, on August 4, 1986 for the
aforesaid period of his incumbency as Acting
Municipal Treasurer, Feliciano Agbanlog was
found short in his cash and accounts in the sum
of P21,940.70.
The shortage was broken down in the following
manner :
a. Disallowed cash item
of Mr. Feliciano V. Agbanlog
May 31, 1986 worded as
cash
advance to defray various
expenses
which was not approved
 by the Municipal Mayor
P12,504.49
b. Disallowed voucher No.
101-86-04-71 dated April
18, 1986
due to under delivery of
printed forms P2,900.00
c. Disallowed voucher No.
101-86-05-144 dated
May 31, 1986 due to
under delivery of printed
forms P3,260.00
d. Unaccounted collection
P3,276.21
————
Total
P21,940.
70
A written demand to explain the shortage and
to pay the amount thereof was neither
answered nor acted upon by the accountable
officer. Consequently, a Report was made by
Examining Auditors Marcelina P. Reyes,
Asuncion G. Tamondong and Margarita B.
Eugenio to the Provincial Auditor of Quirino,
manifesting their findings and recommending
the institution of administrative and/or criminal
charges against Acting Municipal Treasurer
Feliciano Agbanlog.
At the outset, the Auditors found the accused
Agbanlog short in the amount of P32,950.34,
broken down in this manner:
Accountability:
Balance shown by your
cash book on May 31, 1986
certified correct by you
and verified by us P85,186.40
Credits to Accountability:
Cash and valid cash items
produced by you
and counted on us P52,236.06
—————
Shortage P32,950.34
Upon the finding that P11,009.64 of this
amount was chargeable to the account of
former Municipal Treasurer Carlos Pastor,
predecessor of Municipal Treasurer Ruperto
Pallaya, the said amount of P11,009.64 was
deducted from the accountability of Feliciano
Agbanlog. The Acting Municipal Treasurer was
nevertheless made accountable for the
shortage of P21,940.70, the amount for which
he is not charged.
As regards the disbursement voucher billed as
a cash advance for various expenses in the
amount of P12,504.49, Exhibit "E", this voucher
was disallowed by the auditors because there
was no appropriation for this disbursement. It is
indicated in the voucher that the giving out of
this money was in the nature of a cash
advance. The purpose for which the cash
advance was given out was, however, not
clearly indicated. The particulars of payment
merely states "to cash advance to defray
various expenditures". Only the signature of the
accused Feliciano Agbanlog may be found in
the voucher. This indicates that the amount of
P12,504.49 was given out to and received by
the accused, Feliciano V. Agbanlog, from
Roberto E. Pallaya. Vouchers of this nature, in
order to be valid, must bear the signature of the
incumbent Municipal Mayor of Aglipay, Quirino.
The signature of the then Mayor, the Hon.
Deogracias L. Prego, Sr., does not appear in
the voucher. No invoice or receipt was
presented to support the disbursement.
Thus, considering the fact that the accused,
Feliciano V. Agbanlog received the proceeds of
the voucher, this disbursement has, indeed,
become the accountability of the accused,
whose duty it was to liquidate the same. The
accused did not so liquidate. Accused's
allegation that the amount of money involved
was given to him to the Municipal Mayor has
not been backed up by sufficient evidence. If
this amount of money were for the Mayor's
account, the Mayor should have been made to
sign the voucher, or else, there should have
been accomplished some sort of evidence
payment for the Mayor.
Disbursement Voucher No. 101-8604-71, dated
April 18, 1986, Exhibit "F", in the amount of
P3,500.00, was partially disallowed because
printed forms for which the voucher was made
out was not actually delivered but yet paid for.
The accused was able to present proof of
delivery only of accounting forms valued at
P600.00. Consequently, the accused was
credited with the amount of P600.00. The
remaining balance of P2,900.00 was
nevertheless disallowed.
Disbursement Voucher No. 101-8605-144,
dated May 31, 1986, Exhibit "G" in the amount
of P4,110.00 was likewise partially disallowed.
The accused was able to show proof of a
legitimate disbursement in the amount of
P850.00. Consequently, the accused was
credited with this amount and only the sum of
P3,260.00 was disallowed.
As regards the shortage in the amount of
P3,276.21, representing the accused
unaccounted collections, per Collector's Daily
Statement of Collections for the period: April to
May, 1986, Exhibits "H" to "M", We find
evidence showing that this amount, while
turned over to the accused Feliciano Agbanlog
in his capacity as Acting Municipal Treasurer by
Collectors Jane G. Domingo, Marilyn Villarta,
Danilo de Guzman, Guadalupe M. Quimpayag
and Rolando Domingo, has not been
accounted for, the accused claiming that cash
collections of the aforesaid collectors were
never remitted to him. There is ample proof,
therefore, of the fact that the accused received
these cash collections. His signatures on
various documents, Exhibits "H" to "M", "H-1",
"I-1", "J-1", "K-1", "L-1" and "M-1", virtually
indicate that the accused had actually received
the amounts indicated in these exhibits. We
cannot believe that the accused would sign
these documents if he did not receive the
amount of money corresponding thereto. The
accused's allegation, made as an afterthought,
that the collectors who were supposed to
turnover their collections to him did not actually
turnover their collections cannot be believed.
The contention that the collectors had instead
made out vales or cash advances covering the
amount of their collections, is not supported by
proof. The vale slips or cash advance papers
allegedly given to the accused in lieu of cash
could not be produced by the accused.
The accused was supposed to return these
vale slips to the collectors only after they made
good the borrowed amount. This lapse in
evidence does not speak well of the defense
herein put up by the accused. (Rollo, pp. 30-34)
Petitioner admits the shortage of the accountable funds charged
by the prosecution but claims that the prosecution failed to show
that the shortage accrued during his short stint as acting treasurer.
According to him, the audit of his funds should have been made
immediately upon his assumption as Officer-in-charge of the Office
of the Treasurer in the last week of March, 1986, instead of in
August, 1986. He further claims that while there was a turn-over of
the funds on June 2, 1986 when Municipal Treasurer Ruperto
Pallaya reported back for work, there was no turnover of the funds
when he temporarily took charge of the Office of the Treasurer.
(Rollo, pp. 5-6)
Re : Shortage of P12,504.49
Petitioner admits that he was the one who prepared the voucher,
(Exh. "E"), and who received the amount of P12,504.49 mentioned
therein. He does not deny the authenticity of his signatures
appearing thereon. No other person, other than petitioner, was
involved in the preparation of the said voucher and the receipt of
the amount of P12,504.49. He only claims that the money was
given to the Municipal Mayor, who allegedly refused to sign the
voucher.
Petitioner, having worked as a bookkeeper in the Treasurer's
Office of Cobarroguis, Quirino, since 1979 and as Assistant
Municipal Treasurer since 1982, should know that vouchers must
be signed by the claimants. If he acknowledged receipt of the
money knowing that the claimant was the Municipal Mayor, he
became a party to the fraud and assumed responsibility for the
consequences of his acts. The defense did not call the Municipal
Mayor to testify that he was the real claimant and that he received
the money from the petitioner.
Re : Shortage of P2,900.00
Petitioner admits that he was the one who prepared the voucher
dated April 18, 1986 for the payment of various forms in the
amount of P3,500.00 (Exh. "F"). He was the one who
acknowledged receipt of the supplies mentioned in the voucher
and who received the amount of P3,500.00 in payment thereof. He
even certified to the necessity and legality of the expense.
When audited, petitioner was able to show the delivery of forms
valued at only P600.00. The burden was on petitioner to explain
satisfactorily the discrepancy between the voucher and the receipt
of the delivery.
Re : Shortage of P3,260.00
Out of the amount of P4,100.00 disbursed under the voucher
marked as Exhibit "G", petitioner admits having been able to
support payment of only P850.00; hence the amount of P3,260.00
was disallowed.
Re :Shortage of P3,276.21
As to the shortage in the amount of P3,276.21 representing the
unaccounted collections of petitioner for the month of April and
May 1986, petitioner claims that the said amount was never turned
over to him. If this was true, he should not have signed the
documents marked Exhibits "H" to "M", "A-1", "Y-7", "5-1", "K-1",
"L-1" and "M-1", all acknowledging receipt of the cash collections
of the various collectors.
In all the foregoing cases of shortage, petitioner admits having
prepared and collected the amounts stated in the vouchers (Exhs.
"E", "F", "G") and having signed the collectors' daily statement of
collection, which evidence his receipt of the amounts stated therein
(Exhs. "H" to "M"). With such admissions, how can petitioner now
attribute the shortage of his accountable funds to his predecessor?
It is also difficult to comprehend how an earlier audit of petitioner's
accountability or an audit made upon assumption of office of the
Municipal Treasurer could possible explain the shortages
unearthed by the government auditor and assist him in his
defense.
The elements of malversation of public funds or property
punishable under Article 217 of the Revised Penal Code are :
a) That the offender is a public officer;.
b) That he had the custody or control of funds or property by
reason of the duties of his office;.
c) That those funds or property were public funds or property for
which he was accountable;.
d) That he appropriated, took, misappropriated or consented or,
through abandonment or negligence permitted another person to
take them. (II Reyes, The Revised Penal Code, p. 391 [1981 ed.])
The prosecution has established (a) that appellant received in his
possession public funds; (b) that he could not account for them
and did not have them in his possession when audited; and (c) that
he could not give a satisfactory explanation or reasonable excuse
for the disappearance of said funds. (Cabello v. Sandiganbayan,
197 SCRA 94 [1991]) The prosecution is not required to present
direct evidence of the misappropriation, which may be impossible
to do. (Villanueva v. Sandiganbayan, 200 SCRA 722 [1991]).
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, is a prima facie evidence that he has
put such funds or property to personal use. (Art. 217, last
paragraph, Revised Penal Code as amended by R.A. 1060).
Petitioner questions as oppressive and unconstitutional the penalty
imposed on him — that of eleven years and one day of prision
mayor, as minimum, to sixteen years, five months and eleven days
of reclusion temporal, as maximum.
He argues that considering the value of the peso in 1932 when the
Revised Penal Code was enacted and the value of peso today, the
penalty for malversation of P21,000.00 should only be an
imprisonment of one or two years. (Rollo, pp. 10-11)
Assuming arguendo that inflation has in effect made more severe
the penalty for malversing P21,000.00, the remedy cannot come
from this Court but from the Congress. The Court can intervene
and strike down a penalty as cruel, degrading or inhuman only
when it has become so flagrantly oppressive and so wholly
disproportionate to the nature of the offense as to shock the moral
senses. (People v. Dionisio, 22 SCRA 1299 [1968]; People v.
Estoista, 93 Phil. 647 [1953]; U.S. v. Borromeo, 23 Phil. 279
[1912]) Considering that malversation of public funds by a public
officer is a betrayal of the public trust, We are not prepared to say
that the penalty imposed on petitioner is so disproportionate to the
crime committed as to shock the moral sense.
WHEREFORE, the petition for review is DISMISSED and the
decision appealed from is AFFIRMED in toto, with costs against
petitioner.
SO ORDERED.
G.R. No. 117472 February 7, 1997
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LEO ECHEGARAY y PILO, accused-appellant.
PER CURIAM:
On June 25, 1996, we rendered our decision in the instant case
affirming the conviction of the accused-appellant for the crime of
raping his ten-year old daughter. The crime having been
committed sometime in April, 1994, during which time Republic Act
(R.A) No. 7659, commonly known as the Death Penalty Law, was
already in effect, accused-appellant was inevitably meted out the
supreme penalty of death.
On July 9, 1996, the accused-appellant timely filed a Motion for
Reconsideration which focused on the sinister motive of the
victim's grandmother that precipitated the filing of the alleged false
accusation of rape against the accused. We find no substantial
arguments on the said motion that can disturb our verdict.
On August 6, 1996, accused-appellant discharged the defense
counsel, Atty. Julian R. Vitug, and retained the services of the Anti-
Death Penalty Task Force of the Free Legal Assistance Group of
the Philippines (FLAG).
On August 23, 1996, we received the Supplemental Motion for
Reconsideration prepared by the FLAG on behalf of accused-
appellant. The motion raises the following grounds for the reversal
of the death sentence:
 [1] Accused-appellant should not have been
prosecuted since the pardon by the offended
party and her mother before the filing of the
complaint acted as a bar to his criminal
prosecution.
[2] The lack of a definite allegation of the date
of the commission of the offense in the
Complaint and throughout trial prevented the
accused-appellant from preparing an adequate
defense.
[3] The guilt of the accused was not proved
beyond a reasonable doubt.
[4] The Honorable Court erred in finding that
the accused-appellant was the father or
stepfather of the complainant and in affirming
the sentence of death against him on this basis.
[5] The trial court denied the accused-appellant
of due process and manifested bias in the
conduct of the trial.
[6] The accused-appellant was denied his
constitutional right to effective assistance of
counsel and to due process, due to the
incompetence of counsel.
[7] R.A. [No.] 7659, reimposing the death
penalty is unconstitutional per se:
a. For crimes where no
death results from the
offense, the death penalty is
a severe and excessive
penalty in violation of Article
III, Sec. 19(1) of the 1987
Constitution.
b. The death penalty is cruel
and unusual punishment in
violation of Article III, Sec.
11 of the 1987 Constitution.
In sum, the Supplemental Motion for Reconsideration
raises three (3) main issues: (1) mixed factual and legal
matters relating to the trial proceedings and findings; (2)
alleged incompetence of accused-appellant's former
counsel; and (3) purely legal question of the
constitutionality of R.A. No. 7659.
I
It is a rudimentary principle of law that matters neither alleged in
the pleadings nor raised during the proceedings below cannot be
ventilated for the first time on appeal before the Supreme Court.
Moreover, as we have stated in our Resolution in Manila Bay Club
Corporation v. Court of Appeals: 1
If well-recognized jurisprudence precludes
raising an issue only for the first time on appeal
proper, with more reason should such issue be
disallowed or disregarded when initially raised
only in a motion for reconsideration of the
decision of the appellate court.
It is to be remembered that during the proceedings of the rape
case against the accused-appellant before the sala of then
presiding judge Maximiano C. Asuncion, the defense attempted to
prove that:
a) the rape case was motivated by greed,
hence, a mere concoction of the alleged
victim's maternal grandmother;
b) the accused is not the real father of the
complainant;
c) the size of the penis of the accused cannot
have possibly penetrated the alleged victim's
private part; and
d) the accused was in Parañaque during the
time of the alleged rape.
In his Brief before us when the rape case was elevated for
automatic review, the accused-appellant reiterated as grounds for
exculpation:
a) the ill-motive of the victim's maternal grandmother in prompting
her grandchild to file the rape case;
b) the defense of denial relative to the size of his penis which could
not have caused the healed hymenal lacerations of the victim; and
c) the defense of alibi.
Thus, a second hard look at the issues raised by the new counsel
of the accused-appellant reveals that in their messianic appeal for
a reversal of our judgment of conviction, we are asked to consider
for the first time, by way of a Supplemental Motion for
Reconsideration, the following matters:
a) the affidavit of desistance written by the
victim which acted as a bar to the criminal
prosecution for rape against the accused-
appellant;
b) the vagueness attributed to the date of the
commission of the offense in the Complaint
which deprived the accused-appellant from
adequately defending himself;
c) the failure of this Court to clearly establish
the qualifying circumstance that placed the
accused-appellant within the coverage of the
Death Penalty Law;
d) the denial of due process and the manifest
bias exhibited by the trial court during the trial
of the rape case.
Apparently, after a careful scrutiny of the foregoing points for
reconsideration, the only legitimate issue that we can tackle relates
to the Affidavit of Desistance which touches on the lack of
jurisdiction of the trial court to have proceeded with the prosecution
of the accused-appellant considering that the issue of jurisdiction
over the subject matter may be raised at any time, even during
appeal. 2
It must be stressed that during the trial proceedings of the rape
case against the accused-appellant, it appeared that despite the
admission made by the victim herself in open court that she had
signed an Affidavit of Desistance, she, nevertheless, "strongly
pointed out that she is not withdrawing the charge against the
accused because the latter might do the same sexual assaults to
other women." 3 Thus, this is one occasion where an affidavit of
desistance must be regarded with disfavor inasmuch as the victim,
in her tender age, manifested in court that she was pursuing the
rape charges against the accused-appellant.
We have explained in the case of People v. Gerry Ballabare, 4 that:
As pointed out in People v. Lim (24 190 SCRA
706 [1990], which is also cited by the accused-
appellant, an affidavit of desistance is merely
an additional ground to buttress the accused's
defenses, not the sole consideration that can
result in acquittal. There must be other
circumstances which, when coupled with the
retraction or desistance, create doubts as to the
truth of the testimony given by the witnesses at
the trial and accepted by the judge. 5
In the case at bar, all that the accused-appellant offered as
defenses mainly consisted of denial and alibi which cannot
outweigh the positive identification and convincing testimonies
given by the prosecution. Hence, the affidavit of desistance, which
the victim herself intended to disregard as earlier discussed, must
have no bearing on the criminal prosecution against the accused-
appellant, particularly on the trial court's jurisdiction over the case.
II
The settled rule is that the client is bound by the negligence or
mistakes of his counsel. 6 One of the recognized exceptions to this
rule is gross incompetency in a way that the defendant is highly
prejudiced and prevented, in effect, from having his day in court to
defend himself. 7
In the instant case, we believe that the former counsel of the
accused-appellant to whom the FLAG lawyers now impute
incompetency had amply exercised the required ordinary diligence
or that reasonable decree of care and skill expected of him relative
to his client's defense. As the rape case was being tried on the
merits, Atty. Vitug, from the time he was assigned to handle the
case, dutifully attended the hearings thereof. Moreover, he had
seasonably submitted the Accused-Appellant's Brief and the
Motion for Reconsideration of our June 25, 1996 Decision with
extensive discussion in support of his line of defense. There is no
indication of gross incompetency that could have resulted from a
failure to present any argument or any witness to defend his client.
Neither has he acted haphazardly in the preparation of his case
against the prosecution evidence. The main reason for his failure
to exculpate his client, the accused-appellant, is the overwhelming
evidence of the prosecution. The alleged errors committed by the
previous counsel as enumerated by the new counsel could not
have overturned the judgment of conviction against the accused-
appellant.
III
Although its origins seem lost in obscurity, the imposition of death
as punishment for violation of law or custom, religious or secular,
is an ancient practice. We do know that our forefathers killed to
avenge themselves and heir akin and that initially, the criminal law
was used to compensate for a wrong done to a private party or his
family, not to punish in the name of the state.
The dawning of civilization brought with it both the increasing
sensitization throughout the later generations against past
barbarity and the institutionalization of state power under the rule
of law. Today every man or woman is both an individual person
with inherent human rights recognized and protected by the state
and a citizen with the duty to serve the common weal and defend
and preserve society.
One of the indispensable powers of the state is the power to
secure society against threatened and actual evil. Pursuant to this,
the legislative arm of government enacts criminal laws that define
and punish illegal acts that may be committed by its own subjects,
the executive agencies enforce these laws, and the judiciary tries
and sentences the criminals in accordance with these laws.
Although penologists, throughout history, have not stopped
debating on the causes of criminal behavior and the purposes of
criminal punishment, our criminal laws have been perceived as
relatively stable and functional since the enforcement of the
Revised Penal Code on January 1, 1932, this notwithstanding
occasional opposition to the death penalty provisions therein. The
Revised Penal Code, as it was originally promulgated, provided for
the death penalty in specified crimes under specific circumstances.
As early as 1886, though, capital punishment had entered our
legal system through the old Penal Code, which was a modified
version of the Spanish Penal Code of 1870.
The opposition to the death penalty uniformly took the form of a
constitutional question of whether or not the death penalty is a
cruel, unjust, excessive or unusual punishment in violation of the
constitutional proscription against cruel and unusual punishments.
We unchangingly answered this question in the negative in the
cases ofHarden v. Director of Prison, 8 People v. Limaco, 9 People
v. Camano, 10 People v. Puda 11 and People
v. Marcos. 12In Harden, we ruled:
The penalty complained of is neither cruel,
unjust nor excessive. In Ex-parte Kemmler, 136
U.S., 436, the United States Supreme Court
said that 'punishments are cruel when they
involve torture or a lingering death, but the
punishment of death is not cruel, within the
meaning of that word as used in the
constitution. It implies there something inhuman
and barbarous, something more than the mere
extinguishment of life. 13
Consequently, we have time and again emphasized that
our courts are not the for a for a protracted debate on the
morality or propriety of the death sentence where the law
itself provides therefor in specific and well-defined
criminal acts. Thus we had ruled in the 1951 case
of Limaco that:
. . . there are quite a number of people who
honestly believe that the supreme penalty is
either morally wrong or unwise or ineffective.
However, as long as that penalty remains in the
statute books, and as long as our criminal law
provides for its imposition in certain cases, it is
the duty of judicial officers to respect and apply
the law regardless of their private opinions. 14
and this we have reiterated in the 1995 case of People
v. Veneracion. 15
Under the Revised Penal Code, death is the penalty for the crimes
of treason, correspondence with the enemy during times of war,
qualified piracy, parricide, murder, infanticide, kidnapping, rape
with homicide or with the use of deadly weapon or by two or more
persons resulting in insanity, robbery with homicide, and arson
resulting in death. The list of capital offenses lengthened as the
legislature responded to the emergencies of the times. In 1941,
Commonwealth Act (C.A.) No. 616 added espionage to the list. In
the 1950s, at the height of the Huk rebellion, the government
enacted Republic Act (R.A.) No. 1700, otherwise known as the
Anti-Subversion Law, which carried the death penalty for leaders
of the rebellion. From 1971 to 1972, more capital offenses were
created by more laws, among them, the Anti-Hijacking Law, the
Dangerous Drugs Act, and the Anti-Carnapping Law. During
martial law, Presidential Decree (P.D.) No. 1866 was enacted
penalizing with death, among others, crimes involving homicide
committed with an unlicensed firearm.
In the aftermath of the 1986 revolution that dismantled the Marcos
regime and led to the nullification of the 1973 Constitution, a
Constitutional Commission was convened following appointments
thereto by Corazon Aquino who was catapulted to power by the
people.
Tasked with formulating a charter that echoes the new found
freedom of a rejuvenated people, the Constitutional
Commissioners grouped themselves into working committees
among which is the Bill of Rights Committee with Jose B. Laurel,
Jr. as Chairman and Father Joaquin G. Bernas, S.J., as Vice-
Chairman.
On July 17, 1986, Father Bernas presented the committee draft of
the proposed bill of rights to the rest of the commission. What is
now Article III, Section 19 (1) of the 1987 Constitution was first
denominated as Section 22 and was originally worded as follows:
Excessive fines shall not be imposed nor cruel,
degrading or inhuman punishment or the death
penalty inflicted. Death penalty already
imposed shall be commuted to reclusion
perpetua.
Father Bernas explained that the foregoing provision was
the result of a consensus among the members of the Bill
of Rights Committee that the death penalty should be
abolished. Having agreed to abolish the death penalty,
they proceeded to deliberate on how the abolition was to
be done--whether the abolition should be done by the
Constitution or by the legislature-and the majority voted
for a constitutional abolition of the death penalty. Father
Bernas explained:
. . . [T]here was a division in the Committee not
on whether the death penalty should be
abolished or not, but rather on whether the
abolition should be done by the Constitution —
in which case it cannot be restored by the
legislature — or left to the legislature. The
majority voted for the constitutional abolition of
the death penalty. And the reason is that capital
punishment is inhuman for the convict and his
family who are traumatized by the waiting, even
 if it is never carried out. There is no evidence
that the death penalty deterred deadly
criminals, hence, life should not be destroyed
just in the hope that other lives might be saved.
Assuming mastery over the life of another man
is just too presumptuous for any man. The fact
that the death penalty as an institution has
been there from time immemorial should not
deter us from reviewing it. Human life is more
valuable than an institution intended precisely
to serve human life. So, basically, this is the
summary of the reasons which were presented
in support of the constitutional abolition of the
death penalty. 16
The original wording of Article III, Section 19 (1), however, did not
survive the debate that it instigated. Commissioner Napoleon G.
Rama first pointed out that "never in our history has there been a
higher incidence of crime" and that "criminality was at its zenith
during the last decade". 17 Ultimately, the dissent defined itself to
an unwillingness to absolutely excise the death penalty from our
legal system and leave society helpless in the face of a future
upsurge of crimes or other similar emergencies. As Commissioner
Rustico F. de los Reyes, Jr. suggested, "although we abolish the
death penalty in the Constitution, we should afford some amount of
flexibility to future legislation", 18 and his concern was amplified by
the interpellatory remarks of Commissioner Lugum L.
Commissioner and now Associate Justice Florenz Regalado,
Commissioner Crispino M. de Castro, Commissioner Ambrosio B.
Padilla, Commissioner Christian Monsod, Commissioner Francisco
A. Rodrigo, and Commissioner Ricardo Romulo. Commissioner
Padilla put it succinctly in the following exchange with
Commissioner Teodoro C. Bacani:
BISHOP BACANI. . . . At present, they explicitly
make it clear that the church has never
condemned the right of the state to inflict
capital punishment.
MR. PADILLA. . . . So it is granted that the
state is not deprived of the right even from a
moral standpoint of imposing or prescribing
capital punishment.
BISHOP BACANI. Yes. What I am saying is
that from the Catholic point of view, that right of
the state is not forbidden.
MR. PADILLA. In fact . . . we have to accept
that the state has the delegated authority from
the Creator to impose the death penalty under
certain circumstances.
BISHOP BACANI. The state has the delegation
from God for it to do what is needed for the
sake of the common good but the issue at
stake is whether or not under the present
circumstances that will be for the common
good.
MR. PADILLA. But the delegated power of the
state cannot be denied.
BISHOP BACANI. Yes, the state can be
delegated by God at a particular stage in
history, but it is not clear whether or not that
delegation is forever under all circumstances.
MR. PADILLA. So this matter should be left to
the legislature to determine, under certain
specified conditions or circumstances, whether
the retention of the death penalty or its abolition
would be for the common good. I do not believe
this Commission can a priori, and as was
remarked within a few days or even a month,
determine a positive provision in the
Constitution that would prohibit even the
legislature to prescribe the death penalty for the
most heinous crimes, the most grievous
offenses attended by many qualifying and
aggravating circumstances. 19
What followed, thus, were proposed amendments to the
beleaguered provision. The move to add the phrase, "unless for
compelling reasons involving heinous crimes, the national
assembly provides for the death penalty," came from
Commissioners Monsod, Jose E. Suarez and de los Reyes.
Commissioner Rodrigo, however, expressed reservations even as
regards the proposed amendment. He said:
. . . [T]he issue here is whether or not we
should provide this matter in the Constitution or
leave it to the discretion of our legislature.
Arguments pro and con have been given. . . .
But my stand is, we should leave this to the
discretion of the legislature.
The proposed amendment is halfhearted. It is
awkward because we will, in effect repeal by
our Constitution a piece of legislation and after
repealing this piece of legislation tell the
legislature that we have repealed the law and
that the legislature can go ahead and enact it
again. I think this is not worthy of a
constitutional body like ours. If we will leave the
matter of the death Penalty to the legislature,
let us leave it completely to the discretion of the
legislature, but let us not have this half-baked
provision. We have many provisions in the
Revised Penal Code imposing the death
penalty. We will now revoke or repeal these
pieces of legislation by means of the
Constitution, but at the same time say that it is
up to the legislature to impose this again.
. . . The temper and condition of the times
change . . . and so we, I think we should leave
this matter to the legislature to enact statutes
depending on the changing needs of the times.
Let us entrust this completely to the legislature
composed of representatives elected by the
people.
I do not say that we are not competent. But we
have to admit the fact that we are not elected
by the people and if we are going to entrust this
to the legislature, let us not be half-baked nor
halfhearted about it. Let us entrust it to the
legislature 100 percent. 20
Nonetheless, the proposed amendment was approved
with twenty-three (23) commissioners voting in favor of
the amendment and twelve (12) voting against it,
followed by more revisions, hence the present wording of
Article III, Section 19(1) of the 1987 Constitution in the
following tenor:
Excessive fines shall not be imposed nor cruel,
degrading or inhuman punishment inflicted.
Neither shall death penalty be imposed, unless,
for compelling reasons involving heinous
crimes, the Congress hereafter provides for it.
Any death penalty already imposed shall be
reduced to reclusion perpetua.
The implications of the foregoing provision on the effectivity of the
death penalty provisions in the Revised Penal Code and certain
special criminal laws and the state of the scale of penalties
thereunder, were tremendous.
The immediate problem pertained to the applicable penalty for
what used to be capital crimes. In People v.Gavarra, 21 we stated
that "in view of the abolition of the death penalty under Section 19,
Article III of the 1987 Constitution, the penalty that may be
imposed for murder is reclusion temporal in its maximum period
to reclusion perpetua"22 thereby eliminating death as the original
maximum period. The constitutional abolition of the death penalty,
it seemed, limited the penalty for murder to only the remaining
periods, to wit, the minimum and the medium, which we then,
in People v. Masangkay, 23 People v. Atencio 24 and People
25
v. Intino divided into three new periods, to wit, the lower half
ofreclusion temporal maximum as the minimum; the upper half of
reclusion temporal maximum as the medium; and reclusion
perpetua as the maximum, in keeping with the three-grade scheme
under the Revised Penal Code. In People v. Munoz, 26however, we
reconsidered these aforecited cases and after extended
discussion, we concluded that the doctrine announced therein did
not reflect the intention of the framers. The crux of the issue was
whether or not Article III, Section 19 (1) absolutely abolished the
death penalty, for if it did, then, the aforementioned new three-
grade penalty should replace the old one where the death penalty
constituted the maximum period. But if no total abolition can be
read from said constitutional provision and the death penalty is
only suspended, it cannot as yet be negated by the institution of a
new three-grade penalty premised on the total inexistence of the
death penalty in our statute books. We thus ruled in Munoz:
The advocates of the Masangkay ruling argue
that the Constitution abolished the death
penalty and thereby limited the penalty for
murder to the remaining periods, to wit, the
minimum and the medium. These should now
be divided into three new periods in keeping
with the three-grade scheme intended by the
legislature. Those who disagree feel that Article
III, Section 19 (1) merely prohibits the
imposition of the death penalty and has not, by
reducing it to reclusion perpetua, also
correspondingly reduced the remaining
penalties. These should be maintained intact.
A reading of Section 19 (1) of Article III will
readily show that there is really nothing therein
which expressly declares the abolition of the
death penalty. The provision merely says that
the death penalty shall not be imposed unless
for compelling reasons involving heinous
crimes the Congress hereafter provides for it
and, if already imposed, shall be reduced
to reclusion perpetua. The language, while
rather awkward, is still plain enough. 27
Nothing is more defining of the true content of Article III, Section
19 (1) of the 1987 Constitution than the form in which the
legislature took the initiative in re-imposing the death penalty.
The Senate never doubted its power as vested in it by the
constitution, to enact legislation re-imposing the death penalty for
compelling reasons involving heinous crimes. Pursuant to this
constitutional mandate, the Senate proceeded to a two-step
process consisting of: first, the decision, as a matter of policy, to
re-impose the death penalty or not; and second, the vote to pass
on the third reading the bill re-imposing the death penalty for
compelling reasons involving heinous crimes.
On February 15, 1993, after a fierce and fiery exchange of
arguments for and against capital punishment, the Members of the
Senate voted on the policy issue of death penalty. The vote was
explained, thus:
SUSPENSION OF THE RULES
Upon motion of Senator Romulo, there being
no objection, the Body suspended the Rules of
the Senate.
Thereafter, upon motion of Senator Romulo,
there being no objection, the Chair directed that
a nominal voting be conducted on the policy
issue of death penalty.
INQUIRY OF SENATOR TOLENTINO
Asked by Senator Tolentino on how the
Members of the Senate would vote on this
policy question, Senator Romulo stated that a
vote of Yes would mean a vote in favor of death
as a penalty to be reincorporated in the scale of
penalties as provided in the Revised Penal
Code, and a vote of No would be a vote against
the reincorporation of death penalty in the scale
of penalties in the Revised Penal Code.
INQUIRY OF SENATOR ALVAREZ
xxx xxx xxx
The Chair explained that it was agreed upon
that the Body would first decide the question
whether or not death penalty should be
reimposed, and thereafter, a seven-man
committee would be formed to draft the
compromise bill in accordance with the result of
the voting. If the Body decides in favor of the
death penalty, the Chair said that the
committee would specify the crimes on which
death penalty would be imposed. It affirmed
that a vote of Yes in the nominal voting would
mean a vote in favor of death penalty on at
least one crime, and that certain refinements on
how the penalty would be imposed would be
left to the discretion of the seven-man
committee.
xxx xxx xxx
INQUIRY OF SENATOR TANADA
In reply to Senator Tanada's query, the Chair
affirmed that even if a senator would vote "yes"
on the basic policy issue, he could still vote "no"
on the imposition of the death penalty on a
particular crime.
REMARKS OF SENATOR TOLENTINO
Senator Tolentino observed that the Body
would be voting on the basic policy issue of
whether or not the death penalty would be
included in the scale of penalties found in
Article 27 of the Revised Penal Code. so that if
it is voted down, the Body would discontinue
discussing Senate Bill No. 891 pursuant to the
Rules, but if approved, a special committee, as
agreed upon in the caucus, is going to be
appointed and whatever course it will take will
depend upon the mandate given to it by the
Body later on.
The Chair affirmed Senator Tolentino's
observations.
REMARKS OF SENATOR ROCO
Senator Roco stated that the Body would vote
whether or not death as a penalty will be
reincorporated in the scale of penalties
provided by the Revised Penal Code. However,
he pointed out that if the Body decides in favor
of death penalty, the Body would still have to
address two issues: 1) Is the crime for which
the death penalty is supposed to be imposed
heinous pursuant to the constitutional
mandate? 2) And, if so, is there a compelling
reason to impose the death penalty for it? The
death penalty, he stressed, cannot be imposed
simply because the crime is heinous. 28
With seventeen (17) affirmative votes and seven (7)
negative votes and no abstention, the Chair declared that
the Senate has voted to re-incorporate death as a
penalty in the scale of penalties as provided in the
Revised Penal Code. A nine-person committee was
subsequently created to draft the compromise bill
pursuant to said vote. The mandate of the committee
was to retain the death penalty, while the main debate in
the committee would be the determination of the crimes
to be considered heinous.
On March 17, 1993, Senator Arturo Tolentino, Chairman of the
Special Committee on the Death Penalty, delivered his
Sponsorship Speech. He began with an explanation as to why the
Senate Bill No. 891 re-imposes the death penalty by amending the
Revised Penal Code and other special penal laws and includes
provisions that do not define or punish crimes but serve purposes
allied to the re-imposition of the death penalty. Senator Tolentino
stated:
. . . [W]hen the Senate approved the policy of
reimposing the death penalty on heinous
crimes and delegated to the Special Committee
the work of drafting a bill, a compromise bill that
would be the subject for future deliberations of
 this Body, the Committee had to consider that
the death penalty was imposed originally in the
Revised Penal Code.
So, when the Constitution was approved in
order to do away with the death penalty, unless
Congress should, for compelling reasons
reimpose that penalty on heinous crimes, it was
obvious that it was the Revised Penal Code
that was affected by that provision of the
Constitution. The death penalty, as provided in
the Revised Penal Code, would be considered
as having been repealed-all provisions on the
death penalty would be considered as having
been repealed by the Constitution, until
Congress should, for compelling reasons,
reimpose such penalty on heinous crimes.
Therefore, it was not only one article but many
articles of the Revised Penal Code that were
actually affected by the Constitution.
And it is in consideration of this consequence of
the constitutional provision that our Special
Committee had to consider the Revised Penal
Code itself in making this compromise bill or
text of the bill. That is why, in the proposed
draft now under consideration which we are
sponsoring, the specific provisions of the
Revised Penal Code are actually either
reenacted or amended or both. Because by the
effect of the Constitution, some provisions were
totally repealed, and they had to be reenacted
so that the provisions could be retained. And
some of them had to be amended because the
Committee thought that amendments were
proper. 29
In response to a query by Senator Gloria Macapagal-
Arroyo as to whether or not it would have been better if
the Senate were to enact a special law which merely
defined and imposed the death penalty for heinous
crimes, Senator Tolentino explicated, thus:
. . . [T]hat may be a way presenting the bill. But
we must bear in mind that the death penalty is
imposed in the Revised Penal Code. Therefore,
when the Constitution abolished the death
penalty, it actually was amending the Revised
Penal Code to such an extent that the
Constitution provides that where the death
penalty has already been imposed but not yet
carried out, then the penalty shall bereclusion
perpetua, that is the penalty in the Revised
Penal Code. So we thought that it would be
best to just amend the provisions of the
Revised Penal Code, restoring the death
penalty for some crimes that may be
considered as heinous. That is why the bill is in
this form amending the provisions of the
Revised Penal Code.
Of course, if some people want to present a
special bill . . . the whole trouble is, when a
special bill is presented and we want to punish
in the special bill the case of murder, for
instance, we will have to reproduce the
provisions of the Revised Penal Code on
murder in order to define the crime for which
the death penalty shall be imposed. Or if we
want to impose the death penalty in the case of
kidnapping which is punished in the Revised
Penal Code, we will do the same — merely
reproduce. Why will we do that? So we just
followed the simpler method of keeping the
definition of the crime as the same and merely
adding some aggravating circumstances and
reimposing the death penalty in these offenses
originally punished in the Revised Penal
Code. 30
From March 17, 1993, when the death penalty bill was presented
for discussion until August 16, 1993, the Members of the Senate
debated on its provisions.
The stiffest opposition thereto was bannered by Senator Lina who
kept prodding the sponsors of the bill to state the compelling
reason for each and every crime for which the supreme penalty of
death was sought. Zeroing in on the statement in the preamble of
the death penalty bill that the same is warranted in the face of "the
alarming upsurge of [heinous] crimes", Senator Lina demanded for
solid statistics showing that in the case of each and every crime in
the death penalty bill, there was a significantly higher incidence of
each crime after the suspension of the death penalty on February
2, 1987 when the 1987 Constitution was ratified by the majority of
the Filipino people, than before such ratification. 31 Inasmuch as
the re-impositionists could not satisfy the abolitionists with
sufficient statistical data for the latter to accept the alarming
upsurge of heinous crimes as a compelling reason justifying the re-
imposition of the death penalty, Senator Lina concluded that there
were, in fact, no compelling reasons therefor. In the alternative,
Senator Lina argued that the compelling reason required by the
constitution was that "the State has done everything in its
command so that it can be justified to use an inhuman punishment
called death penalty". 32 The problem, Senator Lina emphasized,
was that even the re-impositionists admit that there were still
numerous reforms in the criminal justice system that may and must
be put in place, and so clearly, the recourse to the enactment of a
death penalty bill was not in the nature of a last resort, hence,
unconstitutional in the absence of compelling reasons. As an initial
reaction to Senator Lina's contentions, Senator Tolentino
explained that the statement in the preamble is a general one and
refers to all the crimes covered by the bill and not to specific
crimes. He added that one crime may not have the same degree of
increase in incidence as the other crimes and that the public
demand to impose the death penalty is enough compelling
reason. 33
Equally fit to the task was Senator Wigberto Tanada to whom the
battle lines were clearly drawn. He put to issue two things: first, the
definition of "heinous crimes" as provided for in the death penalty
bill; and second, the statement of compelling reasons for each and
every capital crime. His interpellation of Senator Tolentino clearly
showed his objections to the bill:
Senator Tanada. . . . But what would make
crimes heinous, Mr. President? Are crimes
heinous by their nature or elements as they are
described in the bill or are crimes heinous
because they are punished by death, as bribery
and malversation are proposed to be punished
in the bill?
Senator Tolentino. They are heinous by their
nature, Mr. President, but that is not supposed
to be the exclusive criterion. The nature of the
offense is the most important element in
considering it heinous but at the same time, we
should consider the relation of the offense to
society in order to have a complete idea of the
heinous nature of these offenses.
In the case of malversation or bribery, for
instance, these offenses by themselves
connected with the effect upon society and the
government have made them fall under the
classification of heinous crimes. The compelling
reason for imposing the death penalty is when
the offenses of malversation and bribery
becomes so grave and so serious as indicated
in the substitute bill itself, then there is a
compelling reason for the death penalty.
Senator Tanada. With respect to the compelling
reasons. Mr. President, does the Gentleman
believe that these compelling reasons, which
would call for the reimposition of the death
penalty, should be separately, distinctly and
clearly stated for each crime so that it will be
very clear to one and all that not only are these
crimes heinous but also one can see the
compelling reasons for the reimposition of the
death penalty therefor?
Senator Tolentino. Mr. President that matter
was actually considered by the Committee. But
the decision of the Committee was to avoid
stating the compelling reason for each and
every offense that is included in the substitute
measure. That is why in the preamble, general
statements were made to show these
compelling reasons. And that we believe,
included in the bill, when converted into law,
would be sufficient notice as to what were
considered compelling reasons by the
Congress, in providing the death penalty for
these different offenses.
If a matter like this is questioned before the
Supreme Court, I would suppose that with the
preamble already in general terms, the
Supreme Court would feel that it was the sense
of Congress that this preamble would be
applicable to each and every offense described
or punishable in the measure.
So we felt that it was not necessary to repeat
these compelling reasons for each and every
offense.
Senator Tanada. Mr. President, I am thinking
about the constitutional limitations upon the
power of Congress to enact criminal legislation,
especially the provisions on the Bill of Rights,
particularly the one which says that no person
shall be held to answer for a criminal offense
without due process of law.
Can we not say that under this provision, it is
required that the compelling reasons be so
stated in the bill so that the bill, when it
becomes a law, will clearly define the acts and
the omissions punished as crimes?
Senator Tolentino. Mr. President I believe that
in itself, as substantive law, this is sufficient.
The question of whether there is due process
will more or less be a matter of procedure in the
compliance with the requirements of the
Constitution with respect to due process itself
which is a separate matter from the substantive
law as to the definition and penalty for crimes.
Senator Tanada. Under the Constitution, Mr.
President, it appears that the reimposition of
the death penalty is subject to three conditions
and these are:
1.
Congres
s should
so
provide
such
reimposit
ion of the
death
penalty;
2. There
are
compellin
g
reasons;
and
3. These
involve
heinous
crimes.
Under these provision of the Constitution,
paragraph 1, Section 13, does the
distinguished Gentleman not feel that Congress
is bound to state clearly the compelling reasons
for the reimposition of the death penalty for
each crime, as well as the elements that make
each of the crimes heinous included in the bill?
Senator Tolentino. Mr. President, that is a
matter of opinion already. I believe that whether
we state the compelling reasons or not,
whether we state why a certain offense is
heinous, is not very important. If the question is
raised in the Supreme court, it is not what we
say in the bill that will be controlling but what
the Supreme Court will fell as a sufficient
compelling reason or as to the heinous nature
whether the crime is heinous or not. The
accused can certainly raise the matter of
constitutionality but it will not go into the matter
of due process. It will go into the very power of
Congress to enact a bill imposing the death
penalty. So that would be entirely separate
from the matter of due process. 34
Senator Francisco Tatad, on his part, pointed out that the death
penalty bill violated our international commitment in support of the
worldwide abolition of capital punishment, the Philippines being a
signatory to the International Covenant on Civil and Political Rights
and its Second Optional Protocol. Senator Ernesto Herrera
clarified, however, that in the United Nations, subject matters are
submitted to the different committees which vote on them for
consideration in the plenary session. He stressed that unless
approved in the plenary session, a declaration would have no
binding effect on signatory countries. In this respect, the
Philippines cannot be deemed irrevocably bound by said covenant
and protocol considering that these agreements have reached only
the committee level.35
After the protracted debate, the Members of the Senate voted on
Senate Bill No. 891 on third reading. With seventeen (17)
affirmative votes, four (4) negative votes, and one abstention, the
death penalty bill was approved on third reading on August 16,
1993.
The Senate's vote to pass Senate Bill No. 891 on third reading on
August 16, 1993 was a vindication of, the House of
Representatives. The House had, in the Eight Congress, earlier
approved on third reading House Bill No. 295 on the restoration of
the death penalty for certain heinous crimes. The House was in
effect rebuffed by the Senate when the Senate killed House Bill
No. 295 along with other bills coming from the House. House Bill
No. 295 was resurrected during the Ninth Congress in the form of
House Bill No. 62 which was introduced by twenty one (21)
Members of the House of Representatives on October 27, 1992.
House Bill No. 62 was a merger of House Bill Nos. 125, 187, 411,
764, 506, 781, 955, 1565, 1586, 2206, 3238, 3576 and 3632
authored by various Members of the Lower House.
In his Sponsorship Speech, Representative Manuel R. Sanchez of
Rizal ably essayed the constitutional vesting in Congress of the
power to re-impose the death penalty for compelling reasons
invoking heinous crimes as well as the nature of this constitutional
pre-requisite to the exercise of such power.
"Mr. Speaker, in Article III, Section 19(1) of Constitution reads, a I
quote:
Neither shall death penalty be imposed, unless,
for compelling reasons involving heinous
crimes, the Congress shall thereafter provide
for it. . .
The phrase "unless, for compelling reasons
involving heinous crimes, the Congress shall
thereafter provide for it was introduced as an
amendment by then Comm. Christian Monsod.
The import of this amendment is unmistakable.
By this amendment, the death penalty was not
completely abolished by the 1987 Constitution.
Rather, it merely suspended the death penalty
and gave Congress the discretion to review it at
the propitious time.
Arguing for the inclusion of said amendment in
the fine provision, Comm. Ricardo Romulo said,
and I quote:
"The people should have the
final say on the subject,
because, at some future
time, the people might want
to restore death penalty
through initiative and
referendum.
Commissioner Monsod further argued, and I
quote:
We cannot presume to have
the wisdom of the ages.
Therefore, it is entirely
possible in the future that
circumstances may arise
which we should not
preclude today.
xxx xxx xxx
I believe that [there] are enough compelling
reasons that merit the reimposition of the
capital punishment. The violent manner and the
viciousness in which crimes are now committed
with alarming regularity, show very clearly a
patent disregard of the law and a mockery of
public peace and order.
In the public gallery section today are the
relatives of the vict ims of heinous crimes — the
Hultmans, the Maguans, the Vizcondes, the
Castanoses, and many more, and they are all
crying for justice. We ought to listen to them
because their lives, their hopes, their dreams,
their future have fallen asunder by the cruel
and vicious criminality of a few who put their
selfish interest above that of society.
Heinous crime is an act or series of acts which,
by the flagrantly violent manner in which the
same was committed or by the reason of its
inherent viciousness, shows a patent disregard
and mockery of the law, public peace and
order, or public morals. It is an offense whose
essential and inherent viciousness and atrocity
are repugnant and outrageous to a civilized
society and hence, shock the moral self of a
people.
Of late, we are witness to such kind of barbaric
crimes.
The Vizconde massacre that took the lives of a
mother and her two lovely daughters, will stand
in the people's memory for many long years as
the epitome of viciousness and atrocity that are
repugnant to civilized society.
The senseless murder of Eldon Maguan, and
up-and-coming young business executive, was
and still is an outrage that shocks the moral self
of our people.
The mind-boggling death of Maureen
Hultmann, a comely 16 year-old high school
student who dreamt of becoming a commercial
model someday, at the hands of a crazed man
was so repulsive, so brutal that it offends the
sensibilities of Christians and non-Christians
alike.
The cold-blooded double murder of Cochise
Bernabe and Beebom Castanos, the lovely and
promising couple from the University of the
Philippines, is eternally lodged in the recesses
of our minds and still makes our stomach turn
in utter disgust.
xxx xxx xxx
The seriousness of the situation is such that if
no radical action is taken by this body in
restoring death penalty as a positive response
to the overwhelming clamor of the people, then,
as Professor Esteban Bautista of the Philippine
Law Center said and I quote:
"When people begin to
believe that organized
society is unwilling or unable
to impose upon criminal
offenders the punishment
they deserve, there are
sown the seeds of anarchy
— of self-help, of vigilante
justice and lynch law. The
people will take the law
upon their hands and exact
vengeance in the nature of
personal vendetta."
It is for this reason, Mr. Speaker, that I stand
here and support House Bill No. 62.
As duly elected Representatives of our people,
collectively, we ought to listen to our
constitutents and heed their plea — a plea for
life, liberty and pursuit of their happiness under
a regime of justice and democracy, and without
threat that their loves ones will be kidnapped,
raped or butchered.
But if such a misfortune befalls them, there is
the law they could rely on for justice. A law that
will exact retribution for the victims. A law that
will deter future animalistic behavior of the
criminal who take their selfish interest over and
above that of society. A law that will deal a
deathblow upon all heinous crimes.
Mr. Speaker, my distinguished colleagues, for
the preservation of all that we hold dear and
sacred, let us retore the death penalty. 36
A studious comparison of the legislative proceedings in the Senate
and in the House of Representatives reveals that, while both
Chambers were not wanting of oppositors to the death penalty, the
Lower House seemed less quarrelsome about the form of the
death penalty bill as a special law specifying certain heinous
crimes without regard to the provisions of the Revised penal Code
and more unified in the perception of what crimes are heinous and
that the fact of their very heinousness involves the compulsion and
the imperative to suppress, if not completely eradicate, their
occurrence. Be it the foregoing general statement of
Representative Sanchez or the following details of the nature of
the heinous crimes enumerated in House Bill No. 62 by
Representative Miguel L. Romero of Negros Oriental, there was
clearly, among the hundred or so re-impositionists in the Lower
House, no doubt as to their cause:
My friends, this bill provides for the imposition
of the death penalty not only for the
importation, manufacture and sale of
dangerous drugs, but also far other heinous
crimes such as reason; parricide; murder;
kidnapping; robbery; rape as defined by the
Revised Penal Code with or without additionally
defined circumstances; plunder, as defined in
R.A. 7080; piracy, as defined under Section 2
of PD 532: carnapping, as defined in Section 2
of RA 6539, when the owner, driver or
occupant is killed; hijacking as defined in . . .
RA 6235; and arson resulting in the death of
any occupants.
All these crimes have a common denominator
which qualifies them to the level of heinous
crimes. A heinous crime is one which by reason
of its inherent or manifest wickedness,
viciousness, atrocity or perversity, is repugnant
and outrageous to the common standards of
decency and morality in a just and civilized
society.
For instance, the crime of treason is defined as
a breach of allegiance to a government,
committed by a person who owes allegiance to
it (U.S. v. Abad I Phil. 437). By the "allegiance"
is meant the obligation of fidelity and obedience
which individuals owe to the government under
which they live or to their sovereign in return for
the protection which they receive (52 Arm Jur
797).
 In kidnapping, the though alone of one's loved
one being held against his or her own will in
some unidentified xxx house by a group of
scoundrels who are strangers is enough terrify
and send shivers of fear through the spine of
any person, even scoundrels themselves.
In robbery accompanied by rape, intentional
mutilation or arson, what is being punished by
death is the fact that the perpetrator, at the time
of the commission of the crime, thinks nothing
of the other crime he commits and sees it
merely as a form of self-amusement. When a
homicide is committed by reason of the
robbery, the culprits are perceived as willing to
take human life in exchange for money or other
personal property.
In the crime of rape, not only do we speak of
the pain and agony of the parents over the
personal shock and suffering of their child but
the stigma of the traumatic and degrading
incident which has shattered the victim's life
and permanently destroyed her reputation, not
to mention the ordeal of having to undergo the
shameful experience of police interrogation and
court hearings.
Piracy, which is merely a higher form of
robbery, is punished for the universal hostility of
the perpetrators against their victims who are
passengers and complement of the vessel, and
because of the fact that, in the high seas, no
one may be expected to be able to come to the
rescue of the helpless victims. For the same
reason, Mr. Speaker, the crime of air piracy is
punished due to the evil motive of the hijackers
in making unreasonable demands upon the
sovereignty of an entire nation or nations,
coupled with the attendant circumstance of
subjecting the passengers to terrorism. 37
The debate on House Bill No. 62 lasted from October 27, 1992 to
February 11, 1993. On February 11, 1993, the Members of the
House of Representatives overwhelmingly approved the death
penalty bill on second reading.
On February 23, 1993, after explaining their votes, the Members of
the House of Representatives cast their vote on House Bill No. 62
when it was up for consideration on third reading. 38 The results
were 123 votes in favor, 26 votes against, and 2 abstentions.
After the approval on third reading of House Bill No. 62 on
February 23, 1993 and of Senate Bill No. 891 on August 16, 1993,
the Bicameral Conference Committee convened to incorporate and
consolidate them.
On December 31, 1993, Republic Act (R.A.) No. 7659, entitled,
"An Act to Impose the Death Penalty on Certain Heinous Crimes,
Amending for that Purpose the Revised Penal Code, as Amended,
Other Special Penal Laws, and for Other Purposes," took effect. 39
Between December 31, 1993, when R.A No. 7659 took effect, and
the present time, criminal offenders have been prosecuted under
said law, and one of them, herein accused-appellant has been,
pursuant to said law, meted out the supreme penalty of death for
raping his ten-year old daughter. Upon his conviction his case was
elevated to us on automatic review. On June 25, 1996, we affirmed
his conviction and the death sentence.
Now, accused-appellant comes to us in the heels of this court's
affirmation of his death sentence and raises for the first time the
issue of the constitutionality of R.A. 7659. His thesis is two-fold: (1)
that the death penalty law is unconstitutional per se for having
been enacted in the absence of compelling reasons therefor; and
(2) that the death penalty for rape is a cruel, excessive and
inhuman punishment in violation of the constitutional proscription
against punishment of such nature.
We reject accused-appellant's proposition.
Three justices interposed their dissent hereto, agreeing with
accused-appellant's view that Congress enacted R.A No. 7659
without complying with the twin requirements of compelling
reasons and heinous crimes.
At this juncture, the detailed events leading to the enactment of
R.A. No. 7659 as unfurled in the beginning of this disquisition,
necessarily provide the context for the following analysis.
Article III, Section 19 (1) of the 1987 Constitution plainly vests in
Congress the power to re-impose the death penalty "for compelling
reasons involving heinous crimes". This power is not subsumed in
the plenary legislative power of Congress, for it is subject to a clear
showing of "compelling reasons involving heinous crimes."
The constitutional exercise of this limited power to re-impose the
death penalty entails (1) that Congress define or describe what is
meant by heinous crimes; (2) that Congress specify and penalize
by death, only crimes that qualify as heinous in accordance with
the definition or description set in the death penalty bill and/or
designate crimes punishable by reclusion perpetua to death in
which latter case, death can only be imposed upon the attendance
of circumstances duly proven in court that characterize the crime
to be heinous in accordance with the definition or description set in
the death penalty bill; and (3) that Congress, in enacting this death
penalty bill be singularly motivated by "compelling reasons
involving heinous crimes."
In the second whereas clause of the preamble of R.A. No. 7659,
we find the definition or description of heinous crimes. Said clause
provides that:
. . . the crimes punishable by death under this
Act are heinous for being grievous, odious and
hateful offenses and which, by reason of their
inherent or manifest wickedness, viciousness,
atrocity and perversity are repugnant and
outrageous to the common standards and
norms of decency and morality in a just civilized
and ordered society.
Justice Santiago Kapunan, in his dissenting opinion
in People v. Alicando, 40 traced the etymological root of
the word "heinous" to the Early Spartans' word,
"haineus", meaning hateful and abominable, which in
turn, was from the Greek prefix "haton", denoting acts so
hatefully or shockingly evil.
We find the foregoing definition or description to be a sufficient
criterion of what is to be considered a heinous crime. This criterion
is deliberately undetailed as to the circumstances of the victim, the
accused, place, time, the manner of commission of crime, its
proximate consequences and effects on the victim as well as on
society, to afford the sentencing authority sufficient leeway to
exercise his discretion in imposing the appropriate penalty in cases
where R.A. No 7659 imposes not a mandatory penalty of death but
the more flexible penalty of reclusion perpetua to death.
During the debates on the proposed death penalty bill, Senators
Lina and Tañada grilled the sponsors of the bill as regards what
they perceived as a mere enumeration of capital crimes without a
specification of the elements that make them heinous. They were
oblivious to the fact that there were two types of crimes in the
death penalty bill: first, there were crimes penalized by reclusion
perpetua to death; and second, there were crimes penalized by
mandatory capital punishment upon the attendance of certain
specified qualifying circumstances.
Under R.A. No. 7659, the following crimes are penalized
by reclusion perpetua to death:
(1)
Treason
(Sec. 2);
(2)
Qualified
piracy
(Sec. 3);
(3)
Parricide
(Sec. 5);
(4) building
Murder where
(Sec. 6); people
usually
(5) gather;
Infanticid (c) a
e (Sec. train,
7); ship or
airplane
for public
(6) use: (d) a
Kidnappi building
ng and or factory
serious in the
illegal service
detention of public
if utilities:
attended (e) a
by any of building
the for the
following purpose
four of
circumst concealin
ances: g or
(a) the destroyin
victim g
was evidence
detained of a
for more crime: (f)
than an
three arsenal,
days; (6) fireworks
it was factory,
committe or
d governm
simulatin ent
g public museum:
authority; and (g) a
(c) storehou
serious se or
physical factory of
injuries explosive
were materials
inflicted located
on the in an
victim or inhabited
threats to place; or
kill him regardles
were s of what
made; is burned
and (d) if if the
the victim arson is
is a perpetrat
minor, ed by
except two or
when the more
accused persons(
is any of Sec. 10);
the
parents,
female or (9) Rape
attended
a public
officer by any of
(Sec. 8); the
following
circumst
(7) ances:
Robbery (a) the
with rape is
homicide committe
, rape or d with a
intention deadly
al weapon;
mutilatio (b) the
n (Sec. rape is
9); committe
d by two
(8) or more
Destructi persons:
ve arson and (c)
if what is the rape
burned is is
(a) one attempte
or more d or
buildings frustrated
or and
edifice; committe
(b) a d with
homicide ure of
(Sec. regulated
11); drugs
(id.);
(10)
Plunder (19)
involving Sale,
at least administr
P50 ation,
million(S dispensa
ec. 12); tion,
delivery,
(11) transport
Importati ation,
on of and
prohibite distributi
on of
d drugs
(Sec. regulated
drugs
13),
(id.):

(12)
Sale, (20)
Maintena
administr
ation nce of
delivery, den,
distributi dive, or
on, and resort for
transport users of
ation of regulated
prohibite drugs
d drugs (Sec.
15),
(id.);

(13) (21)
Maintena Possessi
on or use
nce of
den, dive of
regulated
or resort
for users drugs in
of specified
prohibite amounts
d drugs (Sec.
(id.); 16);

(14) (22)
Manufact Misappro
ure of priation,
prohibite misapplic
d drugs ation or
(id.); failure to
account
dangerou
(15) s drugs
Possessi confiscat
on or use ed by the
of arresting
prohibite officer
d drugs (Sec.
in certain 17);
specified
amounts
(id.) (23)
Planting
evidence
(16) of
Cultivatio dangerou
n of s drugs
plants in person
which or
are immediat
sources e vicinity
of of
prohibite another
d drugs to
(id.) implicate
the latter
(17) (Sec.
Importati 19); and
on of
regulated (24)
drugs Carnappi
(Sec. ng where
1J): the
owner,
(18) driver or
Manufact occupant
 of the
carnappe
d motor
vehicle is
killed or
raped
(Sec.
20).
All the foregoing crimes are not capital crimes per se, the
uniform penalty for all of them being not mandatory death
but the flexible penalty of reclusion perpetua to death. In
other words, it is premature to demand for a specification
of the heinous elements in each of the foregoing crimes
because they are not anyway mandatorily penalized with
death. The elements that call for the imposition of the
supreme penalty of death in these crimes, would only be
relevant when the trial court, given the prerogative to
imposereclusion perpetua, instead actually imposes the
death penalty because it has, in appreciating the
evidence proffered before it, found the attendance of
certain circumstances in the manner by which the crime
was committed, or in the person of the accused on his
own or in relation to the victim, or in any other matter of
significance to the commission of the crime or its effects
on the victim or on society, which circumstances
characterize the criminal acts as grievous, odious, or
hateful, or inherently or manifestly wicked, vicious,
atrocious or perverse as to be repugnant and outrageous
to the common standards and norms of decency and
morality in a just, civilized and ordered society.
On the other hand. under R.A. No 7659, the mandatory penalty of
death is imposed in the following crimes:
(1) Qualified bribery
"If any public officer is entrusted with law
enforcement and he refrains from arresting or
prosecuting an offender who has committed a
come punishable by reclusion perpetua and/or
death in consideration of any offer, promise, gift
or present, he shall suffer the penalty for the
offense which was not prosecuted
If it is the public officer who asks or demands
such gift or present, he shall suffer the penalty
of death. (Sec. 4)
(2) Kidnapping and serious illegal detention for
ransom resulting in the death of the victim or
the victim is raped tortured or subjected to
dehumanizing acts
"The penalty shall be death where the
kidnapping or detention was committed for the
purpose of ransom from the victim or any other
person, even if none of the circumstances
above-mentioned were present in the
commission of the offense.
When the victim is killed or dies as a
consequence of the detention " is raped, or is
subject to torture or dehumanizing acts, the
maximum penalty [of death] shall be imposed.
(Sec. 8)
(3) Destructive arson resulting in death
"If as a consequence of the commission of any
of the acts penalized under this Article, death
results, the mandatory penalty of death shall be
imposed." (Sec. 10)
(4) Rape with the victim becoming insane, rape
with homicide and qualified rape
"When by reason or on the occasion of the
rape, the victim has become insane, the
penalty shall be death.
xxx xxx xxx
When by reason or on the occasion of the rape,
a homicide is committed, the penalty shall be
death.
The death penalty shall also be Imposed if the
crime of rape is committed with any of the
following attendant circumstances:
1. When the victim is under eighteen (18) years
of age and the offender is parent, ascendant,
step-parent, guardian, relative by consanguinity
or affinity within the third civil degree, or the
common-law spouse of the parent of the victim.
2. when the victim is under the custody of the
police or military authorities.
3. when the rape is committed in full new of the
husband, parent, any of the children or other
relatives within the third degree of
consanguinity.
4. when the victim is a religious or a child below
seven (7) years old.
5. when the offender that he is afflicted with
Acquired Immune Deficiency Syndrome (AIDS)
disease.
6. when committal by any member of the
Armed Forces of the Philippines or the
Philippine National Police or any law
enforcement agency.
7. when by reason or on the occasion of the
rape, the victim has suffered permanent
physical mutilation. (Sec. 11)
(5) Sale, administration, delivery, distribution
and transportation of prohibited drugs where
the victim is a minor or the victim dies
"Notwithstanding, the provision of Section 20 of
this Act to the contrary, if the victim of the
offense is a minor, or should a prohibited drug
involved in any offense under this Section be
the proximate cause of the death of victim
thereof; the maximum penalty [of death] herein
provided shall be imposed." (Sec. 13)
(6) Maintenance of den, dive, or resort for users
of prohibited drugs where the victim is a minor
or the victim dies
"Notwithstanding the provisions of Section 20 of
this Act to the contrary, the maximum of the
penalty (of death) shall be imposed in every
case where a prohibited drug is administered,
delivered or sold to a minor who is allowed to
use the same in such place.
Should a prohibited drug be the proximate case
of the death of a person using the same in such
den, dive or resort, the maximum penalty
herein provided shall be imposed on the
maintainer notwithstanding the provisions of
Section 20 of this Act to the contrary." (Sec. 13)
(7) Sale, administration, dispensation, delivery,
distribution and transportation of regulated
drugs where the victim is a minor or the victim
dies
"Notwithstanding the provisions of Section 20 of
this Act to the contrary, if the victim of the
offense is a minor, or should a regulated drug
involved in any offense under this Section be
the proximate cause of the death of a victim
thereof, the maximum penalty [of death] herein
provided shall be imposed." (Sec. 14)
 (8) Maintenance of den, dive. or resort for users
of regulated drugs where the victim is a minor
or the victim dies
'Notwithstanding the provisions of Section 20 of
this Act to the contrary, the maximum penalty
[of death] herein provided shall be imposed in
every case where a regulated drug is
administered, delivered or sold to a minor who
is allowed to use the same in such place.
Should a regulated drug be the proximate
cause of death of a person using the same in
such den, dive or resort, the maximum penalty
herein provided shall be imposed on the
maintainer notwithstanding the provisions of
Section 20 of this Act to the contrary." (Sec. 15)
(9) Drug offenses if convicted are government
officials, employees or officers including
members of police agencies and armed forces
"The maximum penalties [of death] provided for
in Section 3, 4 (1), 5 (1 ), 6, 7, 8. R, 9 1 1, 12
and 13 of Article II and Sections 14, 14-A, 14 (
1), 15A (1), 16, and 19 of Article III [of the
Dangerous Drugs Act of 1972] shall be
imposed, if those found guilty of any of the
same offenses are government officials,
employees or officers including members of
police agencies and the armed forces. " (Sec.
19)
(10) Planting of dangerous drugs as evidence
in drug offenses with the mandatory death
penalty if convicted are government officials,
employees or officers
"Any such above government official, employee
or officer who is round guilty of planting any
dangerous drugs punished in Section s 3, 4, 7,
8, 9 and 13 of Article II and Sections 14, 14-A,
15, and 16 of Article III (of the Dangerous
Drugs Act of 1972) in the person or in the
immediate vicinity of another as evidence to
implicate the latter, shall suffer the same
penalty as therein provided." (Sec. 19)
(11) In all the crimes in RA. No. 7659 in their
qualified form
"When in the commission of the crime,
advantage was taken by the offends of his
public position, the penalty to be imposed shall
be in its maximum [of death] regardless of
mitigating circumstances.
The maximum penalty [of death] shall be
imposed if the offense was committed by any
person who belongs to an
organized/syndicated crime group.
An organized/syndicated crime group means a
group of two or more persons collaborating,
confederating or mutually helping one another
for purposes of gain in the commission of any
crime." (Sec. 23)
It is specifically against the foregoing capital crimes that the test of
heinousness must be squarely applied.
The evil of a crime may take various forms. There are crimes that
are, by their very nature, despicable, either because life was
callously taken or the victim is treated like an animal and utterly
dehumanized as to completely disrupt the normal course of his or
her growth as a human being. The right of a person is not only to
live but to live a quality life, and this means that the rest of society
is obligated to respect his or her individual personality, the integrity
and the sanctity of his or her own physical body, and the value he
or she puts in his or her own spiritual, psychological, material and
social preferences and needs. Seen in this light, the capital crimes
of kidnapping and serious illegal detention for ransom resulting in
the death of the victim or the victim is raped, tortured, or subjected
to dehumanizing acts; destructive arson resulting in death; and
drug offenses involving minors or resulting in the death of the
victim in the case of other crimes; as well as murder, rape,
parricide, infanticide, kidnapping and serious illegal detention
where the victim is detained for more than three days or serious
physical injuries were indicted on the victim or threats to kill him
were made or the victim is a minor, robbery with homicide rape or
intentional mutilation, destructive arson, and carnapping where the
owner, driver or occupant of the carnapped vehicle is killed or
raped, which are penalized by reclusion perpetua to death, are
clearly heinous by their very nature.
There are crimes, however, in which the abomination lies in the
significance and implications of the subject criminal acts in the
scheme of the larger socio-political and economic context in which
the state finds itself to be struggling to develop and provide for its
poor and underprivileged masses. Reeling from decades of corrupt
tyrannical rule that bankrupted the government and impoverished
the population, the Philippine Government must muster the
political will to dismantle the culture of corruption dishonesty, greed
and Syndicated criminality that so deeply entrenched itself in the
structures of society and the psyche of the populace. Terribly
lacking the money to provide even the most basic services to its
people, any form of misappropriation or misapplication of
government funds translates to an actual threat to the very
existence of government, and in turn, the very survival of the
people it governs over. Viewed in this context, no less heinous are
the effects and repercussions of crimes like qualified bribery,
destructive arson resulting in death, and drug offenses involving
government officials, employees or officers, that their perpetrators
must not be allowed to cause further destruction and damage to
society.
We have no doubt, therefore, that insofar as the element of
heinousness is concerned, R.A. No. 7659 has correctly identified
crimes warranting the mandatory penalty of death. As to the other
crimes in R.A No 7659 punished by reclusion perpetua to death,
they are admittingly no less abominable than those mandatorily
penalized by death. The proper time to determine their
heinousness in contemplation of law, is when on automatic review,
we are called to pass on a death Sentence involving crimes
punishable by reclusion perpetua to death under R.A. No. 7659,
with the trial court meting out the death sentence in exercise of
judicial discretion. This is not to say, however, that the aggravating
circumstances under the Revised Penal Code need be additionally
alleged as establishing the heinousness of the crime for the trial
Court to validly impose the death penalty in the crimes under R.A.
No. 7659 which are punished with the flexible penalty of reclusion
perpetua to death.
In the first place, the 1987 Constitution did not amend or repeal the
provisions of the Revised Penal Code relating to aggravating
circumstances Secondly, R.A. No. 7659, while it specifies
circumstances that generally qualify a crime provided therein to be
punished by the maximum penalty of death, neither amends nor
repeals the aggravating circumstances under the Revised Penal
Code. Thus, construing R.A. No. 7659 in pari materia with the
Revised Penal Code, death may be imposed when (1) aggravating
circumstances attend the commission of the crime as to make
operative the provision of the Revised Penal Code regarding the
imposition of the maximum penalty; and (2) other circumstances
attend the commission of the crime which indubitably characterize
the same as heinous in contemplation of R.A. No. 7659 that justify
the imposition of death, albeit the imposable penalty isreclusion
perpetua to death. Without difficulty, we understand the rationale
for the guided discretion granted in the trial court to cognize
circumstances that characterize the commission of the crime as
heinous. Certainly there is an infinity of circumstances that may
attend the commission of a crime to the same extent that there is
no telling the evil that man is capable of. The legislature cannot
and need not foresee and inscribe in law each and every
loathsome act man is capable of. It is sufficient thus that R.A. No.
7659 provides the test and yardstick for the determination of the
legal situation warranting the imposition of the supreme penalty of
death. Needless to say, we are not unaware of the ever existing
danger of abuse of discretion on the part of the trial court in meting
out the death sentence. Precisely to reduce to nil the possibility of
executing an innocent man or one criminal but not heinously
criminal, R.A. No. 7659 is replete with both procedural and
substantive safeguards that ensure only the correct application of
the mandate of R.A. No. 7659.
In the course of the congressional debates on the constitutional
requirement that the death penalty be re-imposed for compelling
reasons involving heinous crimes, we note that the main objection
to the death penalty bill revolved around the persistent demand of
the abolitionists for a statement of the compelling reason in each
and every heinous crime and statistical proof that such compelling
reason actually exists.
We believe, however, that the elements of heinousness and
compulsion are inseparable and are, in fact, interspersed with
each other. Because the subject crimes are either so revolting and
debasing as to violate the most minimum of the human standards
of decency or its effects, repercussions, implications and
consequences so destructive, destabilizing, debilitating, or
aggravating in the context of our socio-political and economic
agenda as a developing nation, these crimes must be frustrated,
curtailed and altogether eradicated. There can be no its or buts in
the face of evil, and we cannot afford to wait until we rub elbows
with it before grasping it by the ears and thrashing it to its
demission.
The abolitionists in congress insisted that all criminal reforms first
be pursued and implemented before the death penalty be re-
imposed in case such reforms prove unsuccessful They claimed
that the only compelling reason contemplated of by the constitution
is that nothing else but the death penalty is left for the government
to resort to that could check the chaos and the destruction that is
being caused by unbridled criminality. Three of our colleagues, are
of the opinion that the compelling reason required by the
constitution is that there occurred a dramatic and significant
change in the socio-cultural milieu after the suspension of the
death penalty on February 2, 1987 such as an unprecedented rise
in the incidence of criminality. Such are, however, interpretations
only of the phrase "compelling; reasons" but not of the conjunctive
phrase "compelling reasons involving heinous crimes". The
imposition of the requirement that there be a rise in the incidence
of criminality because of the suspension of the death penalty,
moreover, is an unfair and misplaced demand, for what it amounts
to, in fact, is a requirement that the death penalty first proves itself
to be a truly deterrent factor in criminal behavior. If there was a
dramatically higher incidence of criminality during the time that the
death penalty was suspended, that would have proven that the
death penalty was indeed a deterrent during the years before its
suspension. Suffice it to say that the constitution in the first place
did not require that the death penalty be first proven to be a
deterrent; what it requires is that there be compelling reasons
involving heinous crimes.
Article III, Section 19(1) of the 1987 Constitution simply states that
congress, for compelling reasons involving heinous crimes, may
re-impose the death penalty. Nothing in the said provision imposes
a requirement that for a death penalty bill to be valid, a positive
manifestation in the form of a higher incidence of crime should first
be perceived and statistically proven following the suspension of
the death penalty. Neither does the said provision require that the
death penalty be resorted to as a last recourse when all other
criminal reforms have failed to abate criminality in society It is
immaterial and irrelevant that R.A. No. 7659 cites that there has
been an "alarming upsurge of such crimes", for the same was
never intended by said law to be the yardstick to determine the
existence of compelling reasons involving heinous crimes.
Fittingly, thus, what R.A. No. 7659 states is that "the Congress, in
the interest of justice, public order and rule of law, and the need to
rationalize and harmonize the penal sanctions for heinous crimes,
finds compelling reasons to impose the death penalty for said
crimes."
We now proceed to answer accused-appellant's other ground for
attacking the constitutionality of R.A. No. 7659,i.e., that the death
penalty imposed in rape is violative of the constitutional
proscription against cruel, degrading or inhuman punishment.
Accused-appellant first claims that the death penalty is per se a
cruel, degrading or inhuman punishment as ruled by the United
States (U.S.) Supreme Court in Furman v. Georgia. 41 To state,
however, that the U.S. Supreme Court, in Furman, categorically
ruled that the death penalty is a cruel, degrading or inhuman
punishment, is misleading and inaccurate.
The issue in Furman was not so much death penalty itself but the
arbitrariness pervading the procedures by which the death penalty
was imposed on the accused by the sentencing jury. Thus, the
defense theory in Furmancentered not so much on the nature of
the death penalty as a criminal sanction but on the discrimination
against the black accused who is meted out the death penalty by a
white jury that is given the unconditional discretion to determine
whether or not to impose the death penalty. In fact, the long road
of the American abolitionist movement leading to the landmark
case of Furman was trekked by American civil rights advocates
zealously fighting against racial discrimination. Thus, the U.S.
Supreme Court stated in Furman:
We cannot say from facts disclosed in these
records that these defendants were sentenced
to death because they were black. Yet our task
is not restricted to an effort to divine what
motives impelled these death penalties. Rather,
we deal with a system of law and of justice that
leaves to the uncontrolled discretion of judges
or juries the determination whether defendants
committing these crimes should die . . . .
xxx xxx xxx
In a Nation committed to equal protection of the
laws there is no permissible caste' aspect of
law enforcement. Yet we know that the
discretion of judges and juries in imposing the
death penalty enables the penalty to be
selectively applied feeding prejudices against
the accused if he is poor and despised . . .
xxx xxx xxx
Thus, these discretionary statutes are
unconstitutional in their operation. They are
pregnant with discrimination and discrimination
is an ingredient not compatible with the idea of
equal protection of the laws that is implicit in
the ban on cruel and unusual punishments.
Furman, thus, did not outlaw the death penalty because it was
cruel and unusual per se. While the U.S. Supreme Court nullified
all discretionary death penalty statutes in Furman, it did so
because the discretion which these statutes vested in the trial
judges and sentencing juries was uncontrolled and without any
parameters, guidelines, or standards intended to lessen, if not
altogether eliminate, the intervention of personal biases, prejudices
and discriminatory acts on the part of the trial judges and
sentencing juries.
Consequently, in the aftermath of Furman when most of the states
re-enacted their death penalty statutes now bearing the procedural
checks that were required by the U.S. Supreme Court, said court
affirmed the constitutionality of the new death penalty statutes in
the cases of Gregg v. Georgia, 42 Jurek v.
Texas, 43 and Profitt v. Florida 44.
Next, accused-appellant asseverates that the death penalty is a
cruel, inhuman or degrading punishment for the crime of rape
mainly because the latter, unlike murder, does not involve the
taking of life. In support of his contention, accused-appellant
largely relies on the ruling of the U.S. Supreme Court in Coker
v. Georgia. 45
In Coker, the U.S Supreme Court ruled as follows:
. . . It is now settled that the death penalty is not
invariably cruel and punishment within the
meaning of Eight Amendment; it is not
inherently unacceptable mode of punishment
for crime; neither is it always disproportionate to
the crime for which it is imposed. It is also
established that imposing capital punishment at
least for murder, in accordance with the
procedures provided under the Georgia
Statutes saves the sentence from the infirmities
which led the Court to invalidate the prior
Georgia capital punishment statute in Furman
v. Georgia . . .
xxx xxx xxx
In Gregg [v. Georgia] . . . the Court's judgment
was that the death penalty for deliberate
murder was neither the purposeless Imposition
of severe punishment nor a punishment grossly
disproportionate to the crime. But the Court
reserved the question of the constitutionality of
the death penalty when imposed for other
crimes. . . .
That question, with respect to rape of an adult
woman, is now before us.
xxx xxx xxx
. . . [T]he public judgment with respect to rape.
as reflected in the statutes providing the
punishment for that crime, has been
dramatically different. In reviving death penalty
laws to satisfy Furman's mandate, none of the
states that had not previously authorized death
for rape chose to include rape among capital
felonies. Of the 16 States in which rape had
been a capital offense, only three provided the
death penalty for rape of an adult woman in
their revised statutes-Georgia, North Carolina
and Louisiana. In the latter two States, the
death penalty was mandatory for those found
guilty, and those laws were invalidated by
Woodson and Roberts. When Louisiana and
North Carolina respondent to those decisions,
again revised their capital punishment laws,
they reenacted the death penalty for murder but
not for rape; none of the seven other
legislatures that to our knowledge have
amended or replaced their death penalty
statutes since July 2, 1976, including four
States (in addition to Louisiana and North
Carolina) that had authorized the death
sentence for rape prior to 1972 and had
reacted to Furman with mandatory statutes,
included rape among the crimes for which
death was an authorized punishment.
xxx xxx xxx
It should be noted that Florida. Mississippi, and
Tennessee also authorized the death penalty in
some rape cases, but only where the victim
was a child and the rapist an adult. the
Tennessee statute has since been invalidated
because the death sentence was mandatory. x
x x The upshot is that Georgia is the sole
jurisdiction in the United States at the present
time that authorizes a sentence of death when
the rape victim is an adult woman, and only two
other jurisdictions provide capital punishment
when the victim is a child.
The current judgment with respect to the death
penalty for rape is not wholly unanimous
among state legislatures, but it obviously
weighs very heavily on the side of rejecting
capital punishment as a suitable penalty for
raping an adult woman.
. . . [T]he legislative rejection of capital
punishment for rape strongly confirms our own
judgment, which is that death is indeed a
disproportionate penalty for the crime of raping
an adult woman.
We do not discount the seriousness of rape as
a crime. It is highly reprehensible, both in a
moral sense and in its almost total contempt for
the personal integrity and autonomy of the
female victim and for the latter's privilege of
choosing those with whom intimate
relationships are to be established. Short of
homicide, it is the ultimate violation of self. It is
also a violent crime because it normally
involves force, or the threat of force or
intimidation, to over come the will and the
capacity of the victim to resist. Rape is very
often accompanied by physical injury to the
female and can also inflict mental and
psychological damage. Because it undermines
the community's sense of security. there is
public injury as well.
Rape is without doubt deserving of serious
punishment; but in terms of moral depravity and
of the injury to the person and to the public. it
does not compare with murder, which does
involve the unjustified taking of human life.
Although it may be accompanied by another
crime, rape by definition does not include the
death of or even the serious injury to another
person. The murderer kills; the rapist, if no
more than that does not. Life is over for the
victim of the murderer; for the rape victim, life
may not be nearly so happy as it was, but it is
not over and normally is not beyond repair. We
have the abiding conviction that the death
penalty, which "is unique in its severity and
irrevocability" . . . is an excessive penalty for
the rapist who, as such does not take human
life.
The U.S. Supreme Court based its foregoing ruling on two
grounds: first, that the public has manifested its rejection of the
death penalty an a proper punishment for the crime of rape
through the willful omission by the state legislatures to include rape
in their in the aftermath of Furman; and second, that rape, while
concededly a dastardly contemptuous violation of a woman's
spiritual integrity, physical privacy, and psychological balance,
does not involve the taking of life.
Anent the first ground, we fail to see how this could have any
bearing on the Philippine experience and in the context of our own
culture.
Anent the second ground, we disagree with the court's predicate
that the gauge of whether or not a crime warrants the death
penalty or not, is the attendance of the circumstance of death on
the part of the victim. Such a premise is in fact an ennobling of the
biblical notion of retributive justice of "an eye for an eye, a tooth for
a tooth". We have already demonstrated earlier in our discussion
of heinous crimes that the forfeiture of life simply because life was
taken, never was a defining essence of the death penalty in the
context of our legal history and cultural experience; rather, the
death penalty is imposed in heinous crimes because the
perpetrators thereof have committed unforgivably execrable acts
that have so deeply dehumanized a person or criminal acts with
severely destructive effects on the national efforts to lift the
masses from abject poverty through organized governmental
strategies based on a disciplined and honest citizenry, and
because they have so caused irreparable and substantial injury to
both their victim and the society and a repetition of their acts would
pose actual threat to the safety of individuals and the survival of
government, they must be permanently prevented from doing so.
At any rate, this court has no doubts as to the innate heinousness
of the crime of rape, as we have held in the case ofPeople
v. Cristobal: 46
Rape is the forcible violation of the sexual
intimacy of another person. It does injury to
justice and charity. Rape deeply wounds the
respect, Freedom, and physical and moral
integrity to which every person has a right. It
causes grave damage that can mark the victim
for life. It is always an intrinsically evil act . . . an
outrage upon decency and dignity that hurts not
only the victim but the society itself
We are not unaware that for all the legal posturings we have so
essayed here, at the heart of the issue of capital punishment is the
wistful, sentimental life-and-death question to which all of us,
without thinking, would answer, "life, of course, over death". But
dealing with the fundamental question of death provides a context
for struggling with even more basic questions, for to grapple with
the meaning of death is, in an indirect way to ask the meaning of
life. Otherwise put, to ask what the rights are of the dying is to ask
what the rights are of the living.
Capital punishment ought not to be abolished
solely because it is substantially repulsive, if
infinitely less repulsive than the acts which
invoke it. Yet the mounting zeal for its abolition
seems to arise from a sentimentalized
hyperfastidiousness that seeks to expunge
from the society all that appears harsh and
suppressive. If we are to preserve the humane
society we will have to retain sufficient strength
of character and will to do the unpleasant in
order that tranquility and civility may rule
comprehensively. It seems very likely that
capital punishment is a . . . necessary, if limited
factor in that maintenance of social tranquility
 and ought to be retained on this ground. To do
otherwise is to indulge in the luxury of
permitting a sense of false delicacy to reign
over the necessity of social survival. 47
WHEREFORE, in view of all the foregoing, the Motion for
Reconsideration and Supplemental Motion for Reconsideration are
hereby DENIED 48 for LACK OF MERIT.
SO ORDERED
G.R. No. 123567 June 5, 1998
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROBERTO TONGKO, accused-appellant.
PUNO, J.:
This is an appeal by accused Roberto Tongko from the Decision of
the RTC of Pasig City, Branch 156 finding him guilty of estafa
under Article 315 (2) (d) of the Revised Penal Code. He was
sentenced to suffer twenty seven (27) years of reclusion
perpetua and to indemnify Carmelita v. Santos by way of actual
damges in the sum of P100,000.00 and to pay the cost of suit.
Accused was charged under the following Information:
That on or about the 20th day of August, 1993,
in the Municipality of Pasig, Metro Manila,
Philippines and within the jurisdiction of this
Honorable Court, the above-named accused,
by means of deceit and false pretenses
committed prior to or simultaneously with the
commission of the fraudulent acts, did then and
there willfully, unlawfully and feloniously make
or draw and issue to one, Carmelita Santos to
apply on account or for value, the check
described below:
BANK CHECK NO. DATE AMOUNT
Phil. Amanah Bank 203729 12-20-93
P10,000.00
Phil. Amanah Bank 203730 12-20-93 10,000.00
Phil. Amanah Bank 203731 12-20-93 10,000.00
Phil. Amanah Bank 203732 12-20-93 10,000.00
Phil. Amanah Bank 203733 12-20-93 10,000.00
Phil. Amanah Bank 203737 12-20-93 10,000.00
Phil. Amanah Bank 203738 12-20-93 10,000.00
Phil. Amanah Bank 203739 12-20-93 10,000.00
Phil. Amanah Bank 203740 12-20-93 10,000.00
Phil. Amanah Bank 203741 12-20-93 10,000.00
said accused well knowing at the time of issue
he did not have sufficient funds in or credit with
the drawee bank for the payment in full of the
face amount of such check upon presentment
which check when presented for payment
within ninety (90) days from the date thereof
was subsequently dishonored by the drawee
bank for the reason "Account Closed" and
despite the lapse of three (3) banking days
from receipt of notice that said check has been
dishonored, the accused failed to pay said
payee the face amount of such check or to
make arrangement for full payment thereof, to
the damage and prejudice of said Carmelita
Santos in the total amount of P100,000.00.
CONTRARY TO LAW.
Accused pled not quilty and underwent trial.
The evidence for the prosecution shows that on September 21,
1990, accused opened savings and current account with Amanah
Bank. 1 In the morning of August 20, 1993, Marites Bo-ot brought
the accused to the office of Carmelita V. Santos at Room 504
Pacific Place, Pearl Drive, Ortigas Center, Pasig City to borrow
money. 2 The accused asked for P50,000.00 to be paid not later
than December 1993. 3 He assured Santos that his receivables
would come in by November 1993. He persuaded Santos to give
the loan by issuing five (5) check, each in the sum of P10,000.00,
postdated December 20, 1993 and by signing a promissory
note. 4 The promissory note was co-signed by Bo-ot. In the
afternoon of the same date, the accused returned to Santos and
borrowed an additional P50,000.00. Again, he issued five (5)
checks, each worth P10,000.00 postdated December 20, 1993. He
also signed a promissory note together with Bo-ot. 5
On September 14, 1993, Amanah Bank closed accused's current
account for lack of funds. On October 19, 1993, accused himself
requested for the closing of his savings account. 6
Santos did not present accused's checks to the drawee bank on
their due date upon the request of accused himself. 7 Instead, the
checks were presented on March 1, 1994 but were dishonored as
accused's accounts had been closed. 8 Accused was informed that
his checks had bounced. He promised to make good the checks.
He failed to redeem his promise, hence, the case at bar. 9
The accused testified for himself. Nobody corroborated his
testimony. He admitted the evidence of the prosecution but alleged
that the postdated checks were issued a day or two after he signed
the promissory notes.10 Obviously, he was relying on the defense
that the checks were in payment of a pre-existing obligation.
As aforestated, the trial court convicted the accused. He appealed
to this Court and changed his counsel. 11 He now contends:
I
THE TRIAL COURT ERRED IN HOLDING
THAT THE ISSUANCE OF THE TEN (10)
POSTDATED CHECKS (EXHS. "C" TO "L") BY
THE ACCUSED-APPELLANT CONSTITUTED
FRAUD WHICH INDUCED THE PRIVATE
COMPLAINANT TO EXTEND THE LOANS. IT
IS RESPECTFULLY SUBMITTED THAT THE
INDUCEMENT WAS THE EXECUTION OF
THE TWO (2) PROMISSORY NOTES AS
WELL AS THE CO-SIGNING THEREOF BY
MA. THERESA DEL ROSARIO BO-OT (WHO
INTRODUCED ACCUSED-APPELLANT TO
PRIVATE COMPLAINANT), IN A JOINT AND
SEVERAL CAPACITY.
II
THE TRIAL COURT ERRED IN NOT
HOLDING THAT THE POST-DATED CHECKS
WERE IN PAYMENT OF PRE-EXISTING
OBLIGATIONS.
III
THE TRIAL COURT ERRED IN FINDING THE
ACCUSED-APPELLANT GUILTY OF ESTAFA
AS CHARGED, AND IN IMPOSING A STIFF
PRISON TERM OF 27 YEARS
OF RECLUSIONPERPETUA, A PENALTY
"TOO HARSH AND OUT OF PROPORTION"
AS TO BE VIOLATIVE OF THE
CONSTITUTION.
The appeal is without merit.
Estafa, under Article 315, paragraph 2(d) of the Revised Penal
Code, as amended by Republic Act. No. 4885, has the following
elements: (1) postdating or issuance of a check in payment of an
obligation contracted at the time the check was issued; (2) lack of
sufficiency of funds to cover the check; and (3) damage to the
payee thereof.
To avoid the first element, appellant contends that he was able to
borrow P100,000.00 from Santos due to the promissory notes he
co-signed with Bo-ot and not due to the postdated checks he
issued. We reject this contention. Firstly, this contention was
contrived only after appellant's conviction in the trial court. The
records show that appellant did not raise this defense in the trial
court. He cannot fault the trial court for failing to consider a
defense which he never raised. Secondly, Santos is the best
person who can testify on what induced her to lend P100,000.00 to
the appellant. Santos categorically declared that it was the
issuance of postdated checks which persuaded her to part with her
money. We quote her testimony, viz.: 12
Q What happened to those
checks you mentioned in the
promissory note?
A When presented to the
bank they were all returned
by the bank for reason,
account closed.
Q Before this was deposited
to the bank when the
accused came to your office
and loaned money from you,
what was his representation
if any to you?
A That his collection will
come in by Nov. 1993 and
also the checks issued to
me will be definitely funded
on the date that it will
become due.
Q Were you persuaded as a
result of the statement of the
accused that these checks
will be good that you parted
away the amount?
A Yes, sir.
There is likewise no merit to the submission of appellant that his
postdated checks were in payment of a pre-existing obligation.
Again, we note appellant's change of theory in foisting this
argument. In the trial court, appellant testified that he issued the
postdated checks, thru Bo-ot, a day or two after he obtained the
P100,000.00 loan from Santos. 13 The falsity of the uncorroborated
claim, however, is too obvious and the trial court correctly rejected
it. The claim cannot succeed in light of Santos' testimony that the
issuance of said checks persuaded her to grant the loans. A look
at the two promissory notes will show that they bear the date
August 20, 1993 and they referred to the postdated checks issued
by the appellant. There could be no reference to the postdated
checks if they were issued a day or two after the loans. In this
appeal, however, appellant offers the new thesis that since the
checks were postdated December 1993, ergo, they were issued in
payment of the P100,000.00 he got from Santos on August 20,
1993. The postdating of the checks to December 1993 simply
means that on said date the checks would be properly funded. It
does not mean that the checks should be deemed as issued only
on December 1993.
Lastly, appellant contends that the penalty of twenty seven (27)
years of reclusion perpetua is too harsh and out of proportion to
the crime he committed. He submits that his sentence violates
section 19(1), Article III of the Constitution which prohibits the
infliction of cruel, degrading or inhuman punishment. We are not
persuaded. InPeople v. de la Cruz, 14 we 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 apply to punishments which
never existed in America or 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 . . ." In People v.Estoista, 15 we further
held:
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."
The legislature was not thoughtless in imposing severe
penalties for violation of par. 2(d) of Article 315 of the
Revised Penal Code. The history of the law will show that
the severe penalties were intended to stop the upsurge
of swindling by issuance of bouncing checks. It was felt
that unless aborted, this kind of estafa ". . . would erode
the people's confidence in the use of negotiable
instruments as a medium of commercial transaction and
consequently result in the retardation of trade and
commerce and the undermining of the banking system of
the country." 16 The Court cannot impugn the wisdom of
Congress in setting this policy.
IN VIEW WHEREOF, the Decision dated January 16, 1996 of the
RTC of Pasig City, Br. 156 in Criminal Case No. 106614 convicting
appellant is affirmed. Costs against appellant.
SO ORDERED.
[G.R. No. 132601. October 12, 1998]
LEO ECHEGARAY y PILO, petitioner, vs. THE SECRETARY OF
JUSTICE and THE DIRECTOR OF THE BUREAU OF
CORRECTIONS, THE EXECUTIVE JUDGE OF THE
REGIONAL TRIAL COURT OF QUEZON CITY AND
THE PRESIDING JUDGE OF REGIONAL TRIAL
COURT OF QUEZON CITY, BRANCH
104, respondents.
DECISION
PER CURIAM:
On June 25, 1996, this Court affirmed[1] the conviction of
petitioner Leo Echegaray y Pilo for the crime of rape of the 10
year-old daughter of his common-law spouse and the imposition
upon him of the death penalty for the said crime.
Petitioner duly filed a Motion for Reconsideration raising
mainly factual issues, and on its heels, a Supplemental Motion for
Reconsideration raising for the first time the issue of the
constitutionality of Republic Act No. 7659[2] (the death penalty law)
and the imposition of the death penalty for the crime of rape.
On February 7, 1998, this Court denied[3] petitioner's Motion
for Reconsideration and Supplemental Motion for Reconsideration
with a finding that Congress duly complied with the requirements
for the reimposition of the death penalty and therefore the death
penalty law is not unconstitutional.
In the meantime, Congress had seen it fit to change the
mode of execution of the death penalty from electrocution to lethal
injection,[4] and passed Republic Act No. 8177, AN ACT
DESIGNATING DEATH BY LETHAL INJECTION AS THE
METHOD OF CARRYING OUT CAPITAL PUNISHMENT,
AMENDING FOR THE PURPOSE ARTICLE 81 OF THE
REVISED PENAL CODE, AS AMENDED BY SECTION 24 OF
REPUBLIC ACT NO. 7659.[5] Pursuant to the provisions of said
law, the Secretary of Justice promulgated the Rules and
Regulations to Implement Republic Act No. 8177 ("implementing
rules")[6] and directed the Director of the Bureau of Corrections to
prepare the Lethal Injection Manual.[7]
On March 2, 1998, petitioner filed a Petition[8] for Prohibition,
Injunction and/or Temporary Restraining Order to enjoin
respondents Secretary of Justice and Director of the Bureau of
Prisons from carrying out the execution by lethal injection of
petitioner under R.A. No. 8177 and its implementing rules as these
are unconstitutional and void for being: (a) cruel, degrading and
inhuman punishment per seas well as by reason of its being (b)
arbitrary, unreasonable and a violation of due process, (c) a
violation of the Philippines' obligations under international
covenants, (d) an undue delegation of legislative power by
Congress, (e) an unlawful exercise by respondent Secretary of the
power to legislate, and (f) an unlawful delegation of delegated
powers by the Secretary of Justice to respondent Director.
On March 3, 1998, petitioner, through counsel, filed a Motion
for Leave of Court[9] to Amend and Supplement Petition with the
Amended and Supplemental Petition[10] attached thereto, invoking
the additional ground of violation of equal protection, and
impleading the Executive Judge of the Regional Trial Court of
Quezon City and the Presiding Judge of the Regional Trial Court,
Branch 104, in order to enjoin said public respondents from acting
under the questioned rules by setting a date for petitioner's
execution.
On March 3, 1998, the Court resolved, without giving due
course to the petition, to require the respondents to COMMENT
thereon within a non-extendible period of ten (10) days from
notice, and directed the parties "to MAINTAIN the status
quo prevailing at the time of the filing of this petition."
On March 10, 1998, the Court granted the Motion for Leave
of Court to Amend and Supplement Petition, and required
respondents to COMMENT thereon within ten (10) days from
notice.
On March 16, 1998, petitioner filed a Very Urgent Motion (1)
To clarify Status Quo Order, and (2) For the Issuance of a
Temporary Restraining Order expressly enjoining public
respondents from taking any action to carry out petitioner's
execution until the petition is resolved.
On March 16, 1998, the Office of the Solicitor General [11] filed
a Comment (On the Petition and the Amended Supplemental
Petition)[12] stating that (1) this Court has already upheld the
constitutionality of the Death Penalty Law, and has repeatedly
declared that the death penalty is not cruel, unjust, excessive or
unusual punishment; (2) execution by lethal injection, as
authorized under R.A. No. 8177 and the questioned rules, is
constitutional, lethal injection being the most modern, more
humane, more economical, safer and easier to apply (than
electrocution or the gas chamber); (3) the International Covenant
on Civil and Political Rights does not expressly or impliedly prohibit
the imposition of the death penalty; (4) R.A. No. 8177 properly
delegated legislative power to respondent Director; and that (5)
R.A. No. 8177 confers the power to promulgate the implementing
rules to the Secretary of Justice, Secretary of Health and the
Bureau of Corrections.
On March 17, 1998, the Court required the petitioner to file a
REPLY thereto within a non-extendible period of ten days from
notice.
On March 25, 1998, the Commission on Human
Rights[13] filed a Motion for Leave of Court to Intervene and/or
Appear as Amicus Curiae[14] with the attached Petition to Intervene
and/or Appear asAmicus Curiae[15] alleging that the death penalty
imposed under R.A. No. 7659 which is to be implemented by R.A.
No. 8177 is cruel, degrading and outside the limits of civil society
standards, and further invoking (a) Article II, Section 11 of the
Constitution which provides: "The State values the dignity of every
human person and guarantees full respect for human rights."; (b)
Article III of the Universal Declaration of Human Rights which
states that "Everyone has the right to life, liberty and security of
person," and Article V thereof, which states that "No one shall be
subjected to torture or to cruel, inhuman or degrading treatment or
punishment."; (c) The International Covenant on Civil and Political
Rights, in particular, Article 6 thereof, and the Second Optional
Protocol to the International Covenant on Civil and Political Rights
Aiming At The Abolition of the Death Penalty; (d) Amnesty
International statistics showing that as of October 1996, 58
countries have abolished the death penalty for all crimes, 15
countries have abolished the death penalty for ordinary crimes,
and 26 countries are abolitionists de facto, which means that they
have retained the death penalty for ordinary crimes but are
considered abolitionists in practice that they have not executed
anyone during the past ten (10) years or more, or in that they have
made an international commitment not to carry out executions, for
a total of 99 countries which are total abolitionists in law or
practice, and 95 countries as retentionists; [16] and (e) Pope John
Paul II's encyclical, "Evangelium Vitae." In a Resolution dated April
3, 1998, the Court duly noted the motion.
On March 27, 1998, petitioner filed a Reply[17] stating that (1)
this Court is not barred from exercising judicial review over the
death penalty per se, the death penalty for rape and lethal injection
as a mode of carrying out the death penalty; (2) capital punishment
is a cruel, degrading and inhuman punishment; (3) lethal injection
is cruel, degrading and inhuman punishment, and that being the
"most modern" does not make it less cruel or more humane, and
that the Solicitor General's "aesthetic" criteria is short-sighted, and
that the lethal injection is not risk free nor is it easier to implement;
and (4) the death penalty violates the International Covenant on
Civil and Political Rights considering that the Philippines
participated in the deliberations of and voted for the Second
Optional Protocol.
After deliberating on the pleadings, the Court gave due
course to the petition, which it now resolves on the merits.
In the Amended and Supplemental Petition, petitioner assails
the constitutionality of the mode of carrying out his death sentence
by lethal injection on the following grounds: [18]
I.
DEATH BY LETHAL INJECTION IS UNCONSTITUTIONAL
FOR BEING A CRUEL, DEGRADING AND INHUMAN
PUNISHMENT.
II.
THE DEATH PENALTY VIOLATES THE INTERNATIONAL
COVENANT ON CIVIL AND POLITICAL RIGHTS, WHICH
IS PART OF THE LAW OF THE LAND.
III.
LETHAL INJECTION, AS AUTHORIZED UNDER
REPUBLIC ACT NO. 8177 AND THE QUESTIONED
RULES, IS UNCONSTITUTIONAL BECAUSE IT IS AN
UNNECESSARY AND WANTON INFLICTION OF PAIN ON
A PERSON AND IS, THUS, A CRUEL, DEGRADING, AND
INHUMAN PUNISHMENT.
IV.
REPUBLIC ACT NO. 8177 UNDULY DELEGATES
LEGISLATIVE POWER TO RESPONDENT DIRECTOR.
V.
RESPONDENT SECRETARY UNLAWFULLY DELEGATED
THE LEGISLATIVE POWERS DELEGATED TO HIM
UNDER REPUBLIC ACT NO. 8177 TO RESPONDENT
DIRECTOR.
VI.
RESPONDENT SECRETARY EXCEEDED THE
AUTHORITY DELEGATED TO HIM UNDER REPUBLIC
ACT NO. 8177 AND UNLAWFULLY USURPED THE
POWER TO LEGISLATE IN PROMULGATING THE
QUESTIONED RULES.
VII.
SECTION 17 OF THE QUESTIONED RULES IS
UNCONSTITUTIONAL FOR BEING DISCRIMINATORY AS
WELL AS FOR BEING AN INVALID EXERCISE BY
RESPONDENT SECRETARY OF THE POWER TO
LEGISLATE.
VIII.
INJUCTION MUST ISSUE TO PREVENT IRREPARABLE
DAMAGE AND INJURY TO PETITIONER'S RIGHTS BY
REASON OF THE EXISTENCE, OPERATION AND
IMPLEMENTATION OF AN UNCONSTITUTIONAL
STATUTE AND EQUALLY INVALID AND IMPLEMENTING
RULES.
Concisely put, petitioner argues that R.A. No. 8177 and its
implementing rules do not pass constitutional muster for: (a)
violation of the constitutional proscription against cruel, degrading
or inhuman punishment, (b) violation of our international treaty
obligations, (c) being an undue delegation of legislative power, and
(d) being discriminatory.
The Court shall now proceed to discuss these
issues in seriatim.
I. LETHAL INJECTION, NOT CRUEL, DEGRADING
OR INHUMAN PUNISHMENT UNDER SECTION
19, ARTICLE III OF THE 1987 CONSTITUTION.
The main challenge to R.A. 8177 and its implementing rules
is anchored on Article III, Section 19 (1) of the 1987 Constitution
which proscribes the imposition of "cruel, degrading or inhuman"
punishment. "The prohibition in the Philippine Bill against cruel and
unusual punishments is an Anglo-Saxon safeguard against
governmental oppression of the subject, which made its first
appearance in the reign of William and Mary of England in 'An Act
declaring the rights and liberties of the subject, and settling the
succession of the crown,' passed in the year 1689. It has been
incorporated into the Constitution of the United States (of America)
and into most constitutions of the various States in substantially
the same language as that used in the original statute. The exact
language of the Constitution of the United States is used in the
Philippine Bill."[19] "The counterpart of Section 19 (1) in the 1935
Constitution reads: 'Excessive fines shall not be imposed, nor cruel
and inhuman punishment inflicted.' xxx In the 1973 Constitution
the phrase became 'cruel or unusual punishment.' The Bill of
Rights Committee of the 1986 Constitutional Commission read the
1973 modification as prohibiting 'unusual' punishment even if not
'cruel.' It was thus seen as an obstacle to experimentation in
penology. Consequently, the Committee reported out the present
text which prohibits 'cruel, degrading or inhuman punishment' as
more consonant with the meaning desired and with jurisprudence
on the subject."[20]
Petitioner contends that death by lethal injection constitutes
cruel, degrading and inhuman punishment considering that (1)
R.A. No. 8177 fails to provide for the drugs to be used in carrying
out lethal injection, the dosage for each drug to be administered,
and the procedure in administering said drug/s into the accused;
(2) R.A. No. 8177 and its implementing rules are uncertain as to
the date of the execution, time of notification, the court which will
fix the date of execution, which uncertainties cause the greatest
pain and suffering for the convict; and (3) the possibility of
"botched executions" or mistakes in administering the drugs
renders lethal injection inherently cruel.
Before the Court proceeds any further, a brief explanation of
the process of administering lethal injection is in order.
In lethal injection, the condemned inmate is strapped on a
hospital gurney and wheeled into the execution room. A trained
technician inserts a needle into a vein in the inmate's arm and
begins an intravenous flow of saline solution. At the warden's
signal, a lethal combination of drugs is injected into the
intravenous line. The deadly concoction typically includes three
drugs: (1) a nonlethal dose of sodium thiopenthotal, a sleep
inducing barbiturate; (2) lethal doses of pancuronium bromide, a
drug that paralyzes the muscles; and (3) potassium chloride, which
stops the heart within seconds. The first two drugs are commonly
used during surgery to put the patient to sleep and relax muscles;
the third is used in heart bypass surgery.[21]
Now it is well-settled in jurisprudence that the death
penalty per se is not a cruel, degrading or inhuman
punishment.[22] In the oft-cited case of Harden v. Director of
Prisons,[23] this Court held that "[p]unishments are cruel when they
involve torture or a lingering death; but the punishment of death is
not cruel, within the meaning of that word as used in the
constitution. It implies there something inhuman and barbarous,
something more than the mere extinguishment of life." Would the
lack in particularity then as to the details involved in the execution
by lethal injection render said law "cruel, degrading or
inhuman"? The Court believes not. For reasons hereafter
discussed, the implementing details of R.A. No. 8177 are matters
which are properly left to the competence and expertise of
administrative officials.[24]
Petitioner contends that Sec. 16[25] of R.A. No. 8177 is
uncertain as to which "court" will fix the time and date of execution,
and the date of execution and time of notification of the death
convict. As petitioner already knows, the "court" which designates
the date of execution is the trial court which convicted the accused,
that is, after this Court has reviewed the entire records of the
case[26] and has affirmed the judgment of the lower
court. Thereupon, the procedure is that the "judgment is entered
fifteen (15) days after its promulgation, and 10 days thereafter, the
records are remanded to the court below including a certified copy
of the judgment for execution.[27] Neither is there any uncertainty
as to the date of execution nor the time of notification. As to the
date of execution, Section 15 of the implementing rules must be
read in conjunction with the last sentence of Section 1 of R.A. No.
8177 which provides that the death sentence shall be carried out
"not earlier than one (1) year nor later then eighteen (18) months
from the time the judgment imposing the death penalty became
final and executory, without prejudice to the exercise by the
President of his executive clemency powers at all times." Hence,
the death convict is in effect assured of eighteen (18) months from
the time the judgment imposing the death penalty became final
and executory[28] wherein he can seek executive clemency[29] and
attend to all his temporal and spiritual affairs. [30]
Petitioner further contends that the infliction of "wanton pain"
in case of possible complications in the intravenous injection,
considering and as petitioner claims, that respondent Director is an
untrained and untested person insofar as the choice and
administration of lethal injection is concerned, renders lethal
injection a cruel, degrading and inhuman punishment. Such
supposition is highly speculative and unsubstantiated.
First. Petitioner has neither alleged nor presented evidence
that lethal injection required the expertise only of phlebotomists
and not trained personnel and that the drugs to be administered
are unsafe or ineffective.[31] Petitioner simply cites situations in the
United States wherein execution by lethal injection allegedly
resulted in prolonged and agonizing death for the
convict,[32] without any other evidence whatsoever.
Second. Petitioner overlooked Section 1, third paragraph of
R.A. No. 8177 which requires that all personnel involved in the
execution proceedings should be trained prior to the performance
of such task.We must presume that the public officials entrusted
with the implementation of the death penalty (by lethal injection)
will carefully avoid inflicting cruel punishment. [33]
Third. Any infliction of pain in lethal injection is merely
incidental in carrying out the execution of death penalty and does
not fall within the constitutional proscription against cruel,
degrading and inhuman punishment. "In a limited sense, anything
is cruel which is calculated to give pain or distress, and since
punishment imports pain or suffering to the convict, it may be said
that all punishments are cruel. But of course the Constitution does
not mean that crime, for this reason, is to go unpunished."[34] The
cruelty against which the Constitution protects a convicted man is
cruelty inherent in the method of punishment, not the necessary
suffering involved in any method employed to extinguish life
humanely.[35] Numerous federal and state courts of the United
States have been asked to review whether lethal injections
constitute cruel and unusual punishment. No court has found lethal
injections to implicate prisoner's Eighth Amendment rights. In fact,
most courts that have addressed the issue state in one or two
sentences that lethal injection clearly is a constitutional form of
execution.[36] A few jurisdictions, however, have addressed the
merits of the Eighth Amendment claims. Without exception, these
courts have found that lethal injection does not constitute cruel and
unusual punishment. After reviewing the medical evidence that
indicates that improper doses or improper administration of the
drugs causes severe pain and that prison officials tend to have
little training in the administration of the drugs, the courts have
found that the few minutes of pain does not rise to a constitutional
violation.[37]
What is cruel and unusual "is not fastened to the obsolete
but may acquire meaning as public opinion becomes enlightened
by a humane justice" and "must draw its meaning from the
evolving standards of decency that mark the progress of a
maturing society."[38] Indeed, "[o]ther (U.S.) courts have focused on
'standards of decency' finding that the widespread use of lethal
injections indicates that it comports with contemporary
norms."[39] the primary indicator of society's standard of decency
with regard to capital punishment is the response of the country's
legislatures to the sanction.[40] Hence, for as long as the death
penalty remains in our statute books and meets the most stringent
requirements provided by the Constitution, we must confine our
inquiry to the legality of R.A. No. 8177, whose constitutionality we
duly sustain in the face of petitioner's challenge. We find that the
legislature's substitution of the mode of carrying out the death
penalty from electrocution to lethal injection infringes no
constitutional rights of petitioner herein.
II. REIMPOSITION OF THE DEATH PENALTY LAW
DOES NOT VIOLATE INTERNATIONAL TREATY
OBLIGATIONS
Petitioner assiduously argues that the reimposition of the
death penalty law violates our international obligations, in
particular, the International Covenant on Civil And Political Rights,
which was adopted by the General Assembly of the United Nations
on December 16, 1996, signed and ratified by the Philippines on
December 19, 1966 and October 23, 1986,[41] respectively.
Article 6 of the International Covenant on Civil and Political
Rights provides:
"1. Every human being has the inherent right to life. This right shall
be protected by law. No one shall be arbitrarily deprived of his life.
2. In countries which have not abolished the death penalty,
sentence of death may be imposed only for the most serious
crimes in accordance with the law in force at the time of the
commission of the crime and not contrary to the provisions of the
present Covenant and to the Convention on the Prevention and
Punishment of the Crime of Genocide. This penalty can only be
carried out pursuant to a final judgment rendered by a competent
court." (emphasis supplied)
3. When deprivation of life constitutes the crime of genocide, it is
understood that nothing in this article shall authorize any State
Party to the present Covenant to derogate in any way from any
obligation assumed under the provisions of the Convention on the
Prevention and Punishment of the Crime of Genocide.
4. Anyone sentenced to death shall have the right to seek pardon
or commutation of the sentence. Amnesty, pardon or commutation
of the sentence of death may be granted in all-cases.
5. Sentence of death shall not be imposed for crimes committed by
persons below eighteen years of age and shall not be carried out
on pregnant women.
6. Nothing in this article shall be invoked to delay or to prevent the
abolition of capital punishment by any State. Party to the present
Covenant."
Indisputably, Article 6 of the Covenant enshrines the
individual's right to life. Nevertheless, Article 6 (2) of
the Covenant explicitly recognizes that capital punishment is an
allowable limitation on the right to life, subject to the limitation that
it be imposed for the "most serious crimes". Pursuant to Article 28
of the Covenant, a Human Rights Committee was established and
under Article 40 of the Covenant, State parties to the Covenant are
required to submit an initial report to the Committee on the
measures they have adopted which give effect to the rights
recognized within the Covenant and on the progress made on the
enjoyment of those rights one year of its entry into force for the
State Party concerned and thereafter, after five years. On July 27,
1982, the Human Rights Committee issued General Comment No.
6 interpreting Article 6 of the Covenant stating that "(while) it
follows from Article 6 (2) to (6) that State parties are not obliged to
abolish the death penalty totally, they are obliged to limit its use
and, in particular, to abolish it for other than the 'most serious
crimes.' Accordingly, they ought to consider reviewing their
criminal laws in this light and, in any event, are obliged to restrict
the application of the death penalty to the most serious
crimes.' The article strongly suggests (pars. 2 (2) and (6) that
abolition is desirable. xxx The Committee is of the opinion that the
expression 'most serious crimes' must be read restrictively to
mean that the death penalty should be a quite exceptional
measure." Further, the Safeguards Guaranteeing Protection of
Those Facing the Death Penalty[42] adopted by the Economic and
Social Council of the United Nations declare that the ambit of the
term 'most serious crimes' should not go beyond intentional
crimes, with lethal or other extremely grave consequences.
The Optional Protocol to the International Covenant on Civil
and Political Rights was adopted by the General Assembly of the
United Nations on December 16, 1966, and signed and ratified by
the Philippines on December 19, 1966 and August 22,
1989,[43] respectively. The Optional Protocol provides that the
Human Rights Committee shall receive and consider
communications from individuals claiming to be victims of
violations of any of the rights set forth in the Covenant.
On the other hand, the Second Optional Protocol to the
International Covenant on Civil and Political Rights, Aiming at the
Abolition of the Death Penalty was adopted by the General
Assembly on December 15, 1989. The Philippines neither
signed nor ratified said document.[44] Evidently, petitioner's
assertion of our obligation under the Second Optional Protocol is
misplaced.
III. THERE IS NO UNDUE DELEGATION OF
LEGISLATIVE POWER IN R.A. NO. 8177 TO THE
SECRETARY OF JUSTICE AND THE DIRECTOR
OF BUREAU OF CORRECTIONS, BUT SECTION
19 OF THE RULES AND REGULATIONS TO
IMPLEMENT R.A. NO. 8177 IS INVALID.
The separation of powers is a fundamental principle in our
system of government. It obtains not through express provision but
by actual division in the framing of our Constitution. Each
department of the government has exclusive cognizance of
matters placed within its jurisdiction, and is supreme within its own
sphere.[45] Corollary to the doctrine of separation of powers is the
principle of non-delegation of powers. "The rule is that what has
been delegated, cannot be delegated or as expressed in a Latin
maxim: potestas delegata non delegari potest."[46] The recognized
exceptions to the rule are as follows:
(1) Delegation of tariff powers to the President under
Section 28 (2) of Article VI of the Constitution;
(2) Delegation of emergency powers to the President
under Section 23 (2) of Article VI of the
Constitution;
(3) Delegation to the people at large;
(4) Delegation to local governments; and
(5) Delegation to administrative bodies.[47]
Empowering the Secretary of Justice in conjunction with the
Secretary of Health and the Director of the Bureau of Corrections,
to promulgate rules and regulations on the subject of lethal
injection is a form of delegation of legislative authority to
administrative bodies.
The reason for delegation of authority to administrative
agencies is the increasing complexity of the task of government
requiring expertise as well as the growing inability of the legislature
to cope directly with the myriad problems demanding its
attention. The growth of society has ramified its activities and
created peculiar and sophisticated problems that the legislature
cannot be expected to attend to by itself. Specialization even in
legislation has become necessary. On many problems involving
day-to-day undertakings, the legislature may not have the needed
competence to provide the required direct and efficacious, not to
say, specific solutions. These solutions may, however, be
expected from its delegates, who are supposed to be experts in
the particular fields assigned to them.[48]
Although Congress may delegate to another branch of the
Government the power to fill in the details in the execution,
enforcement or administration of a law, it is essential, to forestall a
violation of the principle of separation of powers, that said law: (a)
be complete in itself - it must set forth therein the policy to be
executed, carried out or implemented by the delegate [49] - and (b)
fix a standard - the limits of which are sufficiently determinate or
determinable - to which the delegate must conform in the
performance of his functions.[50]
Considering the scope and the definiteness of R.A. No.
8177, which changed the mode of carrying out the death penalty,
the Court finds that the law sufficiently describes what job must be
done, who is to do it, and what is the scope of his authority. [51]
R.A. No. 8177 likewise provides the standards which define
the legislative policy, mark its limits, map out its boundaries, and
specify the public agencies which will apply it. it indicates the
circumstances under which the legislative purpose may be carried
out.[52] R.A. No. 8177 specifically requires that "[t]he death
sentence shall be executed under the authority of the Director of
the Bureau of Corrections, endeavoring so far as possible to
mitigate the sufferings of the person under the sentence
during the lethal injection as well as during the proceedings
prior to the execution."[53]Further, "[t]he Director of the Bureau of
Corrections shall take steps to ensure that the lethal injection to
be administered is sufficient to cause the instantaneous death
of the convict."[54] The legislature also mandated that "all
personnel involved in the administration of lethal injection
shall be trained prior to the performance of such task."[55] The
Court cannot see that any useful purpose would be served by
requiring greater detail.[56] The question raised is not the definition
of what constitutes a criminal offense,[57] but the mode of carrying
out the penalty already imposed by the Courts. In this sense, R.A.
No. 8177 is sufficiently definite and the exercise of discretion by
the administrative officials concerned is, to use the words of
Justice Benjamin Cardozo, canalized within banks that keep it from
overflowing.
Thus, the Court finds that the existence of an area for
exercise of discretion by the Secretary of Justice and the Director
of the Bureau of Corrections under delegated legislative power is
proper where standards are formulated for the guidance and the
exercise of limited discretion, which though general, are capable of
reasonable application.[58]
It is also noteworthy that Article 81 of the Revised Penal
Code which originally provided for the death penalty by
electrocution was not subjected to attack on the ground that it
failed to provide for details such as the kind of chair to be used, the
amount of voltage, volume of amperage or place of attachment of
electrodes on the death convict. Hence, petitioner's analogous
argument with respect to lethal injection must fail.
A careful reading of R.A. No. 8177 would show that there is
no undue delegation of legislative power from the Secretary of
Justice to the Director of the Bureau of Corrections for the simple
reason that under the Administrative Code of 1987, the Bureau of
Corrections is a mere constituent unit of the Department of
Justice.[59] Further, the Department of Justice is tasked, among
others, to take charge of the "administration of the correctional
system."[60] Hence, the import of the phraseology of the law is that
the Secretary of Justice should supervise the Director of the
Bureau of Corrections in promulgating the Lethal Injection Manual,
in consultation with the Department of Health. [61]
However, the Rules and Regulations to Implement Republic
Act No. 8177 suffer serious flaws that could not be overlooked. To
begin with, something basic appears missing in Section 19 of the
implementing rules which provides:
"SEC. 19. EXECUTION PROCEDURE. - Details of the
procedure prior to, during and after administering the lethal
injection shall be set forth in a manual to be prepared by the
Director. The manual shall contain details of, among others,
the sequence of events before and after execution;
procedures in setting up the intravenous line; the
administration of the lethal drugs; the pronouncement of
death; and the removal of the intravenous system.
Said manual shall be confidential and its distribution
shall be limited to authorized prison personnel."
Thus, the Courts finds in the first paragraph of Section 19 of
the implementing rules a veritable vacuum. The Secretary of
Justice has practically abdicated the power to promulgate the
manual on the execution procedure to the Director of the Bureau of
Corrections, by not providing for a mode of review and approval
thereof. Being a mere constituent unit of the Department of
Justice, the Bureau of Corrections could not promulgate a manual
that would not bear the imprimatur of the administrative superior,
the Secretary of Justice as the rule-making authority under R.A.
No. 8177. Such apparent abdication of departmental responsibility
renders the said paragraph invalid.
As to the second paragraph of section 19, the Court finds the
requirement of confidentiality of the contents of the manual even
with respect to the convict unduly suppressive. It sees no legal
impediment for the convict, should he so desire, to obtain a copy of
the manual. The contents of the manual are matters of public
concern "which the public may want to know, either because these
directly affect their lives, or simply because such matters naturally
arouse the interest of an ordinary citizen." [62] Section 7 of Article III
of the 1987 Constitution provides:
"SEC. 7. The right of the people to information on
matters of public concern shall be recognized. Access to
official records, and to documents and papers pertaining to
official acts, transaction, or decisions, as well as to
government research data used as a basis for policy
development, shall be afforded the citizen, subject to such
limitation as may be provided by law."
The incorporation in the Constitution of a guarantee of
access to information of public concern is a recognition of the
essentiality of the free flow of ideas and information in a
democracy.[63] In the same way that free discussion enables
members of society to cope with the exigencies of their
time,[64] access to information of general interest aids the people in
democratic decision-making[65] by giving them a better perspective
of the vital issues confronting the nation. [66]
D. SECTION 17 OF THE RULES AND REGULATIONS
TO IMPLEMENT R.A. NO. 8177 IS INVALID FOR
BEING DISCRIMINATORY AND CONTRARY TO
LAW.
Even more seriously flawed than Section 19 is Section of the
implementing rules which provides:
"SEC. 17. SUSPENSION OF THE EXECUTION OF
THE DEATH SENTENCE. Execution by lethal injection shall
not be inflicted upon a woman within the three years next
following the date of the sentence or while she is pregnant,
nor upon any person over seventy (70) years of age. In this
latter case, the death penalty shall be commuted to the
penalty of reclusion perpetua with the accessory penalties
provided in Article 40 of the Revised Penal Code."
Petitioner contends that Section 17 is unconstitutional for
being discriminatory as well as for being an invalid exercise of the
power to legislate by respondent Secretary. Petitioner insists that
Section 17 amends the instances when lethal injection may be
suspended, without an express amendment of Article 83 of the
Revised Penal Code, as amended by section 25 of R.A. No. 7659.
Article 83 f the Revised Penal Code, as amended by section
25 of R.A. No. 7659 now reads as follows:
"ART. 83, Suspension of the execution of the death
sentence.- The death sentence shall not be inflicted upon a
woman while she is pregnant or within one (1) year after
delivery, nor upon any person over seventy years of age. In
this last case, the death sentence shall be commuted to the
penalty of reclusion perpetua with the accessory penalty
provided in Article 40. x x x".
On this point, the Courts finds petitioner's contention
impressed with merit. While Article 83 of the Revised Penal Code,
as amended by Section 25 of Republic Act No. 7659, suspends
the implementation of the death penalty while a woman is
pregnant or within one (1) year after delivery, Section 17 of the
implementing rules omits the one (1) year period following delivery
as an instance when the death sentence is suspended, and adds a
ground for suspension of sentence no longer found under Article
83 of the Revised Penal Code as amended, which is the three-
year reprieve after a woman is sentenced. This addition is, in
petitioner's view, tantamount to a gender-based discrimination
sans statutory basis, while the omission is an impermissible
contravention of the applicable law.
Being merely an implementing rule, Section 17 aforecited
must not override, but instead remain consistent and in harmony
with the law it seeks to apply and implement. Administrative rules
and regulations are intended to carry out, neither to supplant nor to
modify, the law."[67] An administrative agency cannot amend an act
of Congress.[68] In case of discrepancy between a provision of
statute and a rule or regulation issued to implement said statute,
the statutory provision prevails. Since the cited clause in Section
17 which suspends the execution of a woman within the three (3)
years next following the date of sentence finds no supports in
Article 83 of the Revised Penal Code as amended, perforce
Section 17 must be declared invalid.
One member of the Court voted to declare Republic Act. No.
8177 as unconstitutional insofar as it delegates the power to make
rules over the same subject matter to two persons (the Secretary
of Justice and the Director of the Bureau of Corrections) and
constitutes a violation of the international norm towards the
abolition of the death penalty. One member of the Court,
consistent with his view in People v. Echegaray, 267 SCRA 682,
734-758 (1997) that the death penalty law (Republic Act. No.
7659) is itself unconstitutional, believes that Republic Act No. 8177
which provides for the means of carrying out the death sentence,
is likewise unconstitutional. Two other members of the court
concurred in the aforesaid Separate Opinions in that the death
penalty law (Republic Act No. 7659) together with the assailed
statute (Republic Act No. 8177) are unconstitutional. In sum, four
members of the Court voted to declare Republic Act. No. 8177 as
unconstitutional. These Separate Opinions are hereto
annexed, infra.
WHEREFORE, the petition is DENIED insofar as petitioner
seeks to declare the assailed statute (Republic Act No. 8177) as
unconstitutional; but GRANTED insofar as Sections 17 and 19 of
the Rules and Regulations to Implement Republic Act No. 8177
are concerned, which are hereby declared INVALID because (a)
Section 17 contravenes Article 83 of the Revised Penal Code, as
amended by Section 25 of the Republic Act No. 7659; and (b)
Section 19 fails to provide for review and approval of the Lethal
Injection Manual by the Secretary of Justice, and unjustifiably
makes the manual confidential, hence unavailable to interested
parties including the accused/convict and counsel. Respondents
are hereby enjoined from enforcing and implementing Republic Act
No. 8177 until the aforesaid Sections 17 and 19 of the Rules and
Regulations to Implement Republic Act No. 8177 are appropriately
amended, revised and/or corrected in accordance with this
Decision.
 NO COSTS.
SO ORDERED.
[G.R. No. 149276. September 27, 2002]
JOVENCIO LIM and TERESITA LIM, petitioners, vs. THE
PEOPLE OF THE PHILIPPINES, THE REGIONAL
TRIAL COURT OF QUEZON CITY, BRANCH 217, THE
CITY PROSECUTOR OF QUEZON CITY, AND WILSON
CHAM, respondents.
DECISION
CORONA, J.:
The constitutionality of PD 818, a decree which amended
Article 315 of the Revised Penal Code by increasing the penalties
for estafa committed by means of bouncing checks, is being
challenged in this petition for certiorari, for being violative of the
due process clause, the right to bail and the provision against
cruel, degrading or inhuman punishment enshrined under the
Constitution.
The antecedents of this case, as gathered from the parties
pleadings and documentary proofs, follow.
In December 1991, petitioner spouses issued to private
respondent two postdated checks, namely, Metrobank check no.
464728 dated January 15, 1992 in the amount of P365,750 and
Metrobank check no. 464743 dated January 22, 1992 in the
amount of P429,000. Check no. 464728 was dishonored upon
presentment for having been drawn against insufficient funds while
check no. 464743 was not presented for payment upon request of
petitioners who promised to replace the dishonored check.
When petitioners reneged on their promise to cover the
amount of check no. 464728, the private respondent filed a
complaint-affidavit before the Office of the City Prosecutor of
Quezon City charging petitioner spouses with the crime of estafa
under Article 315, par. 2 (d) of the Revised Penal Code, as
amended by PD 818.
On February 16, 2001, the City Prosecutor issued a
resolution finding probable cause against petitioners and
recommending the filing of an information for estafa with no bail
recommended. On the same day, an information for the crime of
estafa was filed with Branch 217 of the Regional Trial Court of
Quezon City against petitioners. The case was docketed as
Criminal Case No. Q-01-101574. Thereafter, the trial court issued
a warrant for the arrest of herein petitioners, thus:
It appearing on the face of the information and from supporting
affidavit of the complaining witness and its annexes that probable
cause exists, that the crime charged was committed and accused
is probably guilty thereof, let a warrant for the arrest of the accused
be issued.
No Bail Recommended.
SO ORDERED.[1]
On July 18, 2001, petitioners filed an Urgent Motion to
Quash Information and Warrant of Arrest which was denied by the
trial court. Likewise, petitioners motion for bail filed on July 24,
2001 was denied by the trial court on the same day. Petitioner
Jovencio Lim was arrested by virtue of the warrant of arrest issued
by the trial court and was detained at the Quezon City
Jail.However, petitioner Teresita Lim remained at large.
On August 22, 2001, petitioners filed the instant petition for
certiorari imputing grave abuse of discretion on the part of the
lower court and the Office of the City Prosecutor of Quezon City,
arguing that PD 818 violates the constitutional provisions on due
process, bail and imposition of cruel, degrading or inhuman
punishment.
In a resolution dated February 26, 2002, this Court granted
the petition of Jovencio Lim to post bail pursuant to Department of
Justice Circular No. 74 dated November 6, 2001 which amended
the 2000 Bail Bond Guide involving estafa under Article 315, par. 2
(d), and qualified theft. Said Circular specifically provides as
follows:
xxx xxx xxx
3) Where the amount of fraud is P32,000.00 or over in
which the imposable penalty is reclusion
temporal to reclusion perpetua, bail shall be based
on reclusion temporal maximum, pursuant to Par. 2
(a) of the 2000 Bail Bond Guide, multiplied by
P2,000.00, plus an additional of P2,000.00 for
every P10,000.00 in excess of
P22,000.00; Provided, however, that the total
amount of bail shall not exceed P60,000.00.
In view of the aforementioned resolution, the matter
concerning bail shall no longer be discussed. Thus, this decision
will focus on whether or not PD 818 violates Sections 1 and 19 of
Article III of the Constitution, which respectively provide:
Section 1. No person shall be deprived of life, liberty or property
without due process of law, nor shall any person be denied the
equal protection of the laws.
xxx
Section 19 (1) Excessive fines shall not be imposed, nor cruel,
degrading or inhuman punishment inflicted. x x x.
We shall deal first with the issue of whether PD 818 was
enacted in contravention of Section 19 of Article III of the
Constitution. In this regard, the impugned provision of PD 818
reads as follows:
SECTION 1. Any person who shall defraud another by means of
false pretenses or fraudulent acts as defined in paragraph 2(d) of
Article 315 of the Revised Penal Code, as amended by Republic
Act No. 4885, shall be punished by:
1st. The penalty of reclusion temporal if the amount of the fraud is
over 12,000 pesos but does not exceed 22,000 pesos, and if such
amount exceeds the later 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 in no case exceed thirty years. In such
cases, and in connection with the accessory penalties which may
be imposed under the Revised Penal Code, the penalty shall be
termed reclusion perpetua;
2nd. The penalty of prision mayor in its maximum period, if the
amount of the fraud is over 6,000 pesos but does not exceed
12,000 pesos.
3rd. The penalty of prision mayor in its medium period, if such
amount is over 200 pesos but does not exceed 6,000 pesos; and
4th. By prision mayor in its minimum period, if such amount does
not exceed 200 pesos.
Petitioners contend that, inasmuch as the amount of the
subject check is P365,750, they can be penalized with reclusion
perpetua or 30 years of imprisonment. This penalty, according to
petitioners, is too severe and disproportionate to the crime they
committed and infringes on the express mandate of Article III,
Section 19 of the Constitution which prohibits the infliction of cruel,
degrading and inhuman punishment.
Settled is the rule that a punishment authorized by statute is
not cruel, degrading or disproportionate to the nature of the
offense unless it is flagrantly and plainly oppressive and wholly
disproportionate to the nature of the offense as to shock the moral
sense of the community. It takes more than merely being harsh,
excessive, out of proportion or severe for a penalty to be
obnoxious to the Constitution.[2] Based on this principle, the Court
has consistently overruled contentions of the defense that the
penalty of fine or imprisonment authorized by the statute
involved is cruel and degrading.
In People vs. Tongko,[3] this Court held that the prohibition
against cruel and unusual punishment is generally aimed at the
form or character of the punishment rather than its severity in
respect of its duration or amount, and applies to punishments
which never existed in America or which public sentiment regards
as cruel or obsolete. This refers, for instance, to those inflicted at
the whipping post or in the pillory, to burning at the stake, breaking
on the wheel, disemboweling and the like. The fact that the penalty
is severe provides insufficient basis to declare a law
unconstitutional and does not, by that circumstance alone, make it
cruel and inhuman.
Petitioners also argue that while PD 818 increased the
imposable penalties for estafa committed under Article 315, par. 2
(d) of the Revised Penal Code, it did not increase the amounts
corresponding to the said new penalties. Thus, the original
amounts provided for in the Revised Penal Code have remained
the same notwithstanding that they have become negligible and
insignificant compared to the present value of the peso.
This argument is without merit. The primary purpose of PD
818 is emphatically and categorically stated in the following:
WHEREAS, reports received of late indicate an upsurge of estafa
(swindling) cases committed by means of bouncing checks;
WHEREAS, if not checked at once, these criminal acts would
erode the peoples confidence in the use of negotiable instruments
as a medium of commercial transaction and consequently result in
the retardation of trade and commerce and the undermining of the
banking system of the country;
WHEREAS, it is vitally necessary to arrest and curb the rise in this
kind of estafa cases by increasing the existing penalties provided
therefor.
Clearly, the increase in the penalty, far from being cruel and
degrading, was motivated by a laudable purpose, namely, to
effectuate the repression of an evil that undermines the countrys
commercial and economic growth, and to serve as a necessary
precaution to deter people from issuing bouncing checks. The fact
that PD 818 did not increase the amounts corresponding to the
new penalties only proves that the amount is immaterial and
inconsequential. What the law sought to avert was the proliferation
of estafa cases committed by means of bouncing checks. Taking
into account the salutary purpose for which said law was decreed,
we conclude that PD 818 does not violate Section 19 of Article
III of the Constitution.
Moreover, when a law is questioned before the Court, the
presumption is in favor of its constitutionality. To justify its
nullification, there must be a clear and unmistakable breach of the
Constitution, not a doubtful and argumentative one. [4] The burden
of proving the invalidity of a law rests on those who challenge it. In
this case, petitioners failed to present clear and convincing proof to
defeat the presumption of constitutionality of PD 818.
With respect to the issue of whether PD 818 infringes on
Section 1 of Article III of the Constitution, petitioners claim that PD
818 is violative of the due process clause of the Constitution as it
was not published in the Official Gazette. This claim is incorrect
and must be rejected. Publication, being an indispensable part of
due process, is imperative to the validity of laws, presidential
decrees and executive orders.[5] PD 818 was published in the
Official Gazette on December 1, 1975.[6]
With the foregoing considerations in mind, this Court upholds
the constitutionality of PD 818.
WHEREFORE, the petition is hereby DISMISSED.
SO ORDERED.
G.R. No. L-45127 May 5, 1989
PEOPLE OF THE PHILIPPINES, represented by the Provincial
Fiscal of Leyte, petitioner,
vs.
HON. JUDGE AUXENCIO C. DACUYCUY, CELESTINO S.
MATONDO, SEGUNDINO A, CAVAL and CIRILO M. ZANORIA,
respondents.
The Office of the Solicitor General for petitioner.
Adelino B. Sitoy for private respondents.
REGALADO, J.:
Involved in this special civil action is the unique situation, to use an
euphemistic phrase, of an alternative penal sanction of
imprisonment imposed by law but without a specification as to the
term or duration thereof.
As a consequence of such legislative faux pas or oversight, the
petition at bar seeks to set aside the decision of the then Court of
First Instance of Leyte, Branch IV, dated September 8,1976, 1
penned by herein respondent judge and granting the petition for
certiorari and prohibition with preliminary injunction filed by herein
private respondents and docketed therein as Civil Case No. 5428,
as well as his resolution of October 19, 1976 2 denying the
motions for reconsideration filed by the parties therein. Subject of
said decision were the issues on jurisdiction over violations of
Republic Act No. 4670, otherwise known as the Magna Carta for
Public School Teachers, and the constitutionality of Section 32
thereof.
In a complaint filed by the Chief of Police of Hindang, Leyte on
April 4, 1975, herein private respondents Celestino S. Matondo,
Segundino A. Caval and Cirilo M. Zanoria, public school officials of
Leyte, were charged before the Municipal Court of Hindang, Leyte
in Criminal Case No. 555 thereof for violation of Republic Act No.
4670. The case was set for arraignment and trial on May 29, 1975.
At the arraignment, the herein private respondents, as the accused
therein, pleaded not guilty to the charge. Immediately thereafter,
they orally moved to quash the complaint for lack of jurisdiction
over the offense allegedly due to the correctional nature of the
penalty of imprisonment prescribed for the offense. The motion to
quash was subsequently reduced to writing on June 13, 1975. 3
On August 21, 1975, the municipal court denied the motion to
quash for lack of merit. 4 On September 2, 1975, private
respondents filed a motion for the reconsideration of the aforesaid
denial order on the same ground of lack of jurisdiction, but with the
further allegation that the facts charged do not constitute an
offense considering that Section 32 of Republic Act No. 4670 is
null and void for being unconstitutional. In an undated order
received by the counsel for private respondents on October
20,1975, the motion for reconsideration was denied. 5
On October 26, 1975, private respondents filed a petitions 6 for
certiorari and prohibition with preliminary injunction before the
former Court of First Instance of Leyte, Branch VIII, where it was
docketed as Civil Case No. B-622, to restrain the Municipal Judge,
Provincial Fiscal and Chief of Police of Hindang, Leyte from
proceeding with the trial of said Criminal Case No. 555 upon the
ground that the former Municipal Court of Hindang had no
jurisdiction over the offense charged. Subsequently, an amended
petition 7 alleged the additional ground that the facts charged do
not constitute an offense since the penal provision, which is
Section 32 of said law, is unconstitutional for the following reasons:
(1) It imposes a cruel and unusual punishment, the term of
imprisonment being unfixed and may run to reclusion perpetua;
and (2) It also constitutes an undue delegation of legislative power,
the duration of the penalty of imprisonment being solely left to the
discretion of the court as if the latter were the legislative
department of the Government.
On March 30, 1976, having been advised that the petition of herein
private respondents was related to Criminal Case No. 1978 for
violation of Presidential Decree No. 442 previously transferred
from Branch VIII to Branch IV of the erstwhile Court of First
Instance of Leyte, Judge Fortunate B. Cuna of the former branch
transferred the said petition to the latter branch for further
proceedings and where it was subsequently docketed therein as
Civil Case No. 5428. 8 On March 15, 1976, the petitioner herein
filed an opposition to the admission of the said amended petitions
9 but respondent judge denied the same in his resolution of April
20, 1976. 10 On August 2, 1976, herein petitioner filed a
supplementary memorandum in answer to the amended petition.
11
On September 8, 1976, respondent judge rendered the aforecited
challenged decision holding in substance that Republic Act No.
4670 is valid and constitutional but cases for its violation fall
outside of the jurisdiction of municipal and city courts, and
remanding the case to the former Municipal Court of Hindang,
Leyte only for preliminary investigation.
As earlier stated, on September 25, 1976, petitioner filed a motion
for reconsideration. 12 Likewise, private respondents filed a motion
for reconsideration of the lower court's decision but the same was
limited only to the portion thereof which sustains the validity of
Section 32 of Republic Act No. 4670. 13 Respondent judge denied
both motions for reconsideration in a resolution dated October 19,
1976. 14
The instant petition to review the decision of respondent judge
poses the following questions of law: (1) Whether the municipal
and city courts have jurisdiction over violations of Republic Act No.
4670; and (2) Whether Section 32 of said Republic Act No. 4670 is
constitutional.
We shall resolve said queries in inverse order, since prior
determination of the constitutionality of the assailed provision of
the law involved is necessary for the adjudication of the
jurisdictional issue raised in this petition.
1. The disputed section of Republic Act No. 4670 provides:
Sec. 32. Penal Provision. — A person who shall wilfully interfere
with, restrain or coerce any teacher in the exercise of his rights
guaranteed by this Act or who shall in any other manner commit
any act to defeat any of the provisions of this Act shall, upon
conviction, be punished by a fine of not less than one hundred
pesos nor more than one thousand pesos, or by imprisonment, in
the discretion of the court. (Emphasis supplied).
Two alternative and distinct penalties are consequently imposed,
to wit: (a) a fine ranging from P100.00 to P1,000.00; or (b)
imprisonment. It is apparent that the law has no prescribed period
or term for the imposable penalty of imprisonment. While a
minimum and maximum amount for the penalty of fine is specified,
there is no equivalent provision for the penalty of imprisonment,
although both appear to be qualified by the phrase "in the
discretion of the court.
Private respondents contend that a judicial determination of what
Congress intended to be the duration of the penalty of
imprisonment would be violative of the constitutional prohibition
against undue delegation of legislative power, and that the
absence of a provision on the specific term of imprisonment
constitutes that penalty into a cruel and unusual form of
punishment. Hence, it is vigorously asserted, said Section 32 is
unconstitutional.
The basic principle underlying the entire field of legal concepts
pertaining to the validity of legislation is that in the enactment of
legislation a constitutional measure is thereby created. In every
case where a question is raised as to the constitutionality of an act,
the court employs this doctrine in scrutinizing the terms of the law.
In a great volume of cases, the courts have enunciated the
fundamental rule that there is a presumption in favor of the
constitutionality of a legislative enactment. 15
It is contended that Republic Act No. 4670 is unconstitutional on
the ground that the imposable but indefinite penalty of
imprisonment provided therein constitutes a cruel and unusual
punishment, in defiance of the express mandate of the
Constitution. This contention is inaccurate and should be rejected.
We note with approval the holding of respondent judge that —
The rule is established beyond question that a punishment
authorized by statute is not cruel or unusual or disproportionate to
the nature of the offense unless it is a barbarous one unknown to
the law or so wholly disproportionate to the nature of the offense
as to shock the moral sense of the community. Based on the
principle, our Supreme Court has consistently overruled
contentions of the defense that the punishment of fine or
imprisonment authorized by the statute involved is cruel and
unusual. (Legarda vs. Valdez, 1 Phil. 146; U.S. vs. Pico, 18 Phil.
386; People vs. Garay, 2 ACR 149; People vs. Estoista 93 Phil.
647; People vs. Tiu Ua. 96 Phil. 738; People vs. Dionisio, 22
SCRA 1299). The language of our Supreme Court in the first of the
cases it decided after the last world war is appropriate here:
The Constitution directs that 'Excessive fines shall not be imposed,
nor cruel and unusual punishment inflicted.' 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 apply to punishments which never existed
in America, or which public sentiment has regarded as cruel or
obsolete (15 Am. Jur., p. 172), for instance there (sic) inflicted at
the whipping post, or in the pillory, burning at the stake, breaking
on the wheel, disemboweling, and the like (15 Am. Jur. Supra,
Note 35 L.R.A. p. 561). Fine and imprisonment would not thus be
within the prohibition.' (People vs. de la Cruz, 92 Phil. 906). 16
The question that should be asked, further, is whether the
constitutional prohibition looks only to the form or nature of the
penalty and not to the proportion between the penalty and the
crime.
The answer thereto may be gathered from the pronouncement in
People vs. Estoista, 17 where an "excessive" penalty was upheld
as constitutional and was imposed but with a recommendation for
executive clemency, thus:
... If imprisonment from 5 to 10 years is out of proportion to the
present case in view of certain circumstances, the law is not to be
declared unconstitutional for this reason. The constitutionality of an
act of the legislature is not to be judged in the light of exceptional
cases. Small transgressors for which the heavy net was not spread
are, like small fishes, bound to be caught, and it is to meet such a
situation as this that courts are advised to make a
recommendation to the Chief Executive for clemency or reduction
of the penalty...
That the penalty is grossly disproportionate to the crime is an
insufficient basis to declare the law unconstitutional on the ground
that it is cruel and unusual. The fact that the punishment
authorized by the statute is severe does not make it cruel or
unusual. 18 In addition, what degree of disproportion the Court will
consider as obnoxious to the Constitution has still to await
appropriate determination in due time since, to the credit of our
legislative bodies, no decision has as yet struck down a penalty for
being "cruel and unusual" or "excessive."
We turn now to the argument of private respondents that the entire
penal provision in question should be invalidated as an 49 "undue
delegation of legislative power, the duration of penalty of
imprisonment being solely left to the discretion of the court as if the
lattter were the legislative department of the government."
Petitioner counters that the discretion granted therein by the
legislature to the courts to determine the period of imprisonment is
a matter of statutory construction and not an undue delegation of
legislative power. It is contended that the prohibition against undue
delegation of legislative power is concerned only with the
delegation of power to make laws and not to interpret the same. It
is also submitted that Republic Act No. 4670 vests in the courts the
discretion, not to fix the period of imprisonment, but to choose
which of the alternative penalties shall be imposed.
Respondent judge sustained these theses of petitioner on his
theory that "the principle of separation of powers is not violated by
vesting in courts discretion as to the length of sentence or amount
of fine between designated limits in sentencing persons convicted
of crime. In such instance, the exercise of judicial discretion by the
courts is not an attempt to use legislative power or to prescribe
and create a law but is an instance of the administration of justice
and the application of existing laws to the facts of particular
cases." 19 What respondent judge obviously overlooked is his own
reference to penalties "between designated limits."
In his commentary on the Constitution of the United States, Corwin
wrote:
.. At least three distinct ideas have contributed to the development
of the principle that legislative power cannot be delegated. One is
the doctrine of separation of powers: Why go to the trouble of
separating the three powers of government if they can straightway
remerge on their own motion? The second is the concept of due
process of laws which precludes the transfer of regulatory
functions to private persons. Lastly, there is the maxim of agency
"Delegata potestas non potest delegari." 20
An apparent exception to the general rule forbidding the delegation
of legislative authority to the courts exists in cases where
discretion is conferred upon said courts. It is clear, however, that
when the courts are said to exercise a discretion, it must be a
mere legal discretion which is exercised in discerning the course
prescribed by law and which, when discerned, it is the duty of the
court to follow. 21
So it was held by the Supreme Court of the United States that the
principle of separation of powers is not violated by vesting in courts
discretion as to the length of sentence or the amount of fine
between designated limits in sentencing persons convicted of a
crime. 22
In the case under consideration, the respondent judge
erronneously assumed that since the penalty of imprisonment has
been provided for by the legislature, the court is endowed with the
discretion to ascertain the term or period of imprisonment. We
cannot agree with this postulate. It is not for the courts to fix the
term of imprisonment where no points of reference have been
provided by the legislature. What valid delegation presupposes
and sanctions is an exercise of discretion to fix the length of
service of a term of imprisonment which must be encompassed
within specific or designated limits provided by law, the absence of
which designated limits well constitute such exercise as an undue
delegation, if not-an outright intrusion into or assumption, of
legislative power.
Section 32 of Republic Act No. 4670 provides for an
indeterminable period of imprisonment, with neither a minimum nor
a maximum duration having been set by the legislative authority.
The courts are thus given a wide latitude of discretion to fix the
term of imprisonment, without even the benefit of any sufficient
standard, such that the duration thereof may range, in the words of
respondent judge, from one minute to the life span of the accused.
Irremissibly, this cannot be allowed. It vests in the courts a power
and a duty essentially legislative in nature and which, as applied to
this case, does violence to the rules on separation of powers as
well as the non-delegability of legislative powers. This time, the
preumption of constitutionality has to yield.
On the foregoing considerations, and by virtue of the separability
clause in Section 34 of Republic Act No. 4670, the penalty of
imprisonment provided in Section 32 thereof should be, as it is
hereby, declared unconstitutional.
It follows, therefore, that a ruling on the proper interpretation of the
actual term of imprisonment, as may have been intended by
Congress, would be pointless and academic. It is, however, worth
mentioning that the suggested application of the so-called rule or
principle of parallelism, whereby a fine of P1,000.00 would be
equated with one year of imprisonment, does not merit judicial
acceptance. A fine, whether imposed as a single or as an
alternative penalty, should not and cannot be reduced or converted
into a prison term; it is to be considered as a separate and
independent penalty consonant with Article 26 of the Revised
Penal Code. 23 It is likewise declared a discrete principal penalty
in the graduated scales of penalties in Article 71 of said Code.
There is no rule for transmutation of the amount of a fine into a
term of imprisonment. Neither does the Code contain any provision
that a fine when imposed in conjunction with imprisonment is
subordinate to the latter penalty. In sum, a fine is as much a
principal penalty as imprisonment. Neither is subordinate to the
other. 24
2. It has been the consistent rule that the criminal
jurisdiction of the court is determined by the statute in force at the
time of the commencement of the action. 25
With the deletion by invalidation of the provision on imprisonment
in Section 32 of Republic Act No. 4670, as earlier discussed, the
imposable penalty for violations of said law should be limited to a
fine of not less than P100.00 and not more than P1,000.00, the
same to serve as the basis in determining which court may
properly exercise jurisdiction thereover. When the complaint
against private respondents was filed in 1975, the pertinent law
then in force was Republic Act No. 296, as amended by Republic
Act No. 3828, under which crimes punishable by a fine of not more
than P 3,000.00 fall under the original jurisdiction of the former
municipal courts. Consequently, Criminal Case No. 555 against
herein private respondents falls within the original jurisdiction of
the Municipal Trial Court of Hindang, Leyte.
WHEREFORE, the decision and resolution of respondent judge
are hereby REVERSED and SET ASIDE. Criminal Case No. 555
filed against private respondents herein is hereby ordered to be
remanded to the Municipal Trial Court of Hindang, Leyte for trial on
the merits.
SO ORDERED.
G.R. No. L-45129 March 6, 1987
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
THE HONORABLE BENJAMIN RELOVA, in his capacity as
Presiding Judge of the Court of First Instance of Batangas,
Second Branch, and MANUEL OPULENCIA, respondents.
FELICIANO, J.:
In this petition for certiorari and mandamus, the People of the
Philippines seek to set aside the orders of the respondent Judge of
the Court of First Instance of Batangas in Criminal Case No. 266,
dated 12 August 1976 and 8 November 1976, respectively,
quashing an information for theft filed against private respondent
Manuel Opulencia on the ground of double jeopardy and denying
the petitioner's motion for reconsideration.
On 1 February 1975, members of the Batangas City Police
together with personnel of the Batangas Electric Light System,
equipped with a search warrant issued by a city judge of Batangas
City, searched and examined the premises of the Opulencia
Carpena Ice Plant and Cold Storage owned and operated by the
private respondent Manuel Opulencia. The police discovered that
electric wiring, devices and contraptions had been installed,
without the necessary authority from the city government, and
"architecturally concealed inside the walls of the building" 1 owned
by the private respondent. These electric devices and contraptions
were, in the allegation of the petitioner "designed purposely to
lower or decrease the readings of electric current consumption in
the electric meter of the said electric [ice and cold storage] plant."
2 During the subsequent investigation, Manuel Opulencia admitted
in a written statement that he had caused the installation of the
electrical devices "in order to lower or decrease the readings of his
electric meter. 3
On 24 November 1975, an Assistant City Fiscal of Batangas City
filed before the City Court of Batangas City an information against
Manuel Opulencia for violation of Ordinance No. 1, Series of 1974,
Batangas City. A violation of this ordinance was, under its terms,
punishable by a fine "ranging from Five Pesos (P5.00) to Fifty
Pesos (P50.00) or imprisonment, which shall not exceed thirty (30)
days, or both, at the discretion of the court." 4 This information
reads as follows:
The undersigned, Assistant City Fiscal, accuses Manuel Opulencia
y Lat of violation of Sec. 3 (b) in relation to Sec. 6 (d) and Sec. 10
Article II, Title IV of ordinance No. 1, S. 1974, with damage to the
City Government of Batangas, and penalized by the said
ordinance, committed as follows:
That from November, 1974 to February, 1975 at Batangas City,
Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, with intent to defraud the City Government
of Batangas, without proper authorization from any lawful and/or
permit from the proper authorities, did then and there wilfully,
unlawfully and feloniously make unauthorized installations of
electric wirings and devices to lower or decrease the consumption
of electric fluid at the Opulencia Ice Plant situated at Kumintang,
Ibaba, this city and as a result of such unathorized installations of
electric wirings and devices made by the accused, the City
Government of Batangas was damaged and prejudiced in the total
amount of FORTY ONE THOUSAND, SIXTY TWO PESOS AND
SIXTEEN CENTAVOS (P41,062.16) Philippine currency, covering
the period from November 1974 to February, 1975, to the damage
and prejudice of the City Government of Batangas in the
aforestated amount of P41,062.16, Philippine currency.
The accused Manuel Opulencia pleaded not guilty to the above
information. On 2 February 1976, he filed a motion to dismiss the
information upon the grounds that the crime there charged had
already prescribed and that the civil indemnity there sought to be
recovered was beyond the jurisdiction of the Batangas City Court
to award. In an order dated 6 April 1976, the Batangas City Court
granted the motion to dismiss on the ground of prescription, it
appearing that the offense charged was a light felony which
prescribes two months from the time of discovery thereof, and it
appearing further that the information was filed by the fiscal more
than nine months after discovery of the offense charged in
February 1975.
Fourteen (14) days later, on 20 April 1976, the Acting City Fiscal of
Batangas City filed before the Court of First Instance of Batangas,
Branch 11, another information against Manuel Opulencia, this
time for theft of electric power under Article 308 in relation to
Article 309, paragraph (1), of the Revised Penal Code. This
information read as follows:
The undersigned Acting City Fiscal accuses Manuel Opulencia y
Lat of the crime of theft, defined and penalized by Article 308, in
relation to Article 309, paragraph (1) of the Revised Penal Code,
committed as follows:
That on, during, and between the month of November, 1974, and
the 21st day of February, 1975, at Kumintang, lbaba, Batangas
City, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, with intent of gain and without
the knowledge and consent of the Batangas Electric Light System,
did then and there, wilfully, unlawfully and feloniously take, steal
and appropriate electric current valued in the total amount of
FORTY ONE THOUSAND, SIXTY TWO PESOS AND SIXTEEN
CENTAVOS (P41,062.16) Philippine Currency, to the damage and
prejudice of the said Batangas Electric Light System, owned and
operated by the City Government of Batangas, in the
aforementioned sum of P41,062.16.
The above information was docketed as Criminal Case No. 266
before the Court of First Instance of Batangas, Branch II. Before
he could be arraigned thereon, Manuel Opulencia filed a Motion to
Quash, dated 5 May 1976, alleging that he had been previously
acquitted of the offense charged in the second information and that
the filing thereof was violative of his constitutional right against
double jeopardy. By Order dated 16 August 1976, the respondent
Judge granted the accused's Motion to Quash and ordered the
case dismissed. The gist of this Order is set forth in the following
paragraphs:
The only question here is whether the dismissal of the first case
can be properly pleaded by the accused in the motion to quash.
In the first paragraph of the earlier information, it alleges that the
prosecution "accuses Manuel Opulencia y Lat of violation of Sec.
3(b) in relation to Sec. 6(d) and Sec. 10 Article II, Title IV of
Ordinance No. 1, s. 1974, with damage to the City Government of
Batangas, etc. " (Emphasis supplied). The first case, as it appears,
was not simply one of illegal electrical connections. It also covered
an amount of P41,062.16 which the accused, in effect, allegedly
with intent to defraud, deprived the city government of Batangas. If
the charge had meant illegal electric installations only, it could
have alleged illegal connections which were done at one instance
on a particular date between November, 1974, to February 21,
1975. But as the information states "that from November, 1974 to
February 1975 at Batangas City, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused
with intent to defraud the City Government of Batangas, without
proper authorization from any lawful and/or permit from the proper
authorities, did then and there wilfully, unlawfully and feloniously
make unauthorized installations of electric wirings and devices,
etc." (Emphasis supplied), it was meant to include the P 41,062.16
which the accused had, in effect, defrauded the city government.
The information could not have meant that from November 1974 to
21 February 1975, he had daily committed unlawful installations.
When, therefore, he was arraigned and he faced the indictment
before the City Court, he had already been exposed, or he felt he
was exposed to consequences of what allegedly happened
between November 1974 to February 21, 1975 which had
allegedly resulted in defrauding the City of Batangas in the amount
of P 41,062.16. (Emphases and parentheses in the original)
A Motion for Reconsideration of the above-quoted Order filed by
the petitioner was denied by the respondent Judge in an Order
dated 18 November 1976.
On 1 December 1976, the present Petition for certiorari and
mandamus was filed in this Court by the Acting City Fiscal of
Batangas City on behalf of the People.
The basic premise of the petitioner's position is that the
constitutional protection against double jeopardy is protection
against a second or later jeopardy of conviction for the same
offense. The petitioner stresses that the first information filed
before the City Court of Batangas City was one for unlawful or
unauthorized installation of electrical wiring and devices, acts
which were in violation of an ordinance of the City Government of
Batangas. Only two elements are needed to constitute an offense
under this City Ordinance: (1) that there was such an installation;
and (2) no authority therefor had been obtained from the
Superintendent of the Batangas City Electrical System or the
District Engineer. The petitioner urges that the relevant terms of
the City Ordinance — which read as follows:
Section 3.-Connection and Installation
(a) xxx
(b) The work and installation in the houses and building and
their connection with the Electrical System shall be done either by
the employee of the system duly authorized by its Superintendent
or by persons adept in the matter duly authorized by the District
Engineer. Applicants for electrical service permitting the works of
installation or connection with the system to be undertaken by the
persons not duly authorized therefor shall be considered guilty of
violation of the ordinance.
would show that:
The principal purpose for (sic) such a provision is to ensure that
electrical installations on residences or buildings be done by
persons duly authorized or adept in the matter, to avoid fires and
accidents due to faulty electrical wirings. It is primarily a regulatory
measure and not intended to punish or curb theft of electric fluid
which is already covered by the Revised Penal Code. 5
The gist of the offense under the City Ordinance, the petitioner's
argument continues, is the installing of electric wiring and devices
without authority from the proper officials of the city government.
To constitute an offense under the city ordinance, it is not essential
to establish any mens rea on the part of the offender generally
speaking, nor, more specifically, an intent to appropriate and steal
electric fluid.
In contrast, the petitioner goes on, the offense of theft under Article
308 of the Revised Penal Code filed before the Court of First
Instance of Batangas in Criminal Case No. 266 has quite different
essential elements. These elements are:
1. That personal property be taken;
2. That the personal property (taken) belongs to another;
3. That the taking be done with intent of gain;
4. That the taking be done without the consent of the
owner; and
5. That the taking be accomplished without violence against
or intimidation of persons or force upon things. 6
The petitioner also alleges, correctly, in our view, that theft of
electricity can be effected even without illegal or unauthorized
installations of any kind by, for instance, any of the following
means:
1. Turning back the dials of the electric meter;
2. Fixing the electric meter in such a manner that it will not
register the actual electrical consumption;
3. Under-reading of electrical consumption; and
4. By tightening the screw of the rotary blade to slow down
the rotation of the same. 7
The petitioner concludes that:
The unauthorized installation punished by the ordinance [of
Batangas City] is not the same as theft of electricity [under the
Revised Penal Code]; that the second offense is not an attempt to
commit the first or a frustration thereof and that the second offense
is not necessarily included in the offense charged in the first
inforrnation 8
The above arguments made by the petitioner are of course correct.
This is clear both from the express terms of the constitutional
provision involved — which reads as follows:
No person shall be twice put in jeopardy of punishment for the
same offense. If an act is punished by a law and an ordinance,
conviction or acquittal under either shall constitute a bar to another
prosecution for the same act. (Emphasis supplied; Article IV (22),
1973 Constitution) 9
and from our case law on this point. 10 The basic difficulty with the
petitioner's position is that it must be examined, not under the
terms of the first sentence of Article IV (22) of the 1973
Constitution, but rather under the second sentence of the same
section. The first sentence of Article IV (22) sets forth the general
rule: the constitutional protection against double jeopardy is not
available where the second prosecution is for an offense that is
different from the offense charged in the first or prior prosecution,
although both the first and second offenses may be based upon
the same act or set of acts. The second sentence of Article IV (22)
embodies an exception to the general proposition: the
constitutional protection, against double jeopardy is available
although the prior offense charged under an ordinance be different
from the offense charged subsequently under a national statute
such as the Revised Penal Code, provided that both offenses
spring from the same act or set of acts. This was made clear
sometime ago in Yap vs. Lutero. 11
In Yap, petitioner Manuel Yap was charged in Criminal Case No.
16054 of the Municipal Court of Iloilo City, with violation of Article
14 of Ordinance No. 22, Series of 1951, in relation to Ordinance
No. 15, Series of 1954, of the City of Iloilo. The information
charged him with having "wilfully, unlawfully and feloniously
drive[n] and operate[d]" an automobile — "recklessly and without
reasonable caution thereby endangering other vehicles and
pedestrians passing in said street." Three months later, Yap was
again charged in Criminal Case No. 16443 of the same Municipal
Court, this time with serious physical injuries through reckless
imprudence. The information charged him with violation of the
Revised Motor Vehicle Law (Act No. 3992 as amended by
Republic Act No. 587) committed by driving and operating an
automobile in a reckless and negligent manner and as a result
thereof inflicting injuries upon an unfortunate pedestrian. Yap
moved to quash the second information upon the ground that it
placed him twice in jeopardy of punishment for the same act. This
motion was denied by the respondent municipal judge. Meantime,
another municipal judge had acquitted Yap in Criminal Case No.
16054. Yap then instituted a petition for certiorari in the Court of
First Instance of Iloilo to set aside the order of the respondent
municipal judge. The Court of First Instance of Iloilo having
reversed the respondent municipal judge and having directed him
to desist from continuing with Criminal Case No. 16443, the
respondent Judge brought the case to the Supreme Court for
review on appeal. In affirming the decision appealed from and
holding that the constitutional protection against double jeopardy
was available to petitioner Yap, then Associate Justice and later
Chief Justice Roberto Concepcion wrote:
To begin with, the crime of damage to property through reckless
driving — with which Diaz stood charged in the court of first
instance — is a violation of the Revised Penal Code (third
paragraph of Article 365), not the Automobile Law (Act No. 3992,
as amended by Republic Act No. 587). Hence, Diaz was not twice
accused of a violation of the same law. Secondly, reckless driving
and certain crimes committed through reckless driving are
punishable under different provisions of said Automobile Law.
Hence — from the view point of Criminal Law, as distinguished
from political or Constitutional Law — they constitute, strictly,
different offenses, although under certain conditions, one offense
may include the other, and, accordingly, once placed in jeopardy
for one, the plea of double jeopardy may be in order as regards the
other, as in the Diaz case. (Emphases in the original)
Thirdly, our Bill of Rights deals with two (2) kinds of double
jeopardy. The first sentence of clause 20, section 1, Article III of
the Constitution, ordains that "no person shall be twice put in
jeopardy of punishment for the same offense." (Emphasis in the
original) The second sentence of said clause provides that "if an
act is punishable by a law and an ordinance, conviction or acquittal
under either shall constitute a bar to another prosecution for the
same act." Thus, the first sentence prohibits double jeopardy of
punishment for the same offense, whereas the second
contemplates double jeopardy of punishment for the same act.
Under the first sentence, one may be twice put in jeopardy of
punishment of the same act provided that he is charged with
different offenses, or the offense charged in one case is not
included in or does not include, the crime charged in the other
case. The second sentence applies, even if the offenses charged
are not the same, owing to the fact that one constitutes a violation
of an ordinance and the other a violation of a statute. If the two
charges are based on one and the same act conviction or acquittal
under either the law or the ordinance shall bar a prosecution under
the other. 12 Incidentally, such conviction or acquittal is not
indispensable to sustain the plea of double jeopardy of punishment
for the same offense. So long as jeopardy has attached under one
of the informations charging said offense, the defense may be
availed of in the other case involving the same offense, even if
there has been neither conviction nor acquittal in either case.
The issue in the case at bar hinges, therefore, on whether or not,
under the information in case No. 16443, petitioner could — if he
failed to plead double jeopardy — be convicted of the same act
charged in case No. 16054, in which he has already been
acquitted. The information in case No. 16054 alleges,
substantially, that on the date and in the place therein stated,
petitioner herein had wilfully, unlawfully and feloniously driven and
operated "recklessly and without reasonable caution" an
automobile described in said information. Upon the other hand, the
information in case No. 16443, similarly states that, on the same
date and in the same place, petitioner drove and operated the
aforementioned automobile in a "reckless and negligent manner at
an excessive rate of speed and in violation of the Revised Motor
Vehicle Law (Act No. 3992), as amended by Republic Act No. 587,
and existing city ordinances." Thus, if the theories mentioned in
the second information were not established by the evidence,
petitioner could be convicted in case No. 16443 of the very same
violation of municipal ordinance charged in case No. 16054, unless
he pleaded double jeopardy.
It is clear, therefore, that the lower court has not erred eventually
sustaining the theory of petitioner herein.
Put a little differently, where the offenses charged are penalized
either by different sections of the same statute or by different
statutes, the important inquiry relates to the identity of offenses
charge: the constitutional protection against double jeopardy is
available only where an Identity is shown to exist between the
earlier and the subsequent offenses charged. In contrast, where
one offense is charged under a municipal ordinance while the
other is penalized by a statute, the critical inquiry is to the identity
of the acts which the accused is said to have committed and which
are alleged to have given rise to the two offenses: the
constitutional protection against double jeopardy is available so
long as the acts which constitute or have given rise to the first
offense under a municipal ordinance are the same acts which
constitute or have given rise to the offense charged under a
statute.
The question may be raised why one rule should exist where two
offenses under two different sections of the same statute or under
different statutes are charged, and another rule for the situation
where one offense is charged under a municipal ordinance and
another offense under a national statute. If the second sentence of
the double jeopardy provision had not been written into the
Constitution, conviction or acquittal under a municipal ordinance
would never constitute a bar to another prosecution for the same
act under a national statute. An offense penalized by municipal
ordinance is, by definition, different from an offense under a
statute. The two offenses would never constitute the same offense
having been promulgated by different rule-making authorities —
though one be subordinate to the other — and the plea of double
jeopardy would never lie. The discussions during the 1934-1935
Constitutional Convention show that the second sentence was
inserted precisely for the purpose of extending the constitutional
protection against double jeopardy to a situation which would not
otherwise be covered by the first sentence. 13
The question of Identity or lack of Identity of offenses is addressed
by examining the essential elements of each of the two offenses
charged, as such elements are set out in the respective legislative
definitions of the offenses involved. The question of Identity of the
acts which are claimed to have generated liability both under a
municipal ordinance and a national statute must be addressed, in
the first instance, by examining the location of such acts in time
and space. When the acts of the accused as set out in the two
informations are so related to each other in time and space as to
be reasonably regarded as having taken place on the same
occasion and where those acts have been moved by one and the
same, or a continuing, intent or voluntary design or negligence,
such acts may be appropriately characterized as an integral whole
capable of giving rise to penal liability simultaneously under
different legal enactments (a municipal ordinance and a national
statute).
In Yap, the Court regarded the offense of reckless driving under
the Iloilo City Ordinance and serious physical injuries through
reckless imprudence under the Revised Motor Vehicle Law as
derived from the same act or sets of acts — that is, the operation
of an automobile in a reckless manner. The additional technical
element of serious physical injuries related to the physical
consequences of the operation of the automobile by the accused,
i.e., the impact of the automobile upon the body of the offended
party. Clearly, such consequence occurred in the same occasion
that the accused operated the automobile (recklessly). The moral
element of negligence permeated the acts of the accused
throughout that occasion.
In the instant case, the relevant acts took place within the same
time frame: from November 1974 to February 1975. During this
period, the accused Manuel Opulencia installed or permitted the
installation of electrical wiring and devices in his ice plant without
obtaining the necessary permit or authorization from the municipal
authorities. The accused conceded that he effected or permitted
such unauthorized installation for the very purpose of reducing
electric power bill. This corrupt intent was thus present from the
very moment that such unauthorized installation began. The
immediate physical effect of the unauthorized installation was the
inward flow of electric current into Opulencia's ice plant without the
corresponding recording thereof in his electric meter. In other
words, the "taking" of electric current was integral with the
unauthorized installation of electric wiring and devices.
It is perhaps important to note that the rule limiting the
constitutional protection against double jeopardy to a subsequent
prosecution for the same offense is not to be understood with
absolute literalness. The Identity of offenses that must be shown
need not be absolute Identity: the first and second offenses may
be regarded as the "same offense" where the second offense
necessarily includes the first offense or is necessarily included in
such first offense or where the second offense is an attempt to
commit the first or a frustration thereof. 14 Thus, for the
constitutional plea of double jeopardy to be available, not all the
technical elements constituting the first offense need be present in
the technical definition of the second offense. The law here seeks
to prevent harrassment of an accused person by multiple
prosecutions for offenses which though different from one another
are nonetheless each constituted by a common set or overlapping
sets of technical elements. As Associate Justice and later Chief
Justice Ricardo Paras cautioned in People vs. del Carmen et al.,
88 Phil. 51 (1951):
While the rule against double jeopardy prohibits prosecution for the
same offense, it seems elementary that an accused should be
shielded against being prosecuted for several offenses made out
from a single act. Otherwise, an unlawful act or omission may give
use to several prosecutions depending upon the ability of the
prosecuting officer to imagine or concoct as many offenses as can
be justified by said act or omission, by simply adding or subtracting
essential elements. Under the theory of appellant, the crime of
rape may be converted into a crime of coercion, by merely alleging
that by force and intimidation the accused prevented the offended
girl from remaining a virgin. (88 Phil. at 53; emphases supplied)
By the same token, acts of a person which physically occur on the
same occasion and are infused by a common intent or design or
negligence and therefore form a moral unity, should not be
segmented and sliced, as it were, to produce as many different
acts as there are offenses under municipal ordinances or statutes
that an enterprising prosecutor can find
It remains to point out that the dismissal by the Batangas City
Court of the information for violation of the Batangas City
Ordinance upon the ground that such offense had already
prescribed, amounts to an acquittal of the accused of that offense.
Under Article 89 of the Revised Penal Code, "prescription of the
crime" is one of the grounds for "total extinction of criminal liability."
Under the Rules of Court, an order sustaining a motion to quash
based on prescription is a bar to another prosecution for the same
offense. 15
It is not without reluctance that we deny the people's petition for
certiorari and mandamus in this case. It is difficult to summon any
empathy for a businessman who would make or enlarge his profit
by stealing from the community. Manuel Opulencia is able to
escape criminal punishment because an Assistant City Fiscal by
inadvertence or otherwise chose to file an information for an
offense which he should have known had already prescribed. We
are, however, compelled by the fundamental law to hold the
protection of the right against double jeopardy available even to
the private respondent in this case.
The civil liability aspects of this case are another matter. Because
no reservation of the right to file a separate civil action was made
by the Batangas City electric light system, the civil action for
recovery of civil liability arising from the offense charged was
impliedly instituted with the criminal action both before the City
Court of Batangas City and the Court of First Instance of
Batangas. The extinction of criminal liability whether by
prescription or by the bar of double jeopardy does not carry with it
the extinction of civil liability arising from the offense charged. In
the present case, as we noted earlier, 16 accused Manuel
Opulencia freely admitted during the police investigation having
stolen electric current through the installation and use of
unauthorized elibctrical connections or devices. While the accused
pleaded not guilty before the City Court of Batangas City, he did
not deny having appropriated electric power. However, there is no
evidence in the record as to the amount or value of the electric
power appropriated by Manuel Opulencia, the criminal
informations having been dismissed both by the City Court and by
the Court of First Instance (from which dismissals the Batangas
City electric light system could not have appealed 17) before trial
could begin. Accordingly, the related civil action which has not
been waived expressly or impliedly, should be remanded to the
Court of First Instance of Batangas City for reception of evidence
on the amount or value of the electric power appropriated and
converted by Manuel Opulencia and rendition of judgment
conformably with such evidence.
WHEREFORE, the petition for certiorari and mandamus is
DENIED. Let the civil action for related civil liability be remanded to
the Court of First Instance of Batangas City for further proceedings
as indicated above. No pronouncement as to costs.
SO ORDERED.
G.R. No. L-36528 September 24, 1987
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
THE CITY COURT OF MANILA, BRANCH VI and AGAPITO
GONZALES Y VENERACION, respondents.
PADILLA, J.:
Petition for review on certiorari to set aside the order of the
respondent City Court of Manila, Branch VI, dated 20 January
1973, dismissing the information (for violation of Article 201 (3) of
the Revised Penal Code) against the accused, herein respondent
Agapito Gonzales, in Criminal Case No. F-147348 and its
amended order, dated 16 March 1973, denying petitioner's motion
for reconsideration of the first order.
Respondent Agapito Gonzales, together with Roberto Pangilinan,
was accused of violating Section 7, in relation to Section 11,
Republic Act No. 3060 and Article 201 (3) of the Revised Penal
Code, in two (2) separate informations filed with the City Court of
Manila on 4 April 1972.
On 7 April 1972, before arraignment in the two (2) cases, the City
Fiscal amended the information in Criminal Case No. F-147347
(for violation of Section 7 in relation to Section 11, Rep. Act No.
3060), by alleging that the accused.
conspiring, and confederating together, and mutually helping each
other did then and there wilfully, unlawfully, and feloniously publicly
exhibit and cause to be publicly exhibited ... completed composite
prints of motion film, of the 8 mm. size, in color forming visual
moving images on the projection screen through the mechanical
application of the projection equipment, which motion pictures
have never been previously submitted to the Board of Censors for
Motion Pictures for preview, examination and partnership, nor duly
passed by said Board, in a public place, to wit: at Room 309, De
Leon Building, Raon Street corner Rizal Avenue, [Manila].
On the other hand, the information in Criminal Case No. F-147348
(for violation of Article 201 (3) of the Revised Penal Code) was
amended to allege that, on the same date, 16 July 1971, the same
accused,
conspiring and confederating together and actually helping each
other, did then and there wilfully, unlawfully, feloniously and
publicly exhibit, through the mechanical application of movie
projection equipment and the use of projection screen, indecent
and immoral motion picture scenes, to wit: motion pictures of the 8
mm. size, in color, depicting and showing scenes of totally naked
female and male persons with exposed private parts doing the sex
act in various lewd and obvious positions, among other similarly
and equally obscene and morally offensive scenes, in a place
open to public view, to wit: at Room 309, De Leon Building, Raon
Street corner Rizal Avenue, [Manila].
On 31 May 1972, upon arraignment, accused Agapito Gonzales
pleaded not guilty to both charges. The other accused, Roberto
Pangilinan, was not arraigned as he was (and he still is) at large.
On 26 June 1972, accused Agapito Gonzales filed a motion to
quash the informations in the two (2) cases, on the ground that
said informations did not charge an offense. The motion was
denied on 17 July 1972 and the cases were set for trial on 7
August 1972.
No hearing was held on 7 August 1972, however, as the accused
moved for postponement of the trial set on said date and the trial
set on two (2) other dates. On 15 November 1972, the accused
Gonzales moved for permission to withdraw his plea of "not guilty"
in Criminal Case No. F-147348, without however, substituting or
entering another plea. The Court granted the motion and reset the
hearing of the cases for 27 December 1972.
On 27 December 1972, accused Gonzales moved to quash the
information in Criminal Case No. F-147348 on the ground of
double jeopardy, as there was according to him, also pending
against him Criminal Case No. F-147347, for violation of Rep. Act
No. 3060, where the information allegedly contains the same
allegations as the information in Criminal Case No. F-147348.
Petitioner opposed the motion to quash but the respondent City
Court, in an order, dated 20 January 1973, dismissed the case
(Criminal Case No. F-147348) stating thus:
In one case (F-147347), the basis of the charge is a special law,
Rep. Act No. 3060. In the other case (F-147348), the basis of the
same is the pertinent provision of the Revised Penal Code.
Considering that the allegations in the information of said cases
are Identical the plea entered in one case by the accused herein
can be reasonably seen as exposing him to double jeopardy in the
other case, as said allegations therein are not only similar but [sic]
Identical facts.
After the dismissal of Criminal Case No. F-147348, or on 7
February 1973, in Criminal Case No. F-147347, the accused
changed his plea of "not guilty" and entered a plea of "guilty" for
violation of Rep. Act No. 3060. He was accordingly sentenced to
pay a fine of P600.00.
On 10 February 1973, petitioner filed a motion for reconsideration
of the order of 20 January 1973, dismissing Criminal Case No. F-
147348. This was however denied by respondent court in its order
dated 15 March 1973, and in its amended order dated 16 March
1973; hence, this petition for review on certiorari.
Petitioner contends that the accused could not invoke the
constitutional guarantee against double jeopardy, when there had
been no conviction, acquittal, dismissal or termination of criminal
proceedings in another case for the same offense. 1 The
respondent, on the other hand, argues that conviction or acquittal
in, or dismissal or termination of a first case is not necessary, so
long as he had been put in jeopardy of being convicted or
acquitted in the first case of the same offense. 2
It is a settled rule that to raise the defense of double jeopardy,
three requisites must be present: (1) a first jeopardy must have
attached prior to the second; (2) the first jeopardy must have been
validly terminated; and (3) the second jeopardy must be for the
same offense, or the second offense includes or is necessarily
included in the offense charged in the first information, or is an
attempt to commit the same or a frustration thereof
All these requisites do not exist in this case.
The two (2) informations with which the accused was charged, do
not make out only one offense, contrary to private respondent's
allegations. In other words, the offense defined in section 7 of Rep.
Act No. 3060 punishing the exhibition of motion pictures not duly
passed by the Board of Censors for Motion Pictures does not
include or is not included in the offense defined in Article 201 (3) of
the Revised Penal Code punishing the exhibition of indecent and
immoral motion pictures.
The two (2) offenses do not constitute a jeopardy to each other. A
scrutiny of the two (2) laws involved would show that the two (2)
offenses are different and distinct from each other. The relevant
provisions of Rep. Act No. 3060 state:
Sec. 7. It shall be unlawful for any person or entity to exhibit or
cause to be exhibited in any motion picture theater or public place,
or by television within the Philippines any motion picture, including
trailers, stills, and other pictorial advertisements in connection with
motion pictures, not duly passed by the Board; or to print or cause
to be printed on any motion picture to be exhibited in any theater,
or public place or by television, a label or notice showing the same
to have been previously passed by the said Board when the same
has not been previously authorized, except motion pictures
imprinted or exhibited by the Philippine Government and/or its
departments and agencies, and newsreels.
Sec. 11. Any violation of Section seven of this Act shall be
punished by imprisonment of not less than six months but not
more than two years, or by a fine of not less than six hundred nor
more than two thousand pesos, or both at the discretion of the
court. If the offender is an alien he shall be deported immediately.
The license to operate the movie theater or television shall also be
revoked. Any other kind of violation shall be punished by
imprisonment of not less than one month nor more than three
months or a fine of not less than one hundred pesos nor more than
three hundred pesos, or both at the discretion of the court. In case
the violation is committed by a corporation, partnership or
association, the liability shall devolve upon the president, manager,
administrator, or any office thereof responsible for the violation.
On the other hand, Article 201 (3) of the Revised Penal Code
provides:
Art. 201. Immoral doctrines, obscene publications and exhibitions.-
The penalty of prision correccional in its minimum period, or a fine
ranging from 200 to 2,000 pesos, or both, shall be imposed upon:
... 3. Those who in theaters, fairs, cinematographs, or any
other place open to public view, shall exhibit indecent or immoral
plays, scenes, acts, or shows; ...
It is evident that the elements of the two (2) offenses are different.
The gravamen of the offense defined in Rep. Act No. 3060 is the
public exhibition of any motion picture which has not been
previously passed by the Board of Censors for Motion Pictures.
The motion picture may not be indecent or immoral but if it has not
been previously approved by the Board, its public showing
constitutes a criminal offense. 3 On the other hand, the offense
punished in Article 201 (3) of the Revised Penal Code is the public
showing of indecent or immoral plays, scenes, acts, or shows, not
just motion pictures. 4
The nature of both offenses also shows their essential difference.
The crime punished in Rep. Act No. 3060 is a malum prohibitum in
which criminal intent need not be proved because it is presumed,
while the offense punished in Article 201 (3) of the Revised Penal
Code is malum in se, in which criminal intent is an indispensable
ingredient.
Considering these differences in elements and nature, there is no
Identity of the offenses here involved for which legal jeopardy in
one may be invoked in the other. 5 Evidence required to prove one
offense is not the same evidence required to prove the other. The
defense of double jeopardy cannot prosper. As aptly put in People
v. Doriquez. 6
It is a cardinal rule that the protection against double jeopardy may
be invoked only for the same offense or Identical offense. A single
act may offend against two (or more) entirely distinct and unrelated
provisions of law, and if one provision requires proof of an
additional fact or element which the other does not, an acquittal or
conviction or a dismissal of the information under one does not bar
prosecution under the other. (People v. Bacolod, 89 Phil. 621;
People v. Alvarez, 45 Phil. 24). Phrased elsewhere, where two
different laws (or articles of the same code) define two crimes,
prior jeopardy as to one of them is no obstacle to a prosecution of
the other, although both offenses arise from the same facts, if each
crime involves some important act which is not an essential
element of the other. (People v. Alvarez, 45 Phil. 472). 7
(Emphasis supplied)
Petitioner also questions the propriety of allowing the accused in
Criminal Case No. F-147348 to withdraw his plea of not guilty in
order to file a motion to quash on the ground of double jeopardy.
Petitioner argues:
It is true that on February 3, 1973, the trial court finally convicted
respondent Gonzales in Criminal Case No. F-147347 by imposing
on him a fine of P600.00. But it is obvious that respondent
Gonzales's conviction in that case cannot retroactively supply the
ground for the dismissal of Criminal Case No. F-147348.
But even if conviction in Criminal Case No. F-147347 preceded the
dismissal of Criminal Case No. F-147348, still that conviction
cannot bar the prosecution for violation of Article 201 (3) of the
Revised Penal Code, because, by pleading to the charge in
Criminal Case No. F-147348 without moving to quash the
information, the accused (now the respondent) Gonzales must be
taken to have waived the defense of double jeopardy, pursuant to
the provisions of Rule 117, section 10. (Barot v. Villamor, 105 Phil.
263 [1959]) It is only in cases where, after pleading or moving to
quash on some other grounds, the accused learns for the first time
that the offense of which he is charged is an offense for which he
has been in jeopardy that the court may in its discretion entertain
at any time before judgment a motion to quash on that ground. ...
In the case at bar, however, the fact is that the accused (now the
respondent Gonzales) was arraigned in the same court. He,
therefore, cannot claim ignorance of the existence of another
charge against him for supposedly the same offense. 8
Petitioner's argument is well-taken. Sec. 10, Rule 117, of the Rules
of Court, before its amendment stated —
SEC. 10. Failure to move to quash-Effect of- Exception. — If the
defendant does not move to quash the complaint or information
before he pleads thereto he shall be taken to have waived all
objections which are grounds for a motion to quash except when
the complaint or information does not charge an offense, or the
court is without jurisdiction of the same. If, however, the defendant
learns after he has pleaded or has moved to quash on some other
ground that the offense for which he is now charged is an offense
for which he has been pardoned, or of which he has been
convicted or acquitted or been in jeopardy, the court may in its
discretion entertain at any time before judgment a motion to quash
on the ground of such pardon, conviction, acquittal or jeopardy.
(Emphasis supplied)
However, it must be noted that, under the 1985 Rules, the
provision now reads as follows:
Failure to move or quash or to allege any ground therefore. The
failure of the accused to assert any ground of a motion to quash
before he pleads to the complaint or information, either because
he did not file a motion to quash or failed to allege the same in said
motion, shall be deemed a waiver of the grounds for a motion to
quash, except the grounds of no offense charged, lack of
jurisdiction, extinction of the offense or penalty, and jeopardy. ... 9
The above, being an amendment favorable to the accused, the
benefit thereof can be extended to the accused-respondent.
However, whatever benefit he may derive from this amendment, is
also illusory. For, as previously noted, there is no double jeopardy
which gave rise to a valid motion to quash.
The People (petitioner) rightly appealed the dismissal of Criminal
Case No F-147348. For, as ruled in People v. Desalisa: 10
As a general rule, the dismissal or termination of a case after
arraignment and plea of the defendant to a valid information shall
be a bar to another prosecution for the offense charged, or for any
attempt to commit the same or frustration thereof, or for any
offense which necessarily includes or is necessarily included in the
complaint or information (Sec. 9, Rule 113). However, an appeal
by the prosecution from the order of dismissal (of the criminal
case) by the trial court shall not constitute double jeopardy if (1)
the dismissal is made upon motion, or with the express consent, of
the defendant, and (2) the dismissal is not an acquittal or based
upon consideration of the evidence or of the merits of the case;
and (3) the question to be passed upon by the appellate court is
purely legal so that should the dismissal be found incorrect, the
case would have to be remanded to the court of origin for further
proceedings, to determine the guilt or innocence of the defendant.
11
WHEREFORE, the petition is granted. The appealed orders are
hereby reversal and set aside. Criminal Case No. F-147348 is
ordered reinstated and remanded to the respondent Court for trial
according to law.
SO ORDERED.
G.R. No. L-36458 February 21, 1983
FRANCISCA ALIMAGNO and JOVITA MELO, petitioners,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
Joaquin E. Chipeco and Fortunato Gupit, Jr., for petitioners.
The Solicitor General for respondent.
RELOVA, J.:
Petitioners Francisca Alimagno and Jovita Melo were convicted, as
principal and accomplice, respectively, of the crime of corruption of
minor, as defined in Article 340 of the Revised Penal Code, by the
City Court of San Pablo, and sentenced as follows:
... The accused Francisca Alimagno, to suffer the penalty ranging
from six (6) months of arresto mayor as minimum to two (2) years,
eleven (11) months and ten (10) days as maximum, to indemnify
the offended party in the sum of P500.00 with subsidiary
imprisonment in case of insolvency, which shall not be more than
one-third of the principal penalty herein imposed and to pay the
proportionate costs; the accused Jovita Melo, to suffer the penalty
of six (6) months of arresto mayor, to indemnify the offended party
in the sum of P200.00 with subsidiary imprisonment in case of
insolvency which shall not be more than one-third of the principal
penalty herein imposed and to pay the proportionate costs.
The Court of Appeals modified the decision with respect to the
subsidiary penalty, thus:
However, the subsidiary imprisonment in case of insolvency of the
defendants to pay the respective indemnities imposed upon them
should be eliminated from the dispositive portion of the lower
court's decision. (Rep. Act No. 5465). Moreover, it should be
ordained therein that in the event of insolvency of one of them, the
other should be subsidiarily liable thereto, with right of
reimbursement, pursuant to Article 110 of the Revised Penal
Code.
WHEREFORE, with the modification indicated above, the decision
appealed from, being in keeping with the evidence and the law, is
hereby affirmed, with costs against the appellants.
The main facts are set forth in the decision of the Court of Appeals,
from which We quote:
Complainant Filomena de la Cruz, who was undisputedly born on
August 10, 1946 at Calamba, Laguna (Exh. B), was employed in
the house of Pita Alvero at San Pablo City as a domestic helper for
a period of only nine (9) days from November 20, 1964 to
November 29, 1964. On November 27, 1964, she came to know
defendant Francisca Alimagno who was bringing money to her
employer Pita Alvero. On said date, defendant Alimagno tried to
convince her to leave the house of Pita Alvero, promising her a
better job. Defendant Alimagno, having gained her confidence,
succeeded in thus persuading her to leave the house of Pita
Alvero. Hence, on November 29, 1964, after leaving a self-
explanatory note, Exh. A, which was admittedly written by accused
Francisca Alimagno herself, which reads:
Ako ho ay nagtanan kasama ko ay lalake.
Your Utusan
complainant abandoned the house of her mistress and went with
defendants Francisca Alimagno and Jovita Melo in a jeep, together
with a man and a driver. They then proceeded to Barrio Putol, San
Pablo City, where she was brought to a hut thereat and there
allowed to be ravished by a man. whom she saw for the first time,
after the latter had covered her mouth with a rag and tied her
hands, so that she was rendered speechless and helpless from
offering any resistance, so much so that he was able to satiate his
lust with her until 12:00 o'clock midnight. Thereafter, she was
brought by the man to the house of defendant Jovita Melo only to
be transferred later to the house of defendant Francisca Alimagno,
where she stayed for more or less three days until she was found
there and taken back by Leovigildo Perez and Pita Alvero. The two
thereafter brought her to the Police Department for the
corresponding investigation.
Petitioners contend that the Court of Appeals erred (1) in
convicting them of the crime of corruption of minor upon wholly
unsubstantial and inherently conflicting evidence; (2) in not holding
that the facts, as found by it and the trial court, do not constitute
the crime of corruption of minors as defined and penalized by
Article 340 of the Revised Penal Code; (3) in not holding that the
minor referred to in Article 340 of the Revised Penal Code should
be below 18 years of age; (4) in not holding that a person who is
already corrupted can no longer be the victim of corruption of
minors committed through abuse of authority or confidence; (5) in
not acquitting the petitioners of the crime of corruption of minors;
and, (6) in not holding that the penalty imposed upon petitioner
Melo is incorrect.
Petitioners argue that they were convicted upon unsubstantial and
inherently conflicting evidence. This contention is devoid of factual
basis considering the findings of the Court of Appeals which are
hereunder reproduced if only to demonstrate that the same were
made after a thorough analysis of the evidence, and hence are
beyond this Court's power of review:
Appellants (herein petitioners) further contend that the lower court
erred in not finding that even before November 29, 1964, the
complainant Filomena de la Cruz was already a corrupted person
and therefore she could no longer be the victim of the crime of
"Corruption of Minors" penalized by Article 340 of the Revised
Penal Code in view of the fact that from her own statement, Exh. 1,
she admitted that she had sexual intercourse with other men.
This argument is clearly untenable. Complainant, who does not
know how to read and write vehemently denied the contents of
Exh. 1, saying that it was not the statement she gave to the police.
Indeed, she testified that previous to the incident, she did not have
any coition with any man and the trial court so believed her. In any
event, even assuming it to be true, Article 340 does not prescribe
that the persons corrupted be of good reputation, as in the case of
simple seduction under Article 338, much less that they be virgins,
as in qualified seduction under Article 337, both of the Revised
Penal Code. It follows that the above-mentioned traits are of no
consequence. ...
xxx xxx xxx
With regard to the letter (Exh. A), appellant Francisca Alimagno
admitted having written the same out of pity to the complainant
Filomena de la Cruz (tsn., p. 70, April 22, 1966). But, if she had
nothing to do with complainant's sexual adventure, it is strange
why she wrote said letter, containing false averments, and then
took the complainant away from the house of Pita Alvero, without
the knowledge and consent of the latter. She, being a friend of Pita
Alvero, should have known that her actuation in writing the letter
was ill-advised and morally wrong. Her admission that she wrote
the same clearly indicates her plan to facilitate or promote the
prostitution or corruption of the complainant.

Appellant Francisca Alimagno testified that the witness for the
prosecution Leovigildo Perez was demanding P5,000.00 from her
and later was reduced to P2,000.00 (tsn. p. 83, April 22, 1966) to
quash the case against her. On cross-examination, she (Francisca
Alimagno) said that Perez was asking the aforesaid amount on the
ground floor of the Secret Service Division. The pertinent portion of
her testimony read, thus:
Q You stated that Leovigildo Perez asked P5,000.00 from you, can
you tell where Leovigildo Perez asked P5,000.00 from you?
A At the ground floor, sir.
Q Are you referring to the Office of the Secret Service Division?
A At the ground floor but not within the office of the Secret Service
Division.
Q Was that when you were called by the Secret Service men?
A Yes, sir.
Q Did you immediately denounce Perez to the police what he was
asking from you?
A No, sir.
Q Why did you not tell or report the matter to the police?
A Because we called up Atty. Alvero and asked him to assist us.
Q And you told Atty. Alvero that Leovigildo Perez was asking you
P5,000.00?
A No, sir, he just told me go home.
Q In other words when Atty. Alvero arrived he just told you to go
home?
A Yes. sir. (tsn., pp.100-101, Ibid.)
If there is truth on the matter that Leovigildo Perez was extorting
money from her (Francisca Alimagno) for the purpose of quashing
the case, appellant Alimagno should have reported or denounced
immediately to the police such attitude of Perez, inasmuch as they
were near the office of the Secret Service Division or told the
matter to Atty. Alvero, but she allegedly kept the matter to herself.
The truth, however, is that it was appellant Alimagno who made an
offer of P50.00 to Leovigildo Perez to drop the case against her.
Thus, the pertinent portion of his (Perez) testimony reads:
A The truth is that the spouses went to our residence and asked
me to accept the amount of P50.00 and drop the case. I told them
to ask the complainant, but the complainant refused and said that
let the court decide the case.
xxx xxx xxx
Q In your answer you refer to the spouses, will you please
specify whom you are referring to?
A The spouses, Alimagno, Sir. (tsn., pp. 145-146, June 1, 1966)
The above-quoted testimony of Leovigildo Perez was strengthened
by the testimony of Detective Sergeant Francisco Escondo, a
disinterested witness for the prosecution who testified, thus:
Q Will you please tell the conversation between you and the
accused for the second time?
A They seek our service to help them in settling the case.
Q What was your answer?
A I told them, its up to you. (tsn., pp. 14-15, June 7, 1965.)
On cross-examination, the same witness further testified, thus:
A After Francisca Alimagno had talked with the complainant she
requested us to help them to settle this case. t.s.n., p. 22, Ibid.)
It is clear from the foregoing testimony, of both witnesses for the
prosecution that the appellants made an offer of compromise for
the settlement of the case. These overtures made by the
appellants to have the case settled out of court are indicative of a
guilty conscience and it is well-settled in this jurisdiction that an
offer of compromise is an evidence of guilt. (People vs. Manzano,
CA-G.R. No. 00204-R, Nov. 29,1962.)
We find no reason in this case to depart from the rule which limits
this Court's appellate jurisdiction to review only errors of law
"accepting as conclusive the factual findings of the lower court
upon its own assessment of the evidence. (Evangelista vs. Abad
Santos, 51 SCRA 416.)
On the question raised that petitioners could not be guilty of the
crime of corruption because the offended party is more than
eighteen years of age at the time the alleged offense is committed,
the point to consider is whether "under age" means below eighteen
or twenty-one years old. Article 340 of the Revised Penal Code
provides:
Any person who shall habitually or with abuse of authority or
confidence, promote or facilitate the prostitution or corruption of
persons under age to satisfy the lust of another, shall be punished
by...
Petitioners contend that in "crimes against chastity, like seduction,
acts of lasciviousness with the consent of the offended party and
consented abduction, the age of the victim is pegged at below 18
years of age; ... that the phrase 'person under age' (in Article 340
of the Revised Penal Code) was meant by the lawmakers to refer
to persons below 18 years of age." (p. 61, Petitioner's Brief.)
We cannot subscribe to this view. Article 402 of the Civil Code
provides that "majority commences upon the attainment of the age
of twenty-one years." When the lawmakers specifically provide
"persons under age", instead of "below eighteen years of age",
they could mean no other than that the offended party must be
below 21 years old, and not below 18 years of age. The same is
true in Acts of Lasciviousness in Article 336. White Slave Trade in
Article 341, and Forcible Abduction in Article 342 of the Revised
Penal Code, where the age limit is not set at eighteen. Justice
Ramon C. Aquino, in his commentary on the Revised Penal Code,
page 1623, Book II, states that "Art. 340 was taken from art. 444 of
the old Penal Code. The requisites of the crime of corruption of
minors are that the accused acted habitually or with the abuse of
authority or confidence; that he promoted or facilitated the
prostitution or corruption of persons below 21 years of age and
that he so acted in order to satisfy the lust of another." (emphasis
supplied).
However, We take note of the recommendation of the Solicitor
General that with respect to petitioner Jovita Melo who was found
guilty as accomplice in a consummated crime where the penalty is
arresto mayor, medium and maximum periods (2 months and 1
day to 6 months), and where there is no modifying circumstances
present, the penalty in its medium period should be imposed, or
not less than 3 months and 11 days nor more than 4 months and
20 days. Otherwise stated, the petitioner Jovita Melo should suffer
the penalty of 4 months and 20 days, instead of 6 months of
arresto mayor.
WHEREFORE, with the modification above indicated, the decision
of the Court of Appeals is AFFIRMED. With costs.
SO ORDERED.
G.R. No. L-36342 April 27, 1983
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
THE CITY COURT OF MANILA, BRANCH XI and FRANCISCO
GAPAY y MALLARES, respondents.
Solicitor General for petitioner.
Mario F. Estayan for respondents.
RESOLUTION
RELOVA, J:
This is a petition to review the order, dated November 17, 1972, of
the City Court of Manila, Branch XI, dismissing the information for
homicide thru reckless imprudence filed against private
respondent, Francisco Gapay y Mallares, in Criminal Case No. E-
505633 on the ground of double jeopardy. Respondent court held
that the private respondent having been previously tried and
convicted of serious physical injuries thru reckless imprudence for
the resulting death of the victim would place the accused in double
jeopardy.
The question presented in this case is whether a person who has
been prosecuted for serious physical injuries thru reckless
imprudence and convicted thereof may be prosecuted
subsequently for homicide thru reckless imprudence if the
offended party dies as a result of the same injuries he had
suffered.
In Melo vs. People, 85 Phil. 766, this Court held that "where after
the first prosecution a new fact supervenes for which the
defendant is responsible, which changes the character of the
offense and, together with the facts existing at a time, constitutes a
new and distinct offense, the accused cannot be said to be in
second jeopardy if indicted for the second offense." However, the
trial court held that the doctrine of Melo vs. People does not apply
in the case at bar in view of this Court's ruling in People vs. Buan,
22 SCRA 1383, that Article 365 of the Penal Code punishes the
negligent state of mind and not the resulting injury. The trial court
concluded that once prosecuted for and convicted of negligence,
the accused cannot again be prosecuted for the same negligence
although for a different resulting injury.
In the case at bar, the incident occurred on October 17, 1971. The
following day, October 18, an information for serious physical
injuries thru reckless imprudence was filed against private
respondent driver of the truck. On the same day, the victim Diolito
de la Cruz died.
On October 20, 1972, private respondent was arraigned on the
charge of serious physical injuries thru reckless imprudence. He
pleaded guilty, was sentenced to one (1) month and one (1) day of
arresto mayor, and commenced serving sentence.
On October 24, 1972, an information for homicide thru reckless
imprudence was filed against private respondent.
On November 17, 1972, the City Court of Manila, upon motion of
private respondent, issued an order dismissing the homicide thru
reckless imprudence case on the ground of double jeopardy.
Well-settled is the rule that one who has been charged with an
offense cannot be charge again with the same or Identical offense
though the latter be lesser or greater than the former. However, as
held in the case of Melo vs. People, supra, the rule of Identity does
not apply when the second offense was not in existence at the
time of the first prosecution, for the reason that in such case there
is no possibility for the accused, during the first prosecution, to be
convicted for an offense that was then inexistent. "Thus, where the
accused was charged with physical injuries and after conviction,
the injured person dies, the charge for homicide against the same
accused does not put him twice in jeopardy." Stated differently,
where after the first prosecution a new fact supervenes for which
the defendant is responsible, which changes the character of the
offense and, together with the facts existing at the time, constitutes
a new and distinct offense, the accused cannot be said to be in
second jeopardy if indicted for the new offense.
As stated above, the victim Diolito dela Cruz died on the day the
information was filed, and the accused was arraigned two (2) days
after, or on October 20, 1972. When the information for homicide
thru reckless imprudence was, therefore, filed on October 24,
1972, the accused-private respondent was already in jeopardy.
In his memorandum, the Solicitor General made mention of the
fact that on October 21, 1972, the City Fiscal filed an Urgent
Motion asking that the "hearing and arraignment of this case be
held in abeyance for there is information that the victim, Diolito
dela Cruz died, and the information would have to be amended."
Be that as it may, the fact remains that the victim Diolito dela Cruz
died on October 18 "one (1) day after the accident and the arrest
of the respondent Gapay" (P. 103, Rollo) and that on October 20,
1972, the accused was arraigned, pleaded guilty and sentenced
accordingly. Thus, jeopardy had attached and no new fact
supervened after the arraignment and conviction of the accused.
ACCORDINGLY, the order of dismissal of the lower court is
affirmed.
SO ORDERED.
Melencio-Herrera and Plana, JJ., concur.
Teehankee (Chairman), J., took no part.
G.R. No. L-29270 November 23, 1971
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,
vs.
RODRIGO YORAC, defendant-appellee.
Office of the Solicitor General Antonio P. Barredo, Assistant
Solicitor General
Pacifico P. de Castro and Solicitor Pedro A. Ramirez for plaintiff-
appellant.
Vicente F. Delfin for defendant-appellee.
FERNANDO, J.:
The constitutional right not to be put twice in jeopardy for the same
offense 1 was the basis for a motion to quash filed by the accused,
now appellee, Rodrigo Yorac. He was prosecuted for frustrated
murder arising allegedly from having assaulted, attacked, and hit
with a piece of wood the offended party, for which he had been
previously tried and sentenced for slight physical injuries, his plea
being one of guilt. The later information for frustrated murder was
based on a second medical certificate after the lapse of one week
from the former previously given by the same physician who,
apparently, was much more thorough the second time, to the effect
that the victim did suffer a greater injury than was at first
ascertained. The lower court, presided by the Honorable Judge
Nestor B. Alampay, considering that there was no, supervening
fact that would negate the defense of double jeopardy, sustained
the motion to quash in an order of June 21, 1968. The People
appealed. As the order complained of is, fully supported by the
latest authoritative ruling of this Tribunal, People v. Buling, 2 we
have to affirm.
In the brief for the People of the Philippines, it was shown that the
accused Yorac was charged with slight physical injuries before the
City Court of Bacolod, the offended party being a certain Lam
Hock who, according to the medical certificate issued in April 10,
1968 by a Dr. Rogelio Zulueta, a resident physician of the
Occidental Negros Provincial Hospital, was confined "since April 8,
1968 up to the present time for head injury." 3 Then came a plea
of guilty by the accused on April 16, 1968 resulting in his being
penalized to suffer ten days of arresto menor. He started serving
his sentence forthwith. On April 18, 1968, the provincial fiscal filed
an information, this time in the Court of First Instance of Negros
Occidental, charging the same defendant with frustrated murder
arising from the same act against the aforesaid victim Lam Hock
upon another medical certificate dated April 17, 1968 issued by the
same Dr. Zulueta. In the medical certificate of April 17, 1968, it
was made to appear that the confinement of the offended party in
the hospital was the result of: "1. Contusion with lacerated wound
4 inches parieto-occipital region scalp mid portion. 2. Cerebral
concussion, moderately severe, secondary." 4 Moreover, it further
contained a statement that the X-ray finding did not yield any
"radiographic evidence of fracture." The healing period barring
complications, was declared to be from eighteen to twenty-one
days. 5
Afterwards, a motion to quash was filed by the accused on June
10, 1968 on the ground that, having been previously convicted of
slight physical injuries by the City Court of Bacolod and having
already served the penalty imposed on him for the very same
offense, the prosecution for frustrated murder arising out of the
same act committed against the same offended party, the crime of
slight physical injuries necessarily being included in that of
frustrated murder, he would be placed in second jeopardy if
indicted for the new offense. 6 In its well-reasoned resolution of
June 21, 1968 granting the motion to quash and ordering the
dismissal of a criminal case for frustrated murder against the
accused, Judge Alampay relied on People v. Buling which, in his
opinion, was squarely applicable as "nothing in the later medical
certificate [indicated] that a new or supervening fact had developed
or arisen since the time of the filing of the original action" against
the accused. A motion for reconsideration being unavailing, an
appeal was elevated to us.
As succinctly set forth in the brief of the People of the Philippines:
"The sole issue in this case is whether the defendant, who had
already been convicted of slight physical injuries before the City
Court of Bacolod for injuries inflicted upon Lam Hock, and had
served sentence therefore, may be prosecuted anew for frustrated
murder for the same act committed against the same person." 7
The position taken by the appellant is in the affirmative but, as
indicated at the outset, the controlling force of People v. Buling
would preclude us from reversing the resolution of Judge Alampay.
1. The Constitution, to repeat, is quite explicit: "No person
shall be twice put in jeopardy of punishment for the same offense.
As Justice Laurel made clear in an address as delegate before the
Constitutional Convention, such a provision finds its origin" from
the days when sanguinary punishments were frequently resorted
to by despots." 9 A defendant in a criminal case should therefore,
according to him, be adjudged either guilty or not guilty and
thereafter left alone in peace, in the latter case the State being
precluded from taking an appeal. 10 It is in that sense that the right
against being twice put in jeopardy is considered as possessing
many features in common with the rule of finality in civil cases. For
the accused is given assurance that the matter is closed, enabling
him to plan his, future accordingly, protecting him from continued
distress, not to mention saving both him and the state from the
expenses incident to redundant litigation. There is likewise the
observation that this constitutional guarantee helps to equalize the
adversary capabilities of two grossly mismatched litigants, a poor
and impecunious defendant hardly in a position to keep on
shouldering the costs of a suit.
Then, as a member of the Supreme Court, Justice Laurel had the
first opportunity to give meaning to what, under the Constitution,
should be considered "the same offense." In the case of People v.
Tarok, decided in 1941, 11 the then comparatively new Rules of
Court in its Section 9 of Rule 113 speaks of a bar to another
prosecution for the offense charged after a defendant shall have
been convicted or acquitted or the case against him dismissed or
otherwise terminated without his express consent, "or for any
attempt to commit the same or frustration thereof or for, any
offense which necessarily includes or is necessarily included in the
offense charged in the former complaint or information." 12
In the Tarok case, the conviction for parricide of the accused was
sought to be set aside, as previously he had been indicted for the
crime of serious physical injuries, to which he had pleaded guilty.
He was sentenced and was actually incarcerated by virtue of such
penalty imposed. The offended party was his wife whom he
hacked with bolo, his ire being aroused by certain, remarks made
her. While he was thus serving sentence, the victim died resulting
in the new prosecution for parricide of which he was convicted. On
appeal to this Court, it was decided over the dissents of the then
Justice Moran and Justice Diaz that the offense of serious physical
injury of which he was found guilty being included in parricide his
previous conviction was a bar to such subsequent prosecution for
the more serious crime. The lower court judgement of conviction
was thus reversed. According to Justice Laurel who spoke for the
Court: "To our mind, the principle embodied in the New Rules of
Court is a clear expression of selection of rule amidst conflicting
theories. We take the position that when we amended section 26
of General Orders No. 58 by providing that the conviction or
acquittal of the defendant or the dismissal of the case shall be a
bar to another prosecution for any offense not only necessarily
therein included but which necessarily includes the offense
charged in the former complaint or information, we meant what we
have, in plain language, stated. We certainly did not mean to
engage in the simple, play of words." 13
2. Such a ruling was however re-examined and set aside in
Melo v. People, 14 where it was held that an accused who pleaded
guilty to the offense of frustrated homicide, the offended party
thereafter dying in the evening of the same day, could not rely on a
plea of double jeopardy if, as a result thereof, the information was
amended to charge him with homicide. 15 As was clarified in the
opinion of this Court through the then Chief Justice Moran, one of
the dissenters in the Tarok case: "This rule of identity does not
apply, however, when the second offense was not in existence at
the time of the first prosecution, for the simple reason that in such
case there is no possibility for the accused, during the first
prosecution, to be convicted for an offense that was then
inexistent. Thus, where the accused was charged with physical
injuries and after conviction the injured person dies, the charge for
homicide against the same accused does not put him twice in
jeopardy." 16 Stated differently, if after the first prosecution "a new
fact supervenes on which defendant may be held liable, resulting
in altering the character of the crime and giving rise to a new and
distinct offense, "the accused cannot be said to be in second
jeopardy if indicted for the new offense." 17 It is noteworthy,
however, that in the Melo ruling, there was a reiteration of what
was so emphatically asserted by Justice Laurel in the Tarok case
in these words: "As the Government cannot begin with the highest,
and then down step by step, bringing the man into jeopardy for
every dereliction included therein, neither can it begin the lowest
and ascend to the highest with precisely the same result." 18
3. There is then the indispensable requirement of the
existence of "a new fact [which] supervenes for which the
defendant is responsible" changing the character of the crime
imputed to him and together with the facts existing previously
constituting a new and distinct offense. The conclusion reached in
People v. Buling, 19 the latest case in point relied upon by Judge
Alampay in the resolution no appeal, was thus, predictable. As set
forth in the opinion of Justice Labrador in the case, there was a
medical certification that the wounds for which the accused
Buenaventura as first prosecuted for less serious physical injuries
would require medical attendance from a period of from ten days
to fifteen days. He pleaded guilty and on December 8, 1956,
sentenced by the Justice of the Peace of Cabalian Leyte, to one
month and one day of arresto mayor. He started serving his
sentence on the same day. On January 18, 1957, however,
another physician examined the offended party and with the use of
an X-ray apparatus, certified that he did suffer a fracture requiring
a treatment of from one and one-half months to two and one half
months, barring complications. As a result, on February 20, 1957,
an information was filed against the same accused, this time
before the Court of First Instance of Leyte, charging him with
serious physical injuries. He stood trial and was found guilty of
such an offense and sentenced to imprisonment of four months of
arresto mayor as minimum to one year of prision correccional as
maximum. On appeal to this Court, his invocation of the defense of
double jeopardy struck a responsive chord, and he was acquitted.
4. The opinion of Justice Labrador explained with clarity
why the constitutional right against being put twice in jeopardy was
a bar to the second prosecution. Thus: "If the X-ray examination
discloses the existence of a fracture on January 17, 1957, that
fracture must have existed when the first examination was made
on December 10, 1956. There is therefore, no view or supervening
fact that could be said to have developed or arisen since the filing
of the original action, which would justify the application of the
ruling enunciated by us in the cases if Melo vs. People and People
vs. Manolong ... . We attribute the new finding of fracture, which
evidently lengthened the period of healing of the wound, to the
very superficial and inconclusive examination made on December
10, 1956. Had an X-ray examination been taken at the time, the
fracture would have certainly been disclosed. The wound causing
the delay in healing was already in existence at the time of the first
examination, but said delay was, caused by the very superficial
examination then made. As we have stated, we find therefore that
no supervening fact had occurred which justifies the application of
the rule in the case of Melo vs. People and People vs. Manolong
for which reason we are constrained to apply the general rule of
double jeopardy." 20 It is quite apparent, in the light of the
foregoing, why the lower court, submitting to the compulsion of the
Buling decision, had to sustain the motion to quash and to dismiss
the information against appellee Yorac. No error could therefore be
rightfully imputed to it.
WHEREFORE, the resolution of June 21, 1968 of Judge Nestor B.
Alampay granting the motion to quash, ordering the dismissal of
the case and the immediate release of the appellee Rodrigo Yorac,
is affirmed. Without costs.
Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, Castro,
Teehankee, Villamor and Makasiar, JJ., concur.
Barredo, J., took no part.
G.R. No. 162206 November 17, 2010
MONICO V. JACOB and CELSO L. LEGARDA, Petitioners,
vs.
HON. SANDIGANBAYAN FOURTH DIVISION and THE OFFICE
OF THE OMBUDSMAN, Respondents.
DECISION
LEONARDO-DE CASTRO, J.:
This is a Petition for Certiorari under Rule 65 of the Rules of Court
for the nullification of the Resolutions dated February 4, 20021 of
the Sandiganbayan Special Fourth Division and December 12,
20032 of the Sandiganbayan Fourth Division. In its Resolution
dated February 4, 2002, the Sandiganbayan Special Fourth
Division set aside the order to dismiss Criminal Case Nos. 25922-
25939, among other cases, verbally issued by Associate Justice
Narciso S. Nario (Justice Nario), Chairman of the Sandiganbayan
Fourth Division, during the court session held on August 20,
2001;3 while in its Resolution dated December 12, 2003, the
Sandiganbayan Fourth Division denied the motions for
reconsideration of the petitioners and other accused.
The following facts are duly established from the pleadings of the
parties:
From 1993 to 1997, Petron Corporation (Petron), a corporation
engaged in the business of refining, marketing and distribution of
petroleum products, received Tax Credit Certificates (TCCs) by
assignment from 18 private firms4 registered with the Board of
Investments (BOI). The TCCs were issued by the One Stop Shop
Inter-Agency Tax Credit & Duty Drawback Center (OSS), an office
under the Department of Finance (DOF), created by virtue of
Administrative Order No. 266 dated February 7, 1992. Petron used
the assigned TCCs to pay its excise tax liabilities.
The practice was for the BOI-registered firms to sign the Deeds of
Assignment upon delivery of the TCCs to Petron. Petron then
forwarded said documents to the OSS, with a request for
authorization to use said TCCs to pay for its excise tax liabilities.
DOF Undersecretary Antonio P. Belicena (Belicena) approved the
request of Petron through the issuance of Tax Debit Memoranda
(TDM) addressed to the Collection Program Division of the Bureau
of Internal Revenue (BIR). The BIR Collection Program Division
accepted the TCCs as payment for the excise tax liabilities of
Petron by issuing its own TDM.5 The control numbers of the BIR-
TDM were indicated on the back of the TCCs, marking the final
utilization of the tax credits.6
However, the Fact Finding and Intelligence Bureau (FFIB) of the
Office of the Ombudsman eventually found that the
aforementioned transactions involving the TCCs were irregular and
violative of the Memorandum of Agreement dated August 29, 1989
between the BOI and the DOF, which implemented Article 21 of
Executive Order No. 226, otherwise known as the Omnibus
Investments Code of 1987.7
After the termination of the requisite preliminary investigation, the
Office of the Ombudsman issued a Resolution dated March 27,
2000 finding probable cause against several public officers and
private individuals, including petitioners Monico V. Jacob (Jacob),
President, and Celso L. Legarda (Legarda), Vice-President and
General Manager for Marketing, both of Petron, for perpetrating
the so-called "tax credit scam." On April 10, 2010, the Office of the
Ombudsman filed a total of 62 Informations, 18 of which, docketed
as Criminal Case Nos. 25922-25939, were against DOF
Undersecretary Belicena, OSS Deputy Executive Director Uldarico
P. Andutan, Jr., petitioners and other Petron officials, and officers
of the BOI-registered firms which assigned the TCCs to Petron,
charging them with violation of Section 3(e) of Republic Act No.
3019, otherwise known as the Anti-Graft and Corrupt Practices
Act.
Petitioners provided an undisputed account of the events that
subsequently took place before the Sandiganbayan:
On April 14, 2000, petitioners and the four other Petron officers
who were similarly charged filed a Motion for Reinvestigation [with
the Office of the Ombudsman].
On 17 April 2000, the [Sandiganbayan Fourth Division] issued an
Order giving the prosecution a period of sixty (60) days within
which –
… to re-assess its evidence in these cases and to take appropriate
action on the said motion for reconsideration of accused movants
and to inform the Court within the same period as to its findings
and recommendations including the action thereon of the
Honorable Ombudsman.
Sixty (60) days passed but the Office of the Ombudsman did not
even bother to submit a report on the status of the motions for
reconsideration. Months passed, and then, AN ENTIRE YEAR
PASSED. There was still nothing from the respondent Office of the
Ombudsman.
In the meantime, petitioner Jacob was arraigned on 1 June 2000
while petitioner Legarda was arraigned on 18 May 2001.
On March 20, 2001, in view of a significant development in the
Shell cases (then pending with the 5th Division of [the
Sandiganbayan]), petitioners and other accused Petron officials
filed a Motion to Resolve with the Office of the Ombudsman. In the
said motion, petitioners cited the Memorandum dated 30 January
2001 issued by Special Prosecutor Leonardo P. Tamayo upholding
the dropping of the charges against Shell official Pacifico Cruz on
the ground that there was no sufficient evidence to prove that he
was part of the conspiracy. Petitioners asserted that since their
situation/alleged participation is similar to that of Mr. Pacifico Cruz,
they should similarly be dropped from the criminal cases. Despite
this, the respondent Office of the Ombudsman took no action.
Considering the time that had lapsed, the [Sandiganbayan Fourth
Division], at the hearing on 1 June 2001, expressly warned the
prosecution that should it fail to resolve the
reconsideration/investigation, it would order the dismissal of the
cases or require the prosecution to show cause why it should not
be cited for contempt.
In its Resolution dated 26 June 2001, the [Sandiganbayan Fourth
Division] in fact denied the motion of the prosecution for the
resetting of the scheduled arraignment and pre-trial on 2 July 2001
"it appearing that the Reinvestigation of these cases has been
pending for more than one (1) year now and the court cannot
countenance the unreasonable delay attributable to the plaintiff."
In spite of the denial of their motion, the prosecution still failed to
submit its report to the [Sandiganbayan Fourth Division] during the
2 July 2001 hearing. Instead they asked for a period of seven (7)
more days to resolve the motions for reconsideration. The
arraignment (of the other accused) and pre-trial therefore had to
be reset again to 17 July 2001.
One day before the schedule hearing, the prosecution filed a
Manifestation requesting the cancellation of the arraignment and
pre-trial scheduled the next day on the ground that the motions for
reconsideration/reinvestigation were still pending resolution.
Once again, [the Sandiganbayan Fourth Division] gave the
prosecution another chance. During the hearing on 17 July 2001,
the [Sandiganbayan 4th Division] directed the prosecution, through
Prosecutor Orlando Ines, to terminate the reinvestigation within a
period of one (1) more month. The arraignment and pre-trial were
then reset to 20 August 2001.
At the scheduled hearing on August 20, 2001, Prosecutor Orlando
Ines, however, again requested for the deferment of the
arraignment and pre-trial on the ground that the resolution on the
various motions for reconsideration/reinvestigation were still
pending approval by the Office of the Ombudsman.
In all the hearings conducted in the cases the defense verbally and
consistently invoked their right to speedy trial and moved for the
dismissal of the cases. In the course of more than one year,
however, the [Sandiganbayan 4th Division] kept affording the
prosecution one chance after another. The sixty days granted to
the prosecution became more than four hundred days – still, there
was no resolution in sight.
Thus on 20 August 2001, compelled by its duty to uphold the
fundamental law, the [Sandiganbayan Fourth Division, through its
Chairman, Justice Nario] issued a verbal order dismissing the
cases. The dismissal was duly recorded in the minutes of the
hearing of the said date which was attested to by the Clerk of
Court and signed by the parties.
On 24 August 2001, the prosecution filed a Motion for
Reconsideration with the following prayer: "WHEREFORE, the
undersigned Ombudsman Prosecutors prayed (sic) that the Order
issued by the Honorable Court for the summary dismissal of all the
graft and estafa charges aforecited be SET ASIDE."
On August 31, 2001, the [Sandiganbayan Fourth Division] issued
an Order taking cognizance of the Motion for Reconsideration filed
by the prosecution and requiring the accused to file their
respective comments thereon within five (5) days.
On 4 February 2002, OR SIX (6) MONTHS after [Justice Nario]
issued the verbal order of dismissal, the [Sandiganbayan Special
Fourth Division] issued an Order setting aside said verbal order.
xxxx
In the 4 February 2002 Resolution, this time a Division of five
justices (two of whom dissented) rendered a Resolution stating:
WHEREFORE, the dismissal of these cases orally ordered in open
court by the Chairman of the Fourth Division during its court
session held on August 20, 2001, and reiterated in his subsequent
ponencia, is hereby set aside.8 (Citations omitted.)
The Sandiganbayan Special Fourth Division gave the following
reasons for overruling Justice Nario’s verbal order dismissing the
criminal cases against the accused in the alleged tax credit scam:
In the present case, (1) there is already a delay of the trial for more
than one year now; (2) but it is not shown that the delay is
vexatious, capricious and oppressive; (3) it may be that, as stated
in the herein dissented Resolution, "at the hearings conducted in
these cases, the defense orally, openly and consistently asked for
the dismissal of these cases"; however, these oral manifestations
were more of "knee-jerk reactions" of the defense counsel in those
hearings everytime the prosecution requested for postponement
than anything else as said defense counsel did not seriously
pursue the dismissal of these cases, such as by reducing their
"request" in a formal written motion to dismiss and/or insisting that
the court formally rule on their request for dismissal and go on
certiorari if denied; and (4) considering the nature and importance
of the cases, if there is any prejudice that may have resulted as a
consequence of the series of postponements, it would be more
against the government than against any of the accused; however,
be that as it may, none of the herein accused has come out to
claim having been thus prejudiced.9
On February 26, 2002, petitioners, together with four other co-
accused Petron officials, filed a Motion for Reconsideration10 of
the February 4, 2002 Resolution of the Sandiganbayan Special
Fourth Division. Other accused also filed their motions for
reconsideration and motions to quash/dismiss. The prosecution
expectedly opposed all such motions of the accused.
In an Omnibus Resolution dated December 12, 2003, the
Sandiganbayan Fourth Division ruled in the prosecution’s favor
and denied all the motions filed by the accused, to wit:
Wherefore, premises considered, this court issues an Omnibus
Resolution denying all the above-described Motion to Quash for
lack of merit.
Hence, petitioners come before us via the instant Petition for
Certiorari averring grave abuse of discretion on the part of the
Sandiganbayan Special Fourth Division, specifically:
I preparation within the periods of time established therein.
THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN DENYING PETITIONERS’ RIGHT TO
SPEEDY TRIAL.
II
THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN HOLDING THAT PETITIONERS HAVE NOT
BEEN PUT IN DOUBLE JEOPARDY.
III
THE RESPONDENT COURT COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN NOT CONSIDERING THE GLARING LACK OF
EVIDENCE AGAINST PETITIONERS.11
To recall, Justice Nario, as the Chairman of the Sandiganbayan
Fourth Division, ordered the dismissal of all criminal cases arising
from the purported tax credit scam on the ground that the accused,
including petitioners, had already been deprived of their right to a
speedy trial and disposition of the cases against them. Petitioners
assert that the Sandiganbayan gravely abused its discretion in
reversing Justice Nario’s order of dismissal of Criminal Case Nos.
25922-25939 because such reversal violated petitioners’
constitutional right against double jeopardy.
An accused’s right to "have a speedy, impartial, and public trial" is
guaranteed in criminal cases by Section 14(2), Article III12 of the
Constitution. This right to a speedy trial may be defined as one
free from vexatious, capricious and oppressive delays, its "salutary
objective" being to assure that an innocent person may be free
from the anxiety and expense of a court litigation or, if otherwise,
of having his guilt determined within the shortest possible time
compatible with the presentation and consideration of whatsoever
legitimate defense he may interpose. Intimating historical
perspective on the evolution of the right to speedy trial, we
reiterate the old legal maxim, "justice delayed is justice denied."
This oft-repeated adage requires the expeditious resolution of
disputes, much more so in criminal cases where an accused is
constitutionally guaranteed the right to a speedy trial.13
Hence, the Revised Rules on Criminal Procedure also include
provisions that ensure the protection of such right. As we
presented in Uy v. Hon. Adriano14:
Section 1(h), Rule 115 of the Revised Rules of Criminal Procedure
provides that the accused is entitled to a speedy, impartial and
public trial. Section 2, Rule 119 of the said Rules provides that
trial, once commenced, shall be continuous until terminated:
Sec. 2. Continuous trial until terminated; postponements. – Trial,
once commenced, shall continue from day to day as far as
practicable until terminated. It may be postponed for a reasonable
period of time for good cause.
The court shall, after consultation with the prosecutor and defense
counsel, set the case for continuous trial on a weekly or other
short-term trial calendar at the earliest possible time so as to
ensure speedy trial. In no case shall the entire trial period exceed
one hundred eighty (180) days from the first day of trial, except as
otherwise authorized by the Supreme Court.
The time limitations provided under this section and the preceding
section shall not apply where special laws or circulars of the
Supreme Court provide for a shorter period of trial.
However, any period of delay resulting from a continuance granted
by the court motu proprio, or on motion of either the accused or his
counsel, or the prosecution, if the court granted the continuance on
the basis of its findings set forth in the order that the ends of justice
is served by taking such action outweigh the best interest of the
public and the accused on a speedy trial, shall be deducted.
The trial court may grant continuance, taking into account the
following factors:
(a) Whether or not the failure to grant a continuance in the
proceeding would likely make a continuation of such proceeding
impossible or result in a miscarriage of justice; and
(b) Whether or not the case taken as a whole is so novel, unusual
and complex, due to the number of accused or the nature of the
prosecution, or that it is unreasonable to expect adequate
In addition, no continuance under section 3(f) of this Rule shall be
granted because of congestion of the court’s calendar or lack of
diligent preparation or failure to obtain available witnesses on the
part of the prosecutor.15
We further emphasized in Uy that "speedy trial" is a relative term
and necessarily a flexible concept. In determining whether the right
of the accused to a speedy trial was violated, the delay should be
considered, in view of the entirety of the proceedings. Indeed,
mere mathematical reckoning of the time involved would not
suffice as the realities of everyday life must be regarded in judicial
proceedings which, after all, do not exist in a vacuum.16
Corpuz v. Sandiganbayan17 is a case originating from exactly the
same factual background as the case at bar. Therein petitioners
Marialen C. Corpuz and Antonio H. Roman, Sr. were officers of
FILSYN Corporation, one of the BOI-registered firms that assigned
TCCs to Petron; and were among the accused in Criminal Case
No. 25922. They filed a separate Petition for Certiorari before us
assailing the Resolutions dated February 4, 2002 of the
Sandiganbayan Special Fourth Division and December 12, 2003 of
the Sandiganbayan Fourth Division.
We expounded more extensively in Corpuz on the right of the
accused to a speedy trial and disposition of the case against him,
thus:
The right of the accused to a speedy trial and to a speedy
disposition of the case against him was designed to prevent the
oppression of the citizen by holding criminal prosecution
suspended over him for an indefinite time, and to prevent delays in
the administration of justice by mandating the courts to proceed
with reasonable dispatch in the trial of criminal cases. Such right to
a speedy trial and a speedy disposition of a case is violated only
when the proceeding is attended by vexatious, capricious and
oppressive delays. The inquiry as to whether or not an accused
has been denied such right is not susceptible by precise
qualification. The concept of a speedy disposition is a relative term
and must necessarily be a flexible concept.
While justice is administered with dispatch, the essential ingredient
is orderly, expeditious and not mere speed. It cannot be definitely
said how long is too long in a system where justice is supposed to
be swift, but deliberate. It is consistent with delays and depends
upon circumstances. It secures rights to the accused, but it does
not preclude the rights of public justice. Also, it must be borne in
mind that the rights given to the accused by the Constitution and
the Rules of Court are shields, not weapons; hence, courts are to
give meaning to that intent.18 (Emphases ours.)
We went on to lay down in Corpuz the test for determining whether
an accused was indeed deprived of his right to a speedy trial and
disposition of the case against him:
In determining whether the accused has been deprived of his right
to a speedy disposition of the case and to a speedy trial, four
factors must be considered: (a) length of delay; (b) the reason for
the delay; (c) the defendant’s assertion of his right; and (d)
prejudice to the defendant. Prejudice should be assessed in the
light of the interest of the defendant that the speedy trial was
designed to protect, namely: to prevent oppressive pre-trial
incarceration; to minimize anxiety and concerns of the accused to
trial; and to limit the possibility that his defense will be impaired. Of
these, the most serious is the last, because the inability of a
defendant adequately to prepare his case skews the fairness of
the entire system. There is also prejudice if the defense witnesses
are unable to recall accurately the events of the distant past. Even
if the accused is not imprisoned prior to trial, he is still
disadvantaged by restraints on his liberty and by living under a
cloud of anxiety, suspicion and often, hostility. His financial
resources may be drained, his association is curtailed, and he is
subjected to public obloquy.
Delay is a two-edge sword. It is the government that bears the
burden of proving its case beyond reasonable doubt. The passage
of time may make it difficult or impossible for the government to
carry its burden. The Constitution and the Rules do not require
impossibilities or extraordinary efforts, diligence or exertion from
courts or the prosecutor, nor contemplate that such right shall
deprive the State of a reasonable opportunity of fairly prosecuting
criminals. As held in Williams v. United States, for the government
to sustain its right to try the accused despite a delay, it must show
two things: (a) that the accused suffered no serious prejudice
beyond that which ensued from the ordinary and inevitable delay;
and (b) that there was no more delay than is reasonably
attributable to the ordinary processes of justice.
Closely related to the length of delay is the reason or justification
of the State for such delay. Different weights should be assigned to
different reasons or justifications invoked by the State. For
instance, a deliberate attempt to delay the trial in order to hamper
or prejudice the defense should be weighted heavily against the
State. Also, it is improper for the prosecutor to intentionally delay
to gain some tactical advantage over the defendant or to harass or
prejudice him. On the other hand, the heavy case load of the
prosecution or a missing witness should be weighted less heavily
against the State. Corollarily, Section 4, Rule 119 of the Revised
Rules of Criminal Procedure enumerates the factors for granting a
continuance.19
In the Petition at bar, Criminal Case Nos. 25922-25939 were filed
on April 10, 2000. Petitioner Jacob was arraigned on June 1, 2000,
while petitioner Legarda was arraigned on May 18, 2001; with both
petitioners pleading not guilty. Since then, there had been no other
significant development in the cases since the prosecution
repeatedly requested for deferment or postponement of the
scheduled hearings as it awaits the result of the reinvestigation of
the Office of the Ombudsman. Judge Nario verbally ordered the
dismissal of said cases during the hearing on August 20, 2001.
Thus, the criminal cases had been pending for about a year and
four months by the time they were dismissed by Justice Nario.
The accused, including petitioners, had consistently asked in open
court that the criminal cases be dismissed every time the
prosecution moved for a deferment or postponement of the
hearings.
The prosecution attributed the delay in the criminal proceedings to:
1) the 23 motions for reinvestigation or reconsideration filed by the
accused, which was granted by the Sandiganbayan in its April 17,
2000 Order; and 2) the failure of the Office of the Ombudsman to
terminate its reinvestigation and submit its report within the 60-day
period fixed by the said graft court.
Irrefragably, there had been an undue and inordinate delay in the
reinvestigation of the cases by the Office of the Ombudsman,
which failed to submit its reinvestigation report despite the lapse of
the 60-day period set by the Sandiganbayan, and even more than
a year thereafter. That there were 23 Motions for Reinvestigation
filed is insignificant. It should be stressed that reinvestigation, as
the word itself implies, is merely a repeat investigation of the case.
It is simply a chance for the Office of the Ombudsman to review
and re-evaluate its findings based on the evidence previously
submitted by the parties. The Office of the Ombudsman should
have expedited the reinvestigation, not only because it was
ordered by the Sandiganbayan to submit a report within a period of
60 days, but also because said Office is bound by the
Constitution20 and Republic Act No. 6770, otherwise known as the
Ombudsman Act of 1989,21 to act promptly on complaints and
cases pending before it.
Nevertheless, while the re-investigation by the Office of the
Ombudsman delayed the proceedings in Criminal Case Nos.
25922-25939, the said process could not have been dispensed
with as it was undertaken for the protection of the rights of
petitioners themselves (and their co-accused) and their rights
should not be compromised at the expense of expediency.
In Corpuz, we warned against the overzealous or precipitate
dismissal of a case that may enable the defendant, who may be
guilty, to go free without having been tried, thereby infringing the
societal interest in trying people accused of crimes rather than
granting them immunization because of legal error.22 Earlier, in
People v. Leviste,23 we already stressed that:
[T]he State, like any other litigant, is entitled to its day in court, and
to a reasonable opportunity to present its case. A hasty dismissal
such as the one in question, instead of unclogging dockets, has
actually increased the workload of the justice system as a whole
and caused uncalled-for delays in the final resolution of this and
other cases. Unwittingly, the precipitate action of the respondent
court, instead of easing the burden of the accused, merely
prolonged the litigation and ironically enough, unnecessarily
delayed the case – in the process, causing the very evil it
apparently sought to avoid. Such action does not inspire public
confidence in the administration of justice.24
Thus, even though we acknowledge the delay in the criminal
proceedings, as well as the prejudice suffered by petitioners and
their co-accused by reason thereof, the weighing of interests
militate against a finding that petitioners’ right to speedy trial and
disposition of the cases involving them would have justified the
dismissal of Criminal Case Nos. 25922-25939. We agree with the
Sandiganbayan Special Fourth Division that Justice Nario’s
dismissal of the criminal cases was unwarranted under the
circumstances, since the State should not be prejudiced and
deprived of its right to prosecute the criminal cases simply
because of the ineptitude or nonchalance of the Office of the
Ombudsman. We reiterate our observations in Corpuz that:
There can be no denying the fact that the petitioners, as well as
the other accused, was prejudiced by the delay in the
reinvestigation of the cases and the submission by the
Ombudsman/Special Prosecutor of his report thereon. So was the
State. We have balanced the societal interest involved in the cases
and the need to give substance to the petitioners’ constitutional
rights and their quest for justice, and we are convinced that the
dismissal of the cases is too drastic a remedy to be accorded to
the petitioners. The cloud of suspicion may still linger over the
heads of the petitioners by the precipitate dismissal of the cases.
We repeat -- the cases involve the so-called tax credit certificates
scam and hundreds of millions of pesos allegedly perpetrated by
government officials in connivance with private individuals. The
People has yet to prove the guilt of the petitioners of the crimes
charged beyond reasonable doubt. We agree with the ruling of the
Sandiganbayan that before resorting to the extreme sanction of
depriving the petitioner a chance to prove its case by dismissing
the cases, the Ombudsman/Special Prosecutor should be ordered
by the Sandiganbayan under pain of contempt, to explain the delay
in the submission of his report on his reinvestigation.25
Furthermore, the Sandiganbayan Special Fourth Division did not
abuse its discretion in setting aside Justice Nario’s verbal order,
which dismissed Criminal Case Nos. 25922-25939, for not only
was such order baseless, as we had previously discussed herein;
but more importantly, because it is an utter nullity, as we had ruled
in Corpuz.
We held in Corpuz that:
In the unanimous Resolution of December 12, 2003, the
Sandiganbayan ruled as follows:
In the cases at bar, the dismissal made in open court by the
Chairman, which was not reduced in writing, is not a valid
dismissal or termination of the cases. This is because the
Chairman cannot unilaterally dismiss the same without the
approval or consent of the other members of the Division. The
Sandiganbayan is a collegiate court and under its internal rules
prevailing at the time (Rule XVIII, Section 1(b) of the 1984 Revised
Rules of the Sandiganbayan, which is now Section 1(b), Rule VIII
of the 2002 Revised Internal Rules of the Sandiganbayan), an
order, resolution or judgment, in order to be valid - that is to say, in
order to be considered as an official action of the Court itself -
must bear the unanimous approval of the members of the division,
or in case of lack thereof, by the majority vote of the members of a
special division of five.
We agree with the foregoing ratiocination. Section 1, Rule 120 of
the Revised Rules of Criminal Procedure, mandates that a
judgment must be written in the official language, personally and
directly prepared by the judge and signed by him and shall contain
clearly and distinctly a statement of the facts and the law upon
which it is based. The rule applies to a final order dismissing a
criminal case grounded on the violation of the rights of the accused
to a speedy trial. A verbal judgment or order of dismissal is a
violation of the provision; hence, such order is, in contemplation of
law, not in esse, therefore, ineffective. Justice Nario failed to issue
a written resolution dismissing the criminal cases for failure of the
prosecution to submit its report on the reinvestigation of the cases
within the sixty-day period fixed by the graft court. Moreover, the
verbal order was rejected by majority vote of the members of the
Sandiganbayan Special Division. In fine, there has been no valid
and effective order of dismissal of the cases. The Sandiganbayan
cannot then be faulted for issuing the assailed resolutions.
Neither are the petitioners entitled to a writ of mandamus to
compel the Sandiganbayan to reinstate the cases, considering that
the verbal order of Justice Nario as aforestated does not exist at all
in contemplation of law.26 (Emphases ours.)
Given that Justice Nario’s verbal order dismissing Criminal Case
Nos. 25922-25939 is null and void, and does not exist at all in
contemplation of law, it follows that petitioners cannot invoke the
constitutional right against double jeopardy.1avvphi1
To substantiate a claim for double jeopardy, the following must be
demonstrated:
(1) [A] first jeopardy must have attached prior to the second; (2)
the first jeopardy must have been validly terminated; (3) the
second jeopardy must be for the same offense, or the second
offense includes or is necessarily included in the offense charged
in the first information, or is an attempt to commit the same or is a
frustration thereof.
And legal jeopardy attaches only: (a) upon a valid indictment; (b)
before a competent court; (c) after arraignment; (d) [when] a valid
plea [has] been entered; and (e) the case was dismissed or
otherwise terminated without the express consent of the
accused.27
In the instant Petition, legal jeopardy has not yet attached since
there is so far no valid dismissal or termination of the criminal
cases against petitioners.
Finally, the Sandiganbayan Special Fourth Division did not commit
grave abuse of discretion nor erred in not considering the glaring
lack of evidence against petitioners.
As we pointed out in Rizon v. Desierto28:
Time and again, we have held that a prosecutor does not decide
whether there is evidence beyond reasonable doubt of the guilt of
the person charged. He merely determines whether there is
sufficient ground to engender a well-founded belief that a crime
has been committed and that the accused is probably guilty
thereof, and should be held for trial. A finding of probable cause,
therefore, does not require an inquiry as to whether there is
sufficient evidence to secure a conviction. It is enough that the
prosecutor believes that the act or omission complained of
constitutes the offense charged. A trial is intended precisely for the
reception of prosecution evidence in support of the charge. It is the
court that is tasked to determine guilt beyond reasonable doubt
based on the evidence presented by the parties at the trial on the
merits.29
Here, there has been no trial yet. Therefore, there has been no
occasion yet for the full and exhaustive display of the parties’
evidence. The presence or absence of the elements of the crime is
evidentiary in nature that shall be passed upon after a full-blown
trial on the merits.
WHEREFORE, there being no showing that the impugned
Resolutions dated February 4, 2002 of the Sandiganbayan Special
Fourth Division and December 12, 2003 of the Sandiganbayan
Fourth Division in Criminal Case Nos. 25922-25939 are tainted
with grave abuse of discretion amounting to lack or excess of
jurisdiction, the instant Petition for Certiorari is DISMISSED for lack
of merit.
SO ORDERED.
G.R. No. 172716 November 17, 2010
JASON IVLER y AGUILAR, Petitioner,
vs.
HON. MARIA ROWENA MODESTO-SAN PEDRO, Judge of the
Metropolitan Trial Court, Branch 71, Pasig City, and
EVANGELINE PONCE, Respondents.
DECISION
CARPIO, J.:
The Case
The petition seeks the review1 of the Orders2 of the Regional Trial
Court of Pasig City affirming sub-silencio a lower court’s ruling
finding inapplicable the Double Jeopardy Clause to bar a second
prosecution for Reckless Imprudence Resulting in Homicide and
Damage to Property. This, despite the accused’s previous
conviction for Reckless Imprudence Resulting in Slight Physical
Injuries arising from the same incident grounding the second
prosecution.
The Facts
Following a vehicular collision in August 2004, petitioner Jason
Ivler (petitioner) was charged before the Metropolitan Trial Court of
Pasig City, Branch 71 (MeTC), with two separate offenses: (1)
Reckless Imprudence Resulting in Slight Physical Injuries
(Criminal Case No. 82367) for injuries sustained by respondent
Evangeline L. Ponce (respondent Ponce); and (2) Reckless
Imprudence Resulting in Homicide and Damage to Property
(Criminal Case No. 82366) for the death of respondent Ponce’s
husband Nestor C. Ponce and damage to the spouses Ponce’s
vehicle. Petitioner posted bail for his temporary release in both
cases.
On 7 September 2004, petitioner pleaded guilty to the charge in
Criminal Case No. 82367 and was meted out the penalty of public
censure. Invoking this conviction, petitioner moved to quash the
Information in Criminal Case No. 82366 for placing him in jeopardy
of second punishment for the same offense of reckless
imprudence.
The MeTC refused quashal, finding no identity of offenses in the
two cases.3
After unsuccessfully seeking reconsideration, petitioner elevated
the matter to the Regional Trial Court of Pasig City, Branch 157
(RTC), in a petition for certiorari (S.C.A. No. 2803). Meanwhile,
petitioner sought from the MeTC the suspension of proceedings in
Criminal Case No. 82366, including the arraignment on 17 May
2005, invoking S.C.A. No. 2803 as a prejudicial question. Without
acting on petitioner’s motion, the MeTC proceeded with the
arraignment and, because of petitioner’s absence, cancelled his
bail and ordered his arrest.4 Seven days later, the MeTC issued a
resolution denying petitioner’s motion to suspend proceedings and
postponing his arraignment until after his arrest.5 Petitioner sought
reconsideration but as of the filing of this petition, the motion
remained unresolved.
Relying on the arrest order against petitioner, respondent Ponce
sought in the RTC the dismissal of S.C.A. No. 2803 for petitioner’s
loss of standing to maintain the suit. Petitioner contested the
motion.
The Ruling of the Trial Court
In an Order dated 2 February 2006, the RTC dismissed S.C.A. No.
2803, narrowly grounding its ruling on petitioner’s forfeiture of
standing to maintain S.C.A. No. 2803 arising from the MeTC’s
order to arrest petitioner for his non-appearance at the arraignment
in Criminal Case No. 82366. Thus, without reaching the merits of
S.C.A. No. 2803, the RTC effectively affirmed the MeTC. Petitioner
sought reconsideration but this proved unavailing. 6
Hence, this petition.
Petitioner denies absconding. He explains that his petition in
S.C.A. No. 2803 constrained him to forego participation in the
proceedings in Criminal Case No. 82366. Petitioner distinguishes
his case from the line of jurisprudence sanctioning dismissal of
appeals for absconding appellants because his appeal before the
RTC was a special civil action seeking a pre-trial relief, not a post-
trial appeal of a judgment of conviction. 7
Petitioner laments the RTC’s failure to reach the merits of his
petition in S.C.A. 2803. Invoking jurisprudence, petitioner argues
that his constitutional right not to be placed twice in jeopardy of
punishment for the same offense bars his prosecution in Criminal
Case No. 82366, having been previously convicted in Criminal
Case No. 82367 for the same offense of reckless imprudence
charged in Criminal Case No. 82366. Petitioner submits that the
multiple consequences of such crime are material only to
determine his penalty.
Respondent Ponce finds no reason for the Court to disturb the
RTC’s decision forfeiting petitioner’s standing to maintain his
petition in S.C.A. 2803. On the merits, respondent Ponce calls the
Court’s attention to jurisprudence holding that light offenses (e.g.
slight physical injuries) cannot be complexed under Article 48 of
the Revised Penal Code with grave or less grave felonies (e.g.
homicide). Hence, the prosecution was obliged to separate the
charge in Criminal Case No. 82366 for the slight physical injuries
from Criminal Case No. 82367 for the homicide and damage to
property.
In the Resolution of 6 June 2007, we granted the Office of the
Solicitor General’s motion not to file a comment to the petition as
the public respondent judge is merely a nominal party and private
respondent is represented by counsel.
The Issues
Two questions are presented for resolution: (1) whether petitioner
forfeited his standing to seek relief in S.C.A. 2803 when the MeTC
ordered his arrest following his non-appearance at the arraignment
in Criminal Case No. 82366; and (2) if in the negative, whether
petitioner’s constitutional right under the Double Jeopardy Clause
bars further proceedings in Criminal Case No. 82366.
The Ruling of the Court
We hold that (1) petitioner’s non-appearance at the arraignment in
Criminal Case No. 82366 did not divest him of personality to
maintain the petition in S.C.A. 2803; and (2) the protection
afforded by the Constitution shielding petitioner from prosecutions
placing him in jeopardy of second punishment for the same
offense bars further proceedings in Criminal Case No. 82366.
Petitioner’s Non-appearance at the Arraignment in
Criminal Case No. 82366 did not Divest him of Standing
to Maintain the Petition in S.C.A. 2803
Dismissals of appeals grounded on the appellant’s escape from
custody or violation of the terms of his bail bond are governed by
the second paragraph of Section 8, Rule 124, 8 in relation to
Section 1, Rule 125, of the Revised Rules on Criminal Procedure
authorizing this Court or the Court of Appeals to "also, upon
motion of the appellee or motu proprio, dismiss the appeal if the
appellant escapes from prison or confinement, jumps bail or flees
to a foreign country during the pendency of the appeal." The
"appeal" contemplated in Section 8 of Rule 124 is a suit to review
judgments of convictions.
The RTC’s dismissal of petitioner’s special civil action for certiorari
to review a pre-arraignment ancillary question on the applicability
of the Due Process Clause to bar proceedings in Criminal Case
No. 82366 finds no basis under procedural rules and
jurisprudence. The RTC’s reliance on People v.
Esparas9 undercuts the cogency of its ruling
because Esparas stands for a proposition contrary to the RTC’s
ruling. There, the Court granted review to an appeal by an accused
who was sentenced to death for importing prohibited drugs even
though she jumped bail pending trial and was thus tried and
convicted in absentia. The Court in Esparas treated the mandatory
review of death sentences under Republic Act No. 7659 as an
exception to Section 8 of Rule 124.10
The mischief in the RTC’s treatment of petitioner’s non-
appearance at his arraignment in Criminal Case No. 82366 as
proof of his loss of standing becomes more evident when one
considers the Rules of Court’s treatment of a defendant who
absents himself from post-arraignment hearings. Under Section
21, Rule 11411 of the Revised Rules of Criminal Procedure, the
defendant’s absence merely renders his bondsman potentially
liable on its bond (subject to cancellation should the bondsman fail
to produce the accused within 30 days); the defendant retains his
standing and, should he fail to surrender, will be tried in absentia
and could be convicted or acquitted. Indeed, the 30-day period
granted to the bondsman to produce the accused underscores the
fact that mere non-appearance does not ipso facto convert the
accused’s status to that of a fugitive without standing.
Further, the RTC’s observation that petitioner provided "no
explanation why he failed to attend the scheduled proceeding" 12 at
the MeTC is belied by the records. Days before the arraignment,
petitioner sought the suspension of the MeTC’s proceedings in
Criminal Case No. 82366 in light of his petition with the RTC in
S.C.A. No. 2803. Following the MeTC’s refusal to defer
arraignment (the order for which was released days after the
MeTC ordered petitioner’s arrest), petitioner sought
reconsideration. His motion remained unresolved as of the filing of
this petition.
Petitioner’s Conviction in Criminal Case No. 82367
Bars his Prosecution in Criminal Case No. 82366
The accused’s negative constitutional right not to be "twice put in
jeopardy of punishment for the same offense"13protects him from,
among others, post-conviction prosecution for the same offense,
with the prior verdict rendered by a court of competent jurisdiction
upon a valid information.14 It is not disputed that petitioner’s
conviction in Criminal Case No. 82367 was rendered by a court of
competent jurisdiction upon a valid charge. Thus, the case turns
on the question whether Criminal Case No. 82366 and Criminal
Case No. 82367 involve the "same offense." Petitioner adopts the
affirmative view, submitting that the two cases concern the same
offense of reckless imprudence. The MeTC ruled otherwise,
finding that Reckless Imprudence Resulting in Slight Physical
Injuries is an entirely separate offense from Reckless Imprudence
Resulting in Homicide and Damage to Property "as the [latter]
requires proof of an additional fact which the other does not." 15
We find for petitioner.
Reckless Imprudence is a Single Crime,
its Consequences on Persons and
Property are Material Only to Determine
the Penalty
The two charges against petitioner, arising from the same facts,
were prosecuted under the same provision of the Revised Penal
Code, as amended, namely, Article 365 defining and penalizing
quasi-offenses. The text of the provision reads:
Imprudence and negligence. — Any person who, by reckless
imprudence, shall commit any act which, had it been intentional,
would constitute a grave felony, shall suffer the penalty of arresto
mayor in its maximum period to prision correccional in its medium
period; if it would have constituted a less grave felony, the penalty
of arresto mayor in its minimum and medium periods shall be
imposed; if it would have constituted a light felony, the penalty of
arresto menor in its maximum period shall be imposed.
Any person who, by simple imprudence or negligence, shall
commit an act which would otherwise constitute a grave felony,
shall suffer the penalty of arresto mayor in its medium and
maximum periods; if it would have constituted a less serious
felony, the penalty of arresto mayor in its minimum period shall be
imposed.
When the execution of the act covered by this article shall have
only resulted in damage to the property of another, the offender
shall be punished by a fine ranging from an amount equal to the
value of said damages to three times such value, but which shall in
no case be less than twenty-five pesos.
A fine not exceeding two hundred pesos and censure shall be
imposed upon any person who, by simple imprudence or
negligence, shall cause some wrong which, if done maliciously,
would have constituted a light felony.
In the imposition of these penalties, the court shall exercise their
sound discretion, without regard to the rules prescribed in Article
sixty-four.
The provisions contained in this article shall not be applicable:
1. When the penalty provided for the offense is equal to
or lower than those provided in the first two paragraphs
of this article, in which case the court shall impose the
penalty next lower in degree than that which should be
imposed in the period which they may deem proper to
apply.
2. When, by imprudence or negligence and with violation
of the Automobile Law, to death of a person shall be
caused, in which case the defendant shall be punished
by prision correccional in its medium and maximum
periods.
Reckless imprudence consists in voluntary, but without malice,
doing or failing to do an act from which material damage results by
reason of inexcusable lack of precaution on the part of the person
performing or failing to perform such act, taking into consideration
his employment or occupation, degree of intelligence, physical
condition and other circumstances regarding persons, time and
place.
Simple imprudence consists in the lack of precaution displayed in
those cases in which the damage impending to be caused is not
immediate nor the danger clearly manifest.
The penalty next higher in degree to those provided for in this
article shall be imposed upon the offender who fails to lend on the
spot to the injured parties such help as may be in this hand to give.
Structurally, these nine paragraphs are collapsible into four sub-
groupings relating to (1) the penalties attached to the quasi-
offenses of "imprudence" and "negligence" (paragraphs 1-2); (2) a
modified penalty scheme for either or both quasi-offenses
(paragraphs 3-4, 6 and 9); (3) a generic rule for trial courts in
imposing penalties (paragraph 5); and (4) the definition of
"reckless imprudence" and "simple imprudence" (paragraphs 7-8).
Conceptually, quasi-offenses penalize "the mental attitude or
condition behind the act, the dangerous recklessness, lack of care
or foresight, the imprudencia punible,"16 unlike willful offenses
which punish the intentional criminal act. These structural and
conceptual features of quasi-offenses set them apart from the
mass of intentional crimes under the first 13 Titles of Book II of the
Revised Penal Code, as amended.
Indeed, the notion that quasi-offenses, whether reckless or simple,
are distinct species of crime, separately defined and penalized
under the framework of our penal laws, is nothing new. As early as
the middle of the last century, we already sought to bring clarity to
this field by rejecting in Quizon v. Justice of the Peace of
Pampanga the proposition that "reckless imprudence is not a
crime in itself but simply a way of committing it x x x"17 on three
points of analysis: (1) the object of punishment in quasi-crimes (as
opposed to intentional crimes); (2) the legislative intent to treat
quasi-crimes as distinct offenses (as opposed to subsuming them
under the mitigating circumstance of minimal intent) and; (3) the
different penalty structures for quasi-crimes and intentional crimes:
The proposition (inferred from Art. 3 of the Revised Penal Code)
that "reckless imprudence" is not a crime in itself but simply a way
of committing it and merely determines a lower degree of criminal
liability is too broad to deserve unqualified assent. There are
crimes that by their structure cannot be committed through
imprudence: murder, treason, robbery, malicious mischief, etc. In
truth, criminal negligence in our Revised Penal Code is treated as
a mere quasi offense, and dealt with separately from willful
offenses. It is not a mere question of classification or terminology.
In intentional crimes, the act itself is punished; in negligence or
imprudence, what is principally penalized is the mental attitude or
condition behind the act, the dangerous recklessness, lack of care
or foresight, the imprudencia punible. x x x x
Were criminal negligence but a modality in the commission of
felonies, operating only to reduce the penalty therefor, then it
would be absorbed in the mitigating circumstances of Art. 13,
specially the lack of intent to commit so grave a wrong as the one
actually committed. Furthermore, the theory would require that the
corresponding penalty should be fixed in proportion to the penalty
prescribed for each crime when committed willfully. For each
penalty for the willful offense, there would then be a corresponding
penalty for the negligent variety. But instead, our Revised Penal
Code (Art. 365) fixes the penalty for reckless imprudence at
arresto mayor maximum, to prision correccional [medium], if the
willful act would constitute a grave felony, notwithstanding that the
penalty for the latter could range all the way from prision mayor to
death, according to the case. It can be seen that the actual penalty
for criminal negligence bears no relation to the individual willful
crime, but is set in relation to a whole class, or series, of
crimes.18 (Emphasis supplied)
This explains why the technically correct way to allege quasi-
crimes is to state that their commission results in damage, either to
person or property.19
Accordingly, we found the Justice of the Peace in Quizon without
jurisdiction to hear a case for "Damage to Property through
Reckless Imprudence," its jurisdiction being limited to trying
charges for Malicious Mischief, an intentional crime conceptually
incompatible with the element of imprudence obtaining in quasi-
crimes.
Quizon, rooted in Spanish law20 (the normative ancestry of our
present day penal code) and since repeatedly reiterated, 21 stands
on solid conceptual foundation. The contrary doctrinal
pronouncement in People v. Faller22that "[r]eckless impudence is
not a crime in itself x x x [but] simply a way of committing it x x
x,"23 has long been abandoned when the Court en banc
promulgated Quizon in 1955 nearly two decades after the Court
decided Faller in 1939. Quizon rejected Faller’s conceptualization
of quasi-crimes by holding that quasi-crimes under Article 365 are
distinct species of crimes and not merely methods of committing
crimes. Faller found expression in post-Quizon
jurisprudence24 only by dint of lingering doctrinal confusion arising
from an indiscriminate fusion of criminal law rules defining Article
365 crimes and the complexing of intentional crimes under Article
48 of the Revised Penal Code which, as will be shown shortly,
rests on erroneous conception of quasi-crimes. Indeed, the
Quizonian conception of quasi-crimes undergirded a related
branch of jurisprudence applying the Double Jeopardy Clause to
quasi-offenses, barring second prosecutions for a quasi-offense
alleging one resulting act after a prior conviction or acquittal of a
quasi-offense alleging another resulting act but arising from the
same reckless act or omission upon which the second prosecution
was based.
Prior Conviction or Acquittal of
Reckless Imprudence Bars
Subsequent Prosecution for the Same
Quasi-Offense
The doctrine that reckless imprudence under Article 365 is a single
quasi-offense by itself and not merely a means to commit other
crimes such that conviction or acquittal of such quasi-offense bars
subsequent prosecution for the same quasi-offense, regardless of
its various resulting acts, undergirded this Court’s unbroken chain
of jurisprudence on double jeopardy as applied to Article 365
starting with People v. Diaz,25 decided in 1954. There, a full Court,
speaking through Mr. Justice Montemayor, ordered the dismissal
of a case for "damage to property thru reckless imprudence"
because a prior case against the same accused for "reckless
driving," arising from the same act upon which the first prosecution
was based, had been dismissed earlier. Since then, whenever the
same legal question was brought before the Court, that is, whether
prior conviction or acquittal of reckless imprudence bars
subsequent prosecution for the same quasi-offense, regardless of
the consequences alleged for both charges, the Court unfailingly
and consistently answered in the affirmative in People v.
Belga26 (promulgated in 1957 by the Court en banc, per Reyes, J.),
Yap v. Lutero27 (promulgated in 1959, unreported, per Concepcion,
J.), People v. Narvas28 (promulgated in 1960 by the Court en banc,
per Bengzon J.), People v. Silva29 (promulgated in 1962 by the
Court en banc, per Paredes, J.), People v.
Macabuhay30 (promulgated in 1966 by the Court en banc, per
Makalintal, J.), People v. Buan31 (promulgated in 1968 by the
Court en banc, per Reyes, J.B.L., acting C. J.), Buerano v. Court of
Appeals32 (promulgated in 1982 by the Court en banc, per Relova,
J.), and People v. City Court of Manila33 (promulgated in 1983 by
the First Division, per Relova, J.). These cases uniformly barred
the second prosecutions as constitutionally impermissible under
the Double Jeopardy Clause.
The reason for this consistent stance of extending the
constitutional protection under the Double Jeopardy Clause to
quasi-offenses was best articulated by Mr. Justice J.B.L. Reyes in
Buan, where, in barring a subsequent prosecution for "serious
physical injuries and damage to property thru reckless
imprudence" because of the accused’s prior acquittal of "slight
physical injuries thru reckless imprudence," with both charges
grounded on the same act, the Court explained: 34
Reason and precedent both coincide in that once convicted or
acquitted of a specific act of reckless imprudence, the accused
may not be prosecuted again for that same act. For the essence of
the quasi offense of criminal negligence under article 365 of the
Revised Penal Code lies in the execution of an imprudent or
negligent act that, if intentionally done, would be punishable as a
felony. The law penalizes thus the negligent or careless act, not
the result thereof. The gravity of the consequence is only taken
into account to determine the penalty, it does not qualify the
substance of the offense. And, as the careless act is single,
whether the injurious result should affect one person or several
persons, the offense (criminal negligence) remains one and the
same, and can not be split into different crimes and
prosecutions.35 x x x (Emphasis supplied)
Evidently, the Diaz line of jurisprudence on double jeopardy merely
extended to its logical conclusion the reasoning of Quizon.
There is in our jurisprudence only one ruling going against this
unbroken line of authority. Preceding Diaz by more than a decade,
El Pueblo de Filipinas v. Estipona,36 decided by the pre-war
colonial Court in November 1940, allowed the subsequent
prosecution of an accused for reckless imprudence resulting in
damage to property despite his previous conviction for multiple
physical injuries arising from the same reckless operation of a
motor vehicle upon which the second prosecution was based.
Estipona’s inconsistency with the post-war Diaz chain of
jurisprudence suffices to impliedly overrule it. At any rate, all
doubts on this matter were laid to rest in 1982 in Buerano. 37 There,
we reviewed the Court of Appeals’ conviction of an accused for
"damage to property for reckless imprudence" despite his prior
conviction for "slight and less serious physical injuries thru reckless
imprudence," arising from the same act upon which the second
charge was based. The Court of Appeals had relied on Estipona.
We reversed on the strength of Buan:38
Th[e] view of the Court of Appeals was inspired by the ruling of this
Court in the pre-war case of People vs. Estipona decided on
November 14, 1940. However, in the case of People vs. Buan, 22
SCRA 1383 (March 29, 1968), this Court, speaking thru Justice J.
B. L. Reyes, held that –
Reason and precedent both coincide in that once convicted or
acquitted of a specific act of reckless imprudence, the accused
may not be prosecuted again for that same act. For the essence of
the quasi offense of criminal negligence under Article 365 of the
Revised Penal Code lies in the execution of an imprudent or
negligent act that, if intentionally done, would be punishable as a
felony. The law penalizes thus the negligent or careless act, not
the result thereof. The gravity of the consequence is only taken
into account to determine the penalty, it does not qualify the
substance of the offense. And, as the careless act is single,
whether the injurious result should affect one person or several
persons, the offense (criminal negligence) remains one and the
same, and can not be split into different crimes and prosecutions.
xxxx
. . . the exoneration of this appellant, Jose Buan, by the Justice of
the Peace (now Municipal) Court of Guiguinto, Bulacan, of the
charge of slight physical injuries through reckless imprudence,
prevents his being prosecuted for serious physical injuries through
reckless imprudence in the Court of First Instance of the province,
where both charges are derived from the consequences of one
and the same vehicular accident, because the second accusation
places the appellant in second jeopardy for the same
offense.39 (Emphasis supplied)
Thus, for all intents and purposes, Buerano had effectively
overruled Estipona.
It is noteworthy that the Solicitor General in Buerano, in a reversal
of his earlier stance in Silva, joined causes with the accused, a fact
which did not escape the Court’s attention:
Then Solicitor General, now Justice Felix V. Makasiar, in his
MANIFESTATION dated December 12, 1969 (page 82 of the
Rollo) admits that the Court of Appeals erred in not sustaining
petitioner’s plea of double jeopardy and submits that "its
affirmatory decision dated January 28, 1969, in Criminal Case No.
05123-CR finding petitioner guilty of damage to property through
reckless imprudence should be set aside, without costs." He
stressed that "if double jeopardy exists where the reckless act
resulted into homicide and physical injuries. then the same
consequence must perforce follow where the same reckless act
caused merely damage to property-not death-and physical injuries.
Verily, the value of a human life lost as a result of a vehicular
collision cannot be equated with any amount of damages caused
to a motors vehicle arising from the same mishap."40 (Emphasis
supplied)
Hence, we find merit in petitioner’s submission that the lower
courts erred in refusing to extend in his favor the mantle of
protection afforded by the Double Jeopardy Clause. A more fitting
jurisprudence could not be tailored to petitioner’s case than People
v. Silva, 41 a Diaz progeny. There, the accused, who was also
involved in a vehicular collision, was charged in two separate
Informations with "Slight Physical Injuries thru Reckless
Imprudence" and "Homicide with Serious Physical Injuries thru
Reckless Imprudence." Following his acquittal of the former, the
accused sought the quashal of the latter, invoking the Double
Jeopardy Clause. The trial court initially denied relief, but, on
reconsideration, found merit in the accused’s claim and dismissed
the second case. In affirming the trial court, we quoted with
approval its analysis of the issue following Diaz and its progeny
People v. Belga:42
On June 26, 1959, the lower court reconsidered its Order of May 2,
1959 and dismissed the case, holding: —
[T]he Court believes that the case falls squarely within the doctrine
of double jeopardy enunciated in People v. Belga, x x x In the case
cited, Ciriaco Belga and Jose Belga were charged in the Justice of
the Peace Court of Malilipot, Albay, with the crime of physical
injuries through reckless imprudence arising from a collision
between the two automobiles driven by them (Crim. Case No. 88).
Without the aforesaid complaint having been dismissed or
otherwise disposed of, two other criminal complaints were filed in
the same justice of the peace court, in connection with the same
collision one for damage to property through reckless imprudence
(Crim. Case No. 95) signed by the owner of one of the vehicles
involved in the collision, and another for multiple physical injuries
through reckless imprudence (Crim. Case No. 96) signed by the
passengers injured in the accident. Both of these two complaints
were filed against Jose Belga only. After trial, both defendants
were acquitted of the charge against them in Crim. Case No. 88.
Following his acquittal, Jose Belga moved to quash the complaint
for multiple physical injuries through reckless imprudence filed
against him by the injured passengers, contending that the case
was just a duplication of the one filed by the Chief of Police
wherein he had just been acquitted. The motion to quash was
denied and after trial Jose Belga was convicted, whereupon he
appealed to the Court of First Instance of Albay. In the meantime,
the case for damage to property through reckless imprudence filed
by one of the owners of the vehicles involved in the collision had
been remanded to the Court of First Instance of Albay after Jose
Belga had waived the second stage of the preliminary
investigation. After such remand, the Provincial Fiscal filed in the
Court of First Instance two informations against Jose Belga, one
for physical injuries through reckless imprudence, and another for
damage to property through reckless imprudence. Both cases
were dismissed by the Court of First Instance, upon motion of the
defendant Jose Belga who alleged double jeopardy in a motion to
quash. On appeal by the Prov. Fiscal, the order of dismissal was
affirmed by the Supreme Court in the following language: .
The question for determination is whether the acquittal of Jose
Belga in the case filed by the chief of police constitutes a bar to his
subsequent prosecution for multiple physical injuries and damage
to property through reckless imprudence.
In the case of Peo[ple] v. F. Diaz, G. R. No. L-6518, prom. March
30, 1954, the accused was charged in the municipal court of
Pasay City with reckless driving under sec. 52 of the Revised
Motor Vehicle Law, for having driven an automobile in a ῾fast and
reckless manner ... thereby causing an accident.’ After the
accused had pleaded not guilty the case was dismissed in that
court ῾for failure of the Government to prosecute’. But some time
thereafter the city attorney filed an information in the Court of First
Instance of Rizal, charging the same accused with damage to
property thru reckless imprudence. The amount of the damage
was alleged to be P249.50. Pleading double jeopardy, the accused
filed a motion, and on appeal by the Government we affirmed the
ruling. Among other things we there said through Mr. Justice
Montemayor —
The next question to determine is the relation between the first
offense of violation of the Motor Vehicle Law prosecuted before the
Pasay City Municipal Court and the offense of damage to property
thru reckless imprudence charged in the Rizal Court of First
Instance. One of the tests of double jeopardy is whether or not the
second offense charged necessarily includes or is necessarily
included in the offense charged in the former complaint or
information (Rule 113, Sec. 9). Another test is whether the
evidence which proves one would prove the other that is to say
whether the facts alleged in the first charge if proven, would have
been sufficient to support the second charge and vice versa; or
whether one crime is an ingredient of the other. x x x
xxxx
The foregoing language of the Supreme Court also disposes of the
contention of the prosecuting attorney that the charge for slight
physical injuries through reckless imprudence could not have been
joined with the charge for homicide with serious physical injuries
through reckless imprudence in this case, in view of the provisions
of Art. 48 of the Revised Penal Code, as amended. The
prosecution’s contention might be true. But neither was the
prosecution obliged to first prosecute the accused for slight
physical injuries through reckless imprudence before pressing the
more serious charge of homicide with serious physical injuries
through reckless imprudence. Having first prosecuted the
defendant for the lesser offense in the Justice of the Peace Court
of Meycauayan, Bulacan, which acquitted the defendant, the
prosecuting attorney is not now in a position to press in this case
the more serious charge of homicide with serious physical injuries
through reckless imprudence which arose out of the same alleged
reckless imprudence of which the defendant have been previously
cleared by the inferior court.43
Significantly, the Solicitor General had urged us in Silva to
reexamine Belga (and hence, Diaz) "for the purpose of delimiting
or clarifying its application."44 We declined the invitation, thus:
The State in its appeal claims that the lower court erred in
dismissing the case, on the ground of double jeopardy, upon the
basis of the acquittal of the accused in the JP court for Slight
Physical Injuries, thru Reckless Imprudence. In the same breath
said State, thru the Solicitor General, admits that the facts of the
case at bar, fall squarely on the ruling of the Belga case x x x,
upon which the order of dismissal of the lower court was anchored.
The Solicitor General, however, urges a re-examination of said
ruling, upon certain considerations for the purpose of delimiting or
clarifying its application. We find, nevertheless, that further
elucidation or disquisition on the ruling in the Belga case, the facts
of which are analogous or similar to those in the present case, will
yield no practical advantage to the government. On one hand,
there is nothing which would warrant a delimitation or clarification
of the applicability of the Belga case. It was clear. On the other,
this Court has reiterated the views expressed in the Belga case, in
the identical case of Yap v. Hon. Lutero, etc., L-12669, April 30,
1959.45 (Emphasis supplied)
Article 48 Does not Apply to Acts Penalized
Under Article 365 of the Revised Penal Code
The confusion bedeviling the question posed in this petition, to
which the MeTC succumbed, stems from persistent but awkward
attempts to harmonize conceptually incompatible substantive and
procedural rules in criminal law, namely, Article 365 defining and
penalizing quasi-offenses and Article 48 on complexing of crimes,
both under the Revised Penal Code. Article 48 is a procedural
device allowing single prosecution of multiple felonies falling under
either of two categories: (1) when a single act constitutes two or
more grave or less grave felonies (thus excluding from its
operation light felonies46); and (2) when an offense is a necessary
means for committing the other. The legislature crafted this
procedural tool to benefit the accused who, in lieu of serving
multiple penalties, will only serve the maximum of the penalty for
the most serious crime.
In contrast, Article 365 is a substantive rule penalizing not an act
defined as a felony but "the mental attitude x x x behind the act,
the dangerous recklessness, lack of care or foresight x x x," 47 a
single mental attitude regardless of the resulting consequences.
Thus, Article 365 was crafted as one quasi-crime resulting in one
or more consequences.
Ordinarily, these two provisions will operate smoothly. Article 48
works to combine in a single prosecution multiple intentional
crimes falling under Titles 1-13, Book II of the Revised Penal
Code, when proper; Article 365 governs the prosecution of
imprudent acts and their consequences. However, the
complexities of human interaction can produce a hybrid quasi-
offense not falling under either models – that of a single criminal
negligence resulting in multiple non-crime damages to persons
and property with varying penalties corresponding to light, less
grave or grave offenses. The ensuing prosecutorial dilemma is
obvious: how should such a quasi-crime be prosecuted? Should
Article 48’s framework apply to "complex" the single quasi-offense
with its multiple (non-criminal) consequences (excluding those
amounting to light offenses which will be tried separately)? Or
should the prosecution proceed under a single charge, collectively
alleging all the consequences of the single quasi-crime, to be
penalized separately following the scheme of penalties under
Article 365?
Jurisprudence adopts both approaches. Thus, one line of rulings
(none of which involved the issue of double jeopardy) applied
Article 48 by "complexing" one quasi-crime with its multiple
consequences48 unless one consequence amounts to a light
felony, in which case charges were split by grouping, on the one
hand, resulting acts amounting to grave or less grave felonies and
filing the charge with the second level courts and, on the other
hand, resulting acts amounting to light felonies and filing the
charge with the first level courts.49 Expectedly, this is the approach
the MeTC impliedly sanctioned (and respondent Ponce invokes),
even though under Republic Act No. 7691,50 the MeTC has now
exclusive original jurisdiction to impose the most serious penalty
under Article 365 which is prision correccional in its medium
period.
Under this approach, the issue of double jeopardy will not arise if
the "complexing" of acts penalized under Article 365 involves only
resulting acts penalized as grave or less grave felonies because
there will be a single prosecution of all the resulting acts. The issue
of double jeopardy arises if one of the resulting acts is penalized
as a light offense and the other acts are penalized as grave or less
grave offenses, in which case Article 48 is not deemed to apply
and the act penalized as a light offense is tried separately from the
resulting acts penalized as grave or less grave offenses.
The second jurisprudential path nixes Article 48 and sanctions a
single prosecution of all the effects of the quasi-crime collectively
alleged in one charge, regardless of their number or
severity,51 penalizing each consequence separately. Thus, in
Angeles v. Jose,52 we interpreted paragraph three of Article 365, in
relation to a charge alleging "reckless imprudence resulting in
damage to property and less serious physical injuries," as follows:
[T]he third paragraph of said article, x x x reads as follows:
When the execution of the act covered by this article shall have
only resulted in damage to the property of another, the offender
shall be punished by a fine ranging from an amount equal to the
value of said damage to three times such value, but which shall in
no case be less than 25 pesos.
The above-quoted provision simply means that if there is only
damage to property the amount fixed therein shall be imposed, but
if there are also physical injuries there should be an additional
penalty for the latter. The information cannot be split into two; one
for the physical injuries, and another for the damage to property, x
x x.53(Emphasis supplied)
By "additional penalty," the Court meant, logically, the penalty
scheme under Article 365.
Evidently, these approaches, while parallel, are irreconcilable.
Coherence in this field demands choosing one framework over the
other. Either (1) we allow the "complexing" of a single quasi-crime
by breaking its resulting acts into separate offenses (except for
light felonies), thus re-conceptualize a quasi-crime, abandon its
present framing under Article 365, discard its conception under the
Quizon and Diaz lines of cases, and treat the multiple
consequences of a quasi-crime as separate intentional felonies
defined under Titles 1-13, Book II under the penal code; or (2) we
forbid the application of Article 48 in the prosecution and
sentencing of quasi-crimes, require single prosecution of all the
resulting acts regardless of their number and severity, separately
penalize each as provided in Article 365, and thus maintain the
distinct concept of quasi-crimes as crafted under Article 365,
articulated in Quizon and applied to double jeopardy adjudication
in the Diaz line of cases.1avvphi1
A becoming regard of this Court’s place in our scheme of
government denying it the power to make laws constrains us to
keep inviolate the conceptual distinction between quasi-crimes and
intentional felonies under our penal code. Article 48 is incongruent
to the notion of quasi-crimes under Article 365. It is conceptually
impossible for a quasi-offense to stand for (1) a
single act constituting two or more grave or less grave felonies; or
(2) anoffense which is a necessary means for committing another.
This is why, way back in 1968 in Buan, we rejected the Solicitor
General’s argument that double jeopardy does not bar a second
prosecution for slight physical injuries through reckless
imprudence allegedly because the charge for that offense could
not be joined with the other charge for serious physical injuries
through reckless imprudence following Article 48 of the Revised
Penal Code:
The Solicitor General stresses in his brief that the charge for slight
physical injuries through reckless imprudence could not be joined
with the accusation for serious physical injuries through reckless
imprudence, because Article 48 of the Revised Penal Code allows
only the complexing of grave or less grave felonies. This same
argument was considered and rejected by this Court in the case of
People vs. [Silva] x x x:
[T]he prosecution’s contention might be true. But neither was the
prosecution obliged to first prosecute the accused for slight
physical injuries through reckless imprudence before pressing the
more serious charge of homicide with serious physical injuries
through reckless imprudence. Having first prosecuted the
defendant for the lesser offense in the Justice of the Peace Court
of Meycauayan, Bulacan, which acquitted the defendant, the
prosecuting attorney is not now in a position to press in this case
the more serious charge of homicide with serious physical injuries
through reckless imprudence which arose out of the same alleged
reckless imprudence of which the defendant has been previously
cleared by the inferior court.
[W]e must perforce rule that the exoneration of this appellant x x x
by the Justice of the Peace x x x of the charge of slight physical
injuries through reckless imprudence, prevents his being
prosecuted for serious physical injuries through reckless
imprudence in the Court of First Instance of the province, where
both charges are derived from the consequences of one and the
same vehicular accident, because the second accusation places
the appellant in second jeopardy for the same
offense.54 (Emphasis supplied)
Indeed, this is a constitutionally compelled choice. By prohibiting
the splitting of charges under Article 365, irrespective of the
number and severity of the resulting acts, rampant occasions of
constitutionally impermissible second prosecutions are avoided,
not to mention that scarce state resources are conserved and
diverted to proper use.
Hence, we hold that prosecutions under Article 365 should
proceed from a single charge regardless of the number or severity
of the consequences. In imposing penalties, the judge will do no
more than apply the penalties under Article 365 for each
consequence alleged and proven. In short, there shall be no
splitting of charges under Article 365, and only one information
shall be filed in the same first level court. 55
Our ruling today secures for the accused facing an Article 365
charge a stronger and simpler protection of their constitutional right
under the Double Jeopardy Clause. True, they are thereby denied
the beneficent effect of the favorable sentencing formula under
Article 48, but any disadvantage thus caused is more than
compensated by the certainty of non-prosecution for quasi-crime
effects qualifying as "light offenses" (or, as here, for the more
serious consequence prosecuted belatedly). If it is so minded,
Congress can re-craft Article 365 by extending to quasi-crimes the
sentencing formula of Article 48 so that only the most severe
penalty shall be imposed under a single prosecution of all resulting
acts, whether penalized as grave, less grave or light offenses. This
will still keep intact the distinct concept of quasi-offenses.
Meanwhile, the lenient schedule of penalties under Article 365,
befitting crimes occupying a lower rung of culpability, should
cushion the effect of this ruling.
WHEREFORE, we GRANT the petition. We REVERSE the Orders
dated 2 February 2006 and 2 May 2006 of the Regional Trial Court
of Pasig City, Branch 157. We DISMISS the Information in
Criminal Case No. 82366 against petitioner Jason Ivler y Aguilar
pending with the Metropolitan Trial Court of Pasig City, Branch 71
on the ground of double jeopardy.
Let a copy of this ruling be served on the President of the Senate
and the Speaker of the House of Representatives.
SO ORDERED.
HON. WALDO Q. FLORES, in his capacity as Senior Deputy
Executive Secretary in the Office of the President, HON. ARTHUR
P. AUTEA, in his capacity as Deputy Executive Secretary in the
Office of the President, and the PRESIDENTIAL ANTI-GRAFT
COMMISSION (PAGC), Petitioners,
- versus -
ATTY. ANTONIO F. MONTEMAYOR,
Respondent.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
VILLARAMA, JR., J.:
Before us is a Rule 45 petition assailing the October 19,
2005 Decision[1] of the Court of Appeals (CA) in CA-G.R. SP No.
84254. The appellate court, in the said decision, had reversed and
set aside the March 23, 2004 Decision[2] and May 13, 2004
Resolution[3] of the Office of the President in O.P. Case No. 03-1-
581 finding respondent Atty. Antonio F. Montemayor administratively
liable as charged and dismissing him from government service.
The facts follow.
Respondent Atty. Antonio F. Montemayor was appointed by the
President as Regional Director II of the Bureau of Internal
Revenue (BIR), Region IV, in San Fernando, Pampanga.
On January 30, 2003, the Office of the President received a letter
from a concerned citizen dated January 20, 2003 relating
Montemayors ostentatious lifestyle which is apparently
disproportionate to his income as a public official. The letter was
referred to Dario C. Rama, Chairman of the Presidential Anti-Graft
Commission (PAGC) for appropriate action.[4] The Investigating
Office of the PAGC immediately conducted a fact-finding inquiry
into the matter and issued subpoenas duces tecum to the
responsible personnel of the BIR and the Land Transportation
Office (LTO). In compliance with the subpoena, BIR Personnel
Division Chief Estelita Datu submitted to the PAGC a copy of
Montemayors appointment papers along with a certified true copy
of the latters Sworn Statement of Assets and Liabilities (SSAL) for
the year 2002. Meanwhile, the LTO, through its Records Section
Chief, Ms. Arabelle O. Petilla, furnished the PAGC with a record of
vehicles registered to Montemayor, to wit: a 2001 Ford Expedition, a
1997 Toyota Land Cruiser, and a 1983 Mitsubishi Galant.[5]
During the pendency of the investigation, the Philippine Center for
Investigative Journalism, a media organization which had previously
published an article on the unexplained wealth of certain BIR
officials, also submitted to the PAGC copies of Montemayors SSAL
for the years 1999, 2000 and 2001.[6] In Montemayors 1999 and
2000 SSAL, the PAGC noted that Montemayor declared his
ownership over several motor vehicles, but failed to do the same in
his 2001 SSAL.[7]
On the basis of the said documents, the PAGC issued a Formal
Charge[8] against Montemayor on May 19, 2003 for violation of Section
7 of Republic Act (RA) No. 3019[9] in relation to Section 8 (A) of RA
No. 6713[10] due to his failure to declare the 2001 Ford Expedition with
a value ranging from 1.7 million to 1.9 million pesos, and the 1997
Toyota Land Cruiser with an estimated value of 1 million to 1.2 million
pesos in his 2001[11] and 2002[12] SSAL. The charge was docketed as
PAGC-ADM-0149-03. On the same date, the PAGC issued an
Order[13] directing Montemayor to file his counter-affidavit or verified
answer to the formal charge against him within ten (10) days from the
receipt of the Order. Montemayor, however, failed to submit his
counter-affidavit or verified answer to the formal charge lodged against
him.
On June 4, 2003, during the preliminary conference, Montemayor,
through counsel, moved for the deferment of the administrative
proceedings explaining that he has filed a petition
for certiorari before the CA[14] questioning the PAGCs jurisdiction FOR RESPONDENTS REFUSAL TO PRESENT
to conduct the administrative investigation against him. The PAGC EVIDENCE IN [PAGC]-ADM-0149-03.
denied Montemayors motion for lack of merit, and instead gave
him until June 9, 2003 to submit his counter-affidavit or verified III. WHETHER THE ALLEGED UNDUE HASTE
answer.[15] Still, no answer was filed. AND APPARENT PRECIPITATION OF
PROCEEDINGS IN [PAGC]-ADM-0149-03 HAD
On June 23, 2003, the CA issued a Temporary Restraining Order RENDERED THE SAME INFIRM.
(TRO) in CA-G.R. SP No. 77285 enjoining the PAGC from
proceeding with the investigation for sixty (60) IV. WHETHER RESPONDENT HAD COMMITTED A
days.[16] On September 12, 2003, shortly after the expiration of the MAJOR ADMINISTRATIVE INFRACTION
sixty (60)-day TRO, the PAGC issued a Resolution[17] finding WARRANTING DISMISSAL FROM
Montemayor administratively liable as charged and recommending [GOVERNMENT] SERVICE.
to the Office of the President Montemayors dismissal from the
service. V. WHETHER THE [OFFICE OF THE
PRESIDENTS] DETERMINATION THAT
On March 23, 2004, the Office of the President, through Deputy RESPONDENT COMMITTED THE
Executive Secretary Arthur P. Autea, issued a Decision adopting in ADMINISTRATIVE OFFENSE CHARGED IS
toto the findings and recommendation of the PAGC. The pertinent SUPPORTED BY SUBSTANTIAL EVIDENCE.
portion of the Decision reads:
VI. WHETHER THE PAGC HAD AUTHORITY TO
After a circumspect study of the case, this Office fully RECOMMEND TO THE PRESIDENT THE
agrees with the recommendation of PAGC and the PENALTY OF DISMISSAL, FOLLOWING ITS
legal premises as well as the factual findings that INVESTIGATION INITIATED BY AN
hold it together. Respondent failed to disclose in his ANONYMOUS COMPLAINT, AND DESPITE THE
2001 and 2002 SSAL high-priced vehicles in breach PENDENCY OF ANOTHER INVESTIGATION
of the prescription of the relevant provisions of RA FOR THE SAME OFFENSE BEFORE THE
No. 3019 in relation to RA No. 6713. He was, to be [OFFICE OF THE] OMBUDSMAN.[24]
sure, afforded ample opportunity to explain his failure,
but he opted to let the opportunity pass by.
The issues may be summarized as follows:
WHEREFORE, premises considered, respondent
Antonio F. Montemayor is hereby found I. WHETHER RESPONDENT WAS DEPRIVED
administratively liable as charged and, as OF HIS RIGHT TO DUE PROCESS WHEN IT
recommended by PAGC, meted the penalty of PROCEEDED TO INVESTIGATE HIM ON THE
dismissal from the service, with all accessory BASIS OF AN ANONYMOUS COMPLAINT, AND
penalties. ALLEGEDLY WITHOUT AN OPPORTUNITY TO
PRESENT EVIDENCE IN HIS DEFENSE;
SO ORDERED.[18]
II. WHETHER THE PAGC HAS THE AUTHORITY
TO RECOMMEND RESPONDENTS DISMISSAL
Montemayor sought reconsideration of the said decision. [19] This FROM THE SERVICE;
time, he argued that he was denied his right to due process when
the PAGC proceeded to investigate his case notwithstanding the III. WHETHER THE ASSUMPTION BY THE OFFICE
pendency of his petition for certiorari before the CA, and its OF THE OMBUDSMAN OF ITS JURISDICTION
subsequent elevation to the Supreme Court. [20] The motion was TO INVESTIGATE RESPONDENT FOR THE
eventually denied.[21] SAME OFFENSE DEPRIVED THE PAGC [WITH
ITS JURISDICTION] FROM PROCEEDING WITH
Aggrieved, Montemayor brought the matter to the CA via a petition ITS INVESTIGATION; AND
for review[22] under Rule 43 of the 1997 Rules of Civil Procedure,
as amended. He made the following assertions: first, that the IV. WHETHER THE PAGCS RECOMMENDATION
PAGC exceeded its authority when it recommended that he be WAS SUPPORTED BY SUBSTANTIAL
dismissed from government service since the power to investigate EVIDENCE.
does not necessarily carry with it the power to impose penalty
unless the same was expressly granted; second, that the PAGC
grossly violated his right to due process of law when it did not give We discuss the first three (3) issues jointly as these involve
him the opportunity to present his countervailing evidence to the procedural aspects.
charges against him; third, that the PAGC cannot validly proceed
with the investigation of the charges against him on the basis of an
unverified anonymous letter-complaint without any supporting The PAGC was created by virtue of EO No. 12, signed on April 16,
documents attached thereto, contrary to the requirement of 2001 to speedily address the problem on corruption and abuses
Section 4 (c) of Executive Order (EO) No. 12;[23] fourth, that it was committed in the government, particularly by officials appointed by
an error for the Office of the President to hold him liable for the President. Under Section 4 (b) of EO No. 12, the PAGC has
violation of Section 7 of RA No. 3019 and Section 8 (A) of RA No. the power to investigate and hear administrative complaints
6713 since the SSAL should reflect assets and liabilities acquired provided (1) that the official to be investigated must be a
in the preceding year; and fifth, that the assailed PAGC Resolution presidential appointee in the government or any of its agencies or
was not supported by substantial evidence. instrumentalities, and (2) that the said official must be occupying
the position of assistant regional director, or an equivalent rank, or
higher.[25]
As aforesaid, the CA in its assailed Decision dated October 19,
2005, ruled in favor of Montemayor. The CA concluded that
Montemayor was deprived of an opportunity to present Respondent contends that he was deprived of his right to due
controverting evidence amounting to a brazen denial of his right to process when the PAGC proceeded to investigate him on the
due process. basis of an anonymous complaint in the absence of any
documents supporting the complainants assertions.
Hence, petitioners now appeal the matter before us raising the
following issues: Section 4 (c) of EO No. 12, however, states that the PAGC has the
power to give due course to anonymous complaints against
I. WHETHER PETITIONER PAGC HAD A presidential appointees if there appears on the face of the complaint or
CONSTITUTIONAL DUTY TO ACCORD based on the supporting documents attached to the anonymous
RESPONDENT A SECOND OPPORTUNITY TO complaint a probable cause to engender a belief that the allegations
PRESENT EVIDENCE IN PAGC-ADM-0149-03 may be true.[26] The use of the conjunctive word or in the said
AFTER THE EXPIRATION OF THE TRO ISSUED provision is determinative since it empowers the PAGC to exercise
IN CA-G.R. SP NO. 77285. discretion in giving due course to anonymous complaints. Because of
the said provision, an anonymous complaint may be given due course
even if the same is without supporting documents, so long as it
II. WHETHER THE MERE PENDENCY OF CA- appears from the face of the complaint that there is probable cause.
G.R. SP NO. 77285 WAS A LEGAL GROUND
The clear implication of the said provision is intent to empower the
PAGC in line with the Presidents objective of eradicating corruption
among a particular line of government officials, i.e., those directly
appointed by her. Absent the conjunctive word or, the PAGCs
authority to conduct investigations based on anonymous complaints
will be very limited. It will decimate the said administrative body into a
toothless anti-corruption agency and will inevitably undermine the
Chief Executives disciplinary power.
Respondent also assails the PAGCs decision to proceed with the
investigation process without giving him the opportunity to present
controverting evidence.
The argument is without merit.
We find nothing irregular with the PAGCs decision to proceed with
its investigation notwithstanding the pendency of Montemayors
petition for certiorari before the CA. The filing of a petition
for certiorari with the CA did not divest the PAGC of its jurisdiction
validly acquired over the case before it. Elementary is the rule that
the mere pendency of a special civil action for certiorari,
commenced in relation to a case pending before a lower court or
an administrative body such as the PAGC, does not interrupt the
course of the latter where there is no writ of injunction restraining
it.[27] For as long as no writ of injunction or restraining order is
issued in the special civil action for certiorari, no impediment
exists, and nothing prevents the PAGC from exercising its
jurisdiction and proceeding with the case pending before its
office.[28] And even if such injunctive writ or order is issued, the
PAGC continues to retain jurisdiction over the principal
action[29] until the question on jurisdiction is finally determined.
In the case at bar, a sixty (60)-day TRO was issued by the CA in
CA-G.R. SP No. 77285. However, barely a week after the lapse of
the TRO, the PAGC issued its resolution finding Montemayor
administratively liable and recommending to the Office of the
President his dismissal from government service. The CA believes
that there has been undue haste and apparent precipitation in the
PAGCs investigation proceedings.[30] It notes with disapproval the
fact that it was barely eight (8) days after the TRO had lapsed that
the PAGC issued the said resolution and explains that respondent
should have been given a second chance to present evidence
prior to proceeding with the issuance of the said resolution. [31]
We beg to disagree with the appellate courts observation.
First, it must be remembered that the PAGCs act of issuing the
assailed resolution enjoys the presumption of regularity particularly
since it was done in the performance of its official duties. Mere
surmises and conjectures, absent any proof whatsoever, will not tilt
the balance against the presumption, if only to provide constancy
in the official acts of authorized government personnel and
officials. Simply put, the timing of the issuance of the assailed
PAGC resolution by itself cannot be used to discredit, much less
nullify, what appears on its face to be a regular performance of the
PAGCs duties.
Second, Montemayors argument, as well as the CAs observation
that respondent was not afforded a second opportunity to present
controverting evidence, does not hold water. The essence of due
process in administrative proceedings is an opportunity to explain
ones side or an opportunity to seek reconsideration of the action or
ruling complained of.[32] So long as the party is given the
opportunity to explain his side, the requirements of due process
are satisfactorily complied with.[33]
Significantly, the records show that the PAGC issued an order
informing Montemayor of the formal charge filed against him and
gave him ten (10) days within which to present a counter-affidavit
or verified answer.[34] When the said period lapsed without
respondent asking for an extension, the PAGC gave Montemayor
a fresh ten (10)-day period to file his answer, [35] but the latter
chose to await the decision of the CA in his petition
for certiorari.[36] During the preliminary conference, Montemayor
was again informed that he is given a new ten (10)-day period, or
until June 19, 2003 within which to file his memorandum/position
paper as well as supporting evidence with a warning that if he still
fails to do so, the complaint shall be deemed submitted for
resolution on the basis of available documentary evidence on
record.[37] Again, the deadline lapsed without any evidence being
presented by Montemayor in his defense.
We stress that the PAGCs findings and recommendations remain
as recommendations until finally acted upon by the Office of the
President. Montemayor, therefore, had two (2) choices upon the
issuance of the PAGC resolution: to move for a reconsideration
thereof, or to ask for another opportunity before the Office of the
President to present his side particularly since the assailed
resolution is merely recommendatory in nature. Having failed to
exercise any of these two (2) options, Montemayor cannot now be
allowed to seek recourse before this Court for the consequences
of his own shortcomings.
Desperately, Montemayor contends that the authority of the PAGC
to investigate him administratively, as well as the power of the Office
of the President to act on the PAGCs recommendation, had already
ceased following the initiation and filing of the administrative and
criminal cases against him by the Office of the Ombudsman
(Ombudsman).[38] He points out that the Ombudsman is mandated
by Section 15, paragraph (1) of RA No. 6770[39] to take over the
investigation and prosecution of the charges filed
against him.[40]
We are still not persuaded.
The cases filed against respondent before the Ombudsman were
initiated after the Office of the President decided to dismiss
Montemayor.[41] More importantly, the proceedings before the
PAGC were already finished even prior to the initiation and filing of
cases against him by the Ombudsman. In fact, it was the PAGCs
findings and recommendations which served as the basis in the
Office of the Presidents decision to dismiss Montemayor from
government service. Clearly then, the exercise by the Office of the
President of its concurrent investigatory and prosecutorial power
over Montemayor had already been terminated even before the
Ombudsman could take cognizance over the matter. The
Ombudsman, therefore, cannot take over a task that is already
a fait accompli.
As to the substantive aspect, i.e., whether the PAGCs
recommendation to dismiss Montemayor from government service is
supported by substantial evidence, we find in favor of petitioners.
Montemayors argument that he did not deliberately omit to declare the
2001 Ford Expedition in his 2001 SSAL and the 1997 Toyota Land
Cruiser in his 2001 and 2002 SSAL fails to persuade us. Even if a
motor vehicle was acquired through chattel mortgage, it is a
government employees ethical and legal obligation to declare and
include the same in his SSAL. Montemayor cannot wiggle his way out
of the mess he has himself created since he knows for a fact that
every asset acquired by a civil servant must be declared in the SSAL.
The law requires that the SSAL be accomplished truthfully and in
detail without distinction as to how the property was acquired.
Montemayor, therefore, cannot escape liability by arguing that the
ownership of the 2001 Ford Expedition has not yet passed to him on
the basis of a lame excuse that the said vehicle was acquired only on
installment basis sometime on July 3, 2001.[42]
Montemayor also argues that even if ownership of the said vehicle had
been transferred to him upon acquisition, the vehicle was sold to
another person on December 15, 2002;[43]hence, there is no need to
declare it in his 2001 SSAL. Respondents reasoning is anemic and
convoluted. It is evasive of the fact that the said vehicle was not
reported in his 2001 SSAL.Notably, the acquisition value of the 2001
Ford Expedition was P1,599,000.00[44] is significantly greater than the
amount declared by Montemayor under machinery/equipment,
worthP1,321,212.50, acquired by him as of December 31,
2001,[45] and to the P1,251,675.00 worth of machinery/ equipment
acquired by him as of December 31, 2002.[46] This belies
Montemayors claim that the said vehicle has been included among the
machinery/equipment assets he declared in his 2001 and 2002
SSAL.[47] Neither did Montemayor satisfactorily reflect
the P1,000,000.00 that has come to his hands as payment for the
alleged sale of his 2001 Ford Expedition in his 2002 SSAL.[48]
Respondent apparently fails to understand that the SSAL is not a
mere scrap of paper. The law requires that the SSAL must be
accomplished as truthfully, as detailed and as accurately as
possible. The filing thereof not later than the first fifteen (15) days
of April at the close of every calendar year must not be treated as
a simple and trivial routine, but as an obligation that is part and
parcel of every civil servants duty to the people. It serves as the
basis of the government and the people in monitoring the income
and lifestyle of officials and employees in the government in
compliance with the Constitutional policy to eradicate
corruption,[49] promote transparency in government,[50] and ensure
that all government employees and officials lead just and modest
lives.[51] It is for this reason that the SSAL must be sworn to and is
made accessible to the public, subject to reasonable administrative
regulations.
Montemayors repeated and consistent failure to reflect truthfully
and adequately all his assets and liabilities in his SSAL betrays his
claim of innocence and good faith. Accordingly, we find that the
penalty of dismissal from government service, as sanctioned by
Section 11 (a) and (b) of RA No. 6713,[52] meted by the Office of
the President against him, is proper.
WHEREFORE, the petition is GRANTED. The assailed Decision
dated October 19, 2005 of the Court of Appeals in CA-G.R. SP No.
84254 is REVERSED and SET ASIDE. Accordingly, the March 23,
2004 Decision and the May 13, 2004 Resolution of the Office of
the President in O.P. Case No. 03-1-581 are REINSTATED and
UPHELD.
Respondent Atty. Antonio F. Montemayor
hereby DISMISSED from government service.
SO ORDERED.
[people vs ca]
ARNOLD JAMES M. YSIDORO, Petitioner,
- versus –
HON. TERESITA J. LEONARDO- DE CASTRO, HON.
DIOSDADO M. PERALTA and HON. EFREN N. DE LA CRUZ, in
their official capacities as Presiding Justice and Associate
Justices, respectively, of the First Division of the
Sandiganbayan, and NIERNA S. DOLLER, Respondents.
x----------------------------------------------------x
PEOPLE OF THE PHILIPPINES,
Petitioner,
- versus -
FIRST DIVISION OF THE SANDIGANBAYAN and ARNOLD
JAMES M. YSIDORO, Respondents.
x-----------------------------------------------------------------------------x
DECISION
BRION, J.:
Before us are consolidated petitions assailing the rulings of the
Sandiganbayan in Criminal Case No. 27963, entitled People of the
Philippines v. Arnold James M. Ysidoro.
G.R. No. 171513 is a petition for certiorari and
prohibition under Rule 65 of the Rules of Court (Rules) filed by
petitioner Arnold James M. Ysidoro to annul the resolutions, dated
July 6, 2005[1] and January 25, 2006,[2] of the Sandiganbayan
granting the Motion to Suspend Accused Pendente Lite.
G.R. No. 190963, on the other hand, is a petition
for certiorari under Rule 65 filed by the People of the Philippines
through the Office of the Special Prosecutor (People) to annul and
set aside the decision,[3] dated October 1, 2009, and the
resolution,[4] dated December 9, 2009, of the Sandiganbayan
which acquitted Ysidoro for violation of Section 3(e) of Republic
Act (R.A.) No. 3019 (Anti-Graft and Corrupt Practices Acts), as
amended.
The Antecedents
Ysidoro, as Municipal Mayor of Leyte, Leyte, was
charged before the Sandiganbayan, with the following information:
That during the period from June 2001 to December 2001
or for sometime prior or subsequent thereto, at the
Municipality of Leyte, Province of Leyte, Philippines, and
within the jurisdiction of [the] Honorable Court, above-
named accused, ARNOLD JAMES M. YSIDORO, a public
officer, being the Municipal Mayor of Leyte, Leyte, in such
capacity and committing the offense in relation to office,
with deliberate intent, with manifest partiality and evident
bad faith, did then and there willfully, unlawfully and
criminally, withhold and fail to give to Nierna S. Doller,
Municipal Social Welfare and Development Officer
(MSWDO) of Leyte, Leyte, without any legal basis, her
RATA for the months of August, September, October,
November and December, all in the year 2001, in the total
amount of TWENTY-TWO THOUSAND ONE HUNDRED
TWENTY-FIVE PESOS (P22,125.00), Philippine Currency,
and her Productivity Pay in the year 2000, in the amount of
TWO THOUSAND PESOS (P2,000.00), Philippine
Currency, and despite demands made upon accused to
release and pay her the amount of P22,125.00
and P2,000.00, accused failed to do so, thus accused in the
course of the performance of his official functions had
deprived the complainant of her RATA and Productivity
Pay, to the damage and injury of Nierna S. Doller and
detriment of public service.[5]
Ysidoro filed an omnibus motion to quash the information
and, in the alternative, for judicial determination of probable
cause,[6] which were both denied by the Sandiganbayan. In due
course, Ysidoro was arraigned and he pleaded not guilty.
The Sandiganbayan Preventively Suspends Ysidoro
On motion of the prosecution,[7] the Sandiganbayan
is preventively suspended Ysidoro for ninety (90) days in accordance
with Section 13 of R.A. No. 3019, which states:
Any incumbent public officer against whom any criminal
prosecution under a valid information under this Act or
under Title 7, Book II of the Revised Penal Code or for any
offense involving fraud upon government or public funds or
property whether as a simple or as complex offense and in
whatever stage of execution and mode of participation, is
pending in court, shall be suspended from office.
Ysidoro filed a motion for reconsideration, and
questioned the necessity and the duration of the preventive
suspension. However, the Sandiganbayan denied the motion for
reconsideration, ruling that -
Clearly, by well established jurisprudence, the
provision of Section 13, Republic Act 3019 make[s] it
mandatory for the Sandiganbayan to suspend, for a period
not exceeding ninety (90) days, any public officer who has
been validly charged with a violation of Republic Act 3019,
as amended or Title 7, Book II of the Revised Penal Code or
any offense involving fraud upon government of public funds
or property.[8]
Ysidoro assailed the validity of these Sandiganbayan
rulings in his petition (G.R. No. 171513) before the Court.
Meanwhile, trial on the merits in the principal case continued
before the Sandiganbayan. The prosecution and the defense
presented their respective evidence.
The prosecution presented Nierna S. Doller as its sole
witness. According to Doller, she is the Municipal Social Welfare
Development Officer of Leyte. She claimed that Ysidoro ordered
her name to be deleted in the payroll because her husband
transferred his political affiliation and sided with Ysidoros
opponent. After her name was deleted from the payroll, Doller did
not receive her representation and transportation allowance
(RATA) for the period of August 2001 to December
2001. Doller also related that she failed to receive her productivity
bonus for the year 2000 (notwithstanding her performance rating of
VS) because Ysidoro failed to sign her Performance Evaluation
Report. Doller asserted that she made several attempts to claim
her RATA and productivity bonus, and made representations with
Ysidoro, but he did not act on her requests. Doller related thather
family failed to meet their financial obligations as a result of
Ysidoros actions.
To corroborate Dollers testimony, the prosecution
presented documentary evidence in the form of disbursement
vouchers, request for obligation of allotment, letters, excerpts from
the police blotter, memorandum, telegram, certification, order,
resolution, and the decision of the Office of the Deputy
Ombudsman absolving her of the charges.[9]
On the other hand, the defense presented seven (7)
witnesses,[10] including Ysidoro, and documentary evidence. The
defense showed that the withholding of Dollers RATA was due to
the investigation conducted by the Office of the Mayor on the
anomalies allegedly committed by Doller. For this reason, Ysidoro
ordered the padlocking of Dollers office, and ordered Doller and
her staff to hold office at the Office of the Mayor for the close
monitoring and evaluation of their functions. Doller was also
prohibited from outside travel without Ysidoros approval.
The Sandiganbayan Acquits Ysidoro
In a decision dated October 1, 2009,[11] the Sandiganbayan
acquitted Ysidoro and held that the second element of the offense
that there be malice, ill-motive or bad faith was not present. The
Sandiganbayan pronounced:
This Court acknowledges the fact that Doller was entitled
to RATA. However, the antecedent facts and
circumstances did not show any indicia of bad faith on the
part of [Ysidoro] in withholding the release of Dollers
RATA.
In fact, this Court believes that [Ysidoro] acted in good
faith and in honest belief that Doller was not entitled to her
RATA based on the opinion of the COA resident Auditor
and Section 317 of the Government Accounting and
Auditing Manual.
It may be an erroneous interpretation of the law,
nonetheless, [Ysidoros] reliance to the same was a clear
basis of good faith on his part in withholding Dollers
RATA.
With regard to the Productivity Incentive Bonus, Doller
was aware that the non-submission of the Performance
Evaluation Form is a ground for an employees non-
eligibility to receive the Productivity Incentive Bonus:
a) Employees disqualification for
performance-based personnel actions which
would require the rating for the given period such
as promotion, training or scholarship grants, and
productivity incentive bonus if the failure of the
submission of the report form is the fault of the
employees.
Doller even admitted in her testimonies that she failed to
submit her Performance Evaluation Report to [Ysidoro] for
signature.
There being no malice, ill-motive or taint of bad faith,
[Ysidoro] had the legal basis to withhold Dollers RATA and
Productivity pay.[12] (italics supplied)
In a resolution dated December 9, 2009,[13] the Sandiganbayan
denied the prosecutions motion for reconsideration, reasoning that
- Peoples motion for reconsideration before the Sandiganbayan. He
It must be stressed that this Court acquitted
[Ysidoro] for two reasons: firstly, the prosecution failed to
discharge its burden of proving that accused Ysidoro acted
in bad faith as stated in paragraph 1 above; and secondly,
the exculpatory proof of good faith xxx.
Needless to state, paragraph 1 alone would be
enough ground for the acquittal of accused Ysidoro. Hence,
the COA Resident Auditor need not be presented in court to
prove that [Ysidoro] acted in good faith. This is based on
the legal precept that when the prosecution fails to
discharge its burden, an accused need not even offer
evidence in his behalf.[14] (italics supplied)
Supervening events occurred after the filing of Ysidoros
petition which rendered the issue in G.R. No. 171513 i.e., the
propriety of his preventive suspension moot and academic. First,
Ysidoro is no longer the incumbent Municipal Mayor
of Leyte, Leyte as his term of office expired in 2007. Second, the
prosecution completed its presentation of evidence and had rested
its case before the Sandiganbayan. And third, the Sandiganbayan
issued its decision acquitting Ysidoro of the crime charged.
In light of these events, what is left to resolve is the
petition for certiorari filed by the People on the validity of the
judgment acquitting Ysidoro of the criminal charge.
The Peoples Petition
The People posits that the elements of Section 3(e) of
R.A. No. 3019 have been duly established by the evidence, in that:
First. [Ysidoro] was the Municipal Mayor
of Leyte, Leyte when he ordered the deletion of private
complainants name in the payroll for RATA and productivity
pay.
Second. He caused undue injury to [Doller] when
he ordered the withholding of her RATA and productivity
pay. It is noteworthy that complainant was the only official
in the municipality who did not receive her RATA and
productivity pay even if the same were already included in
the budget for that year. x x x
Consequently, [Doller] testified that her family suffered
actual and moral damages due to the withholding of her
benefits namely: a) the disconnection of electricity in their
residence; x x x b) demand letters from their creditors; x x x
c) her son was dropped from school because they were not
able to pay for his final exams; x x x d) [h]er children did not
want to go to school anymore because they were
embarrassed that collectors were running after them.
Third. Accused clearly acted in evident bad faith
as he used his position to deprive [Doller] of her RATA and
productivity pay for the period mentioned to harass her due
to the transfer of political affiliation of her
husband.[15] (emphasis supplied)
The People argues[16] that the Sandiganbayan gravely abused its
discretion, and exceeded its, or acted without, jurisdiction in not
finding Ysidoro in bad faith when he withheld Dollers RATA and
deprived her of her productivity bonus. The Sandiganbayan failed
to take into account that: first, the Commission on Audit (COA)
resident auditor was never presented in court; second, the
documentary evidence showed that Doller continuously discharged
the functions of her office even if she had been prevented from
outside travel by Ysidoro; third, Ysidoro refused to release Dollers
RATA and productivity bonus notwithstanding the dismissal by the
Ombudsman of the cases against her for alleged anomalies
committed in office; and fourth, Ysidoro caused Dollers name to be
dropped from the payroll without justifiable cause, and he refused
to sign the disbursement vouchers and the request for obligation of
allotment so that Doller could claim her RATA and her productivity
bonus.
In the same manner, the People asserts that the
Sandiganbayan gravely abused its discretion when it ruled that
Doller was not eligible to receive the productivity bonus for her
failure to submit her Performance Evaluation Report. The
Sandiganbayan disregarded the evidence showing the strained
relationship and the maneuverings made by Ysidoro so that he
could deny her this incentive.
In his Comment,[17] Ysidoro prays for the dismissal of the petition
for procedural and substantive infirmities. First, he claims that the
petition was filed out of time considering the belated filing of the
argues that by reason of the late filing of the motion for
reconsideration, the present petition was filed beyond the 60-day
reglementary period. Ysidoro also argues that the 60-day
reglementary period should have been counted from the Peoples
receipt of the Sandiganbayans decision since no motion for
reconsideration was seasonably filed. Second, Ysidoro claims that
the Sandiganbayans ruling was in accord with the evidence and
the prosecution was not denied due process to properly avail of
the remedy of a writ of certiorari. And third, Ysidoro insists that he
can no longer be prosecuted for the same criminal charge without
violating the rule against double jeopardy.
The Issue Raised
The ultimate issue to be resolved is whether the Sandiganbayan
gravely abused its discretion and exceeded its, or acted without,
jurisdiction when it acquitted Ysidoro of the crime charged.
The Courts Ruling
We first resolve the preliminary issue raised by Ysidoro on the
timeliness of the Peoples petition for certiorari. The records show
that the motion for reconsideration was filed by the People before
the Sandiganbayan on the last day of the 15-day reglementary
period to file the motion which fell on October 16, 2009, a
Friday. Although the date originally appearing in the notice of
hearing on the motion was September 22, 2009 (which later on
was corrected to October 22, 2009), the error in designating the
month was unmistakably obvious considering the date when the
motion was filed. In any case, the error cannot detract from the
circumstance that the motion for reconsideration was filed within
the 15-day reglementary period. We consider, too, that Ysidoro
was not deprived of due process and was given the opportunity to
be heard on the motion. Accordingly, the above error cannot be
considered fatal to the right of the People to file its motion for
reconsideration. The counting of the 60-day reglementary period
within which to file the petition for certiorari will be reckoned from
the receipt of the People of the denial of its motion for
reconsideration, or on December 10, 2009. As the last day of the
60-day reglementary period fell on February 8, 2010, the
petition which was filed on February 5, 2010 was filed on time.
Nevertheless, we dismiss the petitions for being procedurally
and substantially infirm.
A Review of a Judgment of Acquittal
Generally, the Rules provides three (3) procedural
remedies in order for a party to appeal a decision of a trial court in
a criminal case before this Court. The first is by ordinary appeal
under Section 3, Rule 122 of the 2000 Revised Rules on Criminal
Procedure. The second is by a petition for review
on certiorari under Rule 45 of the Rules. And the third is by filing a
special civil action for certiorari under Rule 65. Each procedural
remedy is unique and provides for a different mode of review. In
addition, each procedural remedy may only be availed of
depending on the nature of the judgment sought to be reviewed.
A review by ordinary appeal resolves factual and legal
issues. Issues which have not been properly raised by the parties
but are, nevertheless, material in the resolution of the case are
also resolved in this mode of review. In contrast, a review
on certiorari under a Rule 45 petition is generally limited to the
review of legal issues; the Court only resolves questions of law
which have been properly raised by the parties during the appeal
and in the petition. Under this mode, the Court determines whether
a proper application of the law was made in a given set of facts. A
Rule 65 review, on the other hand, is strictly confined to the
determination of the propriety of the trial courts jurisdiction whether
it has jurisdiction over the case and if so, whether the exercise of
its jurisdiction has or has not been attended by grave abuse of
discretion amounting to lack or excess of jurisdiction.
While an assailed judgment elevated by way of ordinary
appeal or a Rule 45 petition is considered an intrinsically valid,
albeit erroneous, judgment, a judgment assailed under Rule 65 is
characterized as an invalid judgment because of defect in the trial
courts authority to rule. Also, an ordinary appeal and a Rule 45
petition tackle errors committed by the trial court in the
appreciation of the evidence and/or the application of law. In
contrast, a Rule 65 petition resolves jurisdictional errors committed
in the proceedings in the principal case. In other words, errors of
judgment are the proper subjects of an ordinary appeal and in a
Rule 45 petition; errors of jurisdiction are addressed in a Rule 65
petition.
As applied to judgments rendered in criminal cases,
unlike a review via a Rule 65 petition, only judgments of conviction
can be reviewed in an ordinary appeal or a Rule 45 petition. As we
explained in People v. Nazareno,[18] the constitutional right of the
accused against double jeopardy proscribes appeals of judgments
of acquittal through the remedies of ordinary appeal and a Rule 45
petition, thus:
The Constitution has expressly adopted the
double jeopardy policy and thus bars multiple criminal
trials, thereby conclusively presuming that a second trial
would be unfair if the innocence of the accused has been
confirmed by a previous final judgment. Further
prosecution via an appeal from a judgment of acquittal is
likewise barred because the government has already been
afforded a complete opportunity to prove the criminal
defendants culpability; after failing to persuade the court to
enter a final judgment of conviction, the underlying
reasons supporting the constitutional ban on multiple trials
applies and becomes compelling. The reason is not only
the defendants already established innocence at the first
trial where he had been placed in peril of conviction, but
also the same untoward and prejudicial consequences of
a second trial initiated by a government who has at its
disposal all the powers and resources of the
State. Unfairness and prejudice would necessarily result,
as the government would then be allowed another
opportunity to persuade a second trier of the defendants
guilt while strengthening any weaknesses that had
attended the first trial, all in a process where the
governments power and resources are once again
employed against the defendants individual means. That
the second opportunity comes via an appeal does not
make the effects any less prejudicial by the standards of
reason, justice and conscience.[19] (emphases supplied)
However, the rule against double jeopardy cannot be
properly invoked in a Rule 65 petition, predicated on two (2)
exceptional grounds, namely: in a judgment of acquittal rendered
with grave abuse of discretion by the court; and where the
prosecution had been deprived of due process. [20] The rule against
double jeopardy does not apply in these instances because a Rule
65 petition does not involve a review of facts and law on the merits
in the manner done in an appeal. In certiorari proceedings, judicial
review does not examine and assess the evidence of the parties
nor weigh the probative value of the evidence.[21] It does not
include an inquiry on the correctness of the evaluation of the
evidence.[22] A review under Rule 65 only asks the question of
whether there has been a validly rendered decision, not the
question of whether the decision is legally correct.[23]In other
words, the focus of the review is to determine whether the
judgment is per se void on jurisdictional grounds.[24]
Applying these legal concepts to this case, we find that
while the People was procedurally correct in filing its petition
for certiorari under Rule 65, the petition does not raise any
jurisdictional error committed by the Sandiganbayan. On the
contrary, what is clear is the obvious attempt by the People to
have the evidence in the case reviewed by the Court under the
guise of a Rule 65 petition. This much can be deduced by
examining the petition itself which does not allege any bias,
partiality or bad faith committed by the Sandiganbayan in its
proceedings. The petition does not also raise any denial of the
Peoples due process in the proceedings before the
Sandiganbayan.
We observe, too, that the grounds relied in the petition
relate to factual errors of judgment which are more appropriate in
an ordinary appeal rather than in a Rule 65 petition. The grounds
cited in the petition call for the Courts own appreciation of the
factual findings of the Sandiganbayan on the sufficiency of the
Peoples evidence in proving the element of bad faith, and the
sufficiency of the evidence denying productivity bonus to Doller.
The Merits of the Case
Our consideration of the imputed errors fails to establish
grave abuse of discretion amounting to lack or excess of
jurisdiction committed by the Sandiganbayan. As a rule,
misapplication of facts and evidence, and erroneous conclusions
based on evidence do not, by the mere fact that errors were
committed, rise to the level of grave abuse of discretion. [25] That
an abuse itself must be grave must be amply demonstrated since
the jurisdiction of the court, no less, will be affected. [26] We have
previously held that the mere fact, too, that a court erroneously
decides a case does not necessarily deprive it of jurisdiction. [27]
Jurisprudence has defined grave abuse of discretion
amounting to lack or excess of jurisdiction in this wise:
Grave abuse of discretion is defined as capricious
or whimsical exercise of judgment as is equivalent to lack of
jurisdiction. The abuse of discretion must be patent and
gross as to amount to an evasion of a positive duty or a
virtual refusal to perform a duty enjoined by law, or to act at
all in contemplation of law, as where the power is exercised
in an arbitrary and despotic manner by reason of passion
and hostility.[28]
Under this definition, the People bears the burden of
convincingly demonstrating that the Sandiganbayan gravely
abused its discretion in the appreciation of the evidence. We find
that the People failed in this regard.
We find no indication from the records that the
Sandiganbayan acted arbitrarily, capriciously and whimsically in
arriving at its verdict of acquittal. The settled rule is that conviction
ensues only if every element of the crime was alleged and
proved.[29] In this case, Ysidoro was acquitted by the
Sandiganbayan for two reasons: first, his bad faith (an element of
the crime charged) was not sufficiently proven by the prosecution
evidence; and second, there was exculpatory evidence of his good
faith.
As bad faith is a state of mind, the prosecution must
present evidence of the overt acts or omissions committed by
Ysidoro showing that he deliberately intended to do wrong or
cause damage to Doller by withholding her RATA. However, save
from the testimony of Doller of the strained relationship between
her and Ysidoro, no other evidence was presented to support
Ysidoros bad faith against her. We note that Doller even disproved
Ysidoros bad faith when she admitted that several cases had been
actually filed against her before the Office of the Ombudsman. It
bears stressing that these purported anomalies were allegedly
committed in office which Ysidoro cited to justify the withholding of
Dollers RATA.
The records also show other acts that tend to negate
Ysidoros bad faith under the circumstances. First, the
investigation of the alleged anomalies by Ysidoro was
corroborated by the physical transfer of Doller and her
subordinates to the Office of the Mayor and the prohibition against
outside travel imposed on Doller. Second, the existence of the
Ombudsmans cases against Doller. And third, Ysidoros act of
seeking an opinion from the COA Auditor on the proper
interpretation of Section 317 of the Government Accounting and
Auditing Manual before he withheld the RATA. This section
provides:
An official/employee who was wrongly removed or
prevented from performing his duties is entitled to back
salaries but not RATA. The rationale for the grant of RATA
is to provide the official concerned additional fund to meet
necessary expenses incidental to and connected with the
exercise or the discharge of the functions of an office. If he
is out of office, [voluntarily] or involuntarily, it necessarily
follows that the functions of the office remain undischarged
(COA, Dec. 1602, October 23, 1990). And if the duties of
the office are not discharged, the official does not and is not
supposed to incur expenses. There being no expenses
incurred[,] there is nothing to be reimbursed (COA, Dec.
2121 dated June 28, 1979).[30]
Although the above provision was erroneously
interpreted by Ysidoro and the COA Auditor, the totality of the
evidence, to our mind, provides sufficient grounds to create
reasonable doubt on Ysidoros bad faith. As we have held before,
bad faith does not simply connote bad judgment or negligence but
imputes a dishonest purpose or some moral obliquity and
conscious doing of a wrong or a breach of a sworn duty through
some motive or intent, or ill-will to partake the nature of
fraud.[31] An erroneous interpretation of a provision of law, absent
any showing of some dishonest or wrongful purpose, does not
constitute and does not necessarily amount to bad faith. [32]
Similarly, we find no inference of bad faith when Doller
failed to receive the productivity bonus. Doller does not dispute
that the receipt of the productivity bonus was premised on the
submission by the employee of his/her Performance Evaluation
Report. In this case, Doller admitted that she did not submit her
Performance Evaluation Report; hence, she could not have
reasonably expected to receive any productivity bonus. Further,
we cannot agree with her self-serving claim that it was Ysidoros
refusal that led to her failure to receive her productivity bonus
given that no other hard evidence supported this claim. We
certainly cannot rely on Dollers assertion of the alleged statement
made by one Leo Apacible (Ysidoros secretary) who was not
presented in court. The alleged statement made by Leo Apacible
that the mayor will get angry with him and he might be laid off, [33] in
addition to being hearsay, did not even establish the actual
existence of an order from Ysidoro or of his alleged maneuverings
to deprive Doller of her RATA and productivity bonus.
In light of these considerations, we resolve to dismiss the
Peoples petition. We cannot review a verdict of acquittal which
does not impute or show any jurisdictional error committed by the
Sandiganbayan.
WHEREFORE, premises considered, the Court hereby resolves
to:
1. DISMISS the petition for certiorari and prohibition,
docketed as G.R. No. 171513, filed by Arnold James M.
Ysidoro for being moot and academic.
2. DISMISS the petition for certiorari, docketed as G.R. No.
190963, filed by the People of the Philippines, through the
Office of the Special Prosecutor, for lack of merit.
SO ORDERED.
G.R. No. 189754 October 24, 2012
LITO BAUTISTA and JIMMY ALCANTARA, Petitioners,
vs.
SHARON G. CUNETA-PANGILINAN, Respondent.
DECISION
PERALTA, J.:
Before the Court is the petition for review on certiorari seeking to
set aside the Decision1
elated May 19, 2009 and Resolution2 dated September 28, 2009 of
the Court of Appeals (CA), in CA-G.R. SP No. 104885, entitled
Sharon G. Cuneta-Pangilinan v. lion. Rizalina T Capco-Urnali, in
her capacity as Presiding Judge of the Regional Trial Court in
Mandaluyong City, Branch 212, Lito Bautista, and Jimmy
Alcantara, which granted the
petition for certiorari of respondent Sharon G. Cuneta-Pangilinan.
TheCA Decision reversed and set aside the Order 3 dated April 25,
2008 of the Regional Trial Court (RTC), Branch 212, Mandaluyong
City, but only insofar as it pertains to the granting of the Demurrer
to Evidence filed by petitioners Lito Bautista (Bautista) and Jimmy
Alcantara (Alcantara), and also ordered that the case be remanded
to the trial court for reception of petitioners' evidence.
The antecedents are as follows:
On February 19, 2002, the Office of the City Prosecutor of
Mandaluyong City filed two (2) informations, both dated February
4, 2002, with the RTC, Branch 212, Mandaluyong City, against
Pete G. Ampoloquio, Jr. (Ampoloquio), and petitioners Bautista
and Alcantara, for the crime of libel, committed by publishing
defamatory articles against respondent Sharon Cuneta-Pangilinan
in the tabloid Bandera.
In Criminal Case No. MC02-4872, the Information dated February
4, 2002 reads:
That on or about the 24th day of April, 2001, in the City of
Mandaluyong, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring and
confederating together with Jane/John Does unknown
directors/officer[s] of Bandera Publishing Corporation, publisher of
Bandera, whose true identities are unknown, and mutually helping
and aiding one another, with deliberate intent to bring SHARON G.
CUNETA-PANGILINAN into public dishonor, shame and contempt,
did then and there wilfully, unlawfully and feloniously, and with
malice and ridicule, cause to publish in Bandera (tabloid), with
circulation in Metro Manila, which among others have the following
insulting and slanderous remarks, to wit:
MAGTIGIL KA, SHARON!
Sharon Cuneta, the mega-taba singer-actress, I’d like to believe, is
really brain-dead. Mukhang totoo yata yung sinasabi ng kaibigan ni
Pettizou Tayag na ganyan siya.
Hayan at buong ingat na sinulat namin yung interview sa kaibigan
ng may-ari ng Central Institute of Technology at ni isang side
comment ay wala kaming ginawa and all throughout the article,
we’ve maintained our objectivity, pero sa interview sa aparadoric
singer- actress in connection with an album launching, ay buong
ningning na sinabi nitong she’s supposedly looking into the item
that we’ve written and most probably would take some legal action.
xxx
Magsalita ka, Missed Cuneta, at sabihin mong hindi ito totoo.
Ang hindi lang namin nagustuhan ay ang pagbintangan kaming
palagi naman daw namin siyang
sinisiraan, kaya hindi lang daw niya kami pinapansin, believing na
part raw siguro yun ng aming trabaho.
Dios mio perdon, what she gets to see are those purportedly biting
commentaries about her katabaan and kaplastikan but she has
simply refused to acknowledge the good reviews we’ve done on
her.
xxx
Going back to this seemingly disoriented actress who’s
desperately trying to sing even if she truly can’t, itanggi mo na
hindi mo kilala si Pettizou Tayag gayung nagkasama raw kayo ng
tatlong araw sa mother's house ng mga Aboitiz sa Cebu more than
a month ago, in connection with one of those political campaigns
of your husband.
xxx
thereby casting publicly upon complainant, malicious
contemptuous imputations of a vice, condition or defect, which
tend to cause complainant her dishonor, discredit or contempt.
CONTRARY TO LAW.4
In Criminal Case No. MC02-4875, the Information dated February
4, 2002 reads:
That on or about the 27th day of March, 2001, in the City of
Mandaluyong, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring and
confederating together with Jane/John Does unknown
directors/officers of Bandera Publishing Corporation, publisher of
Bandera, whose true identities are unknown, and mutually helping,
and aiding one another, with deliberate intent to bring SHARON G.
CUNETA-PANGILINAN into public dishonor, shame and contempt
did, then and there wilfully, unlawfully and feloniously, and with
malice and ridicule, cause to publish in Bandera (tabloid), with
circulation in Metro Manila, which, among others, have the
following insulting and slanderous remarks, to wit:
NABURYONG SA KAPLASTIKAN NI SHARON ANG
MILYONARYANG SUPPORTER NI KIKO!
FREAKOUT pala kay Sharon Cuneta ang isa sa mga loyal
supporters ni Kiko Pangilinan na si Pettizou Tayag, a multi-
millionaire who owns Central Institute of Technology College in
Sampaloc, Manila (it is also one of the biggest schools in Paniqui,
Tarlac).
xxx
Which in a way, she did. Bagama't busy siya (she was having a
meeting with some business associates), she went out of her way
to give Sharon security.
So, ang ginawa daw ni Ms. Tayag ay tinext nito si Sharon para
mabigyan ito ng instructions para kumportable itong makarating sa
Bulacan.
She was most caring and solicitous, pero tipong na-offend daw
ang megastar at nagtext pang "You don’t need to produce an
emergency SOS for me, I’ll be fine."
Now, nang makara[t]ing na raw sa Bulacan si Mega nagtatarang
daw ito at binadmouth si Pettizou. Kesyo ang kulit-kulit daw nito,
atribida, mapapel at kung anu-ano pang mga derogatory words na
nakarating siyempre sa kinauukulan.
Anyhow, if it’s true that Ms. Pettizou has been most financially
supportive of Kiko, how come Sharon seems not to approve of
her?
"She doesn’t want kasi her husband to win as a senator because
when that happens, mawawalan siya ng hold sa kanya," our caller
opines.
Pettizou is really sad that Sharon is treating her husband like a
wimp.
"In public," our source goes on tartly, "pa kiss-kiss siya. Pa-
embrace-embrace pero kung silang dalawa na lang parang kung
sinong sampid kung i-treat niya si Kiko."
My God Pete, Harvard graduate si Kiko. He’s really intelligent as
compared to Sharon who appears to be brain dead most of the
time.
Yung text message niyang "You don’t need to produce an
emergency SOS for me," hindi ba’t she was being redundant?
Another thing, I guess it’s high time that she goes on a diet again.
Jesus, she looks 6’11 crosswise!
xxx
Kunsabagay, she was only being most consistent. Yang si Sharon
daw ay talagang mega-brat, mega-sungit. But who does she think
she is? Her wealth, dear, would pale in comparison with the
Tayag’s millions. Kunsabagay, she’s brain dead most of the time.
xxx
thereby casting publicly upon complainant, malicious
contemptuous imputation of a vice, condition or defect, which tend
to cause complainant her dishonor, discredit or contempt.
CONTRARY TO LAW.5
Upon arraignment, petitioners, together with their co-accused
Ampoloquio, each entered a plea of not guilty. Thereafter, a joint
pre-trial and trial of the case ensued.6
Respondent’s undated Complaint-Affidavit7 alleged that Bautista
and Alcantara were Editor and Associate Editor, respectively, of
the publication Bandera, and their co-accused, Ampoloquio, was
the author of the alleged libelous articles which were published
therein, and subject of the two informations. According to
respondent, in April 2001, she and her family were shocked to
learn about an article dated March 27, 2001, featured on page 7 of
Bandera (Vol. 11, No. 156), in the column Usapang Censored of
Ampoloquio, entitled Naburyong sa Kaplastikan ni Sharon ang
Milyonaryang Supporter ni Kiko, that described her as plastic
(hypocrite), ingrate, mega-brat, mega-sungit, and brain dead,
which were the subject of Criminal Case No. MC02-4875.8 Another
article, with the same title and similar text, also featured on the
same date, appeared on page 6 of Saksi Ngayon, in the column
Banatan of Ampoloquio.9 Moreover, respondent averred that on
April 24, 2001, Ampoloquio wrote two follow-up articles, one
appeared in his column Usapang Censored, entitled Magtigil Ka,
Sharon!, stating that she bad-mouthed one Pettizou Tayag by
calling the latter kulit-kulit (annoyingly persistent), atribida
(presumptuous), mapapel (officious or self-important), and other
derogatory words; that she humiliated Tayag during a meeting by
calling the latter bobo (stupid); that she exhibited offensive
behavior towards Tayag; and that she was a dishonest person with
questionable credibility, which were the subject of Criminal Case
No. MC02-4872.10 Another article, entitled Magtigil Ka, Sharon
Cuneta!!!!, also featured on the same date with similar text, and
appeared on page 7 of Saksi Ngayon (Vol. 3, No. 285), in the
column Banatan of Ampoloquio, 11 with the headline in bold letters,
Sharon Cuneta, May Sira? on the front page of the said
issue.12 Respondent added that Ampoloquio’s articles impugned
her character as a woman and wife, as they depicted her to be a
domineering wife to a browbeaten husband. According to
Ampoloquio, respondent did not want her husband (Senator
Francis Pangilinan) to win (as Senator) because that would mean
losing hold over him, and that she would treat him like a wimp and
sampid (hanger-on) privately, but she appeared to be a loving wife
to him in public. Respondent denied that Tayag contributed
millions to her husband’s campaign fund. She clarified that Tayag
assisted during the campaign and was one of the volunteers of her
husband’s Kilos Ko Movement, being the first cousin of one Atty.
Joaquinito Harvey B. Ringler (her husband’s partner in Franco
Pangilinan Law Office); however, it was Atty. Ringler who asked
Tayag to resign from the movement due to difficulty in dealing with
her.
After presenting respondent on the witness stand, the prosecution
filed its Formal Offer of Documentary Exhibits dated October 11,
2006, which included her undated Complaint-Affidavit.13
On November 14, 2006, petitioners filed a Motion for Leave of
Court to File the Attached Demurrer to Evidence. 14In their
Demurrer to Evidence,15 which was appended to the said Motion,
Bautista and Alcantara alleged that the prosecution's evidence
failed to establish their participation as Editor and Associate Editor,
respectively, of the publication Bandera; that they were not
properly identified by respondent herself during her testimony; and
that the subject articles written by Ampoloquio were not libelous
due to absence of malice.
On April 25, 2008, the RTC issued an Order 16 granting petitioners’
Demurrer to Evidence and dismissed Criminal Case Nos. MCO2-
4872 and MCO2-4875. The trial court opined, among others, that
since the prosecution did not submit its Comment/Opposition to
the petitioners' Demurrer to Evidence, the averments therein thus
became unrebutted; that the testimonial and documentary
evidence adduced by the prosecution failed to prove the
participation of petitioners as conspirators of the crime charged;
and that during the direct examination on July 27, 2004 and cross-
examination on August 1, 2006, respondent neither identified
them, nor was there any mention about their actual participation.
As a consequence, the prosecution filed a Motion to Admit17 dated
May 29, 2008, with the attached Comment (to Accused Lito
Bautista and Jimmy Alcantara's Demurrer to Evidence) 18 dated
March 24, 2008, stating that during the pendency of the trial court's
resolution on the petitioners' Motion for Leave of Court to File the
Attached Demurrer to Evidence, with the attached Demurrer to
Evidence, the prosecution intended to file its Comment, by serving
copies thereof, through registered mail, upon counsels for the
petitioners, including the other accused, and the respondent;
however, said Comment was not actually filed with the trial court
due to oversight on the part of the staff of the State Prosecutor
handling the case.19 Claiming that it was deprived of due process,
the prosecution prayed that its Comment be admitted and that the
same be treated as a reconsideration of the trial court's Order
dated April 25, 2008.
In an Order dated June 3, 2008, the RTC granted the
prosecutions' Motion to Admit, with the attached Comment, and
ruled that its Comment be admitted to form part of the court
records.
On August 19, 2008, respondent filed a Petition for Certiorari with
the CA, seeking to set aside the RTC Orders dated April 25, 2008
(which granted petitioners' Demurrer to Evidence and ordered the
dismissal of the cases against them) and June 3, 2008 (which
noted and admitted respondent's Comment to form part of the
records of the case).
In a Decision dated May 19, 2009, the CA granted respondent's
petition, thereby reversing and setting aside the RTC Order dated
April 25, 2008, but only insofar as it pertains to the grant of
petitioners' Demurrer to Evidence, and ordered that the case be
remanded to the trial court for reception of petitioners' evidence.
Aggrieved, petitioners filed a Motion for Reconsideration dated
June 7, 2009 which, however, was denied by the CA in a
Resolution dated September 28, 2009.
Hence, petitioners filed this present petition, raising the following
arguments:
I.
RESPONDENT'S PETITION FOR CERTIORARI BEFORE
THE COURT OF APPEALS IS BARRED BY THE
PETITIONERS' RIGHT AGAINST DOUBLE JEOPARDY.
II.
RESPONDENT'S PETITION FOR CERTIORARI BEFORE
THE COURT OF APPEALS DOES NOT LIE TO CORRECT
ALLEGED ERRORS OF JUDGMENT COMMITTED BY THE
REGIONAL TRIAL COURT.
III.
THE COURT OF APPEALS ERRED IN FINDING THAT THE
TRIAL COURT COMMITTED GRAVE ABUSE OF
DISCRETION IN GRANTING PETITONERS' DEMURRER TO
EVIDENCE.
Petitioners allege that the Order of the RTC, dated April 25, 2008,
granting the Demurrer to Evidence was tantamount to an acquittal.
As such, the prosecution can no longer interpose an appeal to the
CA, as it would place them in double jeopardy. Petitioners contend
that respondent's petition for certiorari with the CA should not have
prospered, because the allegations therein, in effect, assailed the
trial court's judgment, not its jurisdiction. In other words, petitioners
posit that the said Order was in the nature of an error of judgment
rendered, which was not correctible by a petition for certiorari with
the CA.
Petitioners aver that although the CA correctly ruled that the
prosecution had not been denied due process, however, it erred in
ruling that the trial court committed grave abuse of discretion in
granting petitioners' Demurrer to Evidence, on the basis that the
prosecution failed to prove that they acted in conspiracy with
Ampoloquio, the author of the questioned articles. They added that
what the prosecution proved was merely their designations as
Editor and Associate Editor of the publication Bandera, but not the
fact that they had either control over the articles to be published or
actually edited the subject articles.
Respondent counters that petitioners failed to show special and
important reasons to justify their invocation of the Court's power to
review under Rule 45 of the Rules of Court. She avers that the
acquittal of petitioners does not preclude their further prosecution if
the judgment acquitting them is void for lack of jurisdiction. Further,
she points out that contrary to petitioners’ contention, the principle
of double jeopardy does not attach in cases where the court's
judgment acquitting the accused or dismissing the case is void,
either for having disregarded the State's right to due process or for
having been rendered by the trial court with grave abuse of
discretion amounting to lack or excess of jurisdiction, and not
merely errors of judgment.
Respondent also avers that even if the prosecution was deemed to
have waived its right to file a Comment on the petitioners’ Motion
for Leave of Court to File the Attached Demurrer to Evidence, this
did not give the trial court any reason to deprive the prosecution of
its right to file a Comment on the petitioners’ Demurrer to Evidence
itself, which was a clear violation of the due process requirement.
By reason of the foregoing, respondent insists that petitioners
cannot invoke violation of their right against double jeopardy.
The petition is impressed with merit.
At the onset, it should be noted that respondent took a procedural
misstep, and the view she is advancing is erroneous. The authority
to represent the State in appeals of criminal cases before the
Supreme Court and the CA is solely vested in the Office of the
Solicitor General (OSG). Section 35 (1), Chapter 12, Title III, Book
IV of the 1987 Administrative Code explicitly provides that the
OSG shall represent the Government of the Philippines, its
agencies and instrumentalities and its officials and agents in any
litigation, proceeding, investigation or matter requiring the services
of lawyers. It shall have specific powers and functions to represent
the
Government and its officers in the Supreme Court and the CA, and
all other courts or tribunals in all civil actions and special
proceedings in which the Government or any officer thereof in his
official capacity is a party.20 The OSG is the law office of the
Government.21
To be sure, in criminal cases, the acquittal of the accused or the
dismissal of the case against him can only be appealed by the
Solicitor General, acting on behalf of the State. The private
complainant or the offended party may question such acquittal or
dismissal only insofar as the civil liability of the accused is
concerned. In a catena of cases, this view has been time and
again espoused and maintained by the Court. In Rodriguez v.
Gadiane,22 it was categorically stated that if the criminal case is
dismissed by the trial court or if there is an acquittal, the appeal on
the criminal aspect of the case must be instituted by the Solicitor
General in behalf of the State. The capability of the private
complainant to question such dismissal or acquittal is limited only
to the civil aspect of the case. The same determination was also
arrived at by the Court in Metropolitan Bank and Trust Company v.
Veridiano II.23 In the recent case of Bangayan, Jr. v.
Bangayan,24 the Court again upheld this guiding principle.
Worthy of note is the case of People v. Santiago, 25 wherein the
Court had the occasion to bring this issue to rest. The Court
elucidated:
It is well-settled that in criminal cases where the offended party is
the State, the interest of the private complainant or the private
offended party is limited to the civil liability. Thus, in the
prosecution of the offense, the complainant's role is limited to that
of a witness for the prosecution. If a criminal case is dismissed by
the trial court or if there is an acquittal, an appeal therefrom on the
criminal aspect may be undertaken only by the State through the
Solicitor General. Only the Solicitor General may represent the
People of the Philippines on appeal. The private offended party or
complainant may not take such appeal. However, the said
offended party or complainant may appeal the civil aspect despite
the acquittal of the accused.
In a special civil action for certiorari filed under Section 1, Rule 65
of the Rules of Court wherein it is alleged that the trial court
committed a grave abuse of discretion amounting to lack of
jurisdiction or on other jurisdictional grounds, the rules state that
the petition may be filed by the person aggrieved. In such case,
the aggrieved parties are the State and the private offended party
or complainant. The complainant has an interest in the civil aspect
of the case so he may file such special civil action questioning the
decision or action of the respondent court on jurisdictional
grounds. In so doing, complainant should not bring the action in
the name of the People of the Philippines. The action may be
prosecuted in name of said complainant.26
Thus, the Court has definitively ruled that in a criminal case in
which the offended party is the State, the interest of the private
complainant or the private offended party is limited to the civil
liability arising therefrom. If a criminal case is dismissed by the trial
court or if there is an acquittal, an appeal of the criminal aspect
may be undertaken, whenever legally feasible, only by the State
through the solicitor general. As a rule, only the Solicitor General
may represent the People of the Philippines on appeal. The private
offended party or complainant may not undertake such appeal. 27
In the case at bar, the petition filed by the respondent before the
CA essentially questioned the criminal aspect of the Order of the
RTC, not the civil aspect of the case. Consequently, the petition
should have been filed by the State through the OSG. Since the
petition for certiorari filed in the CA was not at the instance of the
OSG, the same should have been outrightly dismissed by the CA.
Respondent lacked the personality or legal standing to question
the trial court’s order because it is only the Office of the Solicitor
General (OSG), who can bring actions on behalf of the State in
criminal proceedings, before the Supreme Court and the
CA.28 Thus, the CA should have denied the petition outright.
Moreover, not only did the CA materially err in entertaining the
petition, it should be stressed that the granting of petitioners’
Demurrer to Evidence already amounted to a dismissal of the case
on the merits and a review of the order granting the demurrer to
evidence will place the accused in double jeopardy. Consequently,
the Court disagrees with the CA’s ruling reversing the trial court’s
order dismissing the criminal cases against petitioners.
Under Section 23,29 Rule 119 of the Rules of Court on Demurrer to
Evidence, after the prosecution terminates the presentation of
evidence and rests its case, the trial court may dismiss the case on
the ground of insufficiency of evidence upon the filing of a
Demurrer to Evidence by the accused with or without leave of
court. If the accused files a Demurrer to Evidence with prior leave
of court and the same is denied, he may adduce evidence in his
defense. However, if the Demurrer to Evidence is filed by the
accused without prior leave of court and the same is denied, he
waives his right to present evidence and submits the case for
judgment on the basis of the evidence for the prosecution.
Corollarily, after the prosecution rests its case, and the accused
files a Demurrer to Evidence, the trial court is required to evaluate
whether the evidence presented by the prosecution is sufficient
enough to warrant the conviction of the accused beyond
reasonable doubt. If the trial court finds that the prosecution
evidence is not sufficient and grants the accused's Demurrer to
Evidence, the ruling is an adjudication on the merits of the case
which is tantamount to an acquittal and may no longer be
appealed. Any further prosecution of the accused after an acquittal
would, thus, violate the constitutional proscription on double
jeopardy.30
Anent the prosecution’s claim of denial of due process. As
correctly found by the CA, the prosecution was not denied due
process. Suffice it to state that the prosecution had actively
participated in the trial and already rested its case, and upon
petitioners' filing of their Demurrer to Evidence, was given the
opportunity to file its Comment or Opposition and, in fact, actually
filed its Comment thereto, albeit belatedly. The CA emphasized
that the word "may" was used in Section 23 of Rule 119 of the
Revised Rules of Criminal Procedure, which states that if leave of
court is granted, and the accused has filed the Demurrer to
Evidence within a non-extendible period of ten (10) days from
notice, the prosecution "may" oppose the Demurrer to Evidence
within a similar period from its receipt.1âwphi1 In this regard, the
CA added that the filing of a Comment or Opposition by
respondent is merely directory, not a mandatory or jurisdictional
requirement, and that in fact the trial court may even proceed with
the resolution of the petitioners' Demurrer to Evidence even
without the prosecution's Comment.
One final note. Article 360 of the Revised Penal Code specifies the
persons that can be held liable for libel. It provides:
ART. 360. Persons responsible. — Any person who shall publish,
exhibit or cause the publication or exhibition of any defamation in
writing or by similar means, shall be responsible for the same.
The author or editor of a book or pamphlet, or the editor or
business manager of a daily newspaper, magazine or serial
publication, shall be responsible for the defamation contained
therein to the same extent as if he were the author thereof. 31
From the foregoing, not only is the person who published,
exhibited or caused the publication or exhibition of any defamation
in writing shall be responsible for the same, all other persons who
participated in its publication are liable, including the editor or
business manager of a daily newspaper, magazine or serial
publication, who shall be equally responsible for the defamations
contained therein to the same extent as if he were the author
thereof. The liability which attaches to petitioners is, thus, statutory
in nature.
In Fermin v. People,32 therein petitioner argued that to sustain a
conviction for libel under Article 360 of the Code, it is mandatory
that the publisher knowingly participated in or consented to the
preparation and publication of the libelous article. She also averred
that she had adduced ample evidence to show that she had no
hand in the preparation and publication of the offending article, nor
in the review, editing, examination, and approval of the articles
published in Gossip Tabloid. The Court struck down her erroneous
theory and ruled that therein petitioner, who was not only the
Publisher of Gossip Tabloid but also its President and
Chairperson, could not escape liability by claiming lack of
participation in the preparation and publication of the libelous
article.
Similarly, in Tulfo v. People,33 therein petitioners, who were
Managing Editor, National Editor of Remate publication, President
of Carlo Publishing House, and one who does typesetting, editing,
and layout of the page, claim that they had no participation in the
editing or writing of the subject articles which will hold them liable
for the crime of libel and, thus, should be acquitted. In debunking
this argument, the Court stressed that an editor or manager of a
newspaper, who has active charge and control over the
publication, is held equally liable with the author of the libelous
article. This is because it is the duty of the editor or manager to
know and control the contents of the paper, and interposing the
defense of lack of knowledge or consent as to the contents of the
articles or publication definitely will not prosper.
The rationale for the criminal culpability of those persons
enumerated in Article 360 was already elucidated as early as in
the case of U.S. v. Ocampo,34 to wit:
According to the legal doctrines and jurisprudence of the United
States, the printer of a publication containing libelous matter is
liable for the same by reason of his direct connection therewith and
his cognizance of the contents thereof. With regard to a publication
in which a libel is printed, not only is the publisher but also all other
persons who in any way participate in or have any connection with
its publication are liable as publishers.35
Accordingly, Article 360 would have made petitioners Bautista and
Alcantara, being the Editor and Assistant Editor, respectively, of
Bandera Publishing Corporation, answerable with Ampoloquio, for
the latter’s alleged defamatory writing, as if they were the authors
thereof. Indeed, as aptly concluded by the court a quo:
The aforestated provision is clear and unambiguous. It equally
applies to an editor of a publication in which a libelous article was
published and states that the editor of the same shall be
responsible for the defamation in writing as if he were the author
thereof. Indeed, when an alleged libelous article is published in a
newspaper, such fact alone sufficient evidence to charge the editor
or business manager with the guilt of its publication. This sharing
of liability with the author of said article is based on the principle
that editors and associate editors, by the nature of their positions,
edit, control and approve the materials which are to be published
in a newspaper. This means that, without their nod of approbation,
any article alleged to be libelous would not be published.
Hence, by virtue of their position and the authority which they
exercise, newspaper editors and associate editors are as much
critical part in the publication of any defamatory material as the
writer or author thereof.36
Nevertheless, petitioners could no longer be held liable in view of
the procedural infirmity that the petition for certiorari was not
undertaken by the OSG, but instead by respondent in her personal
capacity. Although the conclusion of the trial court may be wrong,
to reverse and set aside the Order granting the demurrer to
evidence would violate petitioners’ constitutionally-enshrined right
against double jeopardy. Had it not been for this procedural defect,
the Court could have seriously considered the arguments
advanced by the respondent in seeking the reversal of the Order of
the RTC.
The granting of a demurrer to evidence should, therefore, be
exercised with caution, taking into consideration not only the rights
of the accused, but also the right of the private offended party to
be vindicated of the wrongdoing done against him, for if it is
granted, the accused is acquitted and the private complainant is
generally left with no more remedy. In such instances, although the
decision of the court may be wrong, the accused can invoke his
right against double jeopardy. Thus, judges are reminded to be
more diligent and circumspect in the performance of their duties as
members of the Bench, always bearing in mind that their decisions
affect the lives of the accused and the individuals who come to the
courts to seek redress of grievances, which decision could be
possibly used by the aggrieved party as basis for the filing of the
appropriate actions against them.
Perforce, the Order dated April 25, 2008 of the Regional Trial
Court, Branch 212, Mandaluyong City, in Criminal Case Nos.
MC02-4872 and MC02-4875, which dismissed the actions as
against petitioners Lito Bautista and Jimmy Alcantara, should be
reinstated.
WHEREFORE, the petition is GRANTED. The Decision dated May
19, 2009 and Resolution dated September 28, 2009 of the Court of
Appeals, in CA-G.R. SP No. 104885, are REVERSED AND SET
ASIDE. The portion of the Order dated April 25, 2008 of the
Regional Trial Court, Branch 212, Mandaluyong City, in Criminal
Case Nos. MC02-4872 and MC02-4875, which dismissed the
actions as against petitioners Lito Bautista and Jimmy Alcantara, is
REINSTATED.
SO ORDERED.
G.R. No. 195032 February 20, 2013
ISABELO A. BRAZA, Petitioner, vs. THE HONORABLE
SANDIGANBA Y AN (1st Division), Respondents.
DECISION
MENDOZA, J.:
This is a petition for certiorari filed by petitioner Isabelo
Braza (Braza) seeking to reverse and set aside the October 12,
2009 Resolution 1 of the Sandiganbayan in Criminal Case No. SB-
08-CRM-0275, entitled People v. Robert G.Lala, et al., as well as
its October 22, 2010 Resolution,2 denying his motion for
reconsideration.
The Philippines was assigned the hosting rights for the 12th
Association of Southeast Asian Nations (ASEAN)Leaders Summit
scheduled in December 2006. In preparation for this international
diplomatic event with the province of Cebu as the designated
venue, the Department of Public Works and
Highways (DPWH) identified projects relative to the improvement
and rehabilitation of roads and installation of traffic safety devices
and lighting facilities. The then Acting Secretary of the DPWH,
Hermogenes E. Ebdane, approved the resort to alternative modes
of procurement for the implementation of these projects due to the
proximity of the ASEAN Summit.
One of the ASEAN Summit-related projects to be undertaken was
the installation of street lighting systems along the perimeters of
the Cebu International Convention Center in Mandaue City and the
ceremonial routes of the Summit to upgrade the appearance of the
convention areas and to improve night-time visibility for security
purposes. Four (4) out of eleven (11) street lighting projects were
awarded to FABMIK Construction and Equipment Supply
Company, Inc. (FABMIK) and these were covered by Contract I.D.
Nos. 06H0021, 06H00049, 06H00050, and 06H00052. Contract
I.D. No. 06H00050, the subject transaction of this case, involved
the supply and installation of street lighting facilities along the
stretch of Mandaue-Mactan Bridge 1 to Punta Engaño Section in
Lapu-Lapu City, with an estimated project cost of P83,950,000.00.
With the exception of the street lighting project covered by
Contract I.D. No. 06H0021, the three other projects were bidded
out only on November 28, 2006 or less than two (2) weeks before
the scheduled start of the Summit. Thereafter, the DPWH and
FABMIK executed a Memorandum of Agreement (MOA) whereby
FABMIK obliged itself to implement the projects at its own expense
and the DPWH to guarantee the payment of the work
accomplished. FABMIK was able to complete the projects within
the deadline of ten (10) days utilizing its own resources and credit
facilities. The schedule of the international event, however, was
moved by the national organizers to January 9-15, 2007 due to
typhoon Seniang which struck Cebu for several days.
After the summit, a letter-complaint was filed before the Public
Assistance and Corruption Prevention
Office(PACPO), Ombudsman –Visayas, alleging that the ASEAN
Summit street lighting projects were overpriced. A panel
composing of three investigators conducted a fact-finding
investigation to determine the veracity of the accusation. Braza,
being the president of FABMIK, was impleaded as one of the
respondents. On March 16, 2007, the Ombudsman directed the
Department of Budget and Management (DBM) and the DPWH to
cease and desist from releasing or disbursing funds for the
projects in question.3
On March 23, 2007, the fact-finding body issued its Evaluation
Report4 recommending the filing of charges for violation of Section
3(e) of Republic Act (R.A.) No. 3019, otherwise known as the Anti-
Graft and Corrupt Practice Act, against the DPWH officials and
employees in Region VII and the cities of Mandaue and Lapu-lapu,
and private contractors FABMIK and GAMPIK Construction and
Development, Inc. (GAMPIK). This report was filed before the
Office of the Ombudsman-Visayas (OMBVisayas) for the conduct
of a preliminary investigation and was docketed therein as OMB-V-
C-07-124-C, entitled PACPO-OMB-Visayas v. Lala, et. al.
After the preliminary investigation, the OMB-Visayas issued its
Resolution,5 dated January 24, 2008, finding probable cause to
indict the concerned respondents for violation of Section 3(g) of
R.A. No. 3019. It was found that the lampposts and other lighting
facilities installed were indeed highly overpriced after a comparison
of the costs of the materials indicated in the Program of Works and
Estimates (POWE) with those in the Bureau of
Customs(BOC) documents; and that the contracts entered into
between the government officials and the private contractors were
manifestly and grossly disadvantageous to the government.
Subsequently, the OMB-Visayas filed several informations before
the Sandiganbayan for violation of Sec. 3(g) of R.A. 3019 against
the officials of DPWH Region VII, the officials of the cities of
Mandaue and Lapu-lapu and private contractors, FABMIK
President Braza and GAMPIK Board Chairman Gerardo S.
Surla (Surla). The Information docketed as SB-08- CRM-
02756 (first information) which involved the street lighting project
covered by Contract I.D. No. 06H00050 with FABMIK, was raffled
to the First Division of the Sandiganbayan. It was alleged therein
that Braza acted in conspiracy with the public officials and
employees in the commission of the crime charged.
On June 6, 2008, Braza was arraigned as a precondition to his
authorization to travel abroad. He entered a plea of "not guilty."
On August 14, 2008, the motions for reinvestigation filed by Arturo
Radaza (Radaza), the Mayor of Lapu-lapu City, and the DPWH
officials were denied by the Sandiganbayan for lack of merit.
Consequently, they moved for the reconsideration of said
resolution.7 On August 27, 2008, Braza filed a motion for
reinvestigation8 anchored on the following grounds: (1) the import
documents relied upon by the OMB-Visayas were spurious and
falsified; (2) constituted new evidence, if considered, would
overturn the finding of probable cause; and (3) the finding of
overpricing was bereft of factual and legal basis as the same was
not substantiated by any independent canvass of prevailing market
prices of the subject lampposts. He prayed for the suspension of
the proceedings of the case pending such reinvestigation. The
Sandiganbayan treated Braza's motion as his motion for
reconsideration of its August 14, 2008 Resolution.
On November 13, 2008, Braza filed a manifestation9 to make of
record that he was maintaining his previous plea of "not guilty"
without any condition.
During the proceedings held on November 3, 2008, the
Sandiganbayan reconsidered its August 14, 2008 resolution and
directed a reinvestigation of the case.10 According to the anti-graft
court, the allegations to the effect that no independent canvass
was conducted and that the charge of overpricing was based on
falsified documents were serious reasons enough to merit a
reinvestigation of the case. The Sandiganbayan said that it could
be reasonably inferred from the July 30, 2008 Order of the
Ombudsman in OMB-V-C-07-0124-C that the latter would not
object to the conduct of a reinvestigation of all the cases against
the accused.
Braza filed his Manifestation,11 dated February 2, 2009, informing
the Sandiganbayan of his intention to abandon his previous motion
for reinvestigation. He opined that the prosecution would merely
use the reinvestigation proceedings as a means to engage in a
second unbridled fishing expedition to cure the lack of probable
cause.
On March 23, 2009, Braza filed a motion12 in support of the
abandonment of reinvestigation with a plea to vacate Information,
insisting that the further reinvestigation of the case would only
afford the prosecution a second round of preliminary investigation
which would be vexatious, oppressive and violative of his
constitutional right to a speedy disposition of his case, warranting
its dismissal with prejudice.
After concluding its reinvestigation of the case, the OMB-Visayas
issued its Resolution,13 dated May 4, 2009,(Supplemental
Resolution) which upheld the finding of probable cause but
modified the charge from violation of Sec. 3(g) of R.A. No.
301914 to violation of Sec. 3(e)15 of the same law. Accordingly, the
prosecution filed its Manifestation and Motion to Admit Amended
Information16 on May 8, 2009.
On July 1, 2009, Braza filed his Comment (to the motion to admit
amended information) with Plea for Discharge and/or Dismissal of
the Case.17 He claimed that the first information had been
rendered ineffective or had been deemed vacated by the issuance
of the Supplemental Resolution and, hence, his discharge from the
first information was in order. By way of an alternative prayer,
Braza sought the dismissal of the case with prejudice claiming that
his right to a speedy disposition of the case had been violated and
that the Supplemental Resolution failed to cure the fatal infirmities
of the January 24, 2008 Resolution since proof to support the
allegation of overpricing remained wanting. Braza averred that he
could not be arraigned under the second information without
violating the constitutional proscription against double jeopardy.
On October 12, 2009, the Sandiganbayan issued the first assailed
resolution admitting the Amended Information, 18 dated May 4,
2009, (second Information) and denying Braza's plea for dismissal
of the criminal case. The Sandiganbayan ruled that Braza would
not be placed in double jeopardy should he be arraigned anew
under the second information because his previous arraignment
was conditional. It continued that even if he was regularly
arraigned, double jeopardy would still not set in because the
second information charged an offense different from, and which
did not include or was necessarily included in, the original offense
charged. Lastly, it found that the delay in the reinvestigation
proceedings could not be characterized as vexatious, capricious or
oppressive and that it could not be attributed to the prosecution.
The dispositive portion of the said resolution reads:
WHEREFORE, premises considered, the Motion to Admit
Attached Amended Information filed by the prosecution is
hereby GRANTED. The Amended Information charging all the
accused therein with violation of Sec. 3 (e) of R.A. 3019, being the
proper offense, is hereby ADMITTED.
Consequently, accused Braza's Alternative Relief for Dismissal of
the Case is hereby DENIED.
Let the arraignment of all the accused in the Amended Information
be set on November 18, 2009, at 8:30 in the morning.
SO ORDERED.19
On November 6, 2009, Braza moved for reconsideration with
alternative motion to quash the information20reiterating his
arguments that his right against double jeopardy and his right to a
speedy disposition of the case were violated warranting the
dismissal of the criminal case with prejudice. In the alternative,
Braza moved for the quashal of the second information vigorously
asserting that the same was fatally defective for failure to allege
any actual, specified and quantifiable injury sustained by the
government as required by law for indictment under Sec. 3(e) of
R.A. 3019, and that the charge of overpricing was unfounded.
On October 22, 2010, the Sandiganbayan issued the second
assailed resolution stating, among others, the denial of Braza's
Motion to Quash the information. The anti-graft court ruled that the
Amended Information was sufficient in substance as to inform the
accused of the nature and causes of accusations against them.
Further, it held that the specifics sought to be alleged in the
Amended Information were evidentiary in nature which could be
properly presented during the trial on the merits. The
Sandiganbayan also stated that it was possible to establish the
fact of overpricing if it would be proven that the contract price was
excessive compared to the price for which FABMIK purchased the
street lighting facilities from its supplier. Braza was effectively
discharged from the first Information upon the filing of the second
Information but said discharge was without prejudice to, and would
not preclude, his prosecution for violation of Sec. 3(e) of R.A. No.
3019. It added that his right to speedy disposition of the case was
not violated inasmuch as the length of time spent for the
proceedings was in compliance with the procedural requirements
of due process. The Sandiganbayan, however, deemed it proper
that a new preliminary investigation be conducted under the new
charge. Accordingly, the Sandiganbayan disposed:
WHEREFORE, in the light of all the foregoing, the separate
omnibus motions of accused-movant Radaza and accused-
movants Bernido, Manggis and Ojeda, insofar as the sought
preliminary investigation is concerned isGRANTED.
Accordingly, this case is hereby remanded to the Office of the
Ombudsman/Special Prosecutor for preliminary investigation of
violation of Section 3(e) of RA 3019. The said office/s are hereby
ordered to complete the said preliminary investigation and to
submit to the Court the result of the said investigation within sixty
(60) days from notice.
However, the Motion for Bill of Particulars of accusedmovants
Lala, Dindin Alvizo, Fernandez, Bagolor, Galang and Diano, the
Motion for Quashal of Information of accused-movants Bernido,
Manggis and Ojeda, and accused-movant Braza's Motion to
Quash, are hereby DENIED for lack of merit.
SO ORDERED.21
ISSUES
Undaunted, Braza filed this petition for certiorari ascribing grave
abuse of discretion on the Sandiganbayan for issuing the
Resolutions, dated October 12, 2009 and October 22, 2010,
respectively. Braza raised the following issues:
A) The Sandiganbayan committed grave abuse of
discretion in sustaining the withdrawal of the Information
in violation of the constitutional guarantee against double
jeopardy, the petitioner having entered a valid plea and
vigorously objected to any further conduct of
reinvestigation and amendment of Information.
B) The Sandiganbayan acted with grave abuse of
discretion in allowing the withdrawal and amendment of
the Information without prejudice, the proceedings being
fraught with flip-flopping, prolonged and vexatious
determination of probable cause, thereby violating
petitioner's constitutional right to speedy disposition of
his case, warranting his discharge with prejudice
regardless of the nature of his previous arraignment.
C) The Sandiganbayan acted with grave abuse of
discretion in denying the motion to quash Amended
Information, there being no allegation of actual, specified,
or quantifiable injury sustained by the government as
required by law (in cases involving Sec. 3 (e) of RA 3019)
with the Reinvestigation Report itself admitting on record
that the government has not paid a single centavo for the
fully-implemented project.
D) The Sandiganbayan acted with grave abuse of
discretion in sustaining the new indictment under Sec. 3(e)
of R.A. 3019 without threshing out the fatal infirmities that
hounded the previous finding of overpricing – the
 erroneous reliance on spurious import documents and
lack of price canvass to establish prevailing market price –
thereby rendering the new Resolution fatally defective. 22
Essentially, Braza posits that double jeopardy has already set in
on the basis of his "not guilty" plea in the first Information and,
thus, he can no longer be prosecuted under the second
Information. He claims that his arraignment was unconditional
because the conditions in the plea were ineffective for not being
unmistakable and categorical. He theorizes that the waiver of his
constitutional guarantee against double jeopardy was not absolute
as the same was qualified by the phrase "as a result of the
pending incidents." He argues that even granting that his
arraignment was indeed conditional, the same had become simple
and regular when he validated and confirmed his plea of "not
guilty" by means of a written manifestation which removed any
further condition attached to his previous plea.
Braza submits that the prolonged, vexatious and flip-flopping
determination of probable cause violated his right to a speedy
disposition of the case which would justify the dismissal of the
case with prejudice. Further, he assails the sufficiency of the
allegation of facts in the second Information for failure to assert
any actual and quantifiable injury suffered by the government in
relation to the subject transaction. He points out that the admission
in the Reinvestigation Report to the effect that the government had
not paid a single centavo to FABMIK for the fully implemented
project, had rendered as invalid, baseless and frivolous any
indictment or prosecution for violation of Sec. 3(e) of R.A. 3019.
Braza insists that the Supplemental Resolution of the OMB-
Visayas was fatally defective considering that the Ombudsman did
not conduct an independent price canvass of the prevailing market
price of the subject lampposts and merely relied on the spurious
and false BOC documents to support its conclusion of overpricing.
By way of comment,23 the Office of the Special
Prosecutor (OSP) retorts that the withdrawal of the first information
and the subsequent filing of the second information did not place
Braza in double jeopardy or violate his right to speedy disposition
of the case. The OSP reasons that Braza waived his right to
invoke double jeopardy when he agreed to be conditionally
arraigned. It further argues that even granting that the arraignment
was unconditional, still double jeopardy would not lie because the
charge of violation of Section 3(e) of R.A. 3019 in the second
information is a different offense with different elements from that
of the charge of violation of Sec. 3(g) in the first Information. The
OSP posits that his right to a speedy disposition of the case was
not violated as the delay in the proceedings cannot be considered
as oppressive, vexatious or capricious. According to the OSP,
such delay was precipitated by the many pleadings filed by the
accused, including Braza, and was in fact incurred to give all the
accused the opportunities to dispute the accusation against them
in the interest of fairness and due process.
The OSP also submits that proof of the actual injury suffered by
the government and that of overpricing, are superfluous and
immaterial for the determination of probable cause because the
alleged mode for committing the offense charged in the second
Information was by giving any private party unwarranted benefit,
advantage or preference. The second Information sufficiently
alleges all the elements of the offense for which the accused were
indicted.
The Court’s Ruling
Simply put, the pivotal issue in this case is whether the
Sandiganbayan acted with grave abuse of discretion in denying
Braza's plea for the dismissal of Case No. SB-08-CRM-0275 and
his subsequent motion to quash the second Information,
particularly on the grounds of double jeopardy, violation of his right
to a speedy disposition of the case, and failure of the Information
to state every single fact to constitute all the elements of the
offense charged.
The petition is devoid of merit.
It is Braza’s stance that his constitutional right under the double
jeopardy clause bars further proceedings in Case No. SB-08-CRM-
0275. He asserts that his arraignment under the first information
was simple and unconditional and, thus, an arraignment under the
second information would put him in double jeopardy.
The Court is not persuaded. His argument cannot stand scrutiny.
The June 6, 2008 Order24 of the Sandiganbayan reads:
This morning, accused Isabelo A. Braza was summoned to
arraignment as a precondition in authorizing his travel. The
arraignment of the accused was conditional in the sense that if
the present Information will be amended as a result of the
pending incidents herein, he cannot invoke his right against
double jeopardy and he shall submit himself to arraignment
anew under such Amended Information. On the other hand, his
conditional arraignment shall not prejudice his right to question
such Amended Information, if one shall be filed. These conditions
were thoroughly explained to the accused and his counsel. After
consultation with his counsel, the accused willingly submitted
himself to such conditional arraignment.
Thereafter, the accused, with the assistance of counsel, was
arraigned by reading the Information to him in English, a language
understood by him. Thereafter, he pleaded Not Guilty to the
charge against him. [Emphases supplied]
While it is true that the practice of the Sandiganbayan of
conducting "provisional" or "conditional" arraignment of the
accused is not specifically sanctioned by the Revised Internal
Rules of the Procedure of the Sandiganbayan or by the regular
Rules of Procedure, this Court had tangentially recognized such
practice in People v. Espinosa,25provided that the alleged
conditions attached to the arraignment should be "unmistakable,
express, informed and enlightened." The Court further required
that the conditions must be expressly stated in the order disposing
of arraignment, otherwise, it should be deemed simple and
unconditional.26
A careful perusal of the record in the case at bench would reveal
that the arraignment of Braza under the first information was
conditional in nature as it was a mere accommodation in his favor
to enable him to travel abroad without the Sandiganbayan losing
its ability to conduct trial in absentia in case he would abscond.
The Sandiganbayan's June 6, 2008 Order clearly and
unequivocally states that the conditions for Braza's arraignment as
well as his travel abroad, that is, that if the Information would be
amended, he shall waive his constitutional right to be protected
against double jeopardy and shall allow himself to be arraigned on
the amended information without losing his right to question the
same. It appeared that these conditions were duly explained to
Braza and his lawyer by the anti-graft court. He was afforded time
to confer and consult his lawyer. Thereafter, he voluntarily
submitted himself to such conditional arraignment and entered a
plea of "not guilty" to the offense of violation of Sec. 3(g) of R.A.
No. 3019.
Verily, the relinquishment of his right to invoke double jeopardy
had been convincingly laid out. Such waiver was clear, categorical
and intelligent. It may not be amiss to state that on the day of said
arraignment, one of the incidents pending for the consideration of
the Sandiganbayan was an omnibus motion for determination of
probable cause and for quashal of information or for
reinvestigation filed by accused Radaza. Accordingly, there was a
real possibility that the first information would be amended if said
motion was granted. Although the omnibus motion was initially
denied, it was subsequently granted upon motion for
reconsideration, and a reinvestigation was ordered to be
conducted in the criminal case.
Having given his conformity and accepted the conditional
arraignment and its legal consequences, Braza is now estopped
from assailing its conditional nature just to conveniently avoid
being arraigned and prosecuted of the new charge under the
second information. Besides, in consonance with the ruling
in Cabo v. Sandiganbayan,27this Court cannot now allow Braza to
renege and turn his back on the above conditions on the mere
pretext that he affirmed his conditional arraignment through a
pleading denominated as Manifestation filed before the
Sandiganbayan on November 13, 2008. After all, there is no
showing that the anti-graft court had acted on, much less noted,
his written manifestation.
Assuming, in gratia argumenti, that there was a valid and
unconditional plea, Braza cannot plausibly rely on the principle of
double jeopardy to avoid arraignment under the second
information because the offense charged therein is different and
not included in the offense charged under the first information. The
right against double jeopardy is enshrined in Section 21 of Article
III of the Constitution, which reads:
No person shall be twice put in jeopardy of punishment for the
same offense. If an act is punished by a law and an ordinance
conviction or acquittal under either shall constitute a bar to another
prosecution for the same act.
This constitutionally mandated right is procedurally buttressed by
Section 17 of Rule 11728 of the Revised Rules of Criminal
Procedure. To substantiate a claim for double jeopardy, the
accused has the burden of demonstrating the following requisites:
(1) a first jeopardy must have attached prior to the second; (2) the
first jeopardy must have been validly terminated; and (3) the
second jeopardy must be for the same offense as in the first. 29 As
to the first requisite, the first jeopardy attaches only (a) after a valid
indictment; (b) before a competent court; (c) after arraignment, (d)
when a valid plea has been entered; and (e) when the accused
was acquitted or convicted, or the case was dismissed or
otherwise terminated without his express consent. 30 The test for
the third element is whether one offense is identical with the other
or is an attempt to commit it or a frustration thereof; or whether the
second offense includes or is necessarily included in the offense
charged in the first information.
Braza, however, contends that double jeopardy would still attach
even if the first information charged an offense different from that
charged in the second information since both charges arose from
the same transaction or set of facts. Relying on the antiquated
ruling of People v. Del Carmen,31 Braza claims that an accused
should be shielded against being prosecuted for several offenses
made out from a single act.
It appears that Braza has obviously lost sight, if he is not
altogether aware, of the ruling in Suero v. People32 where it was
held that the same criminal act may give rise to two or more
separate and distinct offenses; and that no double jeopardy
attaches as long as there is variance between the elements of the
two offenses charged. The doctrine of double jeopardy is a revered
constitutional safeguard against exposing the accused from the
risk of being prosecuted twice for the same offense, and not a
different one.
There is simply no double jeopardy when the subsequent
information charges another and different offense, although arising
from the same act or set of acts.33 Prosecution for the same act is
not prohibited. What is forbidden is the prosecution for the same
offense.
In the case at bench, there is no dispute that the two charges
stemmed from the same transaction. A comparison of the
elements of violation of Sec. 3(g) of R.A. No. 3019 and those of
violation of Sec. 3(e) of the same law, however, will disclose that
there is neither identity nor exclusive inclusion between the two
offenses. For conviction of violation of Sec. 3(g), the prosecution
must establish the following elements:
1. The offender is a public officer;
2. He entered into a contract or transaction in behalf of
the government; and
3. The contract or transaction is manifestly and grossly
disadvantageous to the government.34
On the other hand, an accused may be held criminally liable of
violation of Section 3(e) of R.A. No. 3019, provided that the
following elements are present:
1. The accused must be a public officer discharging
administrative, judicial or official functions;
2. The accused must have acted with manifest partiality,
evident bad faith or gross inexcusable negligence; and
3. His action caused undue injury to any party, including
the government or gave any private party unwarranted
benefits, advantage or preference in the discharge of his
functions.35
Although violation of Sec. 3(g) of R.A. No. 3019 and violation of
Sec. 3(e) of the same law share a common element, the accused
being a public officer, the latter is not inclusive of the former. The
essential elements of each are not included among or do not form
part of those enumerated in the other. For double jeopardy to exist,
the elements of one offense should ideally encompass or include
those of the other. What the rule on double jeopardy prohibits
refers to identity of elements in the two offenses. 36
Next, Braza contends that the long delay that characterized the
proceedings for the determination of probable cause has resulted
in the transgression of his constitutional right to a speedy
disposition of the case. According to him, the proceedings have
unquestionably been marred with vexatious, capricious and
oppressive delay meriting the dismissal of Case No. SB-08-CRM-
0275. Braza claims that it took the OMB more than two (2) years to
charge him and his co-accused with violation of Section 3(e) in the
second information.
The petitioner's contention is untenable.
Section 16, Article III of the Constitution declares in no uncertain
terms that "[A]ll persons shall have the right to a speedy
disposition of their cases before all judicial, quasi-judicial, or
administrative bodies." The right to a speedy disposition of a case
is deemed violated only when the proceedings are attended by
vexatious, capricious, and oppressive delays, or when unjustified
postponements of the trial are asked for and secured, or when
without cause or justifiable motive, a long period of time is allowed
to elapse without the party having his case tried. 37 The
constitutional guarantee to a speedy disposition of cases is a
relative or flexible concept.38 It is consistent with delays and
depends upon the circumstances. What the Constitution prohibits
are unreasonable, arbitrary and oppressive delays which render
rights nugatory.39
In Dela Peña v. Sandiganbayan,40 the Court laid down certain
guidelines to determine whether the right to a speedy disposition
has been violated, as follows:
The concept of speedy disposition is relative or flexible. A mere
mathematical reckoning of the time involved is not sufficient.
Particular regard must be taken of the facts and circumstances
peculiar to each case. Hence, the doctrinal rule is that in the
determination of whether that right has been violated, the factors
that may be considered and balanced are as follows: (1) the length
of the delay; (2) the reasons for the delay; (3) the assertion or
failure to assert such right by the accused; and (4) the prejudice
caused by the delay.
Using the foregoing yardstick, the Court finds that Braza’s right to
speedy disposition of the case has not been infringed.
Record shows that the complaint against Braza and twenty-three
(23) other respondents was filed in January 2007 before the
PACPO-Visayas. After the extensive inquiries and data-gathering,
the PACPO-Visayas came out with an evaluation report on March
23, 2007 concluding that the installed lampposts and lighting
facilities were highly overpriced.41 PACPO-Visayas recommended
that the respondents be charged with violation of Section 3(e) of
R.A. No. 3019. Thereafter, the investigatory process was set in
motion before the OMB-Visayas where the respondents filed their
respective counter-affidavits and submitted voluminous
documentary evidence to refute the allegations against them.
Owing to the fact that the controversy involved several
transactions and varying modes of participation by the 24
respondents and that their respective responsibilities had to be
established, the OMB-Visayas resolved the complaint only on
January 24, 2008 with the recommendation that the respondents
be indicted for violation of Section 3(g) of R.A. 3019. The Court
notes that Braza never decried the time spent for the preliminary
investigation. There was no showing either that there were
unreasonable delays in the proceedings or that the case was kept
in idle slumber.
After the filing of the information, the succeeding events appeared
to be part of a valid and regular course of the judicial proceedings
not attended by capricious, oppressive and vexatious delays. On
November 3, 2008, Sandiganbayan ordered the reinvestigation of
the case upon motion of accused Radaza, petitioner Braza and
other accused DPWH officials. In the course of the reinvestigation,
the OMB-Visayas furnished the respondents with the additional
documents/papers it secured, especially the Commission on Audit
Report, for their verification, comment and submission of
countervailing evidence.42 Thereafter, the OMB-Visayas issued its
Supplemental Resolution, dated May 4, 2009, finding probable
cause against the accused for violation of Section 3(e) of R.A.
3019.
Indeed, the delay can hardly be considered as "vexatious,
capricious and oppressive." The complexity of the factual and legal
issues, the number of persons charged, the various pleadings
filed, and the volume of documents submitted, prevent this Court
from yielding to the petitioner’s claim of violation of his right to a
speedy disposition of his case. Rather, it appears that Braza and
the other accused were merely afforded sufficient opportunities to
ventilate their respective defenses in the interest of justice, due
process and fair investigation. The re-investigation may have
inadvertently contributed to the further delay of the proceedings
but this process cannot be dispensed with because it was done for
the protection of the rights of the accused. Albeit the conduct of
investigation may hold back the progress of the case, the same
was essential so that the rights of the accused will not be
compromised or sacrificed at the altar of expediency. 43 The bare
allegation that it took the OMB more than two (2) years to
terminate the investigation and file the necessary information
would not suffice.44 As earlier stated, mere mathematical reckoning
of the time spent for the investigation is not a sufficient basis to
conclude that there was arbitrary and inordinate delay.
The delay in the determination of probable cause in this case
should not be cause for an unfettered abdication by the anti-graft
court of its duty to try and determine the controversy in Case No.
SB-08-CRM-0275. The protection under the right to a speedy
disposition of cases should not operate to deprive the government
of its inherent prerogative in prosecuting criminal cases.
Finally, Braza challenges the sufficiency of the allegations in the
second information because there is no indication of any actual
and quantifiable injury suffered by the government. He then argues
that the facts under the second information are inadequate to
support a valid indictment for violation of Section 3(e) of R.A. No.
3019.
The petitioner's simple syllogism must fail.
Section 3 (e) of R.A. No. 3019 states:
Sec. 3. Corrupt practices of public officers – In addition to acts or
omission 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:
(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.
In a catena of cases, this Court has held that there are two (2)
ways by which a public official violates Section 3(e) of R.A. No.
3019 in the performance of his functions, namely: (1) by causing
undue injury to any party, including the Government; or (2) by
giving any private party any unwarranted benefit, advantage or
preference.45 The accused may be charged under either mode or
under both.1âwphi1 The disjunctive term "or" connotes that either
act qualifies as a violation of Section 3(e) of R.A. No. 3019. 46 In
other words, the presence of one would suffice for conviction.
It must be emphasized that Braza was indicted for violation of
Section 3(e) of R.A. No. 3019 under the second mode. "To be
found guilty under the second mode, it suffices that the accused
has given unjustified favor or benefit to another, in the exercise of
his official, administrative and judicial functions." 47 The element of
damage is not required for violation of Section 3(e) under the
second mode.48
In the case at bench, the second information alleged, in substance,
that accused public officers and employees, discharging official or
administrative function, together with Braza, confederated and
conspired to give F ABMIK unwarranted benefit or preference by
awarding to it Contract I.D. No. 06H00050 through manifest
partiality or evident bad faith, without the conduct of a public
bidding and compliance with the requirement for qualification
contrary to the provisions of R.A. No. 9184 or the Government
Procurement Reform Act. Settled is the rule that private persons,
when acting in conspiracy with public officers, may be indicted
and, if found guilty, held liable for the pertinent offenses under
Section 3 of R.A. No. 3 019.49 Considering that all the elements of
the offense of violation of Sec. 3(e) were alleged in the second
information, the Court finds the same to be sufficient in form and
substance to sustain a conviction.
At any rate, the presence or absence of the elements of the crime
is evidentiary in nature and is a matter of defense that may be
passed upon after a full-blown trial on the merits.50 It is not proper,
therefore, to resolve the issue right at the outset without the benefit
of a full-blown trial. This issue requires a fuller ventilation and
examination.
All told, this Court finds that the Sandiganbayan did not commit
grave abuse of discretion amounting to lack or excess of
jurisdiction, much less did it gravely err, in denying Braza's motion
to quash the information/dismiss Case No. SB-08-CRM-0275. This
ruling, however, is without prejudice to the actual merits of this
criminal case as may be shown during the trial before the court a
quo.
WHEREFORE, the petition for certiorari is DENIED. The
Sandiganbayan is hereby DIRECTED to dispose of Case No. SB-
08-CRM- 0275 with reasonable dispatch.
SO ORDERED.
G.R. No. L-14639 March 25, 1919
ZACARIAS VILLAVICENCIO, ET AL., petitioners, vs. JUSTO
LUKBAN, ET AL., respondents.
MALCOLM, J.:
The annals of juridical history fail to reveal a case quite as
remarkable as the one which this application for habeas
corpus submits for decision. While hardly to be expected to be met
with in this modern epoch of triumphant democracy, yet, after all,
the cause presents no great difficulty if there is kept in the forefront
of our minds the basic principles of popular government, and if we
give expression to the paramount purpose for which the courts, as
an independent power of such a government, were constituted.
The primary question is — Shall the judiciary permit a government
of the men instead of a government of laws to be set up in the
Philippine Islands?
Omitting much extraneous matter, of no moment to these
proceedings, but which might prove profitable reading for other
departments of the government, the facts are these: The Mayor of
the city of Manila, Justo Lukban, for the best of all reasons, to
exterminate vice, ordered the segregated district for women of ill
repute, which had been permitted for a number of years in the city
of Manila, closed. Between October 16 and October 25, 1918, the
women were kept confined to their houses in the district by the
police. Presumably, during this period, the city authorities quietly
perfected arrangements with the Bureau of Labor for sending the
women to Davao, Mindanao, as laborers; with some government
office for the use of the coastguard cutters Corregidor and Negros,
and with the Constabulary for a guard of soldiers. At any rate,
about midnight of October 25, the police, acting pursuant to orders
from the chief of police, Anton Hohmann and the Mayor of the city
of Manila, Justo Lukban, descended upon the houses, hustled
some 170 inmates into patrol wagons, and placed them aboard the
steamers that awaited their arrival. The women were given no
opportunity to collect their belongings, and apparently were under
the impression that they were being taken to a police station for an
investigation. They had no knowledge that they were destined for a
life in Mindanao. They had not been asked if they wished to depart
from that region and had neither directly nor indirectly given their
consent to the deportation. The involuntary guests were received
on board the steamers by a representative of the Bureau of Labor
and a detachment of Constabulary soldiers. The two steamers with
their unwilling passengers sailed for Davao during the night of
October 25.
The vessels reached their destination at Davao on October 29.
The women were landed and receipted for as laborers by
Francisco Sales, provincial governor of Davao, and by Feliciano
Yñigo and Rafael Castillo. The governor and the hacendero Yñigo,
who appear as parties in the case, had no previous notification that
the women were prostitutes who had been expelled from the city of
Manila. The further happenings to these women and the serious
charges growing out of alleged ill-treatment are of public interest,
but are not essential to the disposition of this case. Suffice it to
say, generally, that some of the women married, others assumed
more or less clandestine relations with men, others went to work in
different capacities, others assumed a life unknown and
disappeared, and a goodly portion found means to return to
Manila.
To turn back in our narrative, just about the time
the Corregidor and the Negros were putting in to Davao, the
attorney for the relatives and friends of a considerable number of
the deportees presented an application forhabeas corpus to a
member of the Supreme Court. Subsequently, the application,
through stipulation of the parties, was made to include all of the
women who were sent away from Manila to Davao and, as the
same questions concerned them all, the application will be
considered as including them. The application set forth the salient
facts, which need not be repeated, and alleged that the women
were illegally restrained of their liberty by Justo Lukban, Mayor of
the city of Manila, Anton Hohmann, chief of police of the city of
Manila, and by certain unknown parties. The writ was made
returnable before the full court. The city fiscal appeared for the
respondents, Lukban and Hohmann, admitted certain facts relative
to sequestration and deportation, and prayed that the writ should
not be granted because the petitioners were not proper parties,
because the action should have been begun in the Court of First
Instance for Davao, Department of Mindanao and Sulu, because
the respondents did not have any of the women under their
custody or control, and because their jurisdiction did not extend
beyond the boundaries of the city of Manila. According to an
exhibit attached to the answer of the fiscal, the 170 women were
destined to be laborers, at good salaries, on the haciendas of
Yñigo and Governor Sales. In open court, the fiscal admitted, in
answer to question of a member of the court, that these women
had been sent out of Manila without their consent. The court
awarded the writ, in an order of November 4, that directed Justo
Lukban, Mayor of the city of Manila, Anton Hohmann, chief of
police of the city of Manila, Francisco Sales, governor of the
province of Davao, and Feliciano Yñigo, an hacendero of Davao,
to bring before the court the persons therein named, alleged to be
deprived of their liberty, on December 2, 1918.
Before the date mentioned, seven of the women had returned to
Manila at their own expense. On motion of counsel for petitioners,
their testimony was taken before the clerk of the Supreme Court
sitting as commissioners. On the day named in the order,
December 2nd, 1918, none of the persons in whose behalf the writ
was issued were produced in court by the respondents. It has
been shown that three of those who had been able to come back
to Manila through their own efforts, were notified by the police and
the secret service to appear before the court. The fiscal appeared,
repeated the facts more comprehensively, reiterated the stand
taken by him when pleading to the original petition copied a
telegram from the Mayor of the city of Manila to the provincial
governor of Davao and the answer thereto, and telegrams that had
passed between the Director of Labor and the attorney for that
Bureau then in Davao, and offered certain affidavits showing that
the women were contained with their life in Mindanao and did not
wish to return to Manila. Respondents Sales answered alleging
that it was not possible to fulfill the order of the Supreme Court
because the women had never been under his control, because
they were at liberty in the Province of Davao, and because they
had married or signed contracts as laborers. Respondent Yñigo
answered alleging that he did not have any of the women under
his control and that therefore it was impossible for him to obey the
mandate. The court, after due deliberation, on December 10, 1918,
promulgated a second order, which related that the respondents
had not complied with the original order to the satisfaction of the
court nor explained their failure to do so, and therefore directed
that those of the women not in Manila be brought before the court
by respondents Lukban, Hohmann, Sales, and Yñigo on January
13, 1919, unless the women should, in written statements
voluntarily made before the judge of first instance of Davao or the
clerk of that court, renounce the right, or unless the respondents
should demonstrate some other legal motives that made
compliance impossible. It was further stated that the question of
whether the respondents were in contempt of court would later be
decided and the reasons for the order announced in the final
decision.
Before January 13, 1919, further testimony including that of a
number of the women, of certain detectives and policemen, and of
the provincial governor of Davao, was taken before the clerk of the
Supreme Court sitting as commissioner and the clerk of the Court
of First Instance of Davao acting in the same capacity. On January
13, 1919, the respondents technically presented before the Court
the women who had returned to the city through their own efforts
and eight others who had been brought to Manila by the
respondents. Attorneys for the respondents, by their returns, once
again recounted the facts and further endeavored to account for all
of the persons involved in the habeas corpus. In substance, it was
stated that the respondents, through their representatives and
agents, had succeeded in bringing from Davao with their consent
eight women; that eighty-one women were found in Davao who, on
notice that if they desired they could return to Manila,
transportation fee, renounced the right through sworn statements;
that fifty-nine had already returned to Manila by other means, and
that despite all efforts to find them twenty-six could not be located.
Both counsel for petitioners and the city fiscal were permitted to
submit memoranda. The first formally asked the court to find Justo
Lukban, Mayor of the city of Manila, Anton Hohmann, chief of
police of the city of Manila, Jose Rodriguez and Fernando Ordax,
members of the police force of the city of Manila, Feliciano Yñigo,
an hacendero of Davao, Modesto Joaquin, the attorney for the
Bureau of Labor, and Anacleto Diaz, fiscal of the city of Manila, in
contempt of court. The city fiscal requested that the replica al
memorandum de los recurridos, (reply to respondents'
memorandum) dated January 25, 1919, be struck from the record.
In the second order, the court promised to give the reasons for
granting the writ of habeas corpus in the final decision. We will
now proceed to do so.
One fact, and one fact only, need be recalled — these one
hundred and seventy women were isolated from society, and then
at night, without their consent and without any opportunity to
consult with friends or to defend their rights, were forcibly hustled
on board steamers for transportation to regions unknown. Despite
the feeble attempt to prove that the women left voluntarily and
gladly, that such was not the case is shown by the mere fact that
the presence of the police and the constabulary was deemed
necessary and that these officers of the law chose the shades of
night to cloak their secret and stealthy acts. Indeed, this is a fact
impossible to refute and practically admitted by the respondents.
With this situation, a court would next expect to resolve the
question — By authority of what law did the Mayor and the Chief of
Police presume to act in deporting by duress these persons from
Manila to another distant locality within the Philippine Islands? We
turn to the statutes and we find —
Alien prostitutes can be expelled from the Philippine Islands in
conformity with an Act of congress. The Governor-General can
order the eviction of undesirable aliens after a hearing from the
Islands. Act No. 519 of the Philippine Commission and section 733
of the Revised Ordinances of the city of Manila provide for the
conviction and punishment by a court of justice of any person who
is a common prostitute. Act No. 899 authorizes the return of any
citizen of the United States, who may have been convicted of
vagrancy, to the homeland. New York and other States have
statutes providing for the commitment to the House of Refuge of
women convicted of being common prostitutes. Always a law!
Even when the health authorities compel vaccination, or establish
a quarantine, or place a leprous person in the Culion leper colony,
it is done pursuant to some law or order. But one can search in
vain for any law, order, or regulation, which even hints at the right
of the Mayor of the city of Manila or the chief of police of that city to
force citizens of the Philippine Islands — and these women despite
their being in a sense lepers of society are nevertheless not
chattels but Philippine citizens protected by the same constitutional
guaranties as are other citizens — to change their domicile from
Manila to another locality. On the contrary, Philippine penal law
specifically punishes any public officer who, not being expressly
authorized by law or regulation, compels any person to change his
residence.
In other countries, as in Spain and Japan, the privilege of domicile
is deemed so important as to be found in the Bill of Rights of the
Constitution. Under the American constitutional system, liberty of
abode is a principle so deeply imbedded in jurisprudence and
considered so elementary in nature as not even to require a
constitutional sanction. Even the Governor-General of the
Philippine Islands, even the President of the United States, who
has often been said to exercise more power than any king or
potentate, has no such arbitrary prerogative, either inherent or
express. Much less, therefore, has the executive of a municipality,
who acts within a sphere of delegated powers. If the mayor and
the chief of police could, at their mere behest or even for the most
praiseworthy of motives, render the liberty of the citizen so
insecure, then the presidents and chiefs of police of one thousand
other municipalities of the Philippines have the same privilege. If
these officials can take to themselves such power, then any other
official can do the same. And if any official can exercise the power,
then all persons would have just as much right to do so. And if a
prostitute could be sent against her wishes and under no law from
one locality to another within the country, then officialdom can hold
the same club over the head of any citizen.
Law defines power. Centuries ago Magna Charta decreed that —
"No freeman shall be taken, or imprisoned, or be disseized of his
freehold, or liberties, or free customs, or be outlawed, or exiled, or
any other wise destroyed; nor will we pass upon him nor condemn
him, but by lawful judgment of his peers or by the law of the land.
We will sell to no man, we will not deny or defer to any man either
justice or right." (Magna Charta, 9 Hen., 111, 1225, Cap. 29; 1
eng. stat. at Large, 7.) No official, no matter how high, is above the
law. The courts are the forum which functionate to safeguard
individual liberty and to punish official transgressors. "The law,"
said Justice Miller, delivering the opinion of the Supreme Court of
the United States, "is the only supreme power in our system of
government, and every man who by accepting office participates in
its functions is only the more strongly bound to submit to that
supremacy, and to observe the limitations which it imposes upon
the exercise of the authority which it gives." (U.S. vs. Lee [1882],
106 U.S., 196, 220.) "The very idea," said Justice Matthews of the
same high tribunal in another case, "that one man may be
compelled to hold his life, or the means of living, or any material
right essential to the enjoyment of life, at the mere will of another,
seems to be intolerable in any country where freedom prevails, as
being the essence of slavery itself." (Yick Wo vs. Hopkins [1886],
118 U.S., 356, 370.) All this explains the motive in issuing the writ
of habeas corpus, and makes clear why we said in the very
beginning that the primary question was whether the courts should
permit a government of men or a government of laws to be
established in the Philippine Islands.
What are the remedies of the unhappy victims of official
oppression? The remedies of the citizen are three: (1) Civil action;
(2) criminal action, and (3) habeas corpus.
The first is an optional but rather slow process by which the
aggrieved party may recoup money damages. It may still rest with
the parties in interest to pursue such an action, but it was never
intended effectively and promptly to meet any such situation as
that now before us.
As to criminal responsibility, it is true that the Penal Code in force
in these Islands provides:
Any public officer not thereunto authorized by law or by
regulations of a general character in force in the Philippines
who shall banish any person to a place more than two hundred
kilometers distant from his domicile, except it be by virtue of
the judgment of a court, shall be punished by a fine of not less
than three hundred and twenty-five and not more than three
thousand two hundred and fifty pesetas.
Any public officer not thereunto expressly authorized by law or
by regulation of a general character in force in the Philippines
who shall compel any person to change his domicile or
residence shall suffer the penalty of destierro and a fine of not
less than six hundred and twenty-five and not more than six
thousand two hundred and fifty pesetas. (Art. 211.)
We entertain no doubt but that, if, after due investigation, the
proper prosecuting officers find that any public officer has violated
this provision of law, these prosecutors will institute and press a
criminal prosecution just as vigorously as they have defended the
same official in this action. Nevertheless, that the act may be a
crime and that the persons guilty thereof can be proceeded
against, is no bar to the instant proceedings. To quote the words of
Judge Cooley in a case which will later be referred to — "It would
be a monstrous anomaly in the law if to an application by one
unlawfully confined, ta be restored to his liberty, it could be a
sufficient answer that the confinement was a crime, and therefore
might be continued indefinitely until the guilty party was tried and
punished therefor by the slow process of criminal procedure." (In
the matter of Jackson [1867], 15 Mich., 416, 434.) The writ
of habeas corpus was devised and exists as a speedy and
effectual remedy to relieve persons from unlawful restraint, and as
the best and only sufficient defense of personal freedom. Any
further rights of the parties are left untouched by decision on the
writ, whose principal purpose is to set the individual at liberty.
Granted that habeas corpus is the proper remedy, respondents
have raised three specific objections to its issuance in this
instance. The fiscal has argued (l) that there is a defect in parties
petitioners, (2) that the Supreme Court should not a assume
jurisdiction, and (3) that the person in question are not restrained
of their liberty by respondents. It was finally suggested that the
jurisdiction of the Mayor and the chief of police of the city of Manila
only extends to the city limits and that perforce they could not bring
the women from Davao.
The first defense was not presented with any vigor by counsel. The
petitioners were relatives and friends of the deportees. The way
the expulsion was conducted by the city officials made it
impossible for the women to sign a petition for habeas corpus. It
was consequently proper for the writ to be submitted by persons in
their behalf. (Code of Criminal Procedure, sec. 78; Code of Civil
Procedure, sec. 527.) The law, in its zealous regard for personal
liberty, even makes it the duty of a court or judge to grant a writ
of habeas corpus if there is evidence that within the court's
jurisdiction a person is unjustly imprisoned or restrained of his
liberty, though no application be made therefor. (Code of Criminal
Procedure, sec. 93.) Petitioners had standing in court.
The fiscal next contended that the writ should have been asked for
in the Court of First Instance of Davao or should have been made
returnable before that court. It is a general rule of good practice
that, to avoid unnecessary expense and inconvenience, petitions
for habeas corpus should be presented to the nearest judge of the
court of first instance. But this is not a hard and fast rule. The writ
of habeas corpus may be granted by the Supreme Court or any
judge thereof enforcible anywhere in the Philippine Islands. (Code
of Criminal Procedure, sec. 79; Code of Civil Procedure, sec. 526.)
Whether the writ shall be made returnable before the Supreme
Court or before an inferior court rests in the discretion of the
Supreme Court and is dependent on the particular circumstances.
In this instance it was not shown that the Court of First Instance of
Davao was in session, or that the women had any means by which
to advance their plea before that court. On the other hand, it was
shown that the petitioners with their attorneys, and the two original
respondents with their attorney, were in Manila; it was shown that
the case involved parties situated in different parts of the Islands; it
was shown that the women might still be imprisoned or restrained
of their liberty; and it was shown that if the writ was to accomplish
its purpose, it must be taken cognizance of and decided
immediately by the appellate court. The failure of the superior court
to consider the application and then to grant the writ would have
amounted to a denial of the benefits of the writ.
The last argument of the fiscal is more plausible and more difficult
to meet. When the writ was prayed for, says counsel, the parties in
whose behalf it was asked were under no restraint; the women, it
is claimed, were free in Davao, and the jurisdiction of the mayor
and the chief of police did not extend beyond the city limits. At first
blush, this is a tenable position. On closer examination,
acceptance of such dictum is found to be perversive of the first
principles of the writ of habeas corpus.
A prime specification of an application for a writ of habeas
corpus is restraint of liberty. The essential object and purpose of
the writ of habeas corpus is to inquire into all manner of involuntary
restraint as distinguished from voluntary, and to relieve a person
therefrom if such restraint is illegal. Any restraint which will
preclude freedom of action is sufficient. The forcible taking of these
women from Manila by officials of that city, who handed them over
to other parties, who deposited them in a distant region, deprived
these women of freedom of locomotion just as effectively as if they
had been imprisoned. Placed in Davao without either money or
personal belongings, they were prevented from exercising the
liberty of going when and where they pleased. The restraint of
liberty which began in Manila continued until the aggrieved parties
were returned to Manila and released or until they freely and truly
waived his right.
Consider for a moment what an agreement with such a defense
would mean. The chief executive of any municipality in the
Philippines could forcibly and illegally take a private citizen and
place him beyond the boundaries of the municipality, and then,
when called upon to defend his official action, could calmly fold his
hands and claim that the person was under no restraint and that
he, the official, had no jurisdiction over this other municipality. We
believe the true principle should be that, if the respondent is within
the jurisdiction of the court and has it in his power to obey the
order of the court and thus to undo the wrong that he has inflicted,
he should be compelled to do so. Even if the party to whom the
writ is addressed has illegally parted with the custody of a person
before the application for the writ is no reason why the writ should
not issue. If the mayor and the chief of police, acting under no
authority of law, could deport these women from the city of Manila
to Davao, the same officials must necessarily have the same
means to return them from Davao to Manila. The respondents,
within the reach of process, may not be permitted to restrain a
fellow citizen of her liberty by forcing her to change her domicile
and to avow the act with impunity in the courts, while the person
who has lost her birthright of liberty has no effective recourse. The
great writ of liberty may not thus be easily evaded.
It must be that some such question has heretofore been presented
to the courts for decision. Nevertheless, strange as it may seem, a
close examination of the authorities fails to reveal any analogous
case. Certain decisions of respectable courts are however very
persuasive in nature.
A question came before the Supreme Court of the State of
Michigan at an early date as to whether or not a writ ofhabeas
corpus would issue from the Supreme Court to a person within the
jurisdiction of the State to bring into the State a minor child under
guardianship in the State, who has been and continues to be
detained in another State. The membership of the Michigan
Supreme Court at this time was notable. It was composed of
Martin, chief justice, and Cooley, Campbell, and Christiancy,
justices. On the question presented the court was equally divided.
Campbell, J., with whom concurred Martin, C. J., held that the writ
should be quashed. Cooley, J., one of the most distinguished
American judges and law-writers, with whom concurred
Christiancy, J., held that the writ should issue. Since the opinion of
Justice Campbell was predicated to a large extent on his
conception of the English decisions, and since, as will hereafter
appear, the English courts have taken a contrary view, only the
following eloquent passages from the opinion of Justice Cooley are
quoted:
I have not yet seen sufficient reason to doubt the power of this
court to issue the present writ on the petition which was laid
before us. . . .
It would be strange indeed if, at this late day, after the
eulogiums of six centuries and a half have been expended
upon the Magna Charta, and rivers of blood shed for its
establishment; after its many confirmations, until Coke could
declare in his speech on the petition of right that "Magna
Charta was such a fellow that he will have no sovereign," and
after the extension of its benefits and securities by the petition
of right, bill of rights and habeas corpus acts, it should now be
discovered that evasion of that great clause for the protection
of personal liberty, which is the life and soul of the whole
instrument, is so easy as is claimed here. If it is so, it is
important that it be determined without delay, that the
legislature may apply the proper remedy, as I can not doubt
they would, on the subject being brought to their notice. . . .
The second proposition — that the statutory provisions are
confined to the case of imprisonment within the state — seems
to me to be based upon a misconception as to the source of
our jurisdiction. It was never the case in England that the court
of king's bench derived its jurisdiction to issue and enforce this
writ from the statute. Statutes were not passed to give the right,
but to compel the observance of rights which existed. . . .
The important fact to be observed in regard to the mode of
procedure upon this writ is, that it is directed to and served
upon, not the person confined, but his jailor. It does not reach
the former except through the latter. The officer or person who
serves it does not unbar the prison doors, and set the prisoner
free, but the court relieves him by compelling the oppressor to
release his constraint. The whole force of the writ is spent upon
the respondent, and if he fails to obey it, the means to be
resorted to for the purposes of compulsion are fine and
imprisonment. This is the ordinary mode of affording relief, and
if any other means are resorted to, they are only auxiliary to
those which are usual. The place of confinement is, therefore,
not important to the relief, if the guilty party is within reach of
process, so that by the power of the court he can be compelled
to release his grasp. The difficulty of affording redress is not
increased by the confinement being beyond the limits of the
state, except as greater distance may affect it. The important
question is, where the power of control exercised? And I am
aware of no other remedy. (In the matter of Jackson [1867], 15
Mich., 416.)
The opinion of Judge Cooley has since been accepted as
authoritative by other courts. (Rivers vs. Mitchell [1881], 57 Iowa,
193; Breene vs. People [1911], Colo., 117 Pac. Rep., 1000; Ex
parte Young [1892], 50 Fed., 526.)
The English courts have given careful consideration to the subject.
Thus, a child had been taken out of English by the respondent. A
writ of habeas corpus was issued by the Queen's Bench Division
upon the application of the mother and her husband directing the
defendant to produce the child. The judge at chambers gave
defendant until a certain date to produce the child, but he did not
do so. His return stated that the child before the issuance of the
writ had been handed over by him to another; that it was no longer
in his custody or control, and that it was impossible for him to obey
the writ. He was found in contempt of court. On appeal, the court,
through Lord Esher, M. R., said:
A writ of habeas corpus was ordered to issue, and was issued
on January 22. That writ commanded the defendant to have
the body of the child before a judge in chambers at the Royal
Courts of Justice immediately after the receipt of the writ,
together with the cause of her being taken and detained. That
is a command to bring the child before the judge and must be
obeyed, unless some lawful reason can be shown to excuse
the nonproduction of the child. If it could be shown that by
reason of his having lawfully parted with the possession of the
child before the issuing of the writ, the defendant had no longer
power to produce the child, that might be an answer; but in the
absence of any lawful reason he is bound to produce the child,
and, if he does not, he is in contempt of the Court for not
obeying the writ without lawful excuse. Many efforts have been
made in argument to shift the question of contempt to some
anterior period for the purpose of showing that what was done
at some time prior to the writ cannot be a contempt. But the
question is not as to what was done before the issue of the
writ. The question is whether there has been a contempt in
disobeying the writ it was issued by not producing the child in
obedience to its commands. (The Queen vs. Bernardo [1889],
23 Q. B. D., 305. See also to the same effect the Irish case
of In re Matthews, 12 Ir. Com. Law Rep. [N. S.], 233; The
Queen vs. Barnardo, Gossage's Case [1890], 24 Q. B. D.,
283.)
A decision coming from the Federal Courts is also of interest.
A habeas corpus was directed to the defendant to have before the
circuit court of the District of Columbia three colored persons, with
the cause of their detention. Davis, in his return to the writ, stated
on oath that he had purchased the negroes as slaves in the city of
Washington; that, as he believed, they were removed beyond the
District of Columbia before the service of the writ of habeas
corpus, and that they were then beyond his control and out of his
custody. The evidence tended to show that Davis had removed the
negroes because he suspected they would apply for a writ
of habeas corpus. The court held the return to be evasive and
insufficient, and that Davis was bound to produce the negroes, and
Davis being present in court, and refusing to produce them,
ordered that he be committed to the custody of the marshall until
he should produce the negroes, or be otherwise discharged in due
course of law. The court afterwards ordered that Davis be released
upon the production of two of the negroes, for one of the negroes
had run away and been lodged in jail in Maryland. Davis produced
the two negroes on the last day of the term. (United
States vs. Davis [1839], 5 Cranch C.C., 622, Fed. Cas. No. 14926.
See also Robb vs. Connolly [1883], 111 U.S., 624; Church on
Habeas, 2nd ed., p. 170.)
We find, therefore, both on reason and authority, that no one of the
defense offered by the respondents constituted a legitimate bar to
the granting of the writ of habeas corpus.
There remains to be considered whether the respondent complied
with the two orders of the Supreme Court awarding the writ
of habeas corpus, and if it be found that they did not, whether the
contempt should be punished or be taken as purged.
The first order, it will be recalled, directed Justo Lukban, Anton
Hohmann, Francisco Sales, and Feliciano Yñigo to present the
persons named in the writ before the court on December 2, 1918.
The order was dated November 4, 1918. The respondents were
thus given ample time, practically one month, to comply with the
writ. As far as the record discloses, the Mayor of the city of Manila
waited until the 21st of November before sending a telegram to the
provincial governor of Davao. According to the response of the
attorney for the Bureau of Labor to the telegram of his chief, there
were then in Davao women who desired to return to Manila, but
who should not be permitted to do so because of having
contracted debts. The half-hearted effort naturally resulted in none
of the parties in question being brought before the court on the day
named.
For the respondents to have fulfilled the court's order, three
optional courses were open: (1) They could have produced the
bodies of the persons according to the command of the writ; or (2)
they could have shown by affidavit that on account of sickness or
infirmity those persons could not safely be brought before the
court; or (3) they could have presented affidavits to show that the
parties in question or their attorney waived the right to be present.
(Code of Criminal Procedure, sec. 87.) They did not produce the
bodies of the persons in whose behalf the writ was granted; they
did not show impossibility of performance; and they did not present
writings that waived the right to be present by those interested.
Instead a few stereotyped affidavits purporting to show that the
women were contended with their life in Davao, some of which
have since been repudiated by the signers, were appended to the
return. That through ordinary diligence a considerable number of
the women, at least sixty, could have been brought back to Manila
is demonstrated to be found in the municipality of Davao, and that
about this number either returned at their own expense or were
produced at the second hearing by the respondents.
The court, at the time the return to its first order was made, would
have been warranted summarily in finding the respondents guilty
of contempt of court, and in sending them to jail until they obeyed
the order. Their excuses for the non-production of the persons
were far from sufficient. The, authorities cited herein pertaining to
somewhat similar facts all tend to indicate with what exactitude
a habeas corpus writ must be fulfilled. For example, in Gossage's
case, supra, the Magistrate in referring to an earlier decision of the
Court, said: "We thought that, having brought about that state of
things by his own illegal act, he must take the consequences; and
we said that he was bound to use every effort to get the child back;
that he must do much more than write letters for the purpose; that
he must advertise in America, and even if necessary himself go
after the child, and do everything that mortal man could do in the
matter; and that the court would only accept clear proof of an
absolute impossibility by way of excuse." In other words, the return
did not show that every possible effort to produce the women was
made by the respondents. That the court forebore at this time to
take drastic action was because it did not wish to see presented to
the public gaze the spectacle of a clash between executive officials
and the judiciary, and because it desired to give the respondents
another chance to demonstrate their good faith and to mitigate
their wrong.
In response to the second order of the court, the respondents
appear to have become more zealous and to have shown a better
spirit. Agents were dispatched to Mindanao, placards were posted,
the constabulary and the municipal police joined in rounding up the
women, and a steamer with free transportation to Manila was
provided. While charges and counter-charges in such a bitterly
contested case are to be expected, and while a critical reading of
the record might reveal a failure of literal fulfillment with our
mandate, we come to conclude that there is a substantial
compliance with it. Our finding to this effect may be influenced
somewhat by our sincere desire to see this unhappy incident finally
closed. If any wrong is now being perpetrated in Davao, it should
receive an executive investigation. If any particular individual is still
restrained of her liberty, it can be made the object of
separatehabeas corpus proceedings.
Since the writ has already been granted, and since we find a
substantial compliance with it, nothing further in this connection
remains to be done.
The attorney for the petitioners asks that we find in contempt of
court Justo Lukban, Mayor of the city of Manila, Anton Hohmann,
chief of police of the city of Manila, Jose Rodriguez, and Fernando
Ordax, members of the police force of the city of Manila, Modesto
Joaquin, the attorney for the Bureau of Labor, Feliciano Yñigo,
an hacenderoof Davao, and Anacleto Diaz, Fiscal of the city of
Manila.
The power to punish for contempt of court should be exercised on
the preservative and not on the vindictive principle. Only
occasionally should the court invoke its inherent power in order to
retain that respect without which the administration of justice must
falter or fail. Nevertheless when one is commanded to produce a
certain person and does not do so, and does not offer a valid
excuse, a court must, to vindicate its authority, adjudge the
respondent to be guilty of contempt, and must order him either
imprisoned or fined. An officer's failure to produce the body of a
person in obedience to a writ of habeas corpus when he has
power to do so, is a contempt committed in the face of the court.
(Ex parte Sterns [1888], 77 Cal., 156; In re Patterson [1888], 99 N.
C., 407.)
With all the facts and circumstances in mind, and with judicial
regard for human imperfections, we cannot say that any of the
respondents, with the possible exception of the first named, has
flatly disobeyed the court by acting in opposition to its authority.
Respondents Hohmann, Rodriguez, Ordax, and Joaquin only
followed the orders of their chiefs, and while, under the law of
public officers, this does not exonerate them entirely, it is
nevertheless a powerful mitigating circumstance.
The hacendero Yñigo appears to have been drawn into the case
through a misconstruction by counsel of telegraphic
communications. The city fiscal, Anacleto Diaz, would seem to
have done no more than to fulfill his duty as the legal
representative of the city government. Finding him innocent of any
disrespect to the court, his counter-motion to strike from the record
the memorandum of attorney for the petitioners, which brings him
into this undesirable position, must be granted. When all is said
and done, as far as this record discloses, the official who was
primarily responsible for the unlawful deportation, who ordered the
police to accomplish the same, who made arrangements for the
steamers and the constabulary, who conducted the negotiations
with the Bureau of Labor, and who later, as the head of the city
government, had it within his power to facilitate the return of the
unfortunate women to Manila, was Justo Lukban, the Mayor of the
city of Manila. His intention to suppress the social evil was
commendable. His methods were unlawful. His regard for the writ
ofhabeas corpus issued by the court was only tardily and
reluctantly acknowledged.
It would be possible to turn to the provisions of section 546 of the
Code of Civil Procedure, which relates to the penalty for
disobeying the writ, and in pursuance thereof to require
respondent Lukban to forfeit to the parties aggrieved as much as
P400 each, which would reach to many thousands of pesos, and in
addition to deal with him as for a contempt. Some members of the
court are inclined to this stern view. It would also be possible to
find that since respondent Lukban did comply substantially with the
second order of the court, he has purged his contempt of the first
order. Some members of the court are inclined to this merciful
view. Between the two extremes appears to lie the correct finding.
The failure of respondent Lukban to obey the first mandate of the
court tended to belittle and embarrass the administration of justice
to such an extent that his later activity may be considered only as
extenuating his conduct. A nominal fine will at once command
such respect without being unduly oppressive —such an amount is
P100.
In resume — as before stated, no further action on the writ
of habeas corpus is necessary. The respondents Hohmann,
Rodriguez, Ordax, Joaquin, Yñigo, and Diaz are found not to be in
contempt of court. Respondent Lukban is found in contempt of
court and shall pay into the office of the clerk of the Supreme Court
within five days the sum of one hundred pesos (P100). The motion
of the fiscal of the city of Manila to strike from the record
theReplica al Memorandum de los Recurridos of January 25,
1919, is granted. Costs shall be taxed against respondents. So
ordered.
In concluding this tedious and disagreeable task, may we not be
permitted to express the hope that this decision may serve to
bulwark the fortifications of an orderly government of laws and to
protect individual liberty from illegal encroachment.
G.R. No. 170924 July 4, 2007
In the matter of the Petition for Habeas Corpus of CEZARI
GONZALES and JULIUS MESA
ROBERTO RAFAEL PULIDO, petitioner,
vs.
Gen. EFREN ABU, as Chief of Staff of the Armed Forces of the
Philippines and all persons acting in his stead and under his
authority, and GEN. ERNESTO DE LEON, in his capacity as
the Flag Officer in Command of the Philippine Navy, and all
persons acting in his stead and under his
authority, respondents.
DECISION
CHICO-NAZARIO, J.:
Before Us is a Petition for Review under Rule 45 of the Rules of
Court assailing the Decision1 of the Court of Appeals in CA-G.R.
SP No. 90546 which dismissed the Petition for Habeas
Corpus filed by petitioner Roberto Rafael Pulido (Pulido) in behalf
of Cezari Gonzales and Julius Mesa, and imposed on petitioner
the penalty of censure, and its Resolution2 dated 6 January 2006
denying his motion for reconsideration.
The facts are not disputed.
At around one o’clock in the morning of 27 July 2003, three
hundred twenty-one (321) junior officers and enlisted personnel of
the Armed Forces of the Philippines (AFP) entered and took over
the premises of the Oakwood Premiere Luxury Apartments
(Oakwood) located at the Glorietta Complex, Ayala Avenue,
Makati City. They disarmed the security guards of said
establishment and planted explosives in its immediate
surroundings.
The soldiers publicly announced that they went to Oakwood to air
their grievances against the administration of President Gloria
Macapagal Arroyo (President Arroyo). They declared their
withdrawal of support from the Commander-in-Chief of the AFP –
President Arroyo – and demanded her resignation and that of the
members of her cabinet and top officers of both the AFP and the
Philippine National Police (PNP).
At about one o’clock in the afternoon, President Arroyo issued
Proclamation No. 427 declaring the country to be under a "state of
rebellion." Consequently, she issued General Order No. 4 directing
the AFP and the PNP to carry out all reasonable measures, giving
due regard to constitutional rights, to suppress and quell the
"rebellion."
After a series of negotiations between the soldiers and the
government negotiators, the former agreed to return to barracks,
thus ending the occupation of Oakwood.
Among those involved in the occupation of Oakwood were Cezari
Gonzales and Julius Mesa, both enlisted personnel of the
Philippine Navy. It is in their behalf that the Petition for Habeas
Corpus was filed before the Court of Appeals.
On 2 August 2003, then AFP Chief of Staff Narciso L. Abaya
issued a directive3 to all Major Service Commanders and to the
Chief of the Intelligence Service of the Armed Forces of the
Philippines (ISAFP) regarding the Custody of Military Personnel
Involved in the 27 July 2003 Mutiny. On the strength thereof,
Gonzales and Mesa were taken into custody by their Service
Commander.
Gonzales and Mesa were not charged before a court martial with
violation of the Articles of War. They were, however, among the
soldiers charged before Branch 61 of the Regional Trial Court
(RTC) of Makati City, with the crime of Coup D’etat as defined
under Article 134-A of the Revised Penal Code. Said case entitled,
"People v. Capt. Milo D. Maestrecampo, et al." was docketed as
Criminal Case No. 03-2784. On 18 November 2003, a
Commitment Order was issued by the RTC committing custody of
the persons of Gonzales and Mesa to the Commanding Officer of
Fort San Felipe Naval Base, Cavite City.4
On 8 December 2003, Gonzales and Mesa were discharged 5 from
military service.
On 16 December 2003, per order of the RTC, Criminal Case No.
03-2784 was consolidated with Criminal Case No. 03-2678
entitled, "People v. Ramon B. Cardenas" pending before Branch
148 of the RTC of Makati City, on the ground that the cases are
founded on the same facts and/or formed part of a series of
offenses of similar character.6
In a Manifestation and Motion dated 3 March 2004, Commodore
Normando Naval, Commander of Naval Base Cavite, asked the
Makati RTC, Branch 148, to relieve him of his duty as custodian of
Gonzales and Mesa and that the latter be transferred to the Makati
City Jail.7 In an Order dated 29 April 2004, the RTC relieved him of
his duty but ordered the transfer of Gonzales and Mesa from the
Naval Base Cavite in Sangley Point, Cavite City, to the Philippine
Marine Brigade Headquarters, Philippine Marine, Fort Bonifacio,
Taguig, Metro Manila, under the custody of the Commander of the
Marine Brigade of the Philippine Marines, Fort Bonifacio, Taguig,
Metro Manila.8
In an Order dated 8 July 2004, the RTC resolved the petitions for
bail filed by the accused-soldiers. It admitted Gonzales and Mesa,
and twenty-five other co-accused to bail pegging the amount
thereof at P100,000.00 each.9
On 19 July 2004, both Gonzales and Mesa posted bail. 10 On 20
July 2004, the RTC issued orders directing the Commanding
Officer of Philippine Marine Corps, Fort Bonifacio, Makati City, to
release Gonzales and Mesa from his custody. 11 Despite said
orders and their service to the marines, Gonzales and Mesa were
not released.
On 21 July 2004, the People of the Philippines moved for partial
reconsideration12 of the order granting bail. Prior to the resolution
of said motion, Jovencito R. Zuño, Chief State Prosecutor, advised
Brig. Gen. Manuel F. Llena, Judge Advocate General, to defer
action on the provisional release of Gonzales and Mesa "until the
Motion for Reconsideration shall have been resolved and attained
finality."13 On 26 October 2004, the RTC denied the motion for
partial reconsideration.
With the denial of the Motion for Partial Reconsideration, the
People filed with the Court of Appeals on 4 February 2005 a
special civil action for certiorari under Rule 65 of the Rules of Court
with urgent prayer for Temporary Restraining Order (TRO) and/or
Writ of Preliminary Injunction, asking for the nullification and
setting aside of the orders dated 8 July 2004 and 26 October 2004
of Judge Oscar B. Pimentel for having been issued without
jurisdiction and/or grave abuse of discretion amounting to lack or
excess of jurisdiction. The Petition for Certiorari was raffled to the
Seventh Division and was docketed as CA-G.R. SP No. 88440
entitled, "People of the Philippines v. Hon. Oscar B. Pimentel,
Presiding Judge of the Regional Trial Court of Makati City, Branch
148." The Court of Appeals (Seventh Division) did not issue a TRO
and/or preliminary injunction.
Since Gonzales and Mesa continued to be in detention, a Petition
for Habeas Corpus14 was filed by petitioner Pulido on their behalf
on 22 July 2005. The case was docketed as CA-G.R. SP No.
90546 and raffled to the Third Division. In support thereof, it was
argued that since Gonzales and Mesa are no longer subject to
Military Law as they had been discharged from the service on 8
December 2003, and since they are not charged before a court
martial, the military authorities have no jurisdiction to detain them,
and there is no legal ground to detain them further because a court
order for their release had already been issued.
On 10 August 2005, the Court of Appeals (3rd Division) issued a
Writ of Habeas Corpus directing respondents Gen. Efren Abu,
Chief of Staff of the Armed Forces of the Philippines, and all
persons acting in his stead and under his authority, and Gen.
Ernesto de Leon, Flag Officer in Command of the Philippine Navy,
and all persons acting in his stead and under his authority, to
produce the bodies of Gonzales and Mesa before the Court and to
appear and show the cause and validity of their detention.15
On 18 August 2005, a return of the Writ of Habeas Corpus was
made.16 Respondents prayed that the Petition forHabeas
Corpus be dismissed primarily on two grounds: (1) the continued
detention of Gonzales and Mesa is justified because of the
pendency of the Petition for Certiorari questioning the order dated
8 July 2004 of the RTC granting bail to Gonzales and Mesa before
the 7th Division of the Court of Appeals, docketed as CA-G.R. SP
No. 88440; and (2) petitioner is guilty of forum shopping because
of his failure to state in the petition that the order granting bail has
been elevated to the Court of Appeals and pending before its
7th Division.
On 9 September 2005, the Court of Appeals (7th Division) rendered
its decision in CA-G.R. SP No. 88440 dismissing the petition that
questioned the propriety of the granting of bail to Gonzales, Mesa,
and twenty-five of their co-accused.17
On 12 September 2005, the Court of Appeals (3rd Division)
dismissed the Petition for Habeas Corpus for violation of Section 5,
Rule 7 of the Rules of Court. It ratiocinated:
A reading of the parties’ submissions reveals a threshold issue
– the charge of forum shopping and the related falsity in the
certification supporting the petition. We must initially resolve
these issues because a finding that the petitioner violated
Section 5, Rule 7 of the Rules of Court can lead to the outright
dismissal of the present petition. x x x
xxxx
The records show that the present petition contained the
following certificate of non-forum shopping:
"I, ROBERTO RAFAEL PULIDO, with office address at Unit
1601, 16th Floor 139 Corporate Center Valero Street, Makati
 City, after having been duly sworn in accordance with law,
do hereby state that:
1. I am the petitioner in the above-captioned case;
2. I have read the Petition and caused it to be prepared. All
the contents thereof are true to my own personal knowledge
and the record;
3. I have not heretofore commenced any action or
proceeding involving the same issues, in the Supreme Court,
the Court of Appeals, or any other tribunal or agency and to
the best of my knowledge, no action or proceeding is
pending in the Supreme Court, the Court of Appeals, or any
other tribunal or agency; except for the related cases of
"Eugene Gonzales et al. vs. Gen. Narciso Abaya, et al., G.R.
No. 164007 and "Humabono Adaza et al., vs. Gen. Pedro
Cabuay et al., G.R. No. 160792, both awaiting the resolution
of the Supreme Court.
5. (sic, should be 4) If I should learn of any similar action or
proceeding filed or is pending in the Supreme Court, the
Court of Appeals, or any other tribunal or agency, I
undertake to report such fact within five (5) days therefrom to
this Court.
The present petition and its accompanying certification likewise
show that the petitioner never mentioned the pendency before
the Seventh Division of this Court of the certiorari case, SP
88440, for the annulment of the lower court’s order granting the
soldiers-accused’s petition for bail, when this same lower court
order is cited as basis for the immediate release of Gonzales
and Mesa in the present petition. All that the certification
mentioned were the related cases pending before the
Honorable Supreme Court. Neither did the petitioner comply
with his undertaking under his certification to inform this Court
within five (5) days of the pendency of any similar action or
proceeding filed or is pending in the Supreme Court, the Court
of Appeals, or any other tribunal or agency, as in fact the
certiorari case was already pending with this Court when the
present petition was filed. The certiorari case was only brought
to our attention after the respondents filed their Return of the
Writ.
To be sure, the petitioner, who is also the counsel for the
accused Gonzales and Mesa in the criminal case before
Branch 148 RTC Makati City and who represents Gonzales
and Mesa as private respondents in CA-G.R. SP No. 88440,
cannot feign ignorance of the pendency of the certiorari case.
Why he deliberately kept the pendency of the certiorari case
hidden from us, has not been sufficiently explained. We have
no doubt, however, that his deliberate act of withholding
information on a material fact directly required to be disclosed
by the Rules of Court cannot but have legal consequences.
The primary basis of the present petition is the bail granted to
and posted by Gonzales and Mesa. This is very clear from the
petitioner’s argument that "The continued detention of the
enlisted personnel constitutes violation of the lawful orders of
the civilian court." He cited in support of this argument the
grant and the posting of the bail, and the issuance of the
release orders by the lower court. He did not disclose,
however, what subsequently happened to the order granting
bail. He deliberately omitted in his narration the fact that the
People moved to reconsider this order. Thus, he gave the
impression that the order granting bail immediately became
enforceable and that Gonzales’ and Mesa’s continued
detention is illegal because their constitutional rights to bail,
which have received judicial imprimatur, were continuously
being violated by the respondents.
The petitioner next omitted the fact that after the denial of its
motion for reconsideration of the order granting bail, the People
filed the certiorari case before this Court, seeking to annul the
lower court’s order. While we are aware of the rule that – the
mere pendency of a petition for certiorari will not prevent the
implementation of the assailed order unless the court where
the petition was filed issues either a temporary restraining
order or a writ or preliminary injunction – the filing of a petition
for habeas corpus while the order granting bail is being
questioned on a petition for certiorari raises issues beyond the
immediate execution of the lower court’s bail and release
orders. They raise questions on the propriety of filing the
habeas corpus petition to seek the release of persons under
detention, at the same time that a petition regarding their
continued detention and release are pending. Apparently, the
petitioner wanted to avoid these questions, prompting him to
actively conceal the subsequent motion for reconsideration of
the bail order and the petition for certiorari directly questioning
this same order. In short, the petitioner conveniently
omitted in his narration of facts the material factual
antecedents detrimental to his cause; he chose to narrate
only the factual antecedents favorable to his cause.
That the present petition has direct and intimate links with the
certiorari case is beyond doubt as they involve two sides of the
same coin. The certiorari case filed by the People seeks to
prevent the release of Gonzales and Mesa by annulling the
lower court’s grant of bail. The present petition, on the other
hand, was filed in behalf of Gonzales and Mesa to secure their
immediate release because the order granting bail is already
executory. In effect, the petitioner seeks to implement through
a petition for habeas corpus the provisional release from
detention that the lower court has ordered. The question this
immediately raises is: can this be done through a petition for
habeas corpus when the validity of the grant of bail and the
release under bail are live questions before another Division of
this Court?
We believe and so hold that his cannot and should not be done
as this is precisely the reason why the rule against forum
shopping has been put in place. The remedies sought being
two sides of the same coin (i.e., the release of Gonzales and
Mesa), they cannot be secured through separately-filed cases
where issues of jurisdiction may arise and whose rulings may
conflict with one another. To be sure, we clearly heard the
petitioner say that there can be no conflict because the
effectiveness of our ruling in this petition will depend on the
nature and tenor of the ruling in the certiorari case; there is no
basis for a release on habeas corpus if this same Court will
rule in the certiorari case that the grant of bail is improper. For
this very same reason, we should not entertain the present
petition as the matter before us is already before another co-
equal body whose ruling will be finally determinative of the
issue of Gonzales’ and Mesa’s release. The Decision of the
Seventh Division of this Court, heretofore footnoted, ordering
the release on bail of Gonzales and Mesa drives home this
point.
To be strictly accurate, the issues of detention and immediate
release that are now before the two Divisions of this Court are
likewise properly within the jurisdiction of the lower court who
has original jurisdiction over the criminal case and who has
issued the order granting bail in the exercise of this jurisdiction.
If indeed there is a question relating to the immediate release
of Gonzales and Mesa pursuant to the lower court’s order
pending the determination of the certiorari issues, such
question should be brought before the lower court as the
tribunal that has ordered the release, or before the Seventh
Division of this Court in the exercise of its supervisory powers
over the lower court. The Decision recently promulgated by the
Seventh Division of this Court ordering the release on bail of
the soldiers-accused effectively demonstrates this point.
The inter-relationships among the criminal case below, the
certiorari case and the present petition, as well as among the
courts where these cases are pending, show beyond doubt
that the petitioner committed forum shopping in the strict sense
of that term i.e., the attempt by a party, after an adverse
opinion in one forum, to seek a favorable opinion in another
forum other that through an appeal or certiorari. The "adverse"
aspect for the petitioner, while not an opinion, is no less
adverse as he has failed to secure the release of Gonzales and
Mesa before the lower court and before this Court in the
certiorari case (as of the time of the filing of the present
petition); thus, he came to us in the present petition. That the
Seventh Division of this Court has ordered the release on bail
of the soldiers-accused, thus rendering the present petition
moot and academic after the finality of the 7th Division
Decision, plainly demonstrates this legal reality. 18
The Court further imposed on petitioner the penalty of censure for
the aforesaid violation. The dispositive portion of the decision
reads:
WHEREFORE, premises considered, we hereby DISMISS the
petition for violation of and pursuant to Section 5 Rule 7 of the
Rules of Court. The petitioner, Atty. Roberto Rafael Pulido, is
hereby CENSURED for these violations. Let a copy of this
 Decision be furnished the Honorable Supreme Court, to be
attached to the petitioner’s record as a member of the Bar, as
a RECORD OF CENSURE that may be referred to and
considered in any future similar act.19
On 5 September 2005, petitioner filed a Motion for
Reconsideration20 which the Court of Appeals (Special Former
Third Division) denied in its resolution21 dated 6 January 2006.
Petitioner is now before us raising the following issues:
WHETHER OR NOT THE HONORABLE COURT OF
APPEALS ERRED IN DISMISSING THE PETITION FOR
HABEAS CORPUS ON THE GROUND OF FORUM
SHOPPING.
A. WHETHER OR NOT THE HONORABLE COURT OF
APPEALS ERRED IN NOT CONSIDERING THE NATURE
OF THE ACTION AND LIMITED ITSELF TO THE ISSUE OF
FORUM SHOPPING.
B. WHETHER OR NOT THE HONORABLE COURT OF
APPEALS ERRED IN IMPOSING UPON PETITIONER THE
PENALTY OF CENSURE.
C. WHETHER OR NOT THE HONORABLE COURT OF
APPEALS ERRED IN NOT PASSING UPON THE
EXISTENCE OR ABSENCE OF VALID GROUNDS TO
DETAIN JULIUS MESA AND CEZARI GONZALES.
Petitioner prays that the assailed decision and resolution of the
Court of Appeals be reversed and set aside, and an order be
issued ordering respondents to immediately release Gonzales and
Mesa. He further prays that the censure against him be also
reversed and set aside.
Before respondents could comment on the petition, petitioner filed,
with leave of court, a Motion to Withdraw the Prayer for the
Immediate Release of Julius Mesa and Cezari
Gonzales.22 Petitioner informed the Court that the Commanding
General of the Philippine Marines had ordered the release of
Gonzales and Mesa and surrendered their persons to the RTC of
Makati City, Branch 148. Thus, Mesa and Gonzales are now
enjoying temporary liberty by virtue of the release orders dated 20
July 2004 issued by the RTC. Petitioner asks that the prayer for
the immediate release of Gonzales and Mesa be dismissed but
asks that the other prayers in the petition be granted.
In its comment, the Solicitor General stressed that the habeas
corpus petition has been rendered moot and academic by reason
of the release of Mesa and Gonzales from detention and, in the
absence of an actual case or controversy, it is impractical to
consider and resolve issues involving the validity or legality of their
detention, including the alleged refusal of the Court of Appeals to
resolve said issues.
When the release of the persons in whose behalf the application
for a Writ of Habeas Corpus was filed is effected, the Petition for
the issuance of the writ becomes moot and academic. 23 With the
release of both Mesa and Gonzales, the Petition for Habeas
Corpus has, indeed, been rendered moot. Courts of justice
constituted to pass upon substantial rights will not consider
questions where no actual interests are involved. Thus, the well-
settled rule that courts will not determine a moot question. Where
the issues have become moot and academic, there ceases to be
any justiciable controversy, thus rendering the resolution of the
same of no practical value.24 This Court will therefore abstain from
expressing its opinion in a case where no legal relief is needed or
called for.25
The only remaining issues to be resolved are: (1) Is petitioner
guilty of forum shopping? (2) Should petitioner be penalized when
he failed to inform the 3rd Division of the Court of Appeals of the
pendency of the Petition forCertiorari filed by respondents before
the 7th Division of the same court which asked for the annulment of
the RTC’s order granting Gonzales and Mesa’s petition for bail?
To support his contention that there was no forum shopping,
petitioner asserts that the issues in the petitions
forcertiorari and habeas corpus are not similar/identical. As to his
non-disclosure of respondents’ filing of the motion for
reconsideration and the Petition for Certiorari, petitioner claims that
the same has no legal relevance to the Petition for Habeas
Corpus because at the time he filed said petition, the order
granting bail subsisted and has not been reversed or modified; and
no TRO or injunction has been issued that would affect the efficacy
or validity of the order granting the bail and the order directing the
release of Mesa and Gonzales.
For filing a Petition for Habeas Corpus despite the pendency of the
Petition for Certiorari that questioned the validity of the order
granting bail, which order is precisely the very basis of the Petition
for Habeas Corpus, petitioner is guilty of forum shopping.
It has been held that forum shopping is the act of a party against
whom an adverse judgment has been rendered in one forum, of
seeking another (and possibly favorable) opinion in another forum
(other than by appeal or the special civil action of certiorari), or the
institution of two or more actions or proceedings grounded on the
same cause on the supposition that one or the other court would
make a favorable disposition. Thus, it has been held that there is
forum shopping — (1) when, as a result of an adverse decision in
one forum, a party seeks a favorable decision (other than by
appeal or certiorari) in another; OR (2) if, after he has filed a
petition before the Supreme Court, a party files a motion before the
Court of Appeals, since in such a case, he deliberately splits
appeals in the hope that even in one case in which a particular
allowable remedy sought for is dismissed, another case (offering a
similar remedy) would still be open; OR (3) where a party attempts
to obtain a preliminary injunction in another court after failing to
obtain the same from the original court.26
The Court has laid down the yardstick to determine whether a
party violated the rule against forum shopping, as where the
elements of litis pendentia are present or where a final judgment in
one case will amount to res judicatain the other. Stated differently,
there must be between the two cases: (a) identity of parties; (b)
identity of rights asserted and reliefs prayed for, the relief being
founded on the same facts; and (c) the identity of the two
preceding particulars is such that any judgment rendered in the
other action will, regardless of which party is successful, amount
to res judicata in the action under consideration.27
As lucidly explained by the Court of Appeals, the ultimate relief
sought by petitioner in both the certiorari andhabeas corpus cases
is the release of Gonzales and Mesa. Petitioner should not have
filed the Petition forHabeas Corpus because the relief he is
seeking therein is the same relief he is asking for in the certiorari
case. Moreover, the main issue in both cases boils down to
whether Gonzales and Mesa should be released on bail. Because
of the presence of the elements of litis pendentia -- parties, reliefs
and issue are substantially the same/similar in the two cases; and
any decision in the certiorari case will be binding on the habeas
corpus case – petitioner is thus guilty of forum shopping.
For his failure to inform the Court of Appeals of the pendency of
the certiorari case, petitioner clearly violated his obligation to
disclose within five days the pendency of the same or a similar
action or claim as mandated in Section 5(c), Rule 728 of the Rules
of Court.
WHEREFORE, premises considered, the Decision of the Court of
Appeals in CA-G.R. SP No. 90546 dated 12 September 2005
is AFFIRMED. Costs against the petitioner.
SO ORDERED.
G.R. No. 169482 January 29, 2008
IN THE MATTER OF THE PETITION OF HABEAS CORPUS OF
EUFEMIA E. RODRIGUEZ, filed by EDGARDO E.
VELUZ, petitioner,
vs.
LUISA R. VILLANUEVA and TERESITA R.
PABELLO, respondents.
DECISION
CORONA, J.:
This is a petition for review1 of the resolutions2 dated February 2,
2005 and September 2, 2005 of the Court of Appeals 3 in CA-G.R.
SP No. 88180 denying the petition for habeas corpus of Eufemia
E. Rodriguez, filed by petitioner Edgardo Veluz, as well as his
motion for reconsideration, respectively.
Eufemia E. Rodriguez was a 94-year old widow, allegedly suffering
from a poor state of mental health and deteriorating cognitive
abilities.4 She was living with petitioner, her nephew, since 2000.
He acted as her guardian.
In the morning of January 11, 2005, respondents Luisa R.
Villanueva and Teresita R. Pabello took Eufemia from petitioner
Veluz’ house. He made repeated demands for the return of
Eufemia but these proved futile. Claiming that respondents were
restraining Eufemia of her liberty, he filed a petition for habeas
corpus5 in the Court of Appeals on January 13, 2005.
The Court of Appeals ruled that petitioner failed to present any
convincing proof that respondents (the legally adopted children of
Eufemia) were unlawfully restraining their mother of her liberty. He
also failed to establish his legal right to the custody of Eufemia as
he was not her legal guardian. Thus, in a resolution dated
February 2, 2005,6 the Court of Appeals denied his petition.
Petitioner moved for reconsideration but it was also
denied.7 Hence, this petition.
Petitioner claims that, in determining whether or not a writ
of habeas corpus should issue, a court should limit itself to
determining whether or not a person is unlawfully being deprived
of liberty. There is no need to consider legal custody or custodial
rights. The writ of habeas corpus is available not only if the rightful
custody of a person is being withheld from the person entitled
thereto but also if the person who disappears or is illegally being
detained is of legal age and is not under guardianship. Thus, a writ
of habeas corpus can cover persons who are not under the legal
custody of another. According to petitioner, as long as it is alleged
that a person is being illegally deprived of liberty, the writ
of habeas corpus may issue so that his physical body may be
brought before the court that will determine whether or not there is
in fact an unlawful deprivation of liberty.
In their comment, respondents state that they are the legally
adopted daughters of Eufemia and her deceased spouse, Maximo
Rodriguez. Prior to their adoption, respondent Luisa was Eufemia’s
half-sister8 while respondent Teresita was Eufemia’s niece and
petitioner’s sister.9
Respondents point out that it was petitioner and his family who
were staying with Eufemia, not the other way around as petitioner
claimed. Eufemia paid for the rent of the house, the utilities and
other household needs.
Sometime in the 1980s, petitioner was appointed as the
"encargado" or administrator of the properties of Eufemia as well
as those left by the deceased Maximo. As such, he took charge of
collecting payments from tenants and transacted business with
third persons for and in behalf of Eufemia and the respondents
who were the only compulsory heirs of the late Maximo.
In the latter part of 2002, Eufemia and the respondents demanded
an inventory and return of the properties entrusted to petitioner.
These demands were unheeded. Hence, Eufemia and the
respondents were compelled to file a complaint for estafa against
petitioner in the Regional Trial Court of Quezon City.
Consequently, and by reason of their mother’s deteriorating health,
respondents decided to take custody of Eufemia on January 11,
2005. The latter willingly went with them. In view of all this,
petitioner failed to prove either his right to the custody of Eufemia
or the illegality of respondents’ action.
We rule for the respondents.
The writ of habeas corpus extends to all cases of illegal
confinement or detention by which any person is deprived of his
liberty or by which the rightful custody of a person is being withheld
from the one entitled thereto.10 It is issued when one is either
deprived of liberty or is wrongfully being prevented from exercising
legal custody over another person.11 Thus, it contemplates two
instances: (1) deprivation of a person’s liberty either through illegal
confinement or through detention and (2) withholding of the
custody of any person from someone entitled to such custody.
In this case, the issue is not whether the custody of Eufemia is
being rightfully withheld from petitioner but whether Eufemia is
being restrained of her liberty. Significantly, although petitioner
admits that he did not have legal custody of Eufemia, he
nonetheless insists that respondents themselves have no right to
her custody. Thus, for him, the issue of legal custody is irrelevant.
What is important is Eufemia’s personal freedom.
Fundamentally, in order to justify the grant of the writ of habeas
corpus, the restraint of liberty must be in the nature of an illegal
and involuntary deprivation of freedom of action. 12
In general, the purpose of the writ of habeas
corpus is to determine whether or not a particular
person is legally held. A prime specification of an
application for a writ of habeas corpus, in fact, is an
actual and effective, and not merely nominal or moral,
illegal restraint of liberty. "The writ of habeas corpuswas
devised and exists as a speedy and effectual remedy to
relieve persons from unlawful restraint, and as the best
and only sufficient defense of personal freedom. A prime
specification of an application for a writ ofhabeas
corpus is restraint of liberty. The essential object and
purpose of the writ of habeas corpus is to inquire into all
manner of involuntary restraint as distinguished from
voluntary, and to relieve a person therefrom if such
restraint is illegal. Any restraint which will preclude
freedom of action is sufficient."13(emphasis supplied)
In passing upon a petition for habeas corpus, a court or judge must
first inquire into whether the petitioner is being restrained of his
liberty.14 If he is not, the writ will be refused. Inquiry into the cause
of detention will proceed only where such restraint exists. 15 If the
alleged cause is thereafter found to be unlawful, then the writ
should be granted and the petitioner discharged. 16 Needless to
state, if otherwise, again the writ will be refused.
While habeas corpus is a writ of right, it will not issue as a matter
of course or as a mere perfunctory operation on the filing of the
petition.17 Judicial discretion is called for in its issuance and it must
be clear to the judge to whom the petition is presented that, prima
facie, the petitioner is entitled to the writ. 18 It is only if the court is
satisfied that a person is being unlawfully restrained of his liberty
will the petition for habeas corpus be granted.19 If the respondents
are not detaining or restraining the applicant or the person in
whose behalf the petition is filed, the petition should be
dismissed.20
In this case, the Court of Appeals made an inquiry into whether
Eufemia was being restrained of her liberty. It found that she was
not:
There is no proof that Eufemia is being detained and
restrained of her liberty by respondents. Nothing on
record reveals that she was forcibly taken by
respondents. On the contrary, respondents, being
Eufemia’s adopted children, are taking care of
her.21 (emphasis supplied)
The Court finds no cogent or compelling reason to disturb this
finding.22
WHEREFORE, the petition is hereby DENIED.
Costs against petitioner.
SO ORDERED.
MARTIN GIBBS FLETCHER, UDK-14071
Petitioner,
P
resent:
PUNO, C.J., Chairperson,
CARPIO,
- v e r s u s - CORONA,
LEONARDO-DE CASTRO and
BERSAMIN, JJ.
THE DIRECTOR OF BUREAU
OF CORRECTIONS or his
representative,
Respondent. Promulgated:
 July
17, entertained so long as its allegations sufficiently make out a case
200
9 for habeas corpus.[6]

x---------------------------------------------------
x The ultimate purpose of the writ of habeas corpus is to relieve a

person from unlawful restraint.[7] The writ exists as a speedy and

RESOLUTION
CORONA, J.: effectual remedy to relieve persons from unlawful restraint and as

an effective defense of personal freedom.[8]

Petitioner Martin Gibbs Fletcher seeks his release from prison in

Where the restraint of liberty is allegedly authored by the State, the
this petition for the issuance of the writ of habeas corpus. He
very entity tasked to ensure the liberty of all persons (citizens and
claims that his prison sentence of 12 to 17 years was commuted
aliens alike) within its jurisdiction, courts must be vigilant in
by then President Fidel V. Ramos to nine to 12 years. Since he
extending the habeas corpus remedy to one who invokes it. To
had already served 14 years, three months and 12 days, including
strictly restrict the great writ of liberty to technicalities not only
his good conduct allowance, his continued imprisonment is
defeats the spirit that animates the writ but also waters down the
illegal.[1]
precious right that the writ seeks to protect, the right to liberty. To

In its return to the writ, the Office of the Solicitor General (OSG) dilute the remedy that guarantees protection to the right is to

posited that the petition should be denied for failure to comply with negate the right itself. Thus, the Court will not unduly confine the

Section 3, Rule 102 of the Rules of Court. In particular, the petition writ of habeas corpus in the prison walls of technicality. Otherwise,

was neither signed nor verified by petitioner or a person on his it will betray its constitutional mandate to promulgate rules

behalf or by his purported counsel. Moreover, it was not concerning the protection and enforcement of constitutional

accompanied by a copy of the cause of petitioners detention or rights.[9]

commitment order.
Nonetheless, we agree with the OSG that petitioner is

The OSG further opposed the issuance of the writ on the following not entitled to the issuance of the writ.

grounds: petitioners prison sentence was never commuted by then

The writ of habeas corpus extends to all cases of illegal
President Ramos; he had not been granted the status of a colonist;
confinement or detention by which any person is deprived of his
there were other pending cases against him warranting his
liberty.[10] However, Section 4, Rule 102 of the Rules of Court
continued detention[2] and he was put under custody by virtue of a
provides:
judicial process or a valid judgment.

We disagree with the OSG insofar as it argues that the petition Sec. 4. When writ not allowed or discharge
authorized. If it appears that the person to be
should be dismissed for failure to comply with Section 3, Rule 102 restrained of his liberty is in the custody of
an officer under process issued by a court
of the Rules of Court. Strict compliance with the technical or judge; or by virtue of a judgment or order
of a court of record, and that court or judge
requirements for a habeas corpus petition as provided in the Rules had jurisdiction to issue the process, render
the judgment, or make the order, the writ
of Court may be dispensed with where the allegations in the shall not be allowed; or if the jurisdiction
appears after the writ is allowed, the person
application are sufficient to make out a case for habeas corpus. shall not be discharged by reason of any
informality or defect in the process, judgment,
In Angeles v. Director of New Bilibid Prison,[3] we held that the or order. Nor shall anything in this rule be
held to authorize the discharge of a person
formalities required for petitions for habeas corpus shall be charged with or convicted of an offense in the
Philippines, or of a person suffering
construed liberally. The petition for the writ is required to be imprisonment under lawful judgment.
(emphasis supplied)
verified but the defect in form is not fatal.[4] Indeed, in the landmark

case of Villavicencio v. Lukban,[5] this Court declared that it is the

duty of a court to issue the writ if there is evidence that a person is Plainly stated, the writ obtains immediate relief for those

unjustly restrained of his liberty within its jurisdiction even if there is who have been illegally confined or imprisoned without sufficient

no application therefor. So long as this Court sits, technicality cause. The writ, however, should not be issued when the custody

cannot trump liberty. Therefore, a petition which is deficient in over the person is by virtue of a judicial process or a valid

form, such as petitioners petition-letter in this case, may be judgment.[11]

 It is undisputed that petitioner was convicted of estafa in WHEREFORE, the petition is hereby DISMISSED.

Criminal Case No. 95-995.[12] On June 24, 1996, he was

SO ORDERED.
sentenced to imprisonment of 12 years of prision mayor as

minimum to 17 years and four months of reclusion temporal as NURHIDA JUHURI G.R. No. 182497
AMPATUAN,
maximum, with payment of actual damages of P102,235.56.[13] Petitioner,

Present:
Based on petitioners prison records, [14] he began serving
- versus - CORONA, C.J.,
his sentence on July 24, 1997. He claims that after having served Chairperson,
VELASCO, JR.,
good conduct time allowance for 14 years, three months and 12 LEONARDO-DE
CASTRO,
days,[15] he should now be released from prison. JUDGE VIRGILIO V. DEL CASTILLO, and
MACARAIG, REGIONAL PEREZ, JJ.
TRIAL COURT, MANILA,
We disagree. BRANCH 37, DIRECTOR
GENERAL AVELINO
RAZON, JR., DIRECTOR
A convict may be released on parole after serving the GEARY BARIAS, PSSUPT.
CO YEE M. CO, JR. and
minimum period of his sentence. However, the pendency of POLICE CHIEF INSPECTOR
AGAPITO QUIMSON, Promulgated:
another criminal case is a ground for the disqualification of such Respondents.
June 29, 2010
convict from being released on parole. [16] Unfortunately, petitioner x-----------------------------------------------
- - - - - - - - - - - - -x
is again on trial in Criminal Case No. 94-6988 for estafa.[17] The

case was filed as early as 1996 but he was arraigned only on DECISION
October 6, 2008. He pleaded not guilty to the charge against him.
PEREZ, J.:
Pre-trial was set on January 26, 2009.[18] Clearly, he is disqualified

from being released on parole and consequently must serve out

Before this Court is a Petition for Certiorari under Rule
the entirety of his sentence. [1]
65 of the Rules of Court assailing the Order dated 25 April 2008
of the Regional Trial Court (RTC) of Manila, Branch 37, in Special
We note the issuance of a warrant for petitioners arrest
Proceeding No. 08-119132 which denied the petition for Habeas
on March 8, 1996, the date he was first set for arraignment in
Corpus filed by herein Petitioner Nurhida Juhuri Ampatuan in
Criminal Case No. 94-6988. Pursuant to Section 4, Rule 102 of the
behalf of her husband Police Officer 1 Basser B. Ampatuan[2] (PO1
Rules of Court, the writ cannot be issued and petitioner cannot be Ampatuan).
discharged since he has been charged with another criminal
offense.[19] His continued detention is without doubt warranted Petitioner alleged in her petition that her husband PO1
under the circumstances. Ampatuan was assigned at Sultan Kudarat Municipal Police
Station. On 14 April 2008, he was asked by his Chief of Police to
Petitioner asserts that his sentence in Criminal Case No. report to the Provincial Director of Shariff Kabunsuan,
Superintendent Esmael Pua Ali (Supt. Ali). The latter brought PO1
95-995 was commuted by then President Ramos. However, he
Ampatuan to Superintendent Piang Adam, Provincial Director of
presented no proof of such commutation. Other than indorsements the Philippine National Police (PNP) Maguindanao. PO1
by the Chief Justice,[20] Public Attorneys Office[21] and Ampatuan was directed to stay at the Police Provincial Office of
Maguindanao without being informed of the cause of his restraint.
Undersecretary of the Department of Justice,[22] no document
The next day, 15 April 2008, PO1 Ampatuan was brought to
purporting to be the commutation of his sentence by then the General Santos City Airport and was made to board a
President Ramos was attached in his petition and in his Philippine Airlines plane bound for Manila. Upon landing at
the Manila Domestic Airport, PO1 Ampatuan was turned over to
subsequent missives to this Court. His barren claim of
policemen of Manila and brought to Manila Mayor Alfredo Lim by
commutation therefore deserves scant consideration, lest we be Police Director Geary Barias and General Roberto Rosales. A
accused of usurping the Presidents sole prerogative to commute press briefing was then conducted where it was announced that
PO1 Ampatuan was arrested for the killing of two Commission on
petitioners sentence in Criminal Case No. 95-995.[23]
Elections (COMELEC) Officials. He was then detained at the
Police Jail in United Nations Avenue, Manila. Thereafter, PO1
Having established that petitioners continued
Ampatuan was brought to inquest Prosecutor Renato Gonzaga of
imprisonment is by virtue of a valid judgment and court process, the Office of the City Prosecutor of Manila due to the alleged
we see no need to discuss petitioners other arguments. murder of Atty. Alioden D. Dalaig, head of the Law Department of
the COMELEC.On 20 April 2008, PO1 Ampatuan was turned-over
 Arrest of PO1 Busser Ampatuan,
to the Regional Headquarters Support Group
suspect in the killing of Atty.
in Camp Bagong Diwa, Taguig City.[3] Alioden Dalaig and Atty. Wynee
Asdala, both COMELEC Legal
Officers.
Petitioner continues that on 21 April 2008, Chief Inquest
Prosecutor Nelson Salva ordered the release for further 2. This pertains to the power
of the Chief, PNP embodied in
investigation of PO1 Ampatuan.[4] The Order was approved by the Section 52 of RA 8551, to place
City Prosecutor of Manila. But Police Senior Superintendent Co police personnel under restrictive
custody during the pendency of a
Yee Co, Jr., and Police Chief Inspector Agapito Quimson refused grave administrative case filed
to release PO1 Ampatuan. against him or even after the filing
of a criminal complaint, grave in
nature, against such police
This prompted Petitioner to file the petition for writ personnel.
of habeas corpus in the RTC of Manila, Branch 37.[5] 3. In this connection, you are
hereby directed to place PO1
Busser Ampatuan, suspect in the
Private respondents had another version of the killing of Atty. Alioden Dalaig and
antecedent facts. They narrated that at around 7:08 oclock in the Atty. Wynee Asdala, both
COMELEC Legal Officers, under
evening of 10 November 2007, a sixty-four-year-old man, later your restrictive custody.
identified as Atty. Alioden D. Dalaig, Head of the COMELEC Legal
4. For strict compliance.[8]
Department, was killed at the corner of M. H. Del Pilar and Pedro
Gil Streets, Ermita, Manila.Investigation conducted by the Manila
Police District (MPD) Homicide Section yielded the identity of the On 19 April 2008, through a Memorandum Request
male perpetrator as PO1 Ampatuan. Consequently, PO1 dated 18 April 2008, respondent Police Director Geary L. Barias
Ampatuan was commanded to the MPD District Director for proper requested for the creation of the Summary Hearing Board to hear
disposition. Likewise, inquest proceedings were conducted by the the case of PO1 Ampatuan.[9]
Manila Prosecutors Office.
On 20 April 2008, Special Order No. 921 was issued by
On 18 April 2008, Police Senior Superintendent Atty. Police Director Edgardo E. Acua, placing PO1 Ampatuan under
Clarence V. Guinto, rendered his Pre-Charge Evaluation Report restrictive custody of the Regional Director, NCRPO, effective 19
against PO1 Ampatuan, finding probable cause to charge PO1 April 2008. Said Special Order No. 921, reads:
Ampatuan with Grave Misconduct (Murder) and recommending
Restrictiv
that said PO1 Ampatuan be subjected to summary hearing.
e Custody

On even date, a charge sheet for Grave Misconduct was PO1 Basser B. Ampatuan 128677, is
placed under restrictive custody of the Regional
executed against PO1 Ampatuan, the accusatory portion of which Director, NCRPO effective April 19, 2008.
reads: (Reference: Memorandum from CPNP dated 18
April 2008).

CHARGE SHEET BY COMMAND OF POLICE

DIRECTOR GENERAL RAZON:[10]
THE UNDERSIGNED NOMINAL
COMPLAINANT hereby charges above-named
respondent of the administrative offense of
Grave Misconduct (murder) pursuant to Section Meanwhile, on 21 April 2008, the City Prosecutor of
52 of R.A. 8551[6] in relation to NAPOLCOM Manila recommended that the case against PO1 Ampatuan be set
Memorandum Circular 93-024, committed as
follows: for further investigation and that the latter be released from
custody unless he is being held for other charges/legal grounds. [11]
That on or about 7:08 in the evening
of November 10, 2007, in M.H. Del Pilar and
Pedro Gil St., Ermita, Manila, above-named Armed with the 21 April 2008 recommendation of
respondent while being an active member of
the Manila Citys Prosecution Office, petitioner, who is the wife of
the PNPand within the jurisdiction of this office,
armed with a cal .45 pistol, with intent to kill, did PO1 Ampatuan, filed a Petition for the Issuance of a Writ
then and there willfully, unlawfully and of Habeas Corpus before the RTC of Manila on 22 April 2008. The
feloniously, shot Atty. Alioden D. Dalaig, Jr.,
COMELEC official on the different parts of his petition was docketed as Special Proceeding No. 08-119132 and
body, thereby inflicting upon the latter mortal was raffled to Branch 37.
gunshot wounds which directly cause (sic) his
death. On 24 April 2008, finding the petition to be sufficient in
form and substance, respondent Judge Virgilio V. Macaraig
Acts contrary to the existing PNP Laws rules
and Regulations.[7] ordered the issuance of a writ of habeas corpuscommanding
therein respondents to produce the body of PO1 Ampatuan and
directing said respondents to show cause why they are withholding
Also, through a Memorandum dated 18 April 2008, Police
or restraining the liberty of PO1 Ampatuan.[12]
Director General Avelino I. Razon, Jr. directed the Regional
Director of the National Capital Regional Police Office (NCRPO) to
On 25 April 2008, the RTC resolved the Petition in its
place PO1 Ampatuan under restrictive custody, thus:
Order which reads:
1. Reference: Memo from that
Office dated April 15, 2008 re
 Essentially, counsels for petitioner
insists that PO1 Basser Ampatuan is being
illegally detained by the respondents despite
the order of release of Chief Inquest Prosecutor
Nelson Salva dated April 21, 2008. They further
claim that as of April 23, 2008, no
administrative case was filed against PO1
Ampatuan.
Respondents, while admitting that to
date no criminal case was filed against PO1
Ampatuan, assert that the latter is under
restrictive custody since he is facing an
administrative case for grave misconduct. They
submitted to this Court the Pre-charge
Evaluation Report and Charge Sheet. Further,
in support of their position, respondents cited
the case of SPO2 Manalo, et al. v. Hon.
Calderon, G.R. No. 178920 claiming
that habeas corpus will not lie for
a PNP personnel under restrictive
custody. They claim that this is authorized
under Section 52, Par. 4 of R.A. 8551
authorizing the Chief of PNP to place
the PNP personnel under restrictive custody
during the pendency of administrative case for
grave misconduct.
Petitioner countered that the
administrative case filed against PO1
Ampatuan was ante-dated to make it appear
that there was such a case filed before April 23,
2008.
The function of habeas corpus is to
determine the legality of ones detention,
meaning, if there is sufficient cause for
deprivation or confinement and if there is none
to discharge him at once. For habeas corpus to
issue, the restraint of liberty must be in the
nature of illegal and involuntary deprivation of
freedom which must be actual and effective,
not nominal or moral.
Granting arguendo that the
administrative case was ante-dated, the Court
cannot simply ignore the filing of an
administrative case filed against PO1
Ampatuan. It cannot be denied that
the PNP has its own administrative disciplinary
mechanism and as clearly pointed out by the
respondents, the Chief PNP is authorized to
place PO1 Ampatuan under restrictive custody
pursuant to Section 52, Par. 4 of R.A. 8551.
The filing of the administrative case
against PO1 Ampatuan is a process done by
the PNP and this Court has no authority to
order the release of the subject police officer.
Lastly, anent the contention of the
petitioner that the letter resignation of PO1
Ampatuan has rendered the administrative
case moot and academic, the same could not
be accepted by this Court. It must be stressed
that the resignation has not been acted (sic) by
the appropriate police officials of the PNP, and
that the administrative case was filed while
PO1 Ampatuan is still in the active status of
the PNP.
WHEREFORE, premises considered,
the petition for habeas corpus is hereby
DISMISSED.[13]
Distressed, petitioner is now before this Court via a
Petition for Certiorari under Rule 65 of the Rules of Court to
question the validity of the RTC Order dated 25 April 2008. The
issues are:
I. THE RESPONDENT
COURT GRAVELY ABUSED ITS
DISCRETION WHEN IT FAILED TO
CONSIDER THAT THE
ARREST AND DETENTION OF PO1
BASSER B. AMPATUAN WAS MADE
WITHOUT ANY
WARRANT AND THEREFORE,
ILLEGAL;
II. THE RESPONDENT
COURT GRAVELY ABUSED ITS
DISCRETION WHEN IT CONCEDED
THE AUTHORITY OF
RESPONDENT AVELINO RAZON,
JR. UNDERSEC. 52, PAR. 4, R.A.
8551 TO PLACE AMPATUAN
UNDER RESTRICTIVE CUSTODY
FOR ADMINISTRATIVE
PROCEEDINGS;
III. THE RESPONDENT
COURT GRAVELY ABUSED ITS
DISCRETION WHEN IT SHIRKED
FROM ITS JUDICIAL DUTY TO
ORDER THE RELEASE OF PO1
AMPATUAN FROM THE CUSTODY
OF RESPONDENTS MAMANG
PULIS.[14]
Essentially, a writ of habeas corpus applies to all cases
of illegal confinement or detention by which any person is deprived
of his liberty.[15]
Rule 102 of the 1997 Rules of Court sets forth the
procedure to be followed in the issuance of the writ. The Rule
provides:
RULE 102
HABEAS CORPUS
SECTION 1. To what habeas corpus
extends. Except as otherwise expressly
provided by law, the writ of habeas corpus shall
extend to all cases of illegal confinement or
detention by which any person is deprived of
his liberty, or by which the rightful custody of
any person is withheld from the person entitled
thereto.
SEC 2. Who may grant the writ. The
writ of habeas corpus may be granted by the
Supreme Court, or any member thereof, on any
day and at any time, or by the Court of Appeals
or any member thereof in the instances
authorized by law, and if so granted it shall be
enforceable anywhere in the Philippines, and
may be made returnable before the court or
any member thereof, or before a Court of First
Instance, or any judge thereof for hearing and
decision on the merits. It may also be granted
by a Court of First Instance, or a judge thereof,
on any day and at any time, and returnable
before himself, enforceable only within his
judicial district.
xxxx
SEC. 4. When writ not allowed or
discharge authorized. If it appears that the
person alleged to be restrained of his liberty is
in the custody of an officer under process
issued by a court or judge or by virtue of a
judgment or order of a court of record, and that
the court or judge had jurisdiction to issue the
process, render the judgment, or make the
order, the writ shall not be allowed; or if the
jurisdiction appears after the writ is allowed, the
person shall not be discharged by reason of
any informality or defect in the process,
judgment, or order. Nor shall anything in this
rule be held to authorize the discharge of a
person charged with or convicted of an offense
in the Philippines, or of a person suffering
imprisonment under lawful judgment.

The objective of the writ is to determine whether the
confinement or detention is valid or lawful. If it is, the writ cannot
be issued. What is to be inquired into is the legality of a person's
detention as of, at the earliest, the filing of the application for the
writ of habeas corpus, for even if the detention is at its inception
illegal, it may, by reason of some supervening events, such as the
instances mentioned in Section 4 of Rule 102, be no longer illegal
at the time of the filing of the application. [16]
Plainly stated, the writ obtains immediate relief for those
who have been illegally confined or imprisoned without sufficient
cause. The writ, however, should not be issued when the custody
over the person is by virtue of a judicial process or a valid
judgment.[17]
The most basic criterion for the issuance of the writ,
therefore, is that the individual seeking such relief is illegally
deprived of his freedom of movement or placed under some form
of illegal restraint. If an individuals liberty is restrained via some
legal process, the writ of habeas corpus is
unavailing.[18] Fundamentally, in order to justify the grant of the writ
Petitioner contends that when PO1 Ampatuan was
placed under the custody of respondents on 20 April 2008, there
was yet no administrative case filed against him. When the release
order of Chief Inquest Prosecutor Nelson Salva was served upon
respondents on 21 April 2008, there was still no administrative
case filed against PO1 Ampatuan.She also argues that the arrest
on 14 April 2008 of PO1 Ampatuan in Shariff Kabunsuan was
illegal because there was no warrant of arrest issued by any
judicial authority against him.
On the other hand, respondents, in their
Comment[23] filed by the Office of the Solicitor General, argue that
the trial court correctly denied the subject petition.Respondents
maintain that while the Office of the City Prosecutor of Manila had
recommended that PO1 Ampatuan be released from custody, said
recommendation was made only insofar as the criminal action for
murder that was filed with the prosecution office is concerned and
is without prejudice to other legal grounds for which he may be
held under custody. In the instant case, PO1 Ampatuan is also

of habeas corpus, the restraint of liberty must be in the nature of
[19]
an illegal and involuntary deprivation of freedom of action.
In general, the purpose of the writ of habeas corpus is to
determine whether or not a particular person is legally held. A
prime specification of an application for a writ ofhabeas corpus, in
fact, is an actual and effective, and not merely nominal or moral,
facing administrative charges for Grave Misconduct. They cited the
case of Manalo v. Calderon,[24] where this Court held that a petition
for habeas corpus will be given due course only if it shows that
petitioner is being detained or restrained of his liberty unlawfully,
but a restrictive custody and monitoring of movements or
whereabouts of police officers under investigation by their

illegal restraint of liberty. The writ of habeas corpus was devised superiors is not a form of illegal detention or restraint of liberty. [25]
and exists as a speedy and effectual remedy to relieve persons
from unlawful restraint, and as the best and only sufficient defense
The Solicitor General is correct.
of personal freedom. A prime specification of an application for a
writ of habeas corpus is restraint of liberty. The essential object
In this case, PO1 Ampatuan has been placed under
and purpose of the writ of habeas corpus is to inquire into all
Restrictive Custody. Republic Act No. 6975 (also known as the
manner of involuntary restraint as distinguished from voluntary,
Department of Interior and Local Government Act of 1990), as
and to relieve a person therefrom if such restraint is illegal. Any
amended by Republic Act No. 8551 (also known as the Philippine
restraint which will preclude freedom of action is sufficient. [20]
National Police Reform and Reorganization Act of 1998), clearly
provides that members of the police force are subject to the
In passing upon a petition for habeas corpus, a court or
administrative disciplinary machinery of the PNP. Section 41(b) of
judge must first inquire into whether the petitioner is being
the said law enumerates the disciplinary actions, including
restrained of his liberty. If he is not, the writ will be refused. Inquiry
restrictive custodythat may be imposed by duly designated
into the cause of detention will proceed only where such restraint
supervisors and equivalent officers of the PNP as a matter of
exists. If the alleged cause is thereafter found to be unlawful, then
internal discipline. The pertinent provision of Republic Act No.
the writ should be granted and the petitioner discharged. Needless
8551 reads:
to state, if otherwise, again the writ will be refused. [21]

While habeas corpus is a writ of right, it will not issue as

a matter of course or as a mere perfunctory operation on the filing
of the petition. Judicial discretion is called for in its issuance and it Sec. 52 x x x.
must be clear to the judge to whom the petition is presented
xxxx
that, prima facie, the petitioner is entitled to the writ. It is only if the
court is satisfied that a person is being unlawfully restrained of his 4. The Chief of the PNP shall have the power to
impose the disciplinary punishment of dismissal
liberty will the petition for habeas corpus be granted. If the from the service; suspension or forfeiture of
respondents are not detaining or restraining the applicant or the salary; or any combination thereof for a period
not exceeding one hundred eighty (180)
person in whose behalf the petition is filed, the petition should be days. Provided, further, That the Chief of
dismissed.[22] the PNP shall have the authority to place
police personnel under restrictive custody
during the pendency of a grave
administrative case filed against him or
even after the filing of a criminal complaint,
 grave in nature, against such police
personnel. [Emphasis ours].
Given that PO1 Ampatuan has been placed under
restrictive custody, such constitutes a valid argument for his
continued detention. This Court has held that a restrictive custody
and monitoring of movements or whereabouts of police officers
under investigation by their superiors is not a form of illegal
[26]
detention or restraint of liberty.
Restrictive custody is, at best, nominal restraint which is
beyond the ambit of habeas corpus. It is neither actual nor
effective restraint that would call for the grant of the remedy prayed
for. It is a permissible precautionary measure to assure the PNP
authorities that the police officers concerned are always accounted
for.[27]
Since the basis of PO1 Ampatuans restrictive custody is
the administrative case filed against him, his remedy is within such
administrative process.
We likewise note that PO1 Ampatuan has been under
restrictive custody since 19 April 2008. To date, the administrative
case against him should have already been resolved and the issue
of his restrictive custody should have been rendered moot and
academic, in accordance with Section 55 of Republic Act No.
8551, which provides:
SEC. 55. Section 47 of Republic Act No.
6975 is hereby amended to read as follows:
Sec. 47. Preventive Suspension
Pending Criminal Case. Upon the filing of a
complaint or information sufficient in form and
substance against a member of the PNP for
grave felonies where the penalty imposed by
law is six (6) years and one (1) day or more, the
court shall immediately suspend the accused
from office for a period not exceeding ninety
(90) days from arraignment: Provided, however,
That if it can be shown by evidence that the
accused is harassing the complainant and/or
witnesses, the court may order the preventive
suspension of the accused PNP member even
if the charge is punishable by a penalty lower
than six (6) years and one (1) day: Provided,
further, That the preventive suspension shall
not be more than ninety (90) days except if the
delay in the disposition of the case is due to the
fault, negligence or petitions of the
respondent: Provided, finally, That such
preventive suspension may be sooner lifted by
the court in the exigency of the service upon
recommendation of the Chief, PNP. Such case
shall be subject to continuous trial and shall
be terminated within ninety (90) days from
arraignment of the accused. (Emphasis
supplied.)
Having conceded that there is no grave abuse of
discretion on the part of the trial court, we have to dismiss the
petition.
In sum, petitioner is unable to discharge the burden of
showing that she is entitled to the issuance of the writ prayed for in
behalf of her husband, PO1 Ampatuan. The petition fails to show
on its face that the latter is unlawfully deprived of his liberty
guaranteed and enshrined in the Constitution.
WHEREFORE, premises considered, the instant petition
is DISMISSED for lack of merit.
Costs against petitioner.
SO ORDERED.
G.R. No. 182855 June 5, 2013
MR. ALEXANDER "LEX" ADONIS, represented by the CENTER
FOR MEDIA FREEDOM AND RESPONSIBILITY (CMFR),
through its Executive Director, MRS. MELINDA QUINTOS-DE
JESUS; and the NATIONAL UNION OF JOURNALISTS OF THE
PHILIPPINES (NUJP), through its Chairperson, MR. JOSE
TORRES, JR., Petitioners,
vs.
SUPERENTENDENT VENANCIO TESORO, DIRECTOR, DAVAO
PRISONS AND PENAL FARM, PANABO CITY, DIGOS DAVAO
DEL NORTE, Respondent.
RESOLUTION
REYES, J.:
This is a Petition for the Issuance of the Writ of Habeas
Corpus1 under Rule 102 of the 1997 Rules of Court filed by
petitioner Alexander Adonis (Adonis), praying that the Court directs
respondent Superintendent Venancio Tesoro (respondent),
Director of the Davao Prisons and Penal Farm, to have the body of
the former brought before this Court and in the alternative, praying
for the application of the Supreme Court Administrative Circular
No. 08-2008,2 which imposes the penalty of a fine instead of
imprisonment in Criminal Case No. 48679-2001.3
Antecedent Facts
In Criminal Case No. 48679-2001, Adonis was convicted by the
Regional Trial Court of Davao City (RTC), Branch 17 for Libel, filed
against him by then Representative Prospero Nograles. He was
sentenced to an indeterminate sentence of five (5) months and
one (1) day of arresto mayor maximum, as minimum penalty, to
four (4) years, six (6) months and one (1) day of prision
correccional medium, as maximum penalty.4 He began serving his
sentence at the Davao Prisons and Penal Farm on February 20,
2007.5
A second libel case, docketed as Criminal Case No. 48719-2001
was likewise filed against Adonis by Jeanette L. Leuterio, pending
before the RTC of Davao City, Branch 14.6
On December 11, 2007, the Board of Pardons and Parole (BPP)
issued an order for the Discharge on Parole of seven (7) inmates
in various jails in the country, which included Adonis. The said
document was received by the City Parole and Probation Office of
Davao on May 2, 2008.7
Meanwhile, on January 25, 2008, this Court issued Administrative
Circular No. 08-2008, the subject of which is the "Guidelines in the
Observance of a Rule of Preference in the Imposition of Penalties
in Libel Cases."
In view of these developments, Adonis, on April 18, 2008 filed with
the RTC Branch 17 a Motion to Reopen Case (With Leave of
Court),8 praying for his immediate release from detention and for
the modification of his sentence to payment of fine pursuant to the
said Circular.
On May 26, 2008, in Criminal Case No. 48719-2001 before the
RTC Branch 14, Adonis moved for his provisional release from
detention. The motion was granted by Presiding Judge George
Omelio in open court and he was allowed to post bail in the
amount of P5,000.9 Subsequently on even date and after Adonis
filed a cash bond and an undertaking,10 the trial court issued an
Order directing the Chief of Davao Penal Colony "to release the
accused Alexis Adonis unless he is being held for some other
crimes or offenses."11 On the same date, the said order was
served to the respondent,12 but the release of Adonis was not
effected.
On May 30, 2008, Adonis filed the instant petition for the issuance
of a writ of habeas corpus alleging that his liberty was restrained
by the respondent for no valid reason.13
The respondent consequently filed his Comment.14 Adonis then
filed on October 27, 2008 an Urgent Motion to Resolve15 and on
November 7, 2008 a Manifestation and Motion, 16 reiterating all his
previous prayers.
On February 11, 2009, the Court received the letter from the
respondent, informing the Court that Adonis had been released
from confinement on December 23, 2008 after accepting the
conditions set forth in his parole and with the advise to report to
the City Parole and Probation Officer of Davao. 17
The Court’s Ruling
The petition is without merit.
The ultimate purpose of the writ of habeas corpus is to relieve a
person from unlawful restraint. The writ exists as a speedy and
effectual remedy to relieve persons from unlawful restraint and as
an effective defense of personal freedom. It is issued only for the
lone purpose of obtaining relief for those illegally confined or
imprisoned without sufficient legal basis. It is not issued when the
person is in custody because of a judicial process or a valid
judgment.18
Section 4, Rule 102 of the Revised Rules of Court provides when a
writ must not be allowed or discharge authorized, to wit:
SEC. 4. When writ not allowed or discharge authorized.― If it
appears that the person alleged to be restrained of his liberty is in
the custody of an officer under process issued by a court or judge
or by virtue of a judgment or order of a court of record, and that the
court or judge had jurisdiction to issue the process, render the
judgment, or make the order, the writ shall not be allowed; or if the
jurisdiction appears after the writ is allowed, the person shall not
be discharged by reason of any informality or defect in the
process, judgment, or order. Nor shall anything in this rule be held
to authorize the discharge of a person charged with or convicted of
an offense in the Philippines, or of a person suffering imprisonment
under lawful judgment.
In the instant case, Adonis was convicted for libel by the RTC
Branch 17, in Criminal Case No. 48679-2001.1âwphi1Since his
detention was by virtue of a final judgment, he is not entitled to the
Writ of Habeas Corpus. He was serving his sentence when the
BPP granted him parole, along with six (6) others, on December
11, 2007.19 While it is true that a convict may be released from
prison on parole when he had served the minimum period of his
sentence; the pendency of another criminal case, however, is a
ground for the disqualification of such convict from being released
on parole.20 Notably, at the time he was granted the parole, the
second libel case was pending before the RTC Branch 14. 21 In
fact, even when the instant petition was filed, Criminal Case No.
48719-01 was still pending. The issuance of the writ under such
circumstance was, therefore, proscribed. There was basis for the
respondent to deny his immediate release at that time.
Further, Adonis seeks the retroactive application of Administrative
Circular No. 08-2008, citing Fermin v. People,22 where the Court
preferred the imposition of the fine rather than imprisonment under
the circumstances of the case. Administrative Circular No. 08-
2008, was issued on January 25, 2008 and provides the
"guidelines in the observance of a rule of preference in the
imposition of penalties in libel cases." The pertinent portions read
as follows:
All courts and judges concerned should henceforth take note of the
foregoing rule of preference set by the Supreme Court on the
matter of the imposition of penalties for the crime of libel bearing in
mind the following principles:
1. This Administrative Circular does not remove
imprisonment as an alternative penalty for the crime libel
under Article 355 of the Revised Penal Code;
2. The Judges concerned may, in the exercise of sound
discretion, and taking into consideration the peculiar
circumstances of each case, determine whether the
imposition of a fame alone would best serve the interests
of justice or whether forbearing to impose imprisonment
would depreciate the seriousness of the offense, work
violence on the social order, or otherwise be contrary to
the imperative of justice;
3. Should only a fine be imposed and the accused be
unable to pay the fine, there is no legal obstacle to the
application of the Revised Penal Code provision on
subsidiary imprisonment.23 (Emphasis ours)
A clear reading of the Administration Circular No. 08-2008 and
considering the attendant circumstances of the case, the benefits
of the administrative circular can not be given retroactive effect in
Criminal Case No. 48679-2001. It is too late in the day for Adonis
to raise such argument considering that Criminal Case No. 48679-
2001 has already become final and executory; and he had, in fact,
already commenced serving his sentence. Eventually, he was
released from confinement on December 23, 2008 after accepting
the conditions of the parole granted to him.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
WRIT OF HABEAS CORPUS AS POST CONVICTION REMEDY
[G.R. No. 117078. February 22, 1995.]
In the matter of the petition of ALFREDO G. LAMEN and
REYNALDO A. CORTES for the issuance of the writ of habeas
corpus for WILLY BAGAWE y PAGALLA; ALFREDO G. LAMEN
and REYNALDO A. CORTES, Petitioners, v. THE HON.
DIRECTOR, BUREAU OF CORRECTIONS, MUNTINGLUPA,
METRO MANILA, Respondents.
DECISION
DAVIDE, JR., J.:
Availing of our decision in People vs. Simon, 1 the petitioners filed
the instant petition to secure the release of Willy Bagawe y
Pagalla, who was earlier convicted of the violation of Section 4,
Article II of R.A. No. 6425, 2 as amended, for selling and delivering
marijuana and sentenced to suffer the penalty of life imprisonment
and to pay a fine of P20,000.00. The prohibited drugs involved
consist of three matchboxes containing marijuana flowering tops
with a total weight of 3.5 grams, one matchbox with a marijuana
cigarette butt, and one brown paper bag containing 10 grams of
marijuana flowering tops. 3
In our decision of 7 April 1992, 4 we affirmed in toto the aforesaid
judgment of the trial court. 5 Our decision became final on 11 May
1992. 6
Willy Bagawe y Pagalla is presently serving his sentence in the
New Bilibid Prisons in Muntinglupa, Metro Manila. He has been
under incarceration since his arrest on 14 April 1987.
The petitioners contend that since the gross quantity of the
marijuana involved in this case is only 13.6 grams, then in the light
of People vs. Simon, the maximum term imposed on Bagawe
should be reduced to two (2) years, four (4) months and one (1)
day of prision correccional; and since he has already served more
than six years, he should be released from imprisonment.
In its comment, the Office of the Solicitor General agrees with the
petitioners that Simon should apply but disagrees with their
computation of the maximum penalty. It recommends that, IN THE MATTER OF THE PETITION FOR HABEAS CORPUS
following the penalties imposed by us in Simon and in People vs. OF NEMESIO E. PRUDENTE FELICIDAD G.
Saycon, 7 the proper penalty should be six (6) months of arresto PRUDENTE, petitioners,
mayor as minimum to six (6) years of prision correccional as
maximum, without fine. vs.
Article 22 of the Revised Penal Code operates to benefit Willy
Bagawe since R.A. No. 7659 is favorable to him and since he is GENERAL MANUEL YAN, GEN. EDU GARCIA, respondents.
not a habitual crime.
G.R. No. L-34004 December 11, 1971
Following Simon, the penalty which could have been imposed on
Willy Bagawe under R.A. No. 6425, as further amended by R.A.
No. 7659, would have been prision correccional and, after applying IN THE MATTER OF THE APPLICATION FOR HABEAS
the Indeterminate Sentence Law, he would have been sentenced CORPUSIN BEHALF OF GERARDO TOMAS, ALSO KNOWN
to an indeterminate penalty ranging from six (6) months of arresto AS "GERRY TOMAS" AND FOR RETURN OF DOCUMENTS
mayor, as minimum, to four (4) years and two (2) months of prision ILLEGALLY SEIZED. DOMINGO E. DE LARA, in his capacity
correccional, as maximum. as Chairman, Committee on Legal Assistance, Philippine Bar
Association,petitioner,
Since the decision in G.R. Nos. 88515-16 had long become final
and Willy Bagawe is in fact serving his sentence, we cannot alter vs.
or modify the penalty therein imposed. Nevertheless, the writ of
habeas corpus comes to his rescue since he has undergone
imprisonment for a period more than the maximum imprisonment BRIG. GENERAL EDUARDO M. GARCIA, CHIEF, PHILIPPINE
which could have been properly imposed on him taking into CONSTABULARY, respondent.
account the favorable statute, R.A. No. 7659. In the 1932 case of
Directo vs. Director of Prisons, 8 we G.R. No. L-34013 December 11, 1971
ruled:nadchanroblesvirtualawlibrary
REYNALDO RIMANDO, petitioner,
In view of the foregoing considerations we are of the opinion and
hold: (1) that Article 22 of the Revised Penal Code which makes
penal provisions retroactive so far as they favor the accused, vs.
provided he is not a habitual criminal, does not authorize a court
whose sentence has become final and executory to make a BRIG. GEN. EDUARDO M. GARCIA, Chief of the Philippine
substantial amendment, and any amendment made in such Constabulary, respondent.
sentence, though it be to give effect to a penal provision favorable
to the accused, would be null and void for lack of jurisdiction; and
(2) that the only means of giving retroactive effect to a penal G.R. No. L-34039 December 11, 1971
provision favorable to the accused when the trial judge has lost
jurisdiction over the case, is the writ of habeas IN THE MATTER OF THE APPLICATION FOR HABEAS
corpus. nadchanroblesvirtuallawlibrary CORPUSIN BEHALF OF SGT. FILOMENO M. DE CASTRO AND
HIS WIFE, MRS. BARCELISA C. DE CASTRO. CARLOS C.
IN VIEW OF THE FOREGOING, the instant petition is GRANTED RABAGO, in his capacity as President of the Conference
and WILLY BAGAWE y PAGALLA,Accused-Appellant.in G.R. Nos. Delegates Association of the Philippines (CONDA),petitioner,
88515-16, is hereby ordered RELEASED from detention, unless
for any other lawful cause his further confinement is warranted.
vs.

SUSPENSION OF THE PRIVILEGE

BRIG. GEN. EDUARDO M. GARCIA, Chief, Philippine
Constabulary, respondent.
G.R. No. L-33964 December 11, 1971
G.R. No. L-34265 December 11, 1971
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS
OF TEODOSIO LANSANG RODOLFO DEL ROSARIO, and
BAYANI ALCALA, petitioners, IN THE MATTER OF THE PETITION FOR HABEAS CORPUS
vs. OF ANTOLIN ORETA, JR. ANTOLIN ORETA, JR., petitioner,
BRIGADIER-GENERAL EDUARDO M. GARCIA, Chief,
Philippine Constabulary, respondent. vs.

G.R. No. L-33965 December 11, 1971 GEN. EDUARDO GARCIA and COL. PROSPERO
OLIVAS, respondents.
ROGELIO V. ARIENDA, petitioner,
G.R. No. L-34339 December 11, 1971
vs.
GARY B. OLIVAR, assisted by his father, GEORGE
SECRETARY OF NATIONAL DEFENSE, and CHIEF, PHIL. OLIVAR, petitioner,
CONSTABULARY, respondents.
vs.
G.R. No. L-33973 December 11, 1971
GEN. EDUARDO GARCIA, in his capacity as Chief, Philippine
LUZVIMINDA DAVID, petitioner, Constabulary, et al., respondents.

vs. Ignacio P. Lacsina for petitioners Teodosio Lansang, et al.

GEN. EDUARDO GARCIA, in his capacity as Chief, Philippine
Constabulary, COL. N. C. CAMELLO, in his capacity as Chief
of Staff, Philippine Constabulary and HON. JUAN PONCE
ENRILE in his capacity as Secretary, Department of National
defense, respondents.
G.R. No. L-33982 December 11, 1971
Ramon A. Gonzales for petitioner Rogelio V. Arienda.
E. Voltaire Garcia II for petitioner Luzvimindo David.
Verzola, Africa and Atencio, Lorenzo M. Tanada, Wigberto E.
Tañada, Fortunato de Leon, R. G. Suntay and Juan T. David for
petitioner Felicidad G. Prudente.

Ruben L. Roxas for petitioner Reynaldo Rimando.

Nuñez, Acob, Del Rosario and Ramos for petitioner Carlos
Rabago, etc.
E. Voltaire Garcia II and M. P. Vivo for petitioner Gary Olivar, etc.,
et al.
Jose W. Diokno and Juanito R. Remulla for petitioner Antolin
Oreta, Jr.
Domingo E. de Lara for and in his own behalf.
Office of the Solicitor General Felix Q. Antonio and Assistant
Solicitor General Bernardo P. Pardo for respondents.
CONCEPCION, C.J.:
In the evening of August 21, 1971, at about 9 p.m., while the
Liberal Party of the Philippines was holding a public meeting at
Plaza Miranda, Manila, for the presentation of its candidates in the
general elections scheduled for November 8, 1971, two (2) hand
grenades were thrown, one after the other, at the platform where
said candidates and other persons were. As a consequence, eight
(8) persons were killed and many more injured, including
practically all of the aforementioned candidates, some of whom
sustained extensive, as well as serious, injuries which could have
been fatal had it not been for the timely medical assistance given
to them.
On August 23, soon after noontime, the President of the
Philippines announced the issuance of Proclamation No. 889,
dated August 21, 1971, reading as follows:
WHEREAS, on the basis of carefully evaluated
information, it is definitely established that
lawless elements in the country, which are
moved by common or similar ideological
conviction, design and goal and enjoying the
active moral and material support of a foreign
power and being guided and directed by a well
trained, determined and ruthless group of men
and taking advantage of our constitutional
liberties to promote and attain their ends, have
entered into a conspiracy and have in fact
joined and banded their forces together for the
avowed purpose of actually staging,
undertaking and waging an armed insurrection
and rebellion in order to forcibly seize political
power in this country, overthrow the duly
constituted government, and supplant our
existing political social, economic and legal
order with an entirely new one whose form of
government, whose system of laws, whose
conception of God and religion, whose notion of
individual rights and family relations, and
whose political, social and economic precepts
are based on the Marxist-Leninist-Maoist
teachings and beliefs;
WHEREAS, these lawless elements, acting in
concert through front organizations that are
seemingly innocent and harmless, have
continuously and systematically strengthened
and broadened their memberships through
sustained and careful recruiting and enlistment
of new adherents from among our peasantry,
laborers, professionals, intellectuals, students,
and mass media personnel, and through such
sustained and careful recruitment and
enlistment have succeeded in infiltrating almost
every segment of our society in their ceaseless
determination to erode and weaken the
political, social, economic and moral
foundations of our existing government and to
influence many peasant, labor, professional,
intellectual, student and mass media
organizations to commit acts of violence and
depredations against our duly constituted
authorities, against the members of our law
enforcement agencies, and worst of all, against
the peaceful members of our society;
WHEREAS, these lawless elements have
created a state of lawlessness and disorder
affecting public safety and the security of the
State, the latest manifestation of which has
been the dastardly attack on the Liberal Party
rally in Manila on August 21, 1971, which has
resulted in the death and serious injury of
scores of persons;
WHEREAS, public safety requires that
immediate and effective action be taken in
order to maintain peace and order, secure the
safety of the people and preserve the authority
of the State;
NOW, THEREFORE, I, FERDINAND E.
MARCOS, President of the Philippines, by
virtue of the powers vested upon me by Article
VII, Section 10, Paragraph (2) of the
Constitution, do hereby suspend the privilege of
the writ of habeas corpus, for the persons
presently detained, as well as others who may
be hereafter similarly detained for the crimes of
insurrection or rebellion, and all other crimes
and offenses committed by them in furtherance
or on the occasion thereof, or incident thereto,
or in connection therewith.
Presently, petitions for writ of habeas corpus were filed, in the
above-entitled cases, by the following persons, who, having been
arrested without a warrant therefor and then detained, upon the
authority of said proclamation, assail its validity, as well as that of
their detention, namely:
1. TEDORO LANSANG, RODOLFO DEL ROSARIO and BAYANI
ALCALA, the petitioners in Case No. L-33964 — filed on August
24, 1971 — who, on August 22, 1971, between 8 a.m. and 6 p.m.,
were "invited" by agents of the Philippine Constabulary — which is
under the command of respondent Brig. Gen. Eduardo M. Garcia
— to go and did go to the headquarters of the Philippine
Constabulary, at Camp Crame, Quezon City, for interrogation, and
thereafter, detained;
2. ROGELIO V. ARIENDA, the petitioner in Case No. L-33965 —
filed, also, on August 24, 1971 — who was picked up in his
residence, at No. 55 Road, 3, Urduja Village, Quezon City, by
members of the Metrocom and then detained;
3. Soon after the filing of the petition in Case No. L-33965 — or on
August 28, 1971 — the same was amended to include VICENTE
ILAO and JUAN CARANDANG, as petitioners therein, although,
apart from stating that these additional petitioners are temporarily
residing with the original petitioner, Rogelio V. Arienda, the
amended petition alleged nothing whatsoever as regards the
circumstances under which said Vicente Ilao and Juan Carandang
are said to be illegally deprived of their liberty;
4. LUZVIMINDO DAVID, petitioner in Case No. L-33973 — filed on
August 25, 1971 — who was similarly arrested in his residence, at
No. 131-B Kamias Road, Quezon City, and detained by the
Constabulary;
5. Felicidad G. Prudente, who filed the petition in Case No. L-
33982 — on August 27, 1971 — upon the ground that her father,
Dr. NEMESIO E. PRUDENTE, had, on August 22, 1971, at about
8 p.m., been apprehended by Constabulary agents in his house, at
St. Ignatius Village, Quezon City, and then detained at the Camp
Crame stockade, Quezon City;
6. ANGELO DE LOS REYES, who was allowed — on August 30,
1971 — to intervene as one of the petitioners in Cases Nos. L-
33964, L-33965 and L-33973, he having been arrested by
members of the Constabulary on August 22, 1971, between 6:30
and 7:30 p.m., in his residence, at 86 Don Manuel Street, Sta.
Mesa Heights, Quezon City, and brought to Camp Crame, Quezon
City, where he is detained and restrained of liberty;
7. VICTOR FELIPE, who was similarly allowed to intervene as one
of the petitioners in said three (3) cases, upon the ground that, on
August 23, 1971, at about 8 a.m., he was, likewise, apprehended
at Sta. Rosa, Laguna, by members of the Philippine Constabulary
and brought, first to the Constabulary headquarters at Canlubang,
Laguna, and, then, to Camp Crame, Quezon City, where he is
detained and restrained of liberty;
8. TERESITO SISON, who was, also, allowed to intervene as one
of the petitioners in the same three (3) cases, he having been
arrested in his residence, at 318 Lakandula St., Angeles City, on
August 22, 1971, between 6 and 7 p.m., and taken to the PC
offices at Sto. Domingo, Angeles City, then to Camp Olivas, San
Fernando, Pampanga, and eventually to Camp Crame, Quezon
City, where he is restrained and deprived of liberty;
9. GERARDO TOMAS, alias Gerry Tomas, a 17-year old second
year college students of St. Louis University, Baguio City, on
whose behalf, Domingo E. de Lara — in his capacity as Chairman,
Committee on Legal Assistance, Philippine Bar Association — filed
on September 3, 1971, the petition in Case No. L-34004, upon the
ground that said Gerardo Tomas had, on August 23, 1971, at
about 6 a.m., been arrested by Constabulary agents, while on his
way to school in the City of Baguio, then brought to the
Constabulary premises therein at Camp Holmes, and, thereafter,
taken, on August 24, 1971, to Camp Olivas, Pampanga, and
thence, on August 25, 1971, to the Constabulary headquarters at
Camp Crame, Quezon City, where he is detained;
10. REYNALDO RIMANDO, petitioner in Case No. L-34013 —
filed on September 7, 1971 — a 19-year old student of the U.P.
College in Baguio city — who, while allegedly on his way home, at
Lukban Road, Baguio, on August 23, 1971, at about 1 a.m., was
joined by three (3) men who brought him to the Burnham Park,
thence, to Camp Olivas at San Fernando, Pampanga, and,
thereafter, to Camp Crame, Quezon City, where he is detained;
11. Sgt. FILOMENO M. DE CASTRO and his wife, Mrs.
BARCELISA C. DE CASTRO, on whose behalf Carlos C. Rabago
— as President of the Conference Delegates Association of the
Philippines (CONDA) — filed the petition in Case No. L-34039 —
on September 14, 1971 — against Gen. Eduardo M. Garcia,
alleging that, on August 27, 1971, at about 3 p.m., Mrs. De Castro
was arrested, while at Liamzon Subdivision, Rosario, Pasig, Rizal,
by agents of the Constabulary, and taken to the PC headquarters
at Camp Crame, where, later, that same afternoon, her husband
was brought, also, by PC agents and both are detained;
12. ANTOLIN ORETA, JR., who filed the petition in Case No. L-
34265 — on October 26, 1971 — against said Gen. Garcia, as
Chief of the Constabulary, and Col. Prospero Olivas, Chief of the
Central Intelligence Service (CIS), Philippine Constabulary,
alleging that, upon invitation from said CIS, he went, on October
20, 1971, to Camp Aguinaldo, Quezon City, to see Gen. Manuel
Yan, Chief of Staff of the Armed Forces of the Philippines, who
referred petitioner to Col. Laroya of the CIS; that the latter, in turn,
referred him to CIS Investigator Atty. Berlin Castillo and another
CIS against, whose name is unknown to the petitioner; and that,
after being interrogated by the two (2), petitioner was detained
illegally; and
13. GARY OLIVAR, petitioner in Case No. L-34339 — filed on
November 10, 1971 — who was apprehended, by agents of the
Constabulary, in the evening of November 8, 1941, in Quezon
City, and then detained at Camp Crame, in the same City.
Upon the filing of the aforementioned cases, the respondents were
forthwith required to answer the petitions therein, which they did.
The return and answer in L-33964 — which was, mutatis mutandis,
reproduced substantially or by reference in the other cases, except
L-34265 — alleges, inter alia, that the petitioners had been
apprehended and detained "on reasonable belief" that they had
"participated in the crime of insurrection or rebellion;" that "their
continued detention is justified due to the suspension of the
privilege of the writ of habeas corpus pursuant to Proclamation No.
889 of the President of the Philippines;" that there is "a state of
insurrection or rebellion" in this country, and that "public safety and
the security of the State required the suspension of the privilege of
the writ of habeas corpus," as "declared by the President of the
Philippines in Proclamation No. 889; that in making said
declaration, the "President of the Philippines acted on relevant
facts gathered thru the coordinated efforts of the various
intelligence agents of our government but (of) which the Chief
Executive could not at the moment give a full account and
disclosure without risking revelation of highly classified state
secrets vital to its safely and security"; that the determination thus
made by the President is "final and conclusive upon the court and
upon all other persons" and "partake(s) of the nature of political
question(s) which cannot be the subject of judicial inquiry,"
pursuant to Barcelon v. Baker, 5 Phil. 87, and Montenegro v.
Castañeda, 91 Phil. 882; that petitioners "are under detention
pending investigation and evaluation of culpabilities on the
reasonable belief" that they "have committed, and are still
committing, individually or in conspiracy with others, engaged in
armed struggle, insurgency and other subversive activities for the
overthrow of the Government; that petitioners cannot raise, in
these proceedings for habeas corpus, "the question of their guilt or
innocence"; that the "Chief of Constabulary had petitioners taken
into custody on the basis of the existence of evidence sufficient to
afford a reasonable ground to believe that petitioners come within
the coverage of persons to whom the privilege of the writ
of habeas corpus has been suspended"; that the "continuing
detention of the petitioners as an urgent bona fide precautionary
and preventive measure demanded by the necessities of public
safety, public welfare and public interest"; that the President of the
Philippines has "undertaken concrete and abundant steps to
insure that the constitutional rights and privileges of the petitioners
as well as of the other persons in current confinement pursuant to
Proclamation 889 remain unimpaired and unhampered"; and that
"opportunities or occasions for abuses by peace officers in the
implementation of the proclamation have been greatly minimized, if
not completely curtailed, by various safeguards contained in
directives issued by proper authority."
These safeguards are set forth in:
1. A letter of the President to the Secretary of National Defense,
dated August 21, 1971, directing, inter alia, in connection with the
arrest or detention of suspects pursuant to Proclamation No. 889,
that, except when caught inflagrante delicto, no arrest shall be
made without warrant authorized in writing by the Secretary of
National Defense; that such authority shall not be granted unless,
"on the basis of records and other evidences," it appears
satisfactorily, in accordance with Rule 113, section 6(b), of the
Rules of Court, that the person to be arrested is probably guilty of
the acts mentioned in the proclamation; that, if such person will be
charged with a crime subject to an afflictive penalty under the Anti-
Subversion Act, the authorization for his arrest shall not be issued
unless supported by signed intelligence reports citing at least one
reliable witness to the same overt act; that no unnecessary or
unreasonable force shall be used in effecting arrests; and that
arrested persons shall not be subject to greater restraint than is
necessary for their detention;
2. Communications of the Chief of the Constabulary, dated August
23, 27, and 30, 1971, to all units of his command, stating that the
privilege of the writ is suspended for no other persons than those
specified in the proclamation; that the same does not involve
material law; that precautionary measures should be taken to
forestall violence that may be precipitated by improper behavior of
military personnel; that authority to cause arrest under the
proclamation will be exercised only by the Metrocom, CMA, CIS,
and "officers occupying position in the provinces down to provincial
commanders"; that there shall be no indiscriminate or mass
arrests; that arrested persons shall not be harmed and shall be
accorded fair and humane treatment; and that members of the
detainee's immediate family shall be allowed to visit him twice a
week;
3. A memorandum of the Department of National Defense, dated
September 2, 1971, directing the Chief of the Constabulary to
establish appropriate Complaints and Action Bodies/Groups to
prevent and/or check any abuses in connection with the
suspension of the privilege of the writ; and
4. Executive Order No. 333, dated August 26, 1971, creating a
Presidential Administrative Assistance Committee to hear
complaints regarding abuses committed in connection with the
implementation of Proclamation No. 889.
Respondents in L-33965 further alleged that therein petitioners
Vicente Ilao and Juan Carandang had been released from custody
on August 31, 1971, "after it had been found that the evidence
against them was insufficient."
In L-34265, the "Answer and Return" filed by respondents therein
traversed some allegations of fact and conclusions of law made in
the petition therein and averred that Antolin Oreta, Jr., the
petitioner therein, had been and is detained "on the basis of a
reasonable ground to believe that he has committed overt acts in
furtherance of rebellion or insurrection against the government"
and, accordingly, "comes within the class of persons as to whom
the privilege of the writ of habeas corpus has been suspended by
Proclamation No. 889, as amended," the validity of which is not
contested by him.
On August 30, 1971, the President issued Proclamation No. 889- allowed to file memoranda, which were submitted from September
A, amending Proclamation No. 889, so as to read as follows: 3 to September 9, 1971.

WHEREAS, on the basis of carefully evaluated Soon thereafter, or on September 18, 1971, Proclamation No. 889
information, it is definitely established that was further amended by Proclamation No. 889-B, lifting the
lawless elements in the country, which are suspension of the privilege of the writ of habeas corpus in the
moved by common or similar ideological following provinces, sub-provinces and cities of the Philippine,
conviction, design and goal and enjoying the namely:
active moral and material support of a foreign
power and being guided and directed by a well- A. PROVINCES:
trained, determined and ruthless group of men
and taking advantage of our constitutional
liberties to promote and attain their ends, have 1. Batanes 15. Negros Occ.
entered into a conspiracy and have in fact 2. Ilocos Norte 16. Negros
joined and banded their forces together for the Or.
avowed purpose of [actually] staging, 3. Ilocos Sur 17. Cebu
undertaking, [and] wagging and are actually 4. Abra 18. Bohol
engaged in an armed insurrection and rebellion 5. Abra 19. Capiz
in order to forcibly seize political power in this 6. Pangasinan 20. Aklan
country, overthrow the duly constituted 7. Batangas 21. Antique
government, and supplant our existing political, 8. Catanduanes 22. Iloilo
social, economic and legal order with an 9. Masbate 23. Leyte
entirely new one whose form of government, 10. Romblon 24. Leyte del
whose system of laws, whose conception of Sur
God and religion, whose notion of individual 11. Marinduque 25.
rights and family relations, and whose political, Northern Samar
social and economic precepts are based on the 12. Or. Mindoro 26. Eastern
Marxist-Leninist-Maoist teaching and beliefs; Samar
13. Occ. Mindoro 27.
Western Samar
WHEREAS, these lawless elements, acting in 14. Palawan.
concert through front organizations that are
seemingly innocent and harmless, have
continuously and systematically strengthened B. SUB-PROVINCES:
and broadened their memberships through
sustained and careful recruiting and enlistment 1. Guimaras 3. Siquior
of new adherents from among our peasantly, 2. Biliran
laborers, professionals, intellectuals, students,
and mass media personnel, and through such
sustained and careful recruitment and C. CITIES:
enlistment have succeeded in infiltrating almost
every segment of our society in their ceaseless 1. Laog 10. Bacolod
determination to erode and weaken the 2. Dagupan 11. Bago
political, social, economic and moral 3. San Carlos 12. Canlaon
foundations of our existing government and 4. Batangas 13. La Carlota
influence many peasant, labor, professional, 5. Lipa 14. Bais
intellectual, student and mass media 6. Puerto Princesa 15.
organizations to commit acts of violence and Dumaguete
depredations against our duly constituted 7. San Carlos (Negros 16.
authorities, against the members of our law Iloilo
enforcement agencies, and worst of all, against Occ.) 17. Roxas
the peaceful members of our society; 8. Cadiz 18. Tagbilaran
9. Silay 19. Lapu-lapu
WHEREAS, these lawless elements, by their
acts of rebellion and insurrection, have created 20. Cebu 24. Tacloban
a state of lawlessness and disorder affecting 21. Mandaue 25. Ormoc
public safety and security of the State, the 22. Danao 26. Calbayog
latest manifestation of which has been the 23. Toledo
dastardly attack on the Liberal Party rally in
Manila on August 21, 1971, which has resulted On September 25, 1971, the President issued Proclamation No.
in the death and serious injury of scores of 889-C, restoring the privilege of the writ in the following provinces
persons; and cities:

WHEREAS, public safety requires that A. PROVINCES:

immediate and effective action be taken in
order to maintain peace and order, secure the
safety of the people and preserve the authority 1. Surigao del Norte 8.
of the State; Agusan del Sur
2. Surigao del Sur 9.
Misamis Or.
NOW THEREFORE, I, FERDINAND E. 3. Davao del Norte 10.
MARCOS, President of the Philippines, by Misamis Occ.
virtue of the powers vested upon me by Article 4. Davao del Sur 11.
VII, Section 10, Paragraph (2) of the Zamboanga del Norte
Constitution, do hereby suspend the privilege of 5. Davao Oriental 12.
the writ of habeas corpus for the persons Basilan
presently detained, as well as all others who 6. Bukidnon 13. Pagadian
may be hereafter similarly detained for the 7. Agusan del Norte
crimes of insurrection or rebellion [,] and [all]
other [crimes and offenses] overt acts
committed by them in furtherance [or on the B. CITIES:
occasion] thereof[,]. [or incident thereto, or in
connection therewith.] 1 1. Surigao 8. Tangub
2. Davao 9. Dapitan
On September 1, 1971, Cases Nos. L-33964, L-33965, L-33973 3. Butuan 10. Dipolog
and L-33982 were jointly heard and then the parties therein were 4. Cagayan 11. Zamboanga
5. Gingoong 12. Basilan
 6. Ozamiz 13. Pagadian. order to satisfy itself of the existence of the
7. Oroquieta factual bases for the issuance of Presidential
Proclamations Nos. 889 and 889-A
(suspending the privilege of the writ of habeas
On October 4, 1971, the suspension of the privilege was further
lifted by Proclamation No. 889-D, in the following places: corpus for all persons detained or to be
detained for the crimes of rebellion or
insurrection throughout the Philippines, which
A. PROVINCES: area has lately been reduced to some eighteen
provinces, two subprovinces and eighteen
1. Cagayan 5. Camarines cities with the partial lifting of the suspension of
2. Cavite 6. Albay the privilege effected by Presidential
3. Mountain Province 7. Proclamations Nos. 889-B, 889-C and 889-D)
Sorsogon and thus determine the constitutional
4. Kalinga-Apayao sufficiency of such bases in the light of the
requirements of Article III, sec. 1, par. 14, and
Article VII, sec. 10, par. 2, of the Philippine
B. CITIES: Constitution; and considering that the members
of the Court are not agreed on the precise
1. Cavite City 3. Trece scope and nature of the inquiry to be made in
Martires the premises, even as all of them are agreed
2. Tagaytay 4. Legaspi that the Presidential findings are entitled to
great respect, the Court RESOLVED that these
cases be set for rehearing on October 8, 1971
As a consequences, the privilege of the writ of habeas corpus is at 9:30 A.M.
still suspended in the following eighteen (18) provinces, two (2)
sub-provinces and eighteen (18) cities, to wit:
xxx xxx xxx
A. PROVINCE:
On October 8, 1971, said four cases were, therefore, heard, once
again, but, this time jointly with cases Nos. L-34004, L-34013, and
1. Bataan 10. North L-34039, and the parties were then granted a period to file
Cotabato memoranda, in amplification of their respective oral arguments,
2. Benguet 11. Nueva Ecija which memoranda were submitted from October 12 to October 21,
3. Bulacan 13. Pampanga 1971.
4. Camarines Sur 14.
Quezon
5. Ifugao 15. Rizal Respondents having expressed, during the oral arguments, on
6. Isabela 16. South September 1 and October 8, 1971, their willingness to impart to
Cotabato the Court classified information relevant to these cases, subject to
7. Laguna 17. Tarlac appropriate security measures, the Court met at closed doors, on
8. Lanao del Norte 18. October 28 and 29, 1971, and, in the presence of three (3)
Zambales attorneys for the petitioners, chosen by the latter, namely, Senator
9. Lanao del Norte Jose W. Diokno, Senator Salvador H. Laurel, and Atty. Leopoldo
Africa, as well as of the Solicitor General and two (2) members of
his staff, was briefed, by Gen. Manuel Yan, Chief of Staff of the
B. SUB-PROVINCES: Armed Forces of the Philippines, Gen. Fidel Ramos, Deputy Chief
of Staff, Gen. Felizardo Tanabe, Col. Tagumpay Nanadiego,
1. Aurora 2. Quirino Judge Advocate General, JAGS (GSC), and other ranking officers
of said Armed Forces, on said classified information, most of which
was contained in reports and other documents already attached to
C. CITIES:
the records. During the proceedings, the members of the Court,
and, occassionally, counsel for the petitioners, propounded
1. Angeles 10. Manila pertinent questions to said officers of the Armed Forces. Both
2. Baguio 11. Marawi parties were then granted a period of time within which to submit
3. Cabanatuan 12. Naga their respective observations, which were filed on November 3,
4. Caloocan 13. Olongapo 1971, and complemented by some documents attached to the
5. Cotabato 14. Palayan records on November 6, 1971, and a summary, submitted on
6. General Santos 15. November 15, 1971, of the aforesaid classified information.
Pasay
7. Iligan 16. Quezon
In the meantime, cases Nos. L-34265 (Oreta) and L-34339 (Olivar)
8 Iriga 17. San Jose
had been filed and the parties therein were heard in oral argument
9 Lucena 18. San Pablo
on November 4, and 16, 1971, respectively.

The first major question that the Court had to consider was
On November 15, 1971, the Solicitor General filed manifestations
whether it would adhere to the view taken in Barcelon v.
— motions stating that on November 13, 1971, the following
Baker, 2 and reiterated in Montenegro v. Castañeda, 3 pursuant to
petitioners were:
which, "the authority to decide whether the exigency has arisen
requiring suspension (of the privilege of the writ ofhabeas corpus)
belongs to the President and his 'decision is final and conclusive' (a) released from custody:
upon the courts and upon all other persons." Indeed, had said
question been decided in the affirmative the main issue in all of (1) Teodosio Lansang -- G.R. No. L-33964
these cases, except (2) Bayani Alcala -- " " L-33964
L-34339, would have been settled, and, since the other issues (3) Rogelio Arienda -- " " L-33965
were relatively of minor importance, said cases could have been (4) Nemesio Prudente -- " " L-33982
readily disposed of. Upon mature deliberation, a majority of the (5) Gerardo Tomas -- " " L-34004
Members of the Court had, however, reached, although tentatively, (6) Reynaldo Rimando -- " " L-34013
a consensus to the contrary, and decided that the Court had (7) Filomeno M. de Castro -- " " L-34039
authority to and should inquire into the existence of the factual (8) Barcelisa de Castro -- " " L-34039
bases required by the Constitution for the suspension of the (9) Antolin Oreta, Jr. -- " " L-34264.
privilege of the writ; but before proceeding to do so, the Court
deemed it necessary to hear the parties on the nature and extent
of the inquiry to be undertaken, none of them having previously (b) charged, together with other persons named in the criminal
expressed their views thereof. Accordingly, on October 5, 1971, complaint filed therefor, with a violation of Republic Act No. 1700
the Court issued, in L-33964, L-33965, L-33973 and L-33982, a (Anti-Subversion Act), in the City Fiscal's Office of Quezon City:
resolution stating in part that —
(1) Angelo de los Reyes -- G.R. No. L-22982 *
... a majority of the Court having tentatively (2) Teresito Sison -- " " L-33982 *
arrived at a consensus that it may inquire in
(c) accused, together with many others named in the criminal
complaint filed therefor, of a violation of section 4 of Republic Act
No. 1700 (Anti-Subversion Act), in the Court of First Instance of
Rizal:
(1) Rodolfo del Rosario -- G.R. No. L-33969 **
(2) Luzvimindo David -- " " L-33973
(3) Victor Felipe -- " " L-33982 *
and continue under detention pursuant to Proclamation No. 889,
as amended, and praying that the petitions in G.R. Nos. L-33964,
L-33965, L-33982, L-34004, L-34013 and L-34039 be dismissed,
without prejudice to the resolution of the remaining cases. Copy of
the criminal complaint filed, as above stated, with the Court of First
Instance of Rizal and docketed therein as Criminal Case No. Q-
1623 of said court — which was appended to said manifestations-
motions of the respondent as Annex 2 thereof — shows that Gary
Olivar, the petitioner in L-34339, is one of the defendants in said
case.
Required to comment on said manifestations-motions, Luzvimindo
David, petitioner in L-33973, in his comment dated November 23,
1971, urged the Court to rule on the merits of the petitions in all of
these cases, particularly on the constitutionality of Presidential
Proclamation No. 889, as amended, upon the ground that he is still
detained and that the main issue is one of public interest involving
as it does the civil liberties of the people. Angelo de los Reyes, one
of the petitioners in L-33964, L-33965 and L-33973, Nemesio E.
Prudente and Gerardo Tomas, for whose respective benefit the
petitions in L-33982 and L-34004 have been filed, maintained that
the issue in these cases is not moot, not even for the detainees
who have been released, for, as long as the privilege of the writ
remains suspended, they are in danger of being arrested and
detained again without just cause or valid reason. In his reply,
dated and filed on November 29, 1971, the Solicitor General
insisted that the release of the above-named petitioners rendered
their respective petitions moot and academic.
I conditions obtaining at the time of the issuance of the original
Petitioners herein, except Antolin Oreta, Jr. in L-34265, question
the formal validity of the proclamation suspending the privilege of
the writ of habeas corpus. In this connection, it should be noted
that, as originally formulated, Proclamation No. 889 was contested
upon the ground that it did not comply with the pertinent
constitutional provisions, namely, paragraph (14) of section 1,
Article III of our Constitution, reading:
The privilege of the writ of habeas corpus shall
not be suspended except in cases of invasion,
insurrection, or rebellion, when the public safety
requires it, in any way of which events the
same may be suspended wherever during such
period the necessity for such suspension shall
exist.
and paragraph (2), section 10, Article VII of the same instrument,
which provides that:
The President shall be commander-in-chief of
all armed forces of the Philippines, and
whenever it becomes necessary, he may call
out such armed forces to prevent or suppress
lawless violence, invasion, insurrection, or
rebellion. In case of invasion, insurrection, or
rebellion, or imminent danger thereof when the
public safety requires it, he may suspend the
privileges of the writ of habeas corpus, or place
the Philippines or any part thereof under martial
law.
Regardless of whether or not the President may suspend the
privilege of the writ of habeas corpus in case of "imminent danger"
of invasion, insurrection or rebellion — which is one of the grounds
stated in said paragraph (2), section 10 of Art. VII of the
Constitution, but not mentioned in paragraph (14), section 1 of its
Bill of Rights — petitioners maintained that Proclamation No. 889
did not declare the existence of actual "invasion insurrection or
rebellion or imminent danger thereof," and that, consequently, said
Proclamation was invalid. This contention was predicated upon the
fact that, although the first "whereas" in Proclamation No. 889
stated that "lawless elements" had "entered into a conspiracy and
have in fact joined and banded their forces together for the avowed
purposeof actually staging, undertaking and waging an armed
insurrection and rebellion," the actuality so alleged refers to the
existence, not of an uprising that constitutes the essence of a
rebellion or insurrection, but of the conspiracyand the intent to rise
in arms.
Whatever may be the merit of this claim, the same has been
rendered moot and academic by Proclamation No. 889-A, issued
nine (9) days after the promulgation of the original proclamation, or
on August 30, 1971. Indeed, said Proclamation No. 889-A
amended, inter alia, the first "whereas" of the original proclamation
by postulating the said lawless elements "have entered into a
conspiracy and have in fact joined and banded their forces
together for the avowed purpose of staging, undertaking,
waging and are actually engaged in an armed insurrection and
rebellion in order to forcibly seize political power in this country,
overthrow the duly constituted government, and supplant our
existing political, social, economic and legal order with an entirely
new one ...." Moreover, the third "whereas" in the original
proclamation was, likewise, amended by alleging therein that said
lawless elements, "by their acts of rebellion and insurrection," have
created a state of lawlessness and disorder affecting public safety
and the security of the State. In other words, apart from adverting
to the existence of actualconspiracy and of the intent to rise in
arms to overthrow the government, Proclamation No. 889-A
asserts that the lawless elements "are actually engaged in an
armed insurrection and rebellion" to accomplish their purpose.
It may not be amiss to note, at this juncture, that the very tenor of
the original proclamation and particularly, the circumstances under
which it had been issued, clearly suggest the intent to aver that
there was and is, actually, a state of rebellion in the Philippines,
although the language of said proclamation was hardly a felicitous
one, it having in effect, stressed the actuality of the intent to rise in
arms, rather than of the factual existence of the rebellion itself. The
pleadings, the oral arguments and the memoranda of respondents
herein have consistently and abundantly emphasized — to justify
the suspension of the privilege of the writ of habeas corpus — the
acts of violence and subversion committed prior to August 21,
1971, by the lawless elements above referred to, and the
proclamation. In short, We hold that Proclamation No. 889-A has
superseded the original proclamation and that the flaws attributed
thereto are purely formal in nature.
II
Let us now consider the substantive validity of the proclamation, as
amended. Pursuant to the above-quoted provisions of the
Constitution, two (2) conditions must concur for the valid exercise
of the authority to suspend the privilege to the writ, to wit: (a) there
must be "invasion, insurrection, or rebellion" or — pursuant to
paragraph (2), section 10 of Art. VII of the Constitution —
"imminent danger thereof," and (b) "public safety" must require the
suspension of the privilege. The Presidential Proclamation under
consideration declares that there has been and there is actually a
state of rebellion and
that 4 "public safety requires that immediate and effective action be
taken in order to maintain peace and order, secure the safety of
the people and preserve the authority of the State."
Are these findings conclusive upon the Court? Respondents
maintain that they are, upon the authority of Barcelon v.
Baker 5 and Montenegro v. Castañeda. 6 Upon the other hand,
petitioners press the negative view and urge a reexamination of
the position taken in said two (2) cases, as well as a reversal
thereof.
The weight of Barcelon v. Baker, as a precedent, is diluted by two
(2) factors, namely: (a) it relied heavily upon Martin v.
Mott 7 involving the U.S. President's power to call out the militia,
which — he being the commander-in-chief of all the armed forces
— may be exercised to suppress or prevent any lawless violence,
even without invasion, insurrection or rebellion, or imminent
danger thereof, and is, accordingly, much broader than his
authority to suspend the privilege of the writ of habeas corpus,
jeopardizing as the latter does individual liberty; and (b) the
privilege had been suspended by the American Governor-General,
whose act, as representative of the Sovereign, affecting the
freedom of its subjects, can hardly be equated with that of the
President of the Philippines dealing with the freedom of the Filipino
people, in whom sovereignty resides, and from whom all
government authority emanates. The pertinent ruling in the
Montenegro case was based mainly upon the Barcelon case, and
hence, cannot have more weight than the same. Moreover, in the
Barcelon case, the Court held that it could go into the question:
"Did the Governor-General" — acting under the authority vested in
him by the Congress of the United States, to suspend the privilege
of the writ ofhabeas corpus under certain conditions — "act in
conformance with such authority?" In other words, it did determine
whether or not the Chief Executive had acted in accordance with
law. Similarly, in the Montenegro case, the Court held that
petitioner therein had "failed to overcome the presumption of
correctness which the judiciary accords to acts of the Executive
...." In short, the Court considered the question whether or not
there really was are rebellion, as stated in the proclamation therein
contested.
Incidentally, even the American jurisprudence is neither explicit nor
clear on the point under consideration. Although some
cases 8 purport to deny the judicial power to "review" the findings
made in the proclamations assailed in said cases, the tenor of the
opinions therein given, considered as a whole, strongly suggests
the court's conviction that the conditions essential for the validity of
said proclamations or orders were, in fact, present therein, just as
the opposite view taken in other cases 9 had a backdrop
permeated or characterized by the belief that said conditions were
absent. Hence, the dictum of Chief Justice Taney to the effect that
"(e)very case must depend on its own circumstances." 10 One of
the important, if not dominant, factors, in connection therewith, was
intimated in Sterling v. Constantin, 11 in which the Supreme Court
of the United States, speaking through Chief Justice Hughes,
declared that:
.... When there is a substantial showing that the
exertion of state power has overridden private
rightssecured by that Constitution, the subject
is necessarily one for judicial inquiry in an
appropriate proceeding directed against the
individuals charged with the transgression. To
such a case the Federal judicial power extends
(Art. 3, sec. 2) and, so extending, the court has
all the authority appropriate to its
exercise. .... 12
In our resolution of October 5, 1971, We stated that "a majority of
the Court" had "tentatively arrived at a consensus that it may
inquire in order to satisfy itself of the existence of the factual bases
for the issuance of Presidential Proclamations Nos. 889 and 889-A
... and thus determine the constitutional sufficiency of such basesin
the light of the requirements of Article III, sec. 1, par. 14, and
Article VII, sec. 10, par 2, of the Philippine Constitution...." Upon
further deliberation, the members of the Court are
now unanimous in the conviction that it has the authority to inquire
into the existence of said factual bases in order to determine the
constitutional sufficiency thereof.
Indeed, the grant of power to suspend the privilege is neither
absolute nor unqualified. The authority conferred by the
Constitution, both under the Bill of Rights and under the Executive
Department, is limited and conditional. The precept in the Bill of
Rights establishes a general rule, as well as an exception thereto.
What is more, it postulates the former in the negative, evidently to
stress its importance, by providing that "(t)he privilege of the writ
of habeas corpus shall not be suspended ...." It is only by way
of exception that it permits the suspension of the privilege "in
cases of invasion, insurrection, or rebellion" — or, under Art VII of
the Constitution, "imminent danger thereof" — "when the public
safety requires it, in any of which events the same may be
suspended wherever during such period the necessity for such
suspension shall exist." 13 For from being full and plenary, the
authority to suspend the privilege of the writ is thus circumscribed,
confined and restricted, not only by the prescribed setting or the
conditions essential to its existence, but, also, as regards the time
when and the place where it may be exercised. These factors and
the aforementioned setting or conditions mark, establish and
define the extent, the confines and the limits of said power, beyond
which it does not exist. And, like the limitations and restrictions
imposed by the Fundamental Law upon the legislative department,
adherence thereto and compliance therewith may, within proper
bounds, be inquired into by courts of justice. Otherwise, the explicit
constitutional provisions thereon would be meaningless. Surely,
the framers of our Constitution could not have intended to engage
in such a wasteful exercise in futility.
Much less may the assumption be indulged in when we bear in
mind that our political system is essentially democratic and
republican in character and that the suspension of the privilege
affects the most fundamental element of that system, namely,
individual freedom. Indeed, such freedom includes and connotes,
as well as demands, the right of every single member of our
citizenry to freely discuss and dissent from, as well as criticize and
denounce, the views, the policies and the practices of the
government and the party in power that he deems unwise,
improper or inimical to the commonwealth, regardless of whether
his own opinion is objectively correct or not. The untrammelled
enjoyment and exercise of such right — which, under certain
conditions, may be a civic duty of the highest order — is vital to the
democratic system and essential to its successful operation and
wholesome growth and development.
Manifestly, however, the liberty guaranteed and protected by our
Basic Law is one enjoyed and exercised, not in derogation thereof,
but consistently therewith, and, hence, within the framework of the
social order established by the Constitution and the context of the
Rule of Law. Accordingly, when individual freedom is used to
destroy that social order, by means of force and violence, in
defiance of the Rule of Law — such as by rising publicly and taking
arms against the government to overthrow the same, thereby
committing the crime of rebellion — there emerges a circumstance
that may warrant a limited withdrawal of the aforementioned
guarantee or protection, by suspending the privilege of the writ
of habeas corpus, when public safety requires it. Although we must
be forewarned against mistaking mere dissent — no matter how
emphatic or intemperate it may be — for dissidence amounting to
rebellion or insurrection, the Court cannot hesitate, much less
refuse — when the existence of such rebellion or insurrection has
been fairly established or cannot reasonably be denied — to
uphold the finding of the Executive thereon, without, in effect,
encroaching upon a power vested in him by the Supreme Law of
the land and depriving him, to this extent, of such power, and,
therefore, without violating the Constitution and jeopardizing the
very Rule of Law the Court is called upon to epitomize.
As heretofore adverted to, for the valid suspension of the privilege
of the writ: (a) there must be "invasion, insurrection or rebellion" or
— pursuant to paragraph (2), section 10 of Art. VII of the
Constitution — "imminent danger thereof"; and (b) public safety
must require the aforementioned suspension. The President
declared in Proclamation No. 889, as amended, that both
conditions are present.
As regards the first condition, our jurisprudence 14 attests
abundantly to the Communist activities in the Philippines,
especially in Manila, from the late twenties to the early thirties,
then aimed principally at incitement to sedition or rebellion, as the
immediate objective. Upon the establishment of the
Commonwealth of the Philippines, the movement seemed to have
waned notably; but, the outbreak of World War II in the Pacific and
the miseries, the devastation and havoc, and the proliferation of
unlicensed firearms concomitant with the military occupation of the
Philippines and its subsequent liberation, brought about, in the late
forties, a resurgence of the Communist threat, with such vigor as
to be able to organize and operate in Central Luzon an army —
called HUKBALAHAP, during the occupation, and renamed
Hukbong Mapagpalaya ng Bayan (HMP) after liberation — which
clashed several times with the armed forces of the Republic. This
prompted then President Quirino to issue Proclamation No. 210,
dated October 22, 1950, suspending the privilege of the writ
ofhabeas corpus, the validity of which was upheld in Montenegro
v. Castañeda. 15 Days before the promulgation of said
Proclamation, or on October 18, 1950, members of the Communist
Politburo in the Philippines were apprehended in Manila.
Subsequently accused and convicted of the crime of rebellion, they
served their respective sentences. 16
The fifties saw a comparative lull in Communist activities, insofar
as peace and order were concerned. Still, on June 20, 1957, Rep.
Act No. 1700, otherwise known as the Anti-Subversion Act, was
approved, upon the ground — stated in the very preamble of said
statute — that.
... the Communist Party of the Philippines,
although purportedly a political party, is in fact
an organized conspiracy to overthrow the
Government of the Republic of the Philippines,
not only by force and violence but also by
deceit, subversion and other illegal means, for
the purpose of establishing in the Philippines a
totalitarian regime subject to alien domination
and control;
... the continued existence and activities of the
Communist Party of the Philippines constitutes
a clear, present and grave danger to the
security of the Philippines; 17 and
 ... in the face of the organized, systematic and
persistent subversion, national in scope but
international in direction, posed by the
Communist Party of the Philippines and its
activities, there is urgent need for special
legislation to cope with this continuing menace
to the freedom and security of the country....
In the language of the Report on Central Luzon, submitted, on
September 4, 1971, by the Senate Ad Hoc Committee of Seven —
copy of which Report was filed in these cases by the petitioners
herein —
The years following 1963 saw the successive
emergence in the country of several mass
organizations, notably the Lapiang
Manggagawa (now the Socialist Party of the
Philippines) among the workers; the Malayang
Samahan ng mga Magsasaka (MASAKA)
among the peasantry; the Kabataang
Makabayan (KM) among the youth/students;
and the Movement for the Advancement of
Nationalism (MAN) among the
intellectuals/professionals. The PKP has
exerted all-out effort to infiltrate, influence and
utilize these organizations in promoting its
radical brand of
nationalism. 18
Meanwhile, the Communist leaders in the Philippines had been
split into two (2) groups, one of which — composed mainly of
young radicals, constituting the Maoist faction — reorganized the
Communist Party of the Philippines early in 1969 and established
a New People's Army. This faction adheres to the Maoist concept
of the "Protracted People's War" or "War of National Liberation." Its
"Programme for a People's Democratic Revolution" states, inter
alia:
The Communist Party of the Philippines is
determined to implement its general
programme for a people's democratic
revolution. All Filipino communists are ready to
sacrifice their lives for the worthy cause of
achieving the new type of democracy, of
building a new Philippines that is genuinely and
completely independent, democratic, united,
just and prosperous ...
xxx xxx xxx
The central task of any revolutionary movement
is to seize political power. The Communist
Party of the Philippines assumes this task at a
time that both the international and national
situations are favorable of asking the road of
armed
revolution ... 19
In the year 1969, the NPA had — according to the records of the
Department of National Defense — conducted raids, resorted to
kidnappings and taken part in other violent incidents numbering
over 230, in which it inflicted 404 casualties, and, in turn, suffered
243 losses. In 1970, its records of violent incidents was about the
same, but the NPA casualties more than doubled.
At any rate, two (2) facts are undeniable: (a) all Communists,
whether they belong to the traditional group or to the Maoist
faction, believe that force and violence are indispensable to the
attainment of their main and ultimate objective, and act in
accordance with such belief, although they may disagree on the
means to be used at a given time and in a particular place; and (b)
there is a New People's Army, other, of course, that the arm forces
of the Republic and antagonistic thereto. Such New People's Army
is per se proof of the existence of a rebellion, especially
considering that its establishment was announced publicly by the
reorganized CPP. Such announcement is in the nature of a public
challenge to the duly constituted authorities and may be likened to
a declaration of war, sufficient to establish a war status or a
condition of belligerency, even before the actual commencement
of hostilities.
We entertain, therefore, no doubts about the existence of a
sizeable group of men who have publicly risen in arms to
overthrow the government and have thus been and still are
engaged in rebellion against the Government of the Philippines.
In fact, the thrust of petitioners' argument is that the New People's
Army proper is too small, compared with the size of the armed
forces of the Government, that the Communist rebellion or
insurrection cannot so endanger public safety as to require the
suspension of the privilege of the writ of habeas corpus. This
argument does not negate, however, the existence of a rebellion,
which, from the constitutional and statutory viewpoint, need not be
widespread or attain the magnitude of a civil war. This is apparent
from the very provision of the Revised Penal Code defining the
crime of rebellion, 20 which may be limited in its scope to "any part"
of the Philippines, and, also, from paragraph (14) of section 1,
Article III of the Constitution, authorizing the suspension of the
privilege of the writ "wherever" — in case of rebellion — "the
necessity for such suspension shall exist." In fact, the case of
Barcelon v. Baker referred to a proclamation suspending the
privilege in the provinces of Cavite and Batangas only. The case of
In re Boyle 21 involved a valid proclamation suspending the
privilege in a smaller area — a country of the state of Idaho.
The magnitude of the rebellion has a bearing on the second
condition essential to the validity of the suspension of the privilege
— namely, that the suspension be required by public safety.
Before delving, however, into the factual bases of the presidential
findings thereon, let us consider the precise nature of the Court's
function in passing upon the validity of Proclamation No. 889, as
amended.
Article VII of the Constitution vests in the Executive the power to
suspend the privilege of the writ of habeas corpus under specified
conditions. Pursuant to the principle of separation of powers
underlying our system of government, the Executive is supreme
within his own sphere. However, the separation of powers, under
the Constitution, is not absolute. What is more, it goes hand in
hand with the system of checks and balances, under which the
Executive is supreme, as regards the suspension of the privilege,
but only if and when he acts withinthe sphere allotted to him by the
Basic Law, and the authority to determine whether or not he has
so acted is vested in the Judicial Department, which, in this
respect, is, in turn, constitutionally supreme.
In the exercise of such authority, the function of the Court is merely
to check — not to supplant 22 — the Executive, or to ascertain
merely whether he had gone beyond the constitutional limits of his
jurisdiction, not to exercise the power vested in him or to determine
the wisdom of his act. To be sure, the power of the Court to
determine the validity of the contested proclamation is far from
being identical to, or even comparable with, its power over ordinary
civil or criminal cases elevated thereto by ordinary appeal from
inferior courts, in which cases the appellate court has all of the
powers of the court of origin.
Under the principle of separation of powers and the system of
checks and balances, the judicial authority to review decisions of
administrative bodies or agencies is much more limited, as regards
findings of fact made in said decisions. Under the English law, the
reviewing court determines only whether there is some evidentiary
basis for the contested administrative findings; no
quantitative examination of the supporting evidence is undertaken.
The administrative findings can be interfered with only if there
is no evidence whatsoever in support thereof, and said finding is,
accordingly, arbitrary, capricious and obviously unauthorized. This
view has been adopted by some American courts. It has, likewise,
been adhered to in a number of Philippine cases. Other cases,
in both jurisdictions, have applied the "substantial evidence" rule,
which has been construed to mean "more than a mere scintilla" or
"relevant evidence as a reasonable mind might accept as
adequate to support a conclusion," 23 even if other minds equally
reasonable might conceivably opine otherwise.
Manifestly, however, this approach refers to the review of
administrative determinations involving the exercise of quasi-
judicial functions calling for or entailing the reception of evidence. It
does not and cannot be applied, in its aforesaid form, in testing the
validity of an act of Congress or of the Executive, such as the
suspension of the privilege of the writ of habeas corpus, for, as a
general rule, neither body takes evidence — in the sense in which
the term is used in judicial proceedings — before enacting a
legislation or suspending the writ. Referring to the test of the
validity of a statute, the Supreme Court of the United States,
speaking through Mr. Justice Roberts, expressed, in the leading
case of Nebbia v. New York, 24 the view that:
 ... If the laws passed are seen to have
a reasonable relation to a proper legislative
purpose, and areneither arbitrary nor
discriminatory, the requirements of due process
are satisfied, and judicial determination to that
effect renders a court functus officio ... With the
wisdom of the policy adopted, with the
adequacy or practically of the law enacted to
forward it, the courts are
both incompetent andunauthorized to deal ...
Relying upon this view, it is urged by the Solicitor General —
... that judicial inquiry into the basis of the
questioned proclamation can go no further than
to satisfy the Court not that the President's
decision is correct and that public safety was
endanger by the rebellion and justified the
suspension of the writ, but that in suspending
the writ, the President did not act arbitrarily.
No cogent reason has been submitted to warrant the rejection of
such test. Indeed, the co-equality of coordinate branches of the
Government, under our constitutional system, seems to demand
that the test of the validity of acts of Congress and of those of the
Executive be, mutatis mutandis, fundamentally the same. Hence,
counsel for petitioner Rogelio Arienda admits that the proper
standard is not correctness, but arbitrariness.
Did public safety require the suspension of the privilege of the writ
of habeas corpus decreed in Proclamation No. 889, as amended?
Petitioners submit a negative answer upon the ground: (a) that
there is no rebellion; (b) that, prior to and at the time of the
suspension of the privilege, the Government was functioning
normally, as were the courts; (c) that no untoward incident,
confirmatory of an alleged July-August Plan, has actually taken
place after August 21, 1971; (d) that the President's alleged
apprehension, because of said plan, is non-existent and
unjustified; and (e) that the Communist forces in the Philippines
are too small and weak to jeopardize public safety to such extent
as to require the suspension of the privilege of the writ of habeas
corpus.
As above indicated, however, the existence of a rebellion is
obvious, so much so that counsel for several petitioners herein
have admitted it.
With respect to the normal operation of government, including
courts, prior to and at the time of the suspension of the privilege,
suffice it to say that, if the conditions were such that courts of
justice no longer functioned, a suspension of the privilege would
have been unnecessary, there being no courts to issue the writ
of habeas corpus. Indeed, petitioners' reference to the normal
operation of courts as a factor indicative of the illegality of the
contested act of the Executive stems, perhaps, from the fact that
this circumstance was adverted to in some American cases to
justify the invalidation therein decreed of said act of the Executive.
Said cases involved, however, the conviction by military courts of
members of the civilian population charged with common crimes. It
was manifestly, illegal for military courts to assume jurisdiction
over civilians so charged, when civil courts were functioning
normally.
Then, too, the alleged absence of any untoward incident after
August 21, 1971, does not necessarily bear out petitioners' view.
What is more, it may have been due precisely to the suspension of
the privilege. To be sure, one of its logical effects is to compel
those connected with the insurrection or rebellion to go into hiding.
In fact, most of them could not be located by the authorities, after
August 21, 1971.
The alleged July-August Plan to terrorize Manila is branded as
incredible, upon the theory that, according to Professor Egbal
Ahman of Cornell University, "guerrilla use of terror ... is
sociological and psychologically selective," and that the
indiscriminate resort to terrorism is bound to boomerang, for it
tends to alienate the people's symphaty and to deprive the
dissidents of much needed mass support. The fact, however, is
that the violence used is some demonstrations held in Manila in
1970 and 1971 tended to terrorize the bulk of its inhabitants. It
would have been highly imprudent, therefore, for the Executive to
discard the possibility of a resort to terrorism, on a much bigger
scale, under the July-August Plan.
We will now address our attention to petitioners' theory to the
effect that the New People's Army of the Communist Party of the
Philippines is too small to pose a danger to public safety of such
magnitude as to require the suspension of the privilege of the writ
of habeas corpus. The flaw in petitioners' stand becomes apparent
when we consider that it assumes that the Armed Forces of the
Philippines have no other task than to fight the New People's
Army, and that the latter is the only threat — and a minor one — to
our security. Such assumption is manifestly erroneous.
The records before Us show that, on or before August 21, 1971,
the Executive had information and reports — subsequently
confirmed, in many respects, by the abovementioned Report of the
Senate Ad-Hoc Committee of Seven 25 — to the effect that the
Communist Party of the Philippines does not merely adhere to
Lenin's idea of a swift armed uprising; that it has, also, adopted Ho
Chi Minh's terrorist tactics and resorted to the assassination of
uncooperative local official; that, in line with this policy, the
insurgents have killed 5 mayors, 20 barrio captains and 3 chiefs of
police; that there were fourteen (14) meaningful bombing incidents
in the Greater Manila Area in 1970; that the Constitutional
Convention Hall was bombed on June 12, 1971; that, soon after
the Plaza Miranda incident, the NAWASA main pipe, at the
Quezon City-San Juan boundary, was bombed; that this was
followed closely by the bombing of the Manila City Hall, the
COMELEC building, the Congress Building and the MERALCO
substation at Cubao, Quezon City; and that the respective
residences of Senator Jose J. Roy and Congressman Eduardo
Cojuangco were, likewise, bombed, as were the MERALCO main
office premises, along Ortigas Avenue, and the Doctor's
Pharmaceuticals, Inc. Building, in Caloocan City.
Petitioners, similarly, fail to take into account that — as per said
information and reports — the reorganized Communist Party of the
Philippines has, moreover, adopted Mao's concept of protracted
people's war, aimed at the paralyzation of the will to resist of the
government, of the political, economic and intellectual leadership,
and of the people themselves; that conformably to such concept,
the Party has placed special emphasis upon a most extensive and
intensive program of subversion by the establishment of front
organizations in urban centers, the organization of armed city
partisans and the infiltration in student groups, labor unions, and
farmer and professional groups; that the CPP has managed to
infiltrate or establish and control nine (9) major labor organizations;
that it has exploited the youth movement and succeeded in making
Communist fronts of eleven (11) major student or youth
organizations; that there are, accordingly, about thirty (30) mass
organizations actively advancing the CPP interests, among which
are the Malayang Samahan ng Magsasaka (MASAKA), the
Kabataang Makabayan (KM), the Movement for the Advancement
of Nationalism (MAN), the Samahang Demokratiko ng Kabataan
(SDK), the Samahang Molave (SM) and the Malayang Pagkakaisa
ng Kabataang Pilipino(MPKP); that, as of August, 1971, the KM
had two hundred forty-five (245) operational chapters throughout
the Philippines, of which seventy-three (73) were in the Greater
Manila Area, sixty (60) in Northern Luzon, forty-nine (49) in Central
Luzon, forty-two (42) in the Visayas and twenty-one (21) in
Mindanao and Sulu; that in 1970, the Party had recorded two
hundred fifty-eight (258) major demonstrations, of which about
thirty-three (33) ended in violence, resulting in fifteen (15) killed
and over five hundred (500) injured; that most of these actions
were organized, coordinated or led by the aforementioned front
organizations; that the violent demonstrations were generally
instigated by a small, but well-trained group of armed agitators;
that the number of demonstrations heretofore staged in 1971 has
already exceeded those of 1970; and that twenty-four (24) of these
demonstrations were violent, and resulted in the death of fifteen
(15) persons and the injury of many more.
Subsequent events — as reported — have also proven that
petitioners' counsel have underestimated the threat to public safety
posed by the New People's Army. Indeed, it appears that, since
August 21, 1971, it had in Northern Luzon six (6) encounters and
staged one (1) raid, in consequence of which seven (7) soldiers
lost their lives and two (2)others were wounded, whereas the
insurgents suffered five (5) casualties; that on August 26, 1971, a
well-armed group of NPA, trained by defector Lt. Victor Corpus,
attacked the very command port of TF LAWIN in Isabela,
destroying two (2) helicopters and one (1) plane, and wounding
one (1) soldier; that the NPA had in Central Luzon a total of four
(4) encounters, with two (2) killed and three (3) wounded on the
side of the Government, one (1) BSDU killed and three (3) NPA
casualties; that in an encounter at Botolan, Zambales, one (1) KM-
SDK leader, an unidentified dissident, and Commander Panchito,
leader of the dissident group were killed; that on August 26, 1971,
there was an encounter in the barrio of San Pedro. Iriga City,
Camarines Sur, between the PC and the NPA, in which a PC and
two (2) KM members were killed; that the current disturbances in
Cotabato and the Lanao provinces have been rendered more
complex by the involvement of the CPP/NPA, for, in mid-1971, a
KM group, headed by Jovencio Esparagoza, contacted the Higa-
onan tribes, in their settlement in Magsaysay, Misamis Oriental,
and offered them books, pamphlets and brochures of Mao Tse
Tung, as well as conducted teach-ins in the reservation; that
Esparagoza an operation of the PC in said reservation; and that
there are now two (2) NPA cadres in Mindanao.
It should, also, be noted that adherents of the CPP and its front
organizations are, according to intelligence findings, definitely
capable of preparing powerful explosives out of locally available
materials; that the bomb used in the Constitutional Convention Hall
was a "clay-more" mine, a powerful explosive device used by the
U.S. Army, believed to have been one of many pilfered from the
Subic Naval Base a few days before; that the President had
received intelligence information to the effect that there was a July-
August Plan involving a wave of assassinations, kidnappings,
terrorism and mass destruction of property and that an
extraordinary occurence would signal the beginning of said event;
that the rather serious condition of peace and order in Mindanao,
particularly in Cotabato and Lanao, demanded the presence
therein of forces sufficient to cope with the situation; that a
sizeable part of our armed forces discharge other functions; and
that the expansion of the CPP activities from Central Luzon to
other parts of the country, particularly Manila and its suburbs, the
Cagayan Valley, Ifugao, Zambales, Laguna, Quezon and Bicol
Region, required that the rest of our armed forces be spread thin
over a wide area.
Considering that the President was in possession of the above
data — except those related to events that happened after August
21, 1971 — when the Plaza Miranda bombing took place, the
Court is not prepared to hold that the Executive had acted
arbitrarily or gravely abused his discretion when he then concluded
that public safety and national security required the suspension of
the privilege of the writ, particularly if the NPA were to strike
simultaneously with violent demonstrations staged by the two
hundred forty-five (245) KM chapters, all over the Philippines, with
the assistance and cooperation of the dozens of CPP front
organizations, and the bombing or water mains and conduits, as
well as electric power plants and installations — a possibility
which, no matter how remote, he was bound to forestall, and a
danger he was under obligation to anticipate and arrest.
He had consulted his advisers and sought their views. He had
reason to feel that the situation was critical — as, indeed, it was —
and demanded immediate action. This he took believing in good
faith that public safety required it. And, in the light of the
circumstances adverted to above, he had substantial grounds to
entertain such belief.
Petitioners insist that, nevertheless, the President had no authority
to suspend the privilege in the entire Philippines, even if he may
have been justified in doing so in some provinces or cities thereof.
At the time of the issuance of Proclamation No. 889, he could not
be reasonably certain, however, about the placed to be excluded
from the operation of the proclamation. He needed some time to
find out how it worked, and as he did so, he caused the
suspension to be gradually lifted, first, on September 18, 1971, in
twenty-seven (27) provinces, three (3) sub-provinces and twenty
six (26) cities; then, on September 25, 1971, in order fourteen (14)
provinces and thirteen (13) cities; and, still later, on October 4,
1971, in seven (7) additional provinces and four (4) cities, or a total
of forty-eight (48) provinces, three (3) sub-provinces and forth-
three (43) cities, within a period of forty-five (45) days from August
21, 1971.
Neither should We overlook the significance of another fact. The
President could have declared a generalsuspension of the
privilege. Instead, Proclamation No. 889 limited the suspension to
persons detained "for crimes of insurrection or rebellion, and all
other crimes and offenses committed by them in furtherance or on
the occasion thereof, or incident thereto, or in connection
therewith." Even this was further limited by Proclamation No. 889-
A, which withdrew from the coverage of the suspension persons
detained for other crimes and offenses committed "on the
occasion" of the insurrection or rebellion, or "incident thereto, in or
connection therewith." In fact, the petitioners in L-33964, L-33982
and L-34004 concede that the President had acted in good faith.
In case of invasion, insurrection or rebellion or imminent danger
thereof, the President has, under the Constitution, three (3)
courses of action open to him, namely: (a) to call out the armed
forces; (b) to suspend the privilege of the writ of habeas corpus;
and (c) to place the Philippines or any part thereof under martial
law. He had, already, called out the armed forces, which measure,
however, proved inadequate to attain the desired result. Of the two
(2)other alternatives, the suspension of the privilege is the least
harsh.
In view of the foregoing, it does not appear that the President has
acted arbitrary in issuing Proclamation No. 889, as amended, nor
that the same is unconstitutional.
III
The next question for determination is whether petitioners herein
are covered by said Proclamation, as amended. In other words, do
petitioners herein belong to the class of persons as to whom
privilege of the writ of habeas corpus has been suspended?
In this connection, it appears that Bayani Alcala, one of the
petitioners in L-33964, Gerardo Tomas, petitioner in L-34004, and
Reynaldo Rimando, petitioner in L-34013, were, on November 13,
1971, released "permanently" — meaning, perhaps, without any
intention to prosecute them — upon the ground that, although
there was reasonable ground to believe that they had committed
an offense related to subversion, the evidence against them is
insufficient to warrant their prosecution; that Teodosio Lansang,
one of the petitioners in L-33964, Rogelio Arienda, petitioner in L-
33965, Nemesio Prudente, petitioner in L-33982, Filomeno de
Castro and Barcelisa C. de Castro, for whose benefit the petition in
L-34039 was filed, and Antolin Oreta, Jr., petitioner in L-34265,
were, on said date, "temporarily released"; that Rodolfo del
Rosario, one of the petitioners in
L-33964, Victor Felipe, an intervenor in L-33964, L-33965 and L-
33973, as well as Luzvimindo David, petitioner in L-33973, and
Gary Olivar, petitioner in L-34339, are still under detention and,
hence, deprived of their liberty, they — together with over forty (40)
other persons, who are at large — having been accused, in the
Court of First Instance of Rizal, of a violation of section 4 of
Republic Act No. 1700 (Anti-Subversion Act); and that Angelo
delos Reyes and Teresito Sison, intervenors in said L-33964, L-
33965 and
L-33973, are, likewise, still detained and have been charged —
together with over fifteen (15) other persons, who are, also, at
large — with another violation of said Act, in a criminal complaint
filed with the City Fiscal's Office of Quezon City.
With respect to Vicente Ilao and Juan Carandang — petitioners in
L-33965 — who were released as early as August 31, 1971, as
well as to petitioners Nemesio Prudente, Teodosio Lansang,
Rogelio Arienda, Antolin Oreta, Jr., Filomeno de Castro, Barcelisa
C. de Castro, Reynaldo Rimando, Gerardo Tomas and Bayani
Alcala, who were released on November 13, 1971, and are no
longer deprived of their liberty, their respective petitions have,
thereby, become moot and academic, as far as their prayer for
release is concerned, and should, accordingly, be dismissed,
despite the opposition thereto of counsel for Nemesio Prudente
and Gerardo Tomas who maintain that, as long as the privilege of
the writ remains suspended, these petitioners might be arrested
and detained again, without just cause, and that, accordingly, the
issue raised in their respective petitions is not moot. In any event,
the common constitutional and legal issues raised in these cases
have, in fact, been decided in this joint decision.
Must we order the release of Rodolfo del Rosario, one of the
petitioners in
L-33964, Angelo de los Reyes, Victor Felipe and Teresito Sison,
intervenors in L-33964, L-33965 and L-33973, Luzvimindo David,
petitioner in L-33973, and Gary Olivar, petitioner in L-34339, who
are still detained? The suspension of the privilege of the writ was
decreed by Proclamation No. 889, as amended, for persons
detained "for the crimes of insurrection or rebellion and other overt
acts committed by them in furtherance thereof."
The records shows that petitioners Luzvimindo David, Rodolfo del
Rosario, Victor Felipe, Angelo de los Reyes, Teresito Sison and
Gary Olivar are accused in Criminal Case No. Q-1623 of the Court
of First Instance of Rizal with a violation of the Anti-Subversion Act
and that the similar charge against petitioners Angelo de los Reyes
and Teresito Sison in a criminal complaint, originally filed with the
City Fiscal of Quezon City, has, also, been filed with said court. Do
the offenses so charged constitute one of the crimes or overt acts
mentioned in Proclamation No. 889, as amended?
In the complaint in said Criminal Case No. 1623, it is alleged:
That in or about the year 1968 and for
sometime prior thereto and thereafter up to and
including August 21, 1971, in the city of
Quezon, Philippines, and elsewhere in the
Philippines, within the jurisdiction of this
Honorable Court, the above-named accused
knowingly, wilfully and by overt acts became
officers and/or ranking leaders of the
Communist Party of the Philippines, a
subversive association as defined by Republic
Act No. 1700, which is an organized conspiracy
to overthrow the government of the Republic of
the Philippines by force, violence, deceit,
subversion and other illegal means, for the
purpose of establishing in the Philippines a
communist totalitarian regime subject to alien
domination and control;
That all the above-named accused, as such
officers and/or ranking leaders of the
Communist Party of the Philippines conspiring,
confederating and mutual helping one another,
did then and there knowingly, wilfully, and
feloniously and by overt acts committed
subversive acts all intended to overthrow the
government of the Republic of the Philippines,
as follows:
1. By rising publicly and
taking arms against the
forces of the government,
engaging in war against the
forces of the
government, destroying
property or committing
serious violence, exacting
contributions or diverting
public lands or property from
the law purposes for which
they have been
appropriated;
2. By engaging by
subversion thru expansion
and requirement activities
not only of the Communist
Party of the Philippines but
also of the united front
organizations of the
Communist Party of the
Philippines as the
Kabataang Makabayan
(KM), Movement for the
Democratic Philippines
(MDP), Samahang
Demokratikong Kabataan
(SDK), Students' Alliance for
National Democracy
(STAND), MASAKA Olalia-
faction, Student Cultural
Association of the University
of the Philippines (SCAUP),
KASAMA, Pagkakaisa ng
Magbubukid ng Pilipinas
(PMP) and many others;
thru agitation promoted by
rallies, demonstration and
strikes some of them violent
in nature, intended to create
social discontent, discredit
those in power and weaken
the people's confidence in
the government; thru
consistent propaganda by
publications, writing,
posters, leaflets of similar
means; speeches, teach-
ins, messages, lectures or
other similar means; or thru
the media as the TV, radio
or newspapers, all intended
to promote the Communist
pattern of subversion;
3. Thru urban guerilla
warfare characterized by
assassinations, bombings,
sabotage, kidnapping and
arson, intended to advertise
the movement, build up its
morale and prestige,
discredit and demoralize the
authorities to use harsh and
repressive measures,
demoralize the people and
weaken their confidence in
the government and to
weaken the will of the
government to resist.
That the following aggravating circumstances
attended the commission of the offense:
a. That the offense was committed in contempt
of and with insult to the public authorities;
b. That some of the overt acts were committed
in the Palace of the Chief Executive;
c. That craft, fraud, or disguise was employed;
d. That the offense was committed with the aid
of armed men;
e. That the offense was committed with the aid
of persons under fifteen(15) years old.
Identical allegations are made in the complaint filed with the City
Fiscal of Quezon City, except that the second paragraph thereof is
slightly more elaborate than that of the complaint filed with the CFI,
although substantially the same. 26
In both complaints, the acts imputed to the defendants herein
constitute rebellion and subversion, of — in the language of the
proclamation — "other overt acts committed ... in furtherance" of
said rebellion, both of which are covered by the proclamation
suspending the privilege of the writ. It is clear, therefore, that the
crime for which the detained petitioners are held and deprived of
their liberty are among those for which the privilege of the writ
ofhabeas corpus has been suspended.
Up to this point, the Members of the Court are unanimous on the
legal principles enunciated.
After finding that Proclamation No. 889, as amended, is not invalid
and that petitioners Luzvimindo David, Victor Felipe, Gary Olivar,
Angelo de los Reyes, Rodolfo del Rosario and Teresito Sison are
detained for and actually accused of an offense for which the
privilege of the writ has been suspended by said proclamation, our
next step would have been the following: The Court, or a
commissioner designated by it, would have received evidence on
whether — as stated in respondents' "Answer and Return" — said
petitioners had been apprehended and detained "on reasonable
belief" that they had "participated in the crime of insurrection or
rebellion."
It is so happened, however, that on November 13, 1971 — or two
(2) days before the proceedings relative to the briefing held on
October 28 and 29, 1971, had been completed by the filing 27 of
the summary of the matters then taken up — the aforementioned
criminal complaints were filed against said petitioners. What is
more, the preliminary examination and/or investigation of the
charges contained in said complaints has already begun. The next
question, therefore, is: Shall We now order, in the cases at hand,
the release of said petitioners herein, despite the formal and
substantial validity of the proclamation suspending the privilege,
despite the fact that they are actually charged with offenses
covered by said proclamation and despite the aforementioned
criminal complaints against them and the preliminary examination
and/or investigations being conducted therein?
The Members of the Court, with the exception of Mr. Justice
Fernando, are of the opinion, and, so hold, that, instead of this
Court or its Commissioner taking the evidence adverted to above,
it is best to let said preliminary examination and/or investigation to
be completed, so that petitioners' released could be ordered by the
court of first instance, should it find that there is no probable cause
against them, or a warrant for their arrest could be issued, should
a probable cause be established against them. Such course of
action is more favorable to the petitioners, inasmuch as the
preliminary examination or investigation requires a greater
quantum of proof than that needed to establish that the Executive
had not acted arbitrary in causing the petitioners to be
apprehended and detained upon the ground that they had
participated in the commission of the crime of insurrection or
rebellion. And, it is mainly for the reason that the Court has opted
to allow the Court of First Instance of Rizal to proceed with the
determination of the existence of probable cause, although
ordinarily the Court would have merely determined the existence of
the substantial evidence of petitioners' connection with the crime of
rebellion. Besides, the latter alternative would require the reception
of evidence by this Court and thus duplicate the proceedings now
taking place in the court of first instance. What is more, since the
evidence involved in the same proceedings would be substantially
the same and the presentation of such evidence cannot be made
simultaneously, each proceeding would tend to delay the other.
Mr. Justice Fernando is of the opinion — in line with the view of
Mr. Justice Tuason, in Nava v. Gatmaitan, 28 to the effect that "... if
and when formal complaint is presented, the court steps in and the
executive steps out. The detention ceases to be an executive and
becomes a judicial concern ..." — that the filing of the above-
mentioned complaint against the six (6) detained petitioners
herein, has the effect of the Executive giving up his authority to
continue holding them pursuant to Proclamation No. 889, as
amended, even if he did not so intend, and to place them fully
under the authority of courts of justice, just like any other person,
who, as such, cannot be deprived of his liberty without lawful
warrant, which has not, as yet, been issued against anyone of
them, and that, accordingly, We should order their immediate
release. Despite the humanitarian and libertarian spirit with which
this view had been espoused, the other Members of the Court are
unable to accept it because:
(a) If the proclamation suspending the privilege of the writ
of habeas corpus is valid — and We so hold it to be — and the
detainee is covered by the proclamation, the filing of a complaint or
information against him does not affect the suspension of said
privilege, and, consequently, his release may not be ordered by
Us;
(b) Inasmuch as the filing of a formal complaint or information does
not detract from the validity and efficacy of the suspension of the
privilege, it would be more reasonable to construe the filing of said
formal charges with the court of first instance as an expression of
the President's belief that there are sufficient evidence to convict
the petitioners so charged and that hey should not be released,
therefore, unless and until said court — after conducting the
corresponding preliminary examination and/or investigation —
shall find that the prosecution has not established the existence of
a probable cause. Otherwise, the Executive would have released
said accused, as were the other petitioners herein;
(c) From a long-range viewpoint, this interpretation — of the act of
the President in having said formal charges filed — is, We believe,
more beneficial to the detainees than that favored by Mr. Justice
Fernando. His view — particularly the theory that the detainees
should be released immediately, without bail, even before the
completion of said preliminary examination and/or investigation —
would tend to induce the Executive to refrain from filing formal
charges as long as it may be possible. Manifestly, We should
encourage the early filing of said charges, so that courts of justice
could assume jurisdiction over the detainees and extend to them
effective protection.
Although some of the petitioners in these cases pray that the Court
decide whether the constitutional right to bail is affected by the
suspension of the privilege of the writ of habeas corpus, We do not
deem it proper to pass upon such question, the same not having
been sufficiently discussed by the parties herein. Besides, there is
no point in settling said question with respect to petitioners herein
who have been released. Neither is necessary to express our view
thereon, as regards those still detained, inasmuch as their release
without bail might still be decreed by the court of first instance,
should it hold that there is no probable cause against them. At any
rate, should an actual issue on the right to bail arise later, the
same may be brought up in appropriate proceedings.
WHEREFORE, judgment is hereby rendered:
1. Declaring that the President did not act arbitrarily in issuing
Proclamation No. 889, as amended, and that, accordingly, the
same is not unconstitutional;
2. Dismissing the petitions in L-33964, L-33965, L-33982, L-34004,
L-34013, L-34039 and L-34265, insofar as petitioners Teodosio
Lansang, Bayani Alcala, Rogelio Arienda, Vicentellao, Juan
Carandang, Nemesio E. Prudente, Gerardo Tomas, Reynaldo
Rimando, Filomeno M. de Castro, Barcelisa C. de Castro and
Antolin Oreta, Jr. are concerned;
3. The Court of First Instance of Rizal is hereby directed to act with
utmost dispatch in conducting the preliminary examination and/or
investigation of the charges for violation of the Anti-Subversion Act
filed against herein petitioners Luzvimindo David, Victor Felipe,
Gary Olivar, Angelo de los Reyes, Rodolfo del Rosario and
Teresito Sison, and to issue the corresponding warrants of arrest,
if probable cause is found to exist against them, or, otherwise, to
order their release; and
4. Should there be undue delay, for any reason whatsoever, either
in the completion of the aforementioned preliminary examination
and/or investigation, or in the issuance of the proper orders or
resolution in connection therewith, the parties may by motion seek
in these proceedings the proper relief.
5. Without special pronouncement as to costs. It is so ordered.
[G.R. No. 132852. May 31, 2000]
TEOFILO MARTINEZ, petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
DECISION
BELLOSILLO, J.:
This is a petition for certiorari under Rule 65, erroneously filed as a
petition for review on certiorari under Rule 45. But this procedural
infirmity notwithstanding, we have decided to give it due course to
resolve the question whether the Court of Appeals gravely abused
its discretion in denying petitioner's motion to appeal as a pauper
litigant.[1]
The antecedents: Petitioner was accused of homicide in Crim.
Case No. 5753 before the Regional Trial Court of Butuan
City.[2] During the hearing on 23 June 1994 petitioner represented
by Atty. Jesus G. Chavez of the Public Attorney's Office of Butuan
City objected to petitioner's motion to be allowed to litigate as
pauper and moved instead to strike out the entire testimony of the
first witness for the prosecution on the ground that it was
inadmissible for being violative of the testimonial privilege afforded
to children in cases involving their parents. The Presiding
Judge[3] deferred his ruling on the objection and allowed the
testimony to be continued.[4] On 21 July 1994 the trial court issued
an order overruling the objection. On 8 August 1994 the court
denied the motion for reconsideration. [5] This prompted petitioner
to go to the Court of Appeals by way of a petition
for certiorari alleging that the trial court acted with grave abuse of
discretion amounting to lack of jurisdiction when it issued the
assailed orders.[6]
On 23 August 1994 petitioner filed before the Court of Appeals
a Motion to Litigate as Pauper attaching thereto supporting
affidavits executed by petitioner himself and by two (2) ostensibly
disinterested persons attesting to petitioner's eligibility to avail
himself of this privilege.[7] The appellate court subsequently issued
its resolution dated 21 March 1997 denying the motion and
directing petitioner to remit the docketing fees in the total amount
of P420.00 within five (5) days from notice. [8] On 7 April 1997
petitioner filed a Motion for Reconsideration of the order denying
his motion to litigate as a pauper, but this was similarly denied in
the resolution of 8 October 1997.[9] Petitioner then filed
a Manifestation on 28 October 1997 wherein he stated through
counsel that he was transmitting the docket fees required of his
client "under protest" and that the money remitted was advanced
by his counsel, Atty. Jesus G. Chavez himself. [10]The transmittal of
the amount was evidenced by two (2) postal money orders
attached to the Motion to Litigate as Pauper.[11]
In the assailed Resolution of 10 November 1997 the Court of
Appeals dismissed the petition, citing petitioners failure to pay the
required docket fee.[12] Petitioner moved for reconsideration citing
his compliance with the docket fee requirement as alleged in
his Manifestation adverted to above.[13] However, the Court of
Appeals in the second assailed Resolution of 21 January 1998
denied this latest motion on the ground that, per verification by the
Judicial Records Division, the amount remitted by petitioner as
docket fee was short of 150.00.[14] Msesm
The only issue expressly raised by petitioner is whether a motion
to litigate as pauper can be entertained by an appellate court.
When petitioner filed on 23 August 1994 his original motion to
appeal as pauper before the appellate court the applicable rule
was the second paragraph of Sec. 16, rule 41, of the 1964 Revised
Rules of Court, which provides-
Sec. 16. Appeal by pauper Where a party
desiring to appeal shall establish to the
satisfaction of the trial court that he is a pauper
and unable to pay the expenses of prosecuting
the appeal, and that the case is of such
importance, by reason of the amount involved,
or the nature of the question raised, that it
ought to be reviewed by the appellate court, the
trial judge may enter an order entitling the party
to appeal as pauper. The clerk shall transmit to
the appellate court the entire record of the
case, including the evidence taken on trial and
the record on appeal, and the case shall be
heard in the appellate court upon the original
record so transmitted without printing the
same.Esmso
A petition to be allowed to appeal as pauper
shall not be entertained by the appellate court.
Even prior to the adoption of the 1964 Revised Rules of Court, the
Court had uniformly frowned upon appellate courts entertaining
petitions to litigate as pauper, holding that the question of whether
a party-litigant is so poor as to qualify him to litigate as pauper is a
question of fact which is best determined by the trial court. The trial
court is the court which may properly decide or pass upon the
question of fact which may require presentation of evidence
whether the appellant is an indigent and may appeal as such, and
whether the case is of such importance that, by reason not only of
the amount involved but of the nature of the question raised in the
court below, it ought to be reviewed by the appellate court. [15]
When the 1997 Rules of Civil Procedure came into effect on 1 July
1997 the provision abovequoted was not reenacted. Section 21 of
Rule 3, as now worded, outlines the procedure for, as well as the
effects of, the grant of a motion to litigate as pauper -
Sec. 21. Indigent party. - A party may be
authorized to litigate his action, claim or
defense as an indigent if the court, upon an ex
parte application and hearing, is satisfied that
the party is one who has no money or property
sufficient and available for food, shelter and
basic necessities for himself and his family.
Such authority shall include an exemption from
payment of docket and other lawful fees, and of
transcripts of stenographic notes which the
court may order to be furnished him. The
amount of the docket and other lawful fees
which the indigent was exempted from paying
shall be a lien on any judgment rendered in the
case favorable to the indigent, unless the court
otherwise provides. Esmmis
Any adverse party may contest the grant of
such authority at any time before judgment is
rendered by the trial court. If the court should
determine after hearing that the party declared
as an indigent is in fact a person with sufficient
income or property, the proper docket and
other lawful fees shall be assessed and
collected by the clerk of court. If payment is not
made within the time fixed by the court,
execution shall issue or the payment thereof,
without prejudice to such other sanctions as the
court may impose.
On the other hand, Sec. 18 of Rule 141 prescribes the evidentiary
requirements for the exemption of pauper litigants from payment of
legal fees -
Sec. 18. Pauper-litigants exempt from payment
of legal fees. - Pauper-litigants (a) whose gross
income and that of their immediate family do
not exceed four thousand (P4,000.00) pesos a
month if residing in Metro Manila, and three
thousand (P3,000.00) pesos a month if residing
outside Metro Manila, and (b) who do not own
real property with an assessed value of more
than fifty thousand (P50,000.00) pesos shall be
exempt from the payment of legal fees. Esmsc
The legal fees shall be a lien on any judgment
rendered in the case favorably to the pauper-
litigant, unless the court otherwise provides.
To be entitled to the exemption herein
provided, the litigant shall execute an affidavit
that he and his immediate family do not earn
the gross income abovementioned, nor do they
own any real property with the assessed value
aforementioned, supported by an affidavit of a
disinterested person attesting to the truth of the
litigant's affidavit.
Any falsity in the affidavit of a litigant or
disinterested person shall be sufficient cause to
strike out the pleading of that party, without
prejudice to whatever criminal liability may have
been incurred. Esm
It cannot be inferred from any of the aforementioned provisions
that the restrictive policy enunciated by Sec. 16, Rule 41, of the
1964 Revised Rules of Court was carried over to the 1997 Rules of
Civil Procedure. Nowhere can we find a provision to the effect that
"(a) petition to be allowed to appeal as pauper shall not be
entertained by the appellate court."
We resolve to apply the present rules on petitioner retrospectively.
Statutes regulating the procedure of the courts will be construed as
applicable to actions pending and undetermined at the time of their
passage. In that sense and to that extent procedural laws are
retroactive.[16] We therefore hold that a motion to litigate as an
indigent can be made even before the appellate courts, either for
the prosecution of appeals, in petitions for review or in special civil
actions. Jksm
We believe that this interpretation of the present rules is more in
keeping with our Bill of Rights, which decrees that, "(f)ree access
to the courts and quasi-judicial bodies and adequate legal
assistance shall not be denied to any person by reason of
poverty."[17] Our espousal of the democratization of appellate
remedies is shared by the United States Supreme Court, speaking
through Mr. Justice Hugo L. Black -
There is no meaningful distinction between a
rule which would deny the poor the right to
defend themselves in a trial court and one
which effectively denies the poor an adequate
appellate review accorded to all who have
money enough to pay the costs in advance x x
x x Such a denial is a misfit in a country
dedicated to affording equal justice to all and
special privileges to none in the administration
of its criminal law. There can be no equal
justice where the kind of trial a man gets
depends on the amount of money he has.[18]
A perusal of the records shows that petitioner has complied with all
the evidentiary requirements for prosecuting a motion to appear in
court as a pauper. He has executed an affidavit attesting to the
fact that he and his immediate family do not earn a gross income
of more than P3,000.00 a month, and that their only real property,
a hut, cannot be worth more thanP10,000.00.[19] He has also
submitted a joint affidavit executed by Florencia L. Ongtico and
Helen Maur, both residents of Butuan City, who generally attested
to the same allegations contained in petitioner's own
affidavit.[20] Based on this evidence, the Court finds that petitioner
is qualified to litigate as an indigent. Chief
WHEREFORE, the questioned Resolution of the Court of Appeals
dated 10 November 1997 dismissing the petition for certiorari of
petitioner Teofilo Martinez and its Resolution dated 21 January
1998 denying reconsideration are SET ASIDE for having been
issued with grave abuse of discretion. Accordingly, this case is
REMANDED for appropriate action to the Court of Appeals which
is further ordered to allow petitioner to litigate as pauper and to
return to him the amount of P420.00 representing the docket fees
he paid. Excel Tapuz, IvanTapuz and Marian Timbas (the petitioners) and

other John Does numbering about 120. The private respondents

SO ORDERED.
alleged in their complaint that: (1) they are the registered owners
DANIEL MASANGKAY TAPUZ, AURORA G.R. No. 182484
under TCT No. 35813 of a 1.0093-hectare parcel of land located
TAPUZ-MADRIAGA, LIBERTY M. ASUNCION,
LADYLYN BAMOS MADRIAGA, EVERLY Present: at SitioPinaungon, Balabag, Boracay, Malay, Aklan (the disputed
TAPUZ MADRIAGA, EXCEL TAPUZ, IVAN
TAPUZ AND MARIAN TIMBAS, PUNO, C.J., land); (2) they were the disputed lands prior possessors when the
Petitioners, QUISUMBING,
YNARES-SANTIAGO,petitioners armed with bolos and carrying suspected firearms and
- versus - CARPIO,
together with unidentified persons numbering 120 - entered the
AUSTRIA-MARTINEZ,
HONORABLE JUDGE ELMO DEL ROSARIO, in CORONA,
his capacity as Presiding Judge of RTC Br. * disputed land by force and intimidation, without the private
CARPIO MORALES,
5Kalibo, SHERIFF NELSON DELA CRUZ, in his AZCUNA,
respondents permission and against the objections of the private
capacity as Sheriff of the RTC, THE PHILIPPINE TINGA,
NATIONAL POLICE stationed in BoracayIsland, CHICO-NAZARIO,respondents security men, and built thereon a nipa and bamboo
represented by the PNP STATION * VELASCO, JR.,
COMMANDER, THE HONORABLE COURT OF * NACHURA, structure.
APPEALS IN CEBU 18thDIVISION, SPOUSES REYES,
GREGORIO SANSON & MA.LOURDES T. LEONARDO-DE CASTRO, and
SANSON, BRION, JJ.
Respondents. In their Answer[4] dated 14 May 2006, the petitioners
Promulgated:
denied the material allegations of the complaint. They essentially
June 17, 2008
claimed that: (1) they are the actual and prior possessors of the
x------------------------------------------------------------------------------------------ x
disputed land; (2) on the contrary, the private respondents are the

intruders; and (3) the private respondents certificate of title to the

disputed property is spurious. They asked for the dismissal of the

RESOLUTION complaint and interposed a counterclaim for damages.

BRION, J.:
The MCTC, after due proceedings, rendered on 2

January 2007 a decision[5] in the private respondents favor. It

Before us for the determination of sufficiency of form and
found prior possession the key issue in forcible entry cases - in the
substance (pursuant to Sections 1 and 4 of Rule 65 of the Revised
private respondents favor, thus:
Rules of Court; Sections 1 and 5 of the Rule on the Writ The key that could unravel the answer
to this question lies in the Amended
of Amparo;[1] and Sections 1 and 6 of the Rule on the Writ of Commissioners Report and Sketch found on
pages 245 to 248 of the records and the
Habeas Data[2]) is the petition for certiorari and for the issuance of evidence the parties have submitted. It is
shown in the Amended Commissioners Report
the writs of amparo and habeas data filed by the above-named and Sketch that the land in question is
enclosed by a concrete and cyclone wire
petitioners against the Honorable Judge Elmo del Rosario [in his
perimeter fence in pink and green highlighter as
capacity as presiding judge of RTC Br. 5, Kalibo], Sheriff Nelson shown in the Sketch Plan (p. 248). Said
perimeter fence was constructed by the
de la Cruz [in his capacity as Sheriff of the RTC], the Philippine plaintiffs 14 years ago. The foregoing findings
of the Commissioner in his report and sketch
National Police stationed in Boracay Island, represented by the collaborated the claim of the plaintiffs that after
they acquired the land in question on May 27,
PNP Station Commander, the Honorable Court of Appeals in 1993 through a Deed of Sale (Annex A,
Affidavit of Gregorio Sanson, p. 276, rec.), they
Cebu, 18th Division, and the spouses Gregorio Sanson and Ma. caused the construction of the perimeter fence
sometime in 1993 (Affidavit of GregorioSanson,
Lourdes T. Sanson, respondents. pp. 271-275, rec.).

From the foregoing established facts,

The petition and its annexes disclose the following it could be safely inferred that the plaintiffs were
in actual physical possession of the whole lot in
material antecedents: question since 1993 when it was interrupted by
the defendants (sic) when on January 4, 2005
claiming to (sic) the Heirs of
AntonioTapuz entered a portion of the land in
The private respondents spouses Gregorio Sanson and question with view of inhabiting the same and
building structures therein prompting plaintiff
Ma. Lourdes T. Sanson (the private respondents), filed with the Gregorio Sanson to confront them before
BSPU, Police Chief Inspector Jack
Fifth Municipal Circuit Trial Court of Buruanga-
L. Wanky and Barangay Captain
Malay, Aklan (the MCTC) a complaint[3] dated 24 April 2006 Glenn Sacapao. As a result of their
confrontation, the parties signed an Agreement
for forcible entry and damages with a prayer for the issuance of a (Annex D, Complaint p. 20) wherein they
agreed to vacate the disputed portion of the
writ of preliminary mandatory injunction against the petitioners land in question and agreed not to build any
structures thereon.
Daniel MasangkayTapuz, Aurora Tapuz-Madriaga, Liberty M.
The foregoing is the prevailing
Asuncion, Ladylyn Bamos Madriaga, Everly Tapuz Madriaga, situation of the parties after the incident of
January 4, 2005 when the plaintiff posted Likewise, defendants (sic) alleged
security guards, however, sometime on or burnt and other structures depicted in their
about 6:30 A.M. of April 19, 2006, the pictures attached as annexes to their position
defendants some with bolos and one carrying a paper were not noted and reflected in the
sack suspected to contain firearms with other amended report and sketch submitted by the
John Does numbering about 120 persons by Commissioner, hence, it could be safely
force and intimidation forcibly entered the inferred that these structures are built and (sic)
premises along the road and built a nipa and situated outside the premises of the land in
bamboo structure (Annex E, Complaint, p. 11) question, accordingly, they are irrelevant to the
inside the lot in question which incident was instant case and cannot be considered as
promptly reported to the proper authorities as evidence of their actual possession of the land
shown by plaintiffs Certification (Annex F, in question prior to April 19, 2006[6].
Complaint, p. 12) of the entry in the police
blotter and on same date April 19, 2006, the The petitioners appealed the MCTC decision to the
plaintiffs filed a complaint with the Office of
the Lupong Tagapamayapa of Barangay Balab Regional Trial Court (RTC, Branch 6 of Kalibo, Aklan) then
ag, Boracay Island, Malay, Aklanbut no
presided over by Judge Niovady M. Marin (Judge Marin).
settlement was reached as shown in their
Certificate to File Action (Annex G, Complaint,
p. 13); hence the present action.
On appeal, Judge Marin granted the private respondents
Defendants (sic) contend in their
answer that prior to January 4, 2005, they were motion for the issuance of a writ of preliminary mandatory
already occupants of the property, being
indigenous settlers of the same, under claim of injunctionthrough an Order dated 26 February 2007, with the
ownership by open continuous, adverse
possession to the exclusion of other issuance conditioned on the private respondents posting of a
(sic).(Paragraph 4, Answer, p. 25).
bond. The writ[7]authorizing the immediate implementation of the
The contention is untenable. As MCTC decision was actually issued by respondent Judge Elmo
adverted earlier, the land in question is
enclosed by a perimeter fence constructed by F. del Rosario (therespondent Judge) on 12 March 2007 after the
the plaintiffs sometime in 1993 as noted by the
Commissioner in his Report and reflected in his private respondents had complied with the imposed condition. The
Sketch, thus, it is safe to conclude that the
plaintiffs where (sic) in actual physical petitioners moved to reconsider the issuance of the writ; the
possession of the land in question from 1993
up to April 19, 2006 when they were private respondents, on the other hand, filed a motion for
ousted therefrom by the defendants by means
of force. Applying by analogy the ruling of the demolition.
Honorable Supreme Court in the case of
Molina, et al. vs. De Bacud, 19 SCRA 956, if
the land were in the possession of plaintiffs The respondent Judge subsequently denied the
from 1993 to April 19, 2006, defendants claims
to an older possession must be rejected as petitioners Motion for Reconsideration and to Defer Enforcement
untenable because possession as a fact cannot
be recognized at the same time in two different of Preliminary Mandatory Injunction in an Order dated 17 May
personalities.
2007[8].
Defendants likewise contend that it
was the plaintiffs who forcibly entered the land
in question on April 18, 2006 at about 3:00
Meanwhile, the petitioners opposed the motion for
oclock in the afternoon as shown in their
Certification (Annex D, Defendants Position demolition.[9] The respondent Judge nevertheless issued via a
Paper, p. 135, rec.).
Special Order[10] a writ of demolition to be implemented fifteen (15)
The contention is untenable for being
inconsistent with their allegations made to the days after the Sheriffs written notice to the petitioners to voluntarily
commissioner who constituted (sic) the land in
question that they built structures on the land in demolish their house/s to allow the private respondents to
question only on April 19, 2006 (Par. D.4,
Commissioners Amended Report, pp. 246 to effectively take actual possession of the land.
247), after there (sic) entry thereto on even
date.
The petitioners thereafter filed on 2 August 2007 with the
Likewise, said contention is
contradicted by the categorical statements of Court of Appeals, Cebu City, a Petition for Review [11] (under Rule
defendants witnesses,
Rowena Onag, ApolsidaUmambong, Ariel Gac, 42 of the 1997 Rules of Civil Procedure) of the Permanent
Darwin Alvarez and Edgardo Pinaranda, in their
Joint Affidavit (pp. 143- 144, rec.) [sic] Mandatory Injunction and Order of Demolition of the RTC
categorically stated that on or about April 19,
2006, a group of armed men entered the of Kalibo, Br. 6 in Civil Case No. 7990.
property of our said neighbors and built plastic
roofed tents. These armed men threatened to
drive our said neighbors away from their homes
Meanwhile, respondent Sheriff Nelson R. dela Cruz
but they refused to leave and resisted the
intruding armed men. issued the Notice to Vacate and for Demolition on 19 March
From the foregoing, it could be safely 2008.[12]
inferred that no incident of forcible entry
happened on April 18, 2006 but it was only
onApril 19, 2006 when the defendants
overpowered by their numbers the security It was against this factual backdrop that the petitioners
guards posted by the plaintiffs prior to the
controversy. filed the present petition last 29 April 2008. The petition contains

and prays for three remedies, namely: a petition for certiorari under
Rule 65 of the Revised Rules of Court; the issuance of a writ of
habeas data under the Rule on the Writ of Habeas Data; and
finally, the issuance of the writ of amparo under the Rule on the
Writ ofAmparo.
To support the petition and the remedies prayed for, the
petitioners present factual positions diametrically opposed to
theMCTCs findings and legal reasons. Most importantly, the
petitioners maintain their claims of prior possession of the disputed
land and of intrusion into this land by the private respondents. The
material factual allegations of the petition bases as well of the
petition for the issuance of the writ of amparo read:
29. On April 29, 2006 at about 9:20 a.m. armed
men sporting 12 gauge shot guns intruded
into the property of the defendants [the land
in dispute]. They were not in uniform. They fired
their shotguns at the defendants. Later the
following day at 2:00 a.m. two houses of the
defendants were burned to ashes.
30. These armed men [without uniforms]
removed the barbed wire fence put up by
defendants to protect their property from
intruders. Two of the armed men trained their
shotguns at the defendants who resisted their
intrusion. One of them who was identified as
SAMUEL LONGNO y GEGANSO, 19 years old,
single, and a resident of Binun-an, Batad, Iloilo,
fired twice.
31. The armed men torched two houses of
the defendants reducing them to ashes. [...]
32. These acts of TERRORISM and (heinous
crime) of ARSON were reported by one of
the HEIRS OF ANTONIO TAPUZ [...].The
terrorists trained their shotguns and fired at
minors namely IVAN GAJISAN and
MICHAEL MAGBANUA, who resisted their
intrusion. Their act is a blatant violation of
the law penalizing Acts of Violence against
women and children, which is aggravated
by the use of high-powered weapons.
[]
34. That the threats to the life and
security of the poor indigent and unlettered
petitioners continue because the private
respondentsSansons have under their employ
armed men and they are influential with the
police authorities owing to their financial and
political clout.
35. The actual prior occupancy, as
well as the ownership of the lot in dispute by
defendants and the atrocities of the terrorists
[introduced into the property in dispute by the
plaintiffs] are attested by witnesses who are
persons not related to the defendants are
therefore disinterested witnesses in the case
namely: Rowena Onag, Apolsida Umambong,
Ariel Gac, Darwin Alvarez
and EdgardoPenarada. Likewise, the affidavit
of Nemia T. Carmen is submitted to prove that
the plaintiffs resorted to atrocious acts through
hired men in their bid to unjustly evict the
defendants.[13]
The petitioners posit as well that the MCTC has no jurisdiction over
the complaint for forcible entry that the private respondents filed
below. Citing Section 33 of The Judiciary Reorganization Act of
1980, as amended by Republic Act No. 7691,[14] they maintain that
the forcible entry case in fact involves issues of title to or
possession of real property or an interest therein, with the
assessed value of the property involved exceeding P20,000.00;
thus, the case should be originally cognizable by the
RTC.Accordingly, the petitioners reason out that the RTC - to
where the MCTC decision was appealed equally has no
jurisdiction to rule on the case on appeal and could not have
validly issued the assailed orders.
OUR RULING
We find the petitions for certiorari and issuance of a writ of
habeas data fatally defective, both in substance and in
form.The petition for the issuance of the writ of amparo, on
the other hand, is fatally defective with respect to content and
substance.
The Petition for Certiorari
We conclude, based on the outlined material antecedents that led
to the petition, that the petition for certiorari to nullify the assailed
RTC orders has been filed out of time. It is not lost on us that the
petitioners have a pending petition with the Court of Appeals
(theCA petition) for the review of the same RTC orders now
assailed in the present petition, although the petitioners never
disclosed in the body of the present petition the exact status of
their pending CA petition. The CA petition, however, was filed with
the Court of Appeals on 2 August 2007, which indicates to us that
the assailed orders (or at the very least, the latest of the
interrelated assailed orders) were received on 1 August 2007 at
the latest. The present petition, on the other hand, was filed
on April 29, 2008 or more than eight months from the time the CA
petition was filed. Thus, the present petition is separated in point of
time from the assumed receipt of the assailed RTC orders by at
least eight (8) months, i.e., beyond the reglementary period of sixty
(60) days[15] from receipt of the assailed order or orders or from
notice of the denial of a seasonably filed motion for
reconsideration.
We note in this regard that the petitioners counsel stated in his
attached Certificate of Compliance with Circular #1-88 of the
Supreme Court[16] (Certificate of Compliance) that in the meantime
the RTC and the Sheriff issued a NOTICE TO VACATE AND FOR
DEMOLITION not served to counsel but to the petitioners who sent
photo copy of the same NOTICE to their counsel on April 18, 2008
by LBC. To guard against any insidious argument that the present
petition is timely filed because of this Notice to Vacate, we feel it
best to declare now that the counting of the 60-
day reglementary period under Rule 65 cannot start from the April
18, 2008 date cited by the petitioners counsel. The Notice to
Vacate and for Demolition is not an order that exists independently
from the RTC orders assailed in this petition and in the previously
filed CA petition. It is merely a notice, made in compliance with one
of the assailed orders, and is thus an administrative enforcement
medium that has no life of its own separately from the assailed
order on which it is based. It cannot therefore be the appropriate
subject of an independent petition for certiorari under Rule 65 in
the context of this case. The April 18, 2008 date cannot likewise be
the material date for Rule 65 purposes as the above-mentioned
Notice to Vacate is not even directly assailed in this petition, as the
petitions Prayer patently shows.[17]
 Based on the same material antecedents, we find too
that the petitioners have been guilty of willful and deliberate
misrepresentation before this Court and, at the very least, of forum
shopping.

By the petitioners own admissions, they filed a petition with the

Court of Appeals (docketed as CA G.R. SP No. 02859) for the
review of the orders now also assailed in this petition, but brought
the present recourse to us, allegedly because the CA did not act
on the petition up to this date and for the petitioner (sic) to seek
relief in the CA would be a waste of time and would render the
case moot and academic since the CA refused to
resolve pending urgent motions and the Sheriff is determined to other than by appeal or a special civil action for certiorari. Forum
enforce a writ of demolition despite the defect of LACK OF shopping trifles with the courts, abuses their processes, degrades
JURISDICTION.[18] the administration of justice and congest court dockets. Willful and
deliberate violation of the rule against it is a ground for summary
Interestingly, the petitioners counsel - while making this claim in dismissal of the case; it may also constitute direct contempt. [20]
the body of the petition - at the same time represented in his
Certificate of Compliance[19] that: Additionally, the required verification and certification of non-forum
xxx
shopping is defective as one (1) of the seven (7) petitioners -
(e) the petitioners went up to the Court of Ivan Tapuz - did not sign, in violation of Sections 4 and 5 of Rule 7;
Appeals to question the WRIT OF
PRELIMINARY INJUNCTION copy of the Section 3, Rule 46; Section 1, Rule 65; all in relation with Rule 56
petition is attached (sic); of the Revised Rules of Court. Of those who signed, only five (5)

(f) the CA initially issued a resolution exhibited their postal identification cards with the Notary Public.
denying the PETITION because it held that
the ORDER TO VACATE AND FOR
DEMOLITION OF THE HOMES OF In any event, we find the present petition for certiorari, on its face
PETITIONERS is not capable of being the and on the basis of the supporting attachments, to be devoid of
subject of a PETITION FOR RELIEF, copy of
the resolution of the CA is attached merit. The MCTC correctly assumed jurisdiction over the private
hereto; (underscoring supplied) respondents complaint, which specifically alleged a cause for
(g) Petitioners filed a motion for reconsideration forcible entry and not as petitioners may have misread
on August 7, 2007 but up to this date the same or misappreciated a case involving title to or possession of realty
had not been resolved copy of the MR is
attached (sic). or an interest therein. Under Section 33, par. 2 of The Judiciary
Reorganization Act, as amended by Republic Act (R.A.) No. 7691,
xxx
exclusive jurisdiction over forcible entry and
unlawful detainer cases lies with the Metropolitan Trial Courts,
The difference between the above representations on what
Municipal Trial Courts and Municipal Circuit Trial Courts. These
transpired at the appellate court level is replete with significance
first-level courts have had jurisdiction over these cases
regarding the petitioners intentions. We discern -- from the
called accion interdictal even before the R.A. 7691 amendment,
petitioners act of misrepresenting in the body of their petition
based on the issue of pure physical possession (as opposed to
that the CA did not act on the petition up to this date while stating
the right of possession). This jurisdiction is regardless of the
the real Court of Appeals action in the Certification of Compliance -
assessed value of the property involved; the law established no
- the intent to hide the real state of the remedies the petitioners
distinctions based on the assessed value of the property forced
sought below in order to mislead us into action on the RTC orders
into or unlawfully detained. Separately
without frontally considering the action that the Court of Appeals
from accion interdictal are accion publiciana for the recovery of the
had already undertaken.
right of possession as a plenary action,
and accion reivindicacion for the recovery of
At the very least, the petitioners are obviously seeking to obtain
ownership.[21] Apparently, these latter actions are the ones the
from us, via the present petition, the same relief that it could not
petitioners refer to when they cite Section 33, par. 3, in relation
wait for from the Court of Appeals in CA-G.R. SP No. 02859. The
with Section 19, par. 2 of The Judiciary Reorganization Act of
petitioners act of seeking against the same parties the nullification
1980, as amended by Republic Act No. 7691, in which jurisdiction
of the same RTC orders before the appellate court and before
may either be with the first-level courts or the regional trial
us at the same time, although made through different mediums
courts, depending on the assessed value of the realty subject of
that are both improperly used, constitutes willful and deliberate
the litigation. As the complaint at the MCTC was patently for
forum shopping that can sufficiently serve as basis for the
forcible entry, that court committed no jurisdictional error
summary dismissal of the petition under the combined application
correctible by certiorari under the present petition.
of the fourth and penultimate paragraphs of Section 3, Rule 46;
Section 5, Rule 7; Section 1, Rule 65; and Rule 56, all of the
In sum, the petition for certiorari should be dismissed for the
Revised Rules of Court. That a wrong remedy may have been
cited formal deficiencies, for violation of the non-forum
used with the Court of Appeals and possibly with us will not save
shopping rule, for having been filed out of time, and for
the petitioner from a forum-shopping violation where there is
substantive deficiencies.
identity of parties, involving the same assailed interlocutory orders,
with the recourses existing side by side at the same time.

The Writ of Amparo

To restate the prevailing rules, forum shopping is the institution of
two or more actions or proceedings involving the same parties for
To start off with the basics, the writ of amparo was
the same cause of action, either simultaneously or successively,
originally conceived as a response to the extraordinary rise in the
on the supposition that one or the other court would make a
number of killings and enforced disappearances, and to the
favorable disposition. Forum shopping may be resorted to by any
perceived lack of available and effective remedies to address
party against whom an adverse judgment or order has been issued
these extraordinary concerns. It is intended to address violations of
in one forum, in an attempt to seek a favorable opinion in another,
or threats to the rights to life, liberty or security, as an extraordinary
and independent remedy beyond those available under the
prevailing Rules, or as a remedy supplemental to these
Rules. What it is not, is a writ to protect concerns that are
purely property or commercial. Neither is it a writ that we shall
issue on amorphous and uncertain grounds. Consequently, the
Rule on the Writ of Amparo in line with the extraordinary character
of the writ and the reasonable certainty that its issuance demands
requires that every petition for the issuance of the Pwrit must be
supported by justifying allegations of fact, to wit:
(a) The personal circumstances of the
petitioner;
(b) The name and personal
circumstances of the respondent responsible
for the threat, act or omission, or, if the name is
unknown or uncertain, the respondent may be
described by an assumed appellation;
(c) The right to life, liberty and
security of the aggrieved party violated or
threatened with violation by an unlawful act
or omission of the respondent, and how
such threat or violation is committed with
the attendant circumstances detailed in
supporting affidavits;
(d) The investigation conducted, if
any, specifying the names, personal
circumstances, and addresses of the
investigating authority or individuals, as
well as the manner and conduct of the
investigation, together with any report;
(e) The actions and recourses taken
by the petitioner to determine the fate or
whereabouts of the aggrieved party and the
identity of the person responsible for the threat,
act or omission; and
(e) Certification dated 27 April 2006 issued by
Police Officer Allan R. Otis, narrating the
altercation between theTapuz family and the
security guards of the private respondents,
including the gun-poking and shooting incident
involving one of the security guards;
(f) Certification issued by Police Officer Christopher R.
Mendoza, narrating that a house owned
by Josiel Tapuz, Jr., rented by a certain
Jorge Buenavente, was accidentally burned
by a fire.
On the whole, what is clear from these statements - both sworn
and unsworn - is the overriding involvement of property issues as
the petition traces its roots to questions of physical possession of
the property disputed by the private parties. If at all, issues relating
to the right to life or to liberty can hardly be discerned except to the
extent that the occurrence of past violence has been alleged.The
right to security, on the other hand, is alleged only to the extent of
the threats and harassments implied from the presence of armed
men bare to the waist and the alleged pointing and firing of
weapons. Notably, none of the supporting affidavits
compellingly show that the threat to the rights to life, liberty
and security of the petitioners is imminent or is continuing.
A closer look at the statements shows that at least two of them the
statements of Nemia Carreon y Tapuz and Melanie Tapuz are
practically identical and unsworn. The Certification by Police
Officer Jackson Jauod, on the other hand, simply narrates what
had been reported by one Danny Tapuz y Masangkay, and even
mentions that the burning of two residential houses was
accidental.

(f) The relief prayed for.

As against these allegations are the cited MCTC factual findings in
The petition may include a general
its decision in the forcible entry case which rejected all the
prayer for other just and equitable reliefs.[22]
petitioners factual claims. These findings are significantly complete
and detailed, as they were made under a full-blown judicial
The writ shall issue if the Court is preliminarily satisfied with
process, i.e., after examination and evaluation of the contending
the prima facie existence of the ultimate facts determinable from
parties positions, evidence and arguments and based on the report
the supporting affidavits that detail the circumstances of how and
of a court-appointed commissioner.
to what extent a threat to or violation of the rights to life, liberty and
security of the aggrieved party was or is being committed.
We preliminarily examine these conflicting factual positions under
The issuance of the writ of amparo in the present case is anchored
the backdrop of a dispute (with incidents giving rise to allegations
on the factual allegations heretofore quoted, [23] that are essentially
of violence or threat thereof) that was brought to and ruled upon
repeated in paragraph 54 of the petition. These allegations are
by the MCTC; subsequently brought to the RTC on anappeal that
supported by the following documents:
(a) Joint Affidavit dated 23 May 2006 of is still pending; still much later brought to the appellate
Rowena B. Onag, Apolsida Umambong,
court without conclusive results; and then brought to us on
Ariel Gac, Darwin Alvarez
andEdgardo Pinaranda, supporting the factual interlocutory incidents involving a plea for the issuance of the writ
positions of the petitioners, id., petitioners prior
possession, private respondents intrusion and of amparo that, if decided as the petitioners advocate, may render
the illegal acts committed by the private the pending RTC appeal moot.
respondents and their security guards on 19
April 2006;
(b) Unsubscribed Affidavit of Nemia Carmen Under these legal and factual situations, we are far from satisfied
y Tapuz, alleging the illegal acts (firing of guns,
etc.) committed by a security guard against with the prima facie existence of the ultimate facts that would
minors descendants of Antonio Tapuz; justify the issuance of a writ of amparo. Rather than acts of
(c) Unsubscribed Affidavit of terrorism that pose a continuing threat to the persons of the
Melanie Tapuz y Samindao, essentially petitioners, the violent incidents alleged appear to us to be
corroborating Nemias affidavit;
purely property-related and focused on the disputed land. Thus, if
(d) Certification dated 23 April 2006 issued by
the petitioners wish to seek redress and hold the alleged
Police Officer Jackson Jauod regarding the
incident of petitioners intrusion into the disputed perpetrators criminally accountable, the remedy may lie more in
land;

the realm of ordinary criminal prosecution rather than on the use of
the extraordinary remedy of the writ of amparo.
Nor do we believe it appropriate at this time to disturb the MCTC
findings, as our action may carry the unintended effect, not only of
reversing the MCTC ruling independently of the appeal to the RTC
that is now in place, but also of nullifying the ongoing appeal
process. Such effect, though unintended, will obviously wreak
havoc on the orderly administration of justice, an overriding goal
that the Rule on the Writ of Amparo does not intend to weaken or
negate.
Separately from these considerations, we cannot fail but consider
too at this point the indicators, clear and patent to us, that the
petitioners present recourse via the remedy of the writ of amparo is
a mere subterfuge to negate the assailed orders that the
petitioners sought and failed to nullify before the appellate court
because of the use of an improper remedial measure. We discern
this from the petitioners misrepresentations pointed out above;
from their obvious act of forum shopping; and from the recourse
itself to the extraordinary remedies of the writs of certiorari
and amparo based on grounds that are far from forthright and
sufficiently compelling. To be sure, when recourses in the ordinary
course of law fail because of deficient legal representation or the
use of improper remedial measures, neither the
of certiorari nor that of amparo - extraordinary though they may be
- will suffice to serve as a curative substitute. The writ of amparo,
particularly, should not issue when applied for as a substitute for
the appeal or certiorari process, or when it will inordinately
interfere with these processes the situation obtaining in the present
case.
While we say all these, we note too that the Rule on the Writ
of Amparo provides for rules on the institution of separate
actions,[24]for the effect of earlier-filed criminal actions,[25] and for
the consolidation of petitions for the issuance of a writ
of amparo with a subsequently filed criminal and
action.[26] These rules were adopted to promote an orderly
procedure for dealing with petitions for the issuance of the writ
of amparo when the parties resort to other parallel recourses.
Where, as in this case, there is an ongoing civil process dealing
directly with the possessory dispute and the reported acts of
violence and harassment, we see no point in separately and
directly intervening through a writ of amparo in the absence of any
clear prima facie showing that the right to life, liberty or security
the personal concern that the writ is intended to protect - is
immediately in danger or threatened, or that the danger or threat is
continuing. We see no legal bar, however, to an application for the
issuance of the writ, in a proper case, by motion in a pending case
on appeal or on certiorari, applying by analogy the provisions on
the co-existence of the writ with a separately filed criminal case.
The Writ of Habeas Data
Section 6 of the Rule on the Writ of Habeas Data
requires the following material allegations of ultimate facts in a
petition for the issuance of a writ of habeas data:
(a) The personal circumstances of the
petitioner and the respondent;
(b) The manner the right to privacy is
violated or threatened and how it affects the
right to life, liberty or security of the
aggrieved party;
(c) The actions and recourses taken by the
petitioner to secure the data or information;
(d) The location of the files, registers or
databases, the government office, and the
person in charge, in possession or in
control of the data or information, if known;
(e) The reliefs prayed for, which may include
the updating, rectification, suppression or
destruction of the database or information or
files kept by the respondent.
In case of threats, the relief may include a
prayer for an order enjoining the act
complained of; and
(f) Such other relevant reliefs as are just and equitable.
Support for the habeas data aspect of the present
petition only alleges that:
1. [ ] Similarly, a petition for a WRIT
OF HABEAS DATA is prayed for so that the
PNP may release the report on the burning of
the homes of the petitioners and the acts of
writ violence employed against them by the private
respondents, furnishing the Court and the
petitioners with copy of the same;
[]
66. Petitioners apply for a WRIT OF
HABEAS DATA commanding the Philippine
National Police [PNP] to produce the police
report pertaining to the burning of the houses of
the petitioners in the land in dispute and
likewise the investigation report if an
investigation was conducted by the PNP.
These allegations obviously lack what the Rule on Writ of
Habeas Data requires as a minimum, thus rendering the petition
fatally deficient. Specifically, we see no concrete allegations of
civil
unjustified or unlawful violation of the right to privacy related to the
right to life, liberty or security. The petition likewise has not alleged,
much less demonstrated, any need for information under the
control of police authorities other than those it has already set forth
as integral annexes. The necessity or justification for the issuance
of the writ, based on the insufficiency of previous efforts made to
secure information, has not also been shown. In sum, the prayer
for the issuance of a writ of habeas data is nothing more than
the fishing expedition that this Court - in the course of drafting the
Rule on habeas data - had in mind in defining what the purpose of
a writ of habeas data is not. In these lights, the outright denial of
the petition for the issuance of the writ of habeas data is fully in
order.
WHEREFORE, premises considered, we
hereby DISMISS the present petition OUTRIGHT for deficiencies
of form and substance patent from its body and attachments.
ARMANDO Q. CANLAS, MIGUEL D. CAPISTRANO, MARRIETA
PIA, petitioners,
vs.
NAPICO HOMEOWNERS ASS’N., I – XIII, INC., ET Besides, the factual and legal basis for petitioners’ claim to the
AL., respondents. land in question is not alleged in the petition at all. The Court can
only surmise that these rights and interest had already been
RESOLUTION threshed out and settled in the four cases cited above. No writ of
amparo may be issued unless there is a clear allegation of the
REYES, R.T., J.:
supposed factual and legal basis of the right sought to be
THE present petition filed on May 26, 2008 seeks the issuance of protected.
a Writ of Amparo upon the following premise:
Under Section 6 of the same rules, the court shall issue the writ
Petitioners were deprived of their liberty, freedom and/or rights to upon the filing of the petition, only if on its face, the court ought to
shelter enshrined and embodied in our Constitution, as the result issue said writ.
of these nefarious activities of both the Private and Public
Section 6. Issuance of the Writ. – Upon the filing of the petition, the
Respondents. This ardent request filed before this Honorable
court, justice or judge shall immediately order the issuance of the
Supreme Court is the only solution to this problem via this newly
writ if on its face it ought to issue. The clerk of court shall issue the
advocated principles incorporated in the Rules – the "RULE ON
writ under the seal of the court; or in case of urgent necessity, the
THE WRIT OF AMPARO."1
justice or the judge may issue the writ under his or her own hand,
It appears that petitioners are settlers in a certain parcel of land and may deputize any officer or person to serve it.
situated in Barangay Manggahan, Pasig City. Their
The writ shall also set the date and time for summary hearing of
dwellings/houses have either been demolished as of the time of
the petition which shall not be later than seven (7) days from the
filing of the petition, or is about to be demolished pursuant to a
date of its issuance.
court judgment.
Considering that there is no legal basis for its issuance, as in this
While they attempted to focus on issuance of what they claimed to
case, the writ will not be issued and the petition will be dismissed
be fraudulent and spurious land titles, to wit:
outright.
Petitioners herein are desirous to help the government, the best
This new remedy of writ of amparo which is made available by this
way they can, to unearth these so-called "syndicates" clothed with
Court is intended for the protection of the highest possible rights of
governmental functions, in cahoots with the "squatting
any person, which is his or her right to life, liberty and security. The
syndicates" - - - - the low so defines. If only to give its proper
Court will not spare any time or effort on its part in order to give
meanings, the Government must be the first one to cleans (sic) its
priority to petitions of this nature. However, the Court will also not
ranks from these unscrupulous political protégées. If unabated
waste its precious time and effort on matters not covered by the
would certainly ruin and/or destroy the efficacy of the Torrens
writ.
System of land registration in this Country. It is therefore the
ardent initiatives of the herein Petitioners, by way of the said
prayer for the issuance of the Writ of Amparo, that these
unprincipled Land Officials be summoned to answer their THE SECRETARY OF G.R. No. 180906
participation in the issuances of these fraudulent and NATIONAL DEFENSE, THE
spurious titles, NOW, in the hands of the Private CHIEF OF STAFF, ARMED Present:
Respondents. The Courts of Justice, including this Honorable FORCES OF
Supreme Court, are likewise being made to believe that said THEPHILIPPINES, PUNO, C.J.,
titles in the possession of the Private Respondents were Petitioners, QUISUMBING,
YNARES-SANTIAGO,
issued untainted with frauds.2
CARPIO,
what the petition ultimately seeks is the reversal of this Court’s AUSTRIA-MARTINEZ,
CORONA,
dismissal of petitions in G.R. Nos. 177448, 180768, 177701,
CARPIO MORALES,
177038, thus:
AZCUNA,
That, Petitioners herein knew before hand that: there can be no - versus - TINGA,
CHICO-NAZARIO,
motion for reconsideration for the second or third time to be filed
VELASCO, JR.,
before this Honorable Supreme Court. As such therefore, NACHURA,
Petitioners herein are aware of the opinion that this present REYES,
petition should not in any way be treated as such motions fore LEONARDO-DE CASTRO,
reconsideration. Solely, this petition is only for the possible and
issuance of the writ of amparo, although it might affect the RAYMOND MANALO and BRION, JJ.
previous rulings of this Honorable Supreme Court in these REYNALDO MANALO,
cases, G.R. Nos. 177448, 180768, 177701 and 177038. Inherent Respondents. Promulgated:
in the powers of the Supreme Court of the Philippines is to October 7, 2008
modify, reverse and set aside, even its own previous decision, x- - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
that can not be thwarted nor influenced by any one, but, only - - - -x
on the basis of merits and evidence. This is the purpose of
DECISION
this petition for theWrit of Amparo.3

We dismiss the petition.

PUNO, C.J.:
The Rule on the Writ of Amparo provides:

Section 1. Petition. – The petition for a writ of amparo is a remedy While victims of enforced disappearances are separated from the
available to any person whose right to life, liberty and security is
rest of the world behind secret walls, they are not separated from
violated or threatened with violation by an unlawful act or omission
of a public official or employee, or of a private individual or entity. the constitutional protection of their basic rights. The constitution is
The writ shall cover extralegal killings and enforced an overarching sky that covers all in its protection. The case at bar
disappearances or threats thereof. (Emphasis supplied.)
involves the rights to life, liberty and security in the first petition for
The threatened demolition of a dwelling by virtue of a final
judgment of the court, which in this case was affirmed with finality a writ of amparo filed before this Court.
by this Court in G.R. Nos. 177448, 180768, 177701, 177038, is not
included among the enumeration of rights as stated in the above- This is an appeal via Petition for Review under Rule 45 of the
quoted Section 1 for which the remedy of a writ of amparo is made
available. Their claim to their dwelling, assuming they still have Rules of Court in relation to Section 19[1] of the Rule on the Writ
any despite the final and executory judgment adverse to them,
ofAmparo, seeking to reverse and set aside on both questions of
does not constitute right to life, liberty and security. There is,
therefore, no legal basis for the issuance of the writ of amparo. fact and law, the Decision promulgated by the Court of Appeals in

C.A. G.R. AMPARO No. 00001, entitled Raymond Manalo and
Reynaldo Manalo, petitioners, versus The Secretary of National
Defense, the Chief of Staff, Armed Forces of the Philippines,
respondents.
This case was originally a Petition for Prohibition, Injunction, and
Temporary Restraining Order (TRO)[2] filed before this Court by
herein respondents (therein petitioners) on August 23, 2007 to
stop herein petitioners (therein respondents) and/or their officers
and agents from depriving them of their right to liberty and other
basic rights. Therein petitioners also sought ancillary remedies,
Protective Custody Orders, Appointment of Commissioner,
Inspection and Access Orders, and all other legal and equitable
reliefs under Article VIII, Section 5(5) [3]
of the 1987 Constitution
and Rule 135, Section 6 of the Rules of Court. In our Resolution
dated August 24, 2007, we (1) ordered the Secretary of the
Department of National Defense and the Chief of Staff of the AFP,
their agents, representatives, or persons acting in their stead,
including but not limited to the Citizens Armed
Geographical Unit (CAFGU) to submit their Comment; and (2)
enjoined them from causing the arrest of therein petitioners, or
otherwise restricting, curtailing, abridging, or depriving them of
their right to life, liberty, and other basic rights as guaranteed
under Article III, Section 1[4] of the 1987 Constitution.[5]
While the August 23, 2007 Petition was pending, the Rule on the
Writ of Amparo took effect on October 24, 2007. Forthwith, therein
petitioners filed a Manifestation and Omnibus Motion to Treat
Existing Petition as Amparo Petition, to Admit Supporting
Affidavits, and to Grant Interim and Final Amparo Reliefs. They
prayed that: (1) the petition be considered a Petition for the Writ
[6]
ofAmparo under Sec. 26 of the Amparo Rule; (2) the Court issue
the writ commanding therein respondents to make a verified return
within the period provided by law and containing the specific
matter required by law; (3) they be granted the interim reliefs
allowed by the Amparo Rule and all other reliefs prayed for in the
petition but not covered by the Amparo Rule; (4) the Court, after
hearing, render judgment as required in Sec.
the Amparo Rule; and (5) all other just and equitable reliefs. [8]
On October 25, 2007, the Court resolved to treat the August 23,
2007 Petition as a petition under the Amparo Rule and further
resolved, viz:
WHEREFORE, let a WRIT OF AMPARO be
issued to respondents requiring them to file
with the CA (Court of Appeals) a verified written
return within five (5) working days from service
of the writ. We REMAND the petition to the CA
and designate the Division of Associate Justice
Lucas P. Bersamin to conduct the summary
hearing on the petition on November 8,
2007 at 2:00 p.m. and decide the petition in
accordance with the Rule on the Writ of
Amparo.[9]
On December 26, 2007, the Court of Appeals rendered
a decision in favor of therein petitioners (herein respondents), the
dispositive portion of which reads, viz:
ACCORDINGLY, the PRIVILEGE OF THE WRIT
OF AMPARO is GRANTED.
The respondents SECRETARY OF NATIONAL
DEFENSE and AFP CHIEF OF STAFF are
hereby REQUIRED:
1. To furnish to the petitioners and to this
Court within five days from notice of this
decision all official and unofficial reports of
the investigation undertaken in connection
with their case, except those already on file
herein;
2. To confirm in writing the present places of
official assignment of M/Sgt
Hilario aka Rollie Castillo and Donald
Caigas within five days from notice of this
decision.
3. To cause to be produced to this Court all
medical reports, records and charts,
reports of any treatment given or
recommended and medicines prescribed, if
Forces any, to the petitioners, to include a list of
medical and (sic) personnel (military and
civilian) who attended to them from
February 14, 2006 until August 12, 2007
within five days from notice of this decision.
The compliance with this decision shall be
made under the signature and oath of
respondent AFP Chief of Staff or his duly
authorized deputy, the latters authority to be
express and made apparent on the face of the
sworn compliance with this directive.
SO ORDERED.[10]
Hence, this appeal. In resolving this appeal, we first
unfurl the facts as alleged by herein respondents:
Respondent Raymond Manalo recounted that about one or two
weeks before February 14, 2006, several uniformed and armed
soldiers and members of the CAFGU summoned to a meeting all
the residents of their barangay in San Idelfonso,
Bulacan.Respondents were not able to attend as they were not
informed of the gathering, but Raymond saw some of the soldiers
when he passed by the barangay hall.[11]
18 [7] of On February 14, 2006, Raymond was sleeping in their house in
Buhol na Mangga, San Ildefonso, Bulacan. At past noon, several
armed soldiers wearing white shirts, fatigue pants and army boots,
entered their house and roused him. They asked him if he was
Bestre, but his mother, Ester Manalo, replied that he was
Raymond, not Bestre. The armed soldier slapped him on both
cheeks and nudged him in the stomach. He was then handcuffed,
brought to the rear of his house, and forced to the ground face
down. He was kicked on the hip, ordered to stand and face up to
the light, then forcibly brought near the road. He told his mother to
follow him, but three soldiers stopped her and told her to stay. [12]
Among the men who came to take him, Raymond recognized him up.When the guards got drunk, they also manhandled

brothers Michael de la Cruz, Madning de la Cruz, Puti de la Cruz, respondents. During this time, Raymond was fed only at night,

andPula de la Cruz, who all acted as lookout. They were all usually with left-over and rotten food.[17]

members of the CAFGU and residing in Manuzon, San Ildefonso,

On the third week of respondents detention, two men arrived while
Bulacan.He also recognized brothers Randy Mendoza and Rudy
Raymond was sleeping and beat him up. They doused him with
Mendoza, also members of the CAFGU. While he was being
urine and hot water, hit his stomach with a piece of wood, slapped
forcibly taken, he also saw outside of his house
his forehead twice with a .45 pistol, punched him on the mouth,
two barangay councilors, Pablo Cunanan and Bernardo Lingasa,
and burnt some parts of his body with a burning wood. When he
with some soldiers and armed men.[13]
could no longer endure the torture and could hardly breathe, they

The men forced Raymond into a white L300 van. Once inside, he stopped. They then subjected Reynaldo to the same ordeal in

was blindfolded. Before being blindfolded, he saw the faces of the another room. Before their torturers left, they warned Raymond

soldiers who took him. Later, in his 18 months of captivity, he that they would come back the next day and kill him. [18]

learned their names. The one who drove the van was Rizal Hilario
The following night, Raymond attempted to escape. He waited for
alias Rollie Castillo, whom he estimated was about 40 years of age
the guards to get drunk, then made noise with the chains put on
or older. The leader of the team who entered his house and
him to see if they were still awake. When none of them came to
abducted him was Ganata. He was tall, thin, curly-haired and a bit
check on him, he managed to free his hand from the chains and
old. Another one of his abductors was George who was tall, thin,
jumped through the window. He passed through a helipad and
white-skinned and about 30 years old.[14]
firing range and stopped near a fishpond where he used stones to

The van drove off, then came to a stop. A person was brought break his chains. After walking through a forested area, he came

inside the van and made to sit beside Raymond. Both of them near a river and an Iglesia ni Kristo church. He talked to some

were beaten up. On the road, he recognized the voice of the women who were doing the laundry, asked where he was and the

person beside him as his brother Reynaldos. The van stopped road to Gapan. He was told that he was in Fort Magsaysay.[19] He

several times until they finally arrived at a house. Raymond and reached the highway, but some soldiers spotted him, forcing him to

Reynaldo were each brought to a different room. With the doors of run away. The soldiers chased him and caught up with him.They

their rooms left open, Raymond saw several soldiers continuously brought him to another place near the entrance of what he saw

hitting his brother Reynaldo on the head and other parts of his was Fort Magsaysay. He was boxed repeatedly, kicked, and hit

body with the butt of their guns for about 15 minutes. After which, with chains until his back bled. They poured gasoline on him. Then

Reynaldo was brought to his (Raymonds) room and it was his a so-called Mam or Madam suddenly called, saying that she

(Raymonds) turn to be beaten up in the other room. The soldiers wanted to see Raymond before he was killed. The soldiers ceased

asked him if he was a member of the New Peoples Army. Each the torture and he was returned inside Fort Magsaysay where

time he said he was not, he was hit with the butt of their guns. He Reynaldo was detained.[20]

was questioned where his comrades were, how many soldiers he

For some weeks, the respondents had a respite from all the
had killed, and how many NPA members he had helped. Each
torture. Their wounds were treated. When the wounds were almost
time he answered none, they hit him.[15]
healed, the torture resumed, particularly when respondents guards

In the next days, Raymonds interrogators appeared to be high got drunk.[21]

officials as the soldiers who beat him up would salute them, call
Raymond recalled that sometime in April until May 2006, he was
them sir, and treat them with respect. He was in blindfolds when
detained in a room enclosed by steel bars. He stayed all the time
interrogated by the high officials, but he saw their faces when they
in that small room measuring 1 x 2 meters, and did everything
arrived and before the blindfold was put on. He noticed that the
there, including urinating, removing his bowels, bathing, eating and
uniform of the high officials was different from those of the other
sleeping. He counted that eighteen people[22] had been detained in
soldiers. One of those officials was tall and thin, wore white pants,
that bartolina, including his brother Reynaldo and himself. [23]
tie, and leather shoes, instead of combat boots. He spoke in

Tagalog and knew much about his parents and family, and
For about three and a half months, the respondents were detained
a habeas corpus case filed in connection with the respondents
in Fort Magsaysay. They were kept in a small house with two
abduction.[16] While these officials interrogated him, Raymond was
rooms and a kitchen. One room was made into the bartolina. The
not manhandled. But once they had left, the soldier guards beat
 rali, sa hearing, sa Karapatan at sa Human
house was near the firing range, helipad and mango trees. At Right dahil niloloko lang kayo. Sabihin sa
magulang at lahat sa bahay na huwag paloko
dawn, soldiers marched by their house. They were also sometimes doon. Tulungan kami na kausapin si Bestre
na sumuko na sa gobyerno.[28]
detained in what he only knew as the DTU. [24]
Respondents agreed to do as Gen. Palparan told them

At the DTU, a male doctor came to examine respondents. He as they felt they could not do otherwise. At about 3:00 in the

checked their body and eyes, took their urine samples and marked morning, Hilario, Efren and the formers men - the same group that

them. When asked how they were feeling, they replied that they abducted them - brought them to their parents house. Raymond

had a hard time urinating, their stomachs were aching, and they was shown to his parents while Reynaldo stayed in the Revo

felt other pains in their body. The next day, two ladies in white because he still could not walk. In the presence of Hilario and

arrived. They also examined respondents and gave them other soldiers, Raymond relayed to his parents what Gen.

medicines, including orasol, amoxicillin and mefenamic acid. They Palparan told him. As they were afraid, Raymonds parents

brought with them the results of respondents urine test and acceded. Hilario threatened Raymonds parents that if they

advised them to drink plenty of water and take their medicine. The continued to join human rights rallies, they would never see their

two ladies returned a few more times. Thereafter, medicines were children again. The respondents were then brought back to

sent through the master of the DTU, Master Del Rosario alias Sapang.[29]

Carinyoso at Puti. Respondents were kept in the DTU for about

When respondents arrived back in Sapang, Gen.
two weeks. While there, he met a soldier named Efren who said
Palparan was about to leave. He was talking with the four masters
that Gen. Palparan ordered him to monitor and take care of
who were there: Arman, Ganata, Hilario and Cabalse. [30] When
them.[25]
Gen. Palparan saw Raymond, he called for him. He was in a big

One day, Rizal Hilario fetched respondents in a Revo white vehicle. Raymond stood outside the vehicle as Gen.

vehicle. They, along with Efren and several other armed men Palparan told him to gain back his strength and be healthy and to

wearing fatigue suits, went to a detachment in Pinaud, San take the medicine he left for him and Reynaldo. He said the

Ildefonso, Bulacan. Respondents were detained for one or two medicine was expensive at Php35.00 each, and would make them

weeks in a big two-storey house. Hilario and Efren stayed with strong. He also said that they should prove that they are on the
[26]
them. While there, Raymond was beaten up by Hilarios men. side of the military and warned that they would not be given

another chance.[31] During his testimony, Raymond identified Gen.

From Pinaud, Hilario and Efren brought respondents to Sapang,
Palparan by his picture.[32]
San Miguel, Bulacan on board the Revo. They were detained in a

big unfinished house inside the compound of Kapitan for about One of the soldiers named Arman made Raymond take the

three months. When they arrived in Sapang, Gen. Palparan talked medicine left by Gen. Palparan. The medicine, named Alive, was

to them. They were brought out of the house to a basketball court green and yellow. Raymond and Reynaldo were each given a box

in the center of the compound and made to sit. Gen. Palparan was of this medicine and instructed to take one capsule a day. Arman

already waiting, seated. He was about two arms length away from checked if they were getting their dose of the medicine. The Alive

respondents. He began by asking if respondents felt well already, made them sleep each time they took it, and they felt heavy upon

to which Raymond replied in the affirmative. He asked Raymond if waking up.[33]

he knew him. Raymond lied that he did not. He then asked

After a few days, Hilario arrived again. He took Reynaldo and left
Raymond if he would be scared if he were made to face Gen.
Raymond at Sapang. Arman instructed Raymond that while in
Palparan. Raymond responded that he would not be because he
Sapang, he should introduce himself as Oscar, a military trainee
did not believe that Gen. Palparan was an evil man. [27]
from Sariaya, Quezon, assigned in Bulacan. While there, he saw

Raymond narrated his conversation with Gen. Palparan in his again Ganata, one of the men who abducted him from his house,

affidavit, viz: and got acquainted with other military men and civilians. [34]
Tinanong ako ni Gen. Palparan, Ngayon na
kaharap mo na ako, di ka ba natatakot sa
After about three months in Sapang, Raymond was brought
akin?
to Camp Tecson under the 24th Infantry Battalion. He was fetched
Sumagot akong, Siyempre po, natatakot din
by three unidentified men in a big white vehicle. Efren went with
Sabi ni Gen. Palparan: Sige, bibigyan ko kayo
ng isang pagkakataon na mabuhay, bastat them. Raymond was then blindfolded. After a 30-minute ride, his
sundin nyo ang lahat ng sasabihin ko sabihin
mo sa magulang mo huwag pumunta sa mga
blindfold was removed. Chains were put on him and he was kept in
[35]
the barracks.
The next day, Raymonds chains were removed and he was
ordered to clean outside the barracks. It was then he learned that
he was in a detachment of the Rangers. There were many
soldiers, hundreds of them were training. He was also ordered to
clean inside the barracks. In one of the rooms therein, he met
Sherlyn Cadapan from Laguna. She told him that she was a
student of the University of the Philippines and was abducted in
Hagonoy, Bulacan. She confided that she had been subjected to
severe torture and raped. She was crying and longing to go home
and be with her parents. During the day, her chains were removed
and she was made to do the laundry.[36]
After a week, Reynaldo was also brought to Camp Tecson. Two
days from his arrival, two other captives, Karen Empeo and
Manuel Merino, arrived. Karen and Manuel were put in the room
with Allan whose name they later came to know as Donald Caigas,
called master or commander by his men in the 24th Infantry
Battalion. Raymond and Reynaldo were put in the adjoining
room. At times, Raymond and Reynaldo were threatened, and
Reynaldo was beaten up. In the daytime, their chains were
removed, but were put back on at night. They were threatened that
if they escaped, their families would all be killed. [37]
On or about October 6, 2006, Hilario arrived in Camp Tecson. He
told the detainees that they should be thankful they were still alive
and should continue along their renewed life. Before the hearing of
November 6 or 8, 2006, respondents were brought to their parents
to instruct them not to attend the hearing. However, their parents
had already left for Manila. Respondents were brought back
to Camp Tecson. They stayed in that camp from September 2006
to November 2006, and Raymond was instructed to continue using
the name Oscar and holding himself out as a military trainee. He
got acquainted with soldiers of the 24th Infantry Battalion whose
names and descriptions he stated in his affidavit. [38]
On November 22, 2006, respondents, along with Sherlyn, Karen,
th
and Manuel, were transferred to a camp of the 24 Infantry
Battalion in Limay, Bataan. There were many huts in the
camp. They stayed in that camp until May 8, 2007. Some soldiers
of the battalion stayed with them. While there, battalion soldiers
whom Raymond knew as Mar and Billy beat him up and hit him in
the stomach with their guns. Sherlyn and Karen also suffered
enormous torture in the camp. They were all made to clean, cook,
[39]
and help in raising livestock.
Raymond recalled that when Operation Lubog was launched,
Caigas and some other soldiers brought him and Manuel with
them to take and kill all sympathizers of the NPA. They were
brought to Barangay Bayan-bayanan, Bataan where he witnessed
the killing of an old man doing kaingin. The soldiers said he was
killed because he had a son who was a member of the NPA and
he coddled NPA members in his house.[40] Another time, in another
Operation Lubog, Raymond was brought to Barangay Orion in a
house where NPA men stayed. When they arrived, only the old
man of the house who was sick was there. They spared him and
killed only his son right before Raymonds eyes.[41]
From Limay, Raymond, Reynaldo, Sherlyn, Karen, and Manuel
were transferred to Zambales, in a safehouse near the sea. Caigas
and some of his men stayed with them. A retired army soldier was
in charge of the house. Like in Limay, the five detainees were
made to do errands and chores. They stayed in Zambales from
May 8 or 9, 2007 until June 2007.[42]
In June 2007, Caigas brought the five back to the camp in
Limay. Raymond, Reynaldo, and Manuel were tasked to bring food
to detainees brought to the camp. Raymond narrated what he
witnessed and experienced in the camp, viz:
Isang gabi, sinabihan kami ni Donald (Caigas)
na matulog na kami. Nakita ko si Donald na
inaayos ang kanyang baril, at nilagyan ng
silenser. Sabi ni Donald na kung mayroon man
kaming makita o marinig, walang
nangyari. Kinaumagahan, nakita naming ang
bangkay ng isa sa mga bihag na dinala sa
kampo. Mayroong binuhos sa kanyang katawan
at itoy sinunog. Masansang ang amoy.
Makaraan ang isang lingo, dalawang bangkay
and ibinaba ng mga unipormadong sundalo mula
sa 6 x 6 na trak at dinala sa loob ng kampo.May
naiwang mga bakas ng dugo habang hinihila nila
ang mga bangkay. Naamoy ko iyon nang nililinis
ang bakas.
Makalipas ang isa o dalawang lingo, may dinukot
sila na dalawang Ita. Itinali sila sa labas ng kubo,
piniringan, ikinadena at labis na
binugbog. Nakita kong nakatakas ang isa sa
kanila at binaril siya ng sundalo ngunit hindi siya
tinamaan. Iyong gabi nakita kong pinatay nila
iyong isang Ita malapit sa Post 3; sinilaban ang
bangkay at ibinaon ito.
Pagkalipas ng halos 1 buwan, 2 pang bangkay
ang dinala sa kampo. Ibinaba ang mga bangkay
mula sa pick up trak, dinala ang mga bangkay sa
labas ng bakod. Kinaumagahan nakita kong
mayroong sinilaban, at napakamasangsang ang
amoy.
May nakilala rin akong 1 retiradong koronel at 1
kasama niya. Pinakain ko sila. Sabi nila sa akin
na dinukot sila sa Bataan. Iyong gabi, inilabas
sila at hindi ko na sila nakita.
xxx xxx xxx
Ikinadena kami ng 3 araw. Sa ikatlong araw,
nilabas ni Lat si Manuel dahil kakausapin daw
siya ni Gen. Palparan. Nakapiring si Manuel,
wala siyang suot pang-itaas,
 pinosasan. Nilakasan ng mga sundalo ang
tunog na galing sa istiryo ng sasakyan. Di
nagtagal, narinig ko ang hiyaw o ungol ni
Manuel. Sumilip ako sa isang haligi ng kamalig
at nakita kong sinisilaban si Manuel.
Kinaumagahan, naka-kadena pa
kami. Tinanggal ang mga kadena mga 3 o 4 na
araw pagkalipas. Sinabi sa amin na kaya kami
nakakadena ay dahil pinagdedesisyunan pa ng
mga sundalo kung papatayin kami o hindi.
Tinanggal ang aming kadena. Kinausap kami ni
Donald. Tinanong kami kung ano ang sabi ni
Manuel sa amin. Sabi ni Donald huwag na raw
naming hanapin ang dalawang babae at si
Manuel, dahil magkakasama na yung
tatlo. Sabi pa ni Donald na kami ni Reynaldo ay
magbagong buhay at ituloy namin ni Reynaldo
ang trabaho. Sa gabi, hindi na kami
kinakadena.[43]
On or about June 13, 2007, Raymond and Reynaldo
were brought to Pangasinan, ostensibly to raise poultry for Donald
(Caigas). Caigas told respondents to also farm his land, in
exchange for which, he would take care of the food of their
family. They were also told that they could farm a small plot
adjoining his land and sell their produce. They were no longer put
in chains and were instructed to use the names Rommel (for
Raymond) and Rod (for Reynaldo) and represent themselves as
[44]
cousins from Rizal, Laguna.
Respondents started to plan their escape. They could see the
highway from where they stayed. They helped farm adjoining lands
for which they were paid Php200.00 or Php400.00 and they saved
their earnings. When they had saved Php1,000.00 each, Raymond
asked a neighbor how he could get a cellular phone as he wanted
to exchange text messages with a girl who lived nearby. A phone
was pawned to him, but he kept it first and did not use it. They
earned some more until they had saved Php1,400.00 between
them.
There were four houses in the compound. Raymond and Reynaldo
were housed in one of them while their guards lived in the other
three. Caigas entrusted respondents to Nonong, the head of the
guards. Respondents house did not have electricity. They used a
lamp. There was no television, but they had a radio. In the evening
of August 13, 2007, Nonong and his cohorts had a drinking
session. At about 1:00 a.m., Raymond turned up the volume of the
radio. When none of the guards awoke and took notice, Raymond
and Reynaldo proceeded towards the highway, leaving behind
their sleeping guards and barking dogs. They boarded a bus
[45]
bound for Manila and were thus freed from captivity.
Reynaldo also executed an affidavit affirming the contents of
Raymonds affidavit insofar as they related to matters they
witnessed together. Reynaldo added that when they were taken
from their house on February 14, 2006, he saw the faces of his
abductors before he was blindfolded with his shirt. He also named
the soldiers he got acquainted with in the 18 months he was
detained. When Raymond attempted to escape
from Fort Magsaysay, Reynaldo was severely beaten up and told
that they were indeed members of the NPA because Raymond
escaped. With a .45 caliber pistol, Reynaldo was hit on the back
and punched in the face until he could no longer bear the pain.
At one point during their detention, when Raymond and Reynaldo
were in Sapang, Reynaldo was separated from Raymond and
brought to Pinaud by Rizal Hilario. He was kept in the house of
Kapitan, a friend of Hilario, in a mountainous area. He was
instructed to use the name Rodel and to represent himself as a
military trainee from Meycauayan, Bulacan. Sometimes, Hilario
brought along Reynaldo in his trips. One time, he was brought to a
market in San Jose, del Monte, Bulacan and made to wait in the
vehicle while Hilario was buying. He was also brought to
Tondo, Manila where Hilario delivered boxes of Alive in different
houses.In these trips, Hilario drove a black and red
vehicle. Reynaldo was blindfolded while still in Bulacan, but
allowed to remove the blindfold once outside the province. In one
of their trips, they passed
by Fort Magsaysay and Camp Tecson where Reynaldo saw the
sign board, Welcome to Camp Tecson.[46]
Dr. Benito Molino, M.D., corroborated the accounts of respondents
Raymond and Reynaldo Manalo. Dr. Molino specialized in forensic
medicine and was connected with the Medical Action Group, an
organization handling cases of human rights violations, particularly
cases where torture was involved. He was requested by an NGO
to conduct medical examinations on the respondents after their
escape. He first asked them about their ordeal, then proceeded
with the physical examination. His findings showed that the scars
borne by respondents were consistent with their account of
physical injuries inflicted upon them. The examination was
conducted on August 15, 2007, two days after respondents
escape, and the results thereof were reduced into writing. Dr.
Molino took photographs of the scars. He testified that he followed
the Istanbul Protocol in conducting the examination. [47]
Petitioners dispute respondents account of their alleged abduction
and torture. In compliance with the October 25, 2007 Resolution of
the Court, they filed a Return of the Writ of Amparo admitting the
abduction but denying any involvement therein, viz:
13. Petitioners Raymond and Reynaldo Manalo
were not at any time arrested, forcibly
abducted, detained, held incommunicado,
disappeared or under the custody by the
military. This is a settled issue laid to rest in
the habeas corpus case filed in their behalf by
petitioners parents before the Court of Appeals
in C.A.-G.R. SP No. 94431 against M/Sgt. Rizal
Hilario aka Rollie Castillo, as head of the
24th Infantry Battalion; Maj. Gen. Jovito
 Palparan, as Commander of the 7th Infantry
Division in Luzon; Lt. Gen. Hermogenes
Esperon, in his capacity as the Commanding
General of the Philippine Army, and members
of the Citizens Armed Forces Geographical
Unit (CAFGU), namely: Michael dela Cruz, Puti
dela Cruz, Madning dela Cruz, Pula dela Cruz,
Randy Mendoza and Rudy Mendoza. The
respondents therein submitted a return of the
writ On July 4, 2006, the Court of Appeals
dropped as party respondents Lt. Gen.
Hermogenes C. Esperon, Jr., then
Commanding General of the Philippine Army,
and on September 19, 2006, Maj. (sic) Jovito S.
Palparan, then Commanding General,
7th Infantry Division, Philippine Army, stationed
at Fort Magsaysay, Palayan City, Nueva Ecija,
upon a finding that no evidence was introduced
to establish their personal involvement in the
taking of the Manalo brothers. In a Decision
dated June 27, 2007, it exonerated M/Sgt. Rizal
Hilario aka Rollie Castillo for lack of evidence
establishing his involvement in any capacity in
the disappearance of the Manalo brothers,
although it held that the remaining respondents
were illegally detaining the Manalo brothers
and ordered them to release the latter.[48]
Attached to the Return of the Writ was the affidavit of
therein respondent (herein petitioner) Secretary of National
Defense, which attested that he assumed office only on August 8,
2007 and was thus unaware of the Manalo brothers alleged
abduction. He also claimed that:
7. The Secretary of National Defense does
not engage in actual military directional
operations, neither does he undertake
command directions of the AFP units in the
field, nor in any way micromanage the AFP
operations. The principal responsibility of
the Secretary of National Defense is
focused in providing strategic policy
direction to the Department (bureaus and
agencies) including the Armed Forces of
the Philippines;
8. In connection with the Writ
of Amparo issued by the Honorable
Supreme Court in this case, I have directed
the Chief of Staff, AFP to institute
immediate action in compliance with
Section 9(d) of the Amparo Rule and to
submit report of such compliance
Likewise, in a Memorandum Directive also
dated October 31, 2007, I have issued a
policy directive addressed to the Chief of
Staff, AFP that the AFP should adopt the
following rules of action in the event the
Writ of Amparo is issued by a competent
court against any members of the AFP:
(1) to verify the identity of the aggrieved
party;
(2) to recover and preserve evidence
related to the death or disappearance
of the person identified in the petition
which may aid in the prosecution of
the person or persons responsible;
(3) to identify witnesses and obtain
statements from them concerning the
death or disappearance;
(4) to determine the cause, manner,
location and time of death or
disappearance as well as any pattern
or practice that may have brought
about the death or disappearance;
(5) to identify and apprehend the person
or persons involved in the death or
disappearance; and
(6) to bring the suspected offenders
before a competent court.[49]
Therein respondent AFP Chief of Staff also submitted
his own affidavit, attached to the Return of the Writ, attesting that
he received the above directive of therein respondent Secretary of
National Defense and that acting on this directive, he did the
following:
3.1. As currently designated Chief of Staff,
Armed Forces of the Philippines (AFP), I have
caused to be issued directive to the units of the
AFP for the purpose of establishing the
circumstances of the alleged disappearance
and the recent reappearance of the petitioners.
3.2. I have caused the immediate investigation
and submission of the result thereof to Higher
headquarters and/or direct the immediate
conduct of the investigation on the matter by the
concerned unit/s, dispatching Radio Message
on November 05, 2007, addressed to the
Commanding General, Philippine Army (Info:
COMNOLCOM, CG, 71D PA and CO 24 IB
PA). A Copy of the Radio Message is attached
as ANNEX 3 of this Affidavit.
3.3. We undertake to provide result of the
investigations conducted or to be conducted by
the concerned unit relative to the circumstances
of the alleged disappearance of the persons in
whose favor the Writ of Amparo has been
sought for as soon as the same has been
furnished Higher headquarters.
3.4. A parallel investigation has been directed to
the same units relative to another Petition for
the Writ of Amparo (G.R. No. 179994) filed at
the instance of relatives of a certain Cadapan
and Empeo pending before the Supreme Court.
3.5. On the part of the Armed Forces, this
respondent will exert earnest efforts to establish
the surrounding circumstances of the
disappearances of the petitioners and to bring
those responsible, including any military
personnel if shown to have participated or had
complicity in the commission of the complained
acts, to the bar of justice, when warranted by
the findings and the competent evidence that
may be gathered in the process.[50]
Also attached to the Return of the Writ was the affidavit
of Lt. Col. Felipe Anontado, INF (GSC) PA, earlier filed in G.R. No.
179994, another amparo case in this Court, involving Cadapan,
Empeo and Merino, which averred among others, viz:
10) Upon reading the allegations in the Petition
implicating the 24th Infantry Batallion
detachment as detention area, I immediately
went to the 24th IB detachment in Limay,
Bataan and found no untoward incidents in the
area nor any detainees by the name of Sherlyn
Cadapan, Karen Empeo and Manuel Merino
being held captive;
11) There was neither any reports of any death
of Manuel Merino in the 24th IB in
Limay, Bataan;
12) After going to the 24th IB in Limay, Bataan,
we made further inquiries with the Philippine
National Police, Limay, Bataan regarding the
alleged detentions or deaths and were informed
that none was reported to their good office;
 13) I also directed Company Commander 1st Lt.
Romeo Publico to inquire into the alleged
beachhouse in Iba, Zambales also alleged to
be a detention place where Sherlyn Cadapan,
Karen Empeo and Manuel Merino were
detained. As per the inquiry, however, no such
beachhouse was used as a detention place
found to have been used by armed men to
detain Cadapan, Empeo and Merino.[51]
It was explained in the Return of the Writ that for lack of sufficient
time, the affidavits of Maj. Gen Jovito S. Palparan (Ret.), M/Sgt.
Rizal Hilario aka Rollie Castillo, and other persons implicated by
therein petitioners could not be secured in time for the submission
of the Return and would be subsequently submitted. [52]
Herein petitioners presented a lone witness in the summary
th
hearings, Lt. Col. Ruben U. Jimenez, Provost Marshall, 7 Infantry
Division, Philippine Army, based in Fort Magsaysay, Palayan City,
Nueva Ecija. The territorial jurisdiction of this Division covers
Nueva Ecija, Aurora, Bataan, Bulacan, Pampanga, Tarlac and a
portion of Pangasinan.[53] The 24th Infantry Battalion is part of the
7th Infantry Division.[54]
On May 26, 2006, Lt. Col. Jimenez was directed by the
th
Commanding General of the 7 Infantry Division, Maj. Gen. Jovito
[55] [56]
Palaran, through his Assistant Chief of Staff, to investigate the
alleged abduction of the respondents by CAFGU auxiliaries under
his unit, namely: CAA Michael de la Cruz; CAA Roman de la Cruz,
aka Puti; CAA Maximo de la Cruz, aka Pula; CAA Randy
Mendoza; ex-CAA Marcelo de la Cruz aka Madning; and a civilian
named Rudy Mendoza. He was directed to determine: (1) the
veracity of the abduction of Raymond and Reynaldo Manalo by the
alleged elements of the CAFGU auxiliaries; and (2) the
administrative liability of said auxiliaries, if any. [57] Jimenez testified
that this particular investigation was initiated not by a complaint as
was the usual procedure, but because the Commanding General
saw news about the abduction of the Manalo brothers on the
television, and he was concerned about what was happening
within his territorial jurisdiction. [58]
Jimenez summoned all six implicated persons for the purpose of
having them execute sworn statements and conducting an
investigation on May 29, 2006.[59] The investigation
at 8:00 in the morning and finished at 10:00 in the evening.[60] The
investigating officer, Technical Sgt. Eduardo Lingad, took the
individual sworn statements of all six persons on that day. There
were no other sworn statements taken, not even of the Manalo
family, nor were there other witnesses summoned
investigated [61]
as according to Jimenez, the directive to him was
only to investigate the six persons.[62]
Jimenez was beside Lingad when the latter took the
[63]
statements. The six persons were not known to Jimenez as it
was in fact his first time to meet them.[64] During the entire time that
he was beside Lingad, a subordinate of his in the Office of the
Provost Marshall, Jimenez did not propound a single question to
the six persons.[65]
Jimenez testified that all six statements were taken on May 29,
2006, but Marcelo Mendoza and Rudy Mendoza had to come back
the next day to sign their statements as the printing of their
statements was interrupted by a power failure. Jimenez testified
that the two signed on May 30, 2006, but the jurats of their
statements indicated that they were signed on May 29,
2006.[66] When the Sworn Statements were turned over to
Jimenez, he personally wrote his investigation report. He began
writing it in the afternoon ofMay 30, 2006 and finished it on June 1,
2006.[67] He then gave his report to the Office of the Chief of
Personnel.[68]
As petitioners largely rely on Jimenezs Investigation Report
dated June 1, 2006 for their evidence, the report is herein
substantially quoted:
III. BACKGROUND OF THE CASE
4. This pertains to the abduction of RAYMOND
MANALO and REYNALDO MANALO who were
forcibly taken from their respective homes in
Brgy. Buhol na Mangga, San Ildefonso,
Bulacan on 14 February 2006 by unidentified
armed men and thereafter were forcibly
disappeared. After the said incident, relatives of
the victims filed a case for Abduction in the civil
court against the herein suspects: Michael dela
Cruz, Madning dela Cruz, Puti Dela Cruz, Pula
Dela Cruz, Randy Mendoza and Rudy
Mendoza as alleged members of the Citizen
Armed Forces Geographical Unit (CAFGU).
a) Sworn statement of CAA Maximo F. dela
Cruz, aka Pula dated 29 May 2006 in (Exhibit
B) states that he was at Sitio Mozon,
Brgy.Bohol na Mangga, San Ildefonso, Bulacan
doing the concrete building of a church located
nearby his residence, together with some
neighbor thereat. He claims that on 15
February 2006, he was being informed by Brgy.
Kagawad Pablo Umayan about the abduction
of the brothers Raymond and Reynaldo
Manalo. As to the allegation that he was one of
the suspects, he claims that they only
implicated him because he was a CAFGU and
started that they claimed that those who abducted the
Manalo brothers are members of the Military
and CAFGU.Subject vehemently denied any
participation or involvement on the abduction of
said victims.
b) Sworn statement of CAA Roman dela Cruz y
Faustino Aka Puti dtd 29 May 2006 in (Exhibit
C) states that he is a resident of Sitio Muzon,
and Brgy. Buhol na Mangga, San Ildefonso,
Bulacan and a CAA member based at Biak na
Bato Detachment, San Miguel, Bulacan. He
claims that Raymond and Reynaldo Manalo
being his neighbors are active
members/sympathizers of the CPP/NPA and he
also knows their elder Rolando Manalo @ KA
BESTRE of being an NPA Leader operating in
their province. That at the time of the alleged
abduction of the two (2) brothers and for
accusing him to be one of the suspects, he
claims that on February 14, 2006, he was one
of those working at the concrete chapel being
constructed nearby his residence. He claims
further that he just came only to know about the
incident on other day (15 Feb 06) when he was
being informed by Kagawad Pablo
Kunanan. That subject CAA vehemently denied
any participation about the incident and claimed
that they only implicated him because he is a
member of the CAFGU.
c) Sworn Statement of CAA Randy Mendoza y
Lingas dated 29 May 2006 in (Exhibit O) states
that he is a resident of Brgy. Buhol na Mangga,
San Ildefonso, Bulacan and a member of
CAFGU based at Biak na Bato
Detachment. That being a neighbor, he was
very much aware about the background of the
two (2) brothers Raymond and Reynaldo as
active supporters of the CPP NPA in their Brgy.
and he also knew their elder brother
KUMANDER BESTRE TN: Rolando
Manalo. Being one of the accused, he claims
that on 14 February 2006, he was at Brgy.
Magmarate, San Miguel, Bulacan in the house
of his aunt and he learned only about the
incident when he arrived home in their
place. He claims further that the only reason
why they implicated him was due to the fact
that his mother has filed a criminal charge
against their brother Rolando Manalo @ KA
BESTRE who is an NPA Commander who
killed his father and for that reason they
implicated him in support of their
brother. Subject CAA vehemently denied any
involvement on the abduction of said Manalo
brothers.
d) Sworn Statement of Rudy Mendoza y
Lingasa dated May 29, 2006 in (Exhibit E)
states that he is a resident of Brgy. Marungko,
Angat, Bulacan. He claims that Raymond and
Reynaldo Manalo are familiar to him being his
barriomate when he was still unmarried and he
knew them since childhood. Being one of the
accused, he claims that on 14 February 2006,
he was at his residence in Brgy. Marungko,
Angat, Bulacan. He claims that he was being
informed only about the incident lately and he
was not aware of any reason why the two (2)
brothers were being abducted by alleged
members of the military and CAFGU. The only
reason he knows why they implicated him was
because there are those people who are angry
with their family particularly victims of summary
execution (killing) done by their brother @ KA
Bestre Rolando Manalo who is an NPA
leader. He claims further that it was their
brother @ KA BESTRE who killed his father
and he was living witness to that
incident. Subject civilian vehemently denied
any involvement on the abduction of the
Manalo brothers.
e) Sworn statement of Ex-CAA Marcelo dala
Cruz dated 29 May 2006 in (Exhibit F) states
that he is a resident of Sitio Muzon, Brgy. Buhol
na Mangga, San Ildefonso, Bulacan, a farmer
and a former CAA based at Biak na Bato, San
Miguel, Bulacan. He claims that Raymond and
Reynaldo Manalo are familiar to him being their
barrio mate. He claims further that they are
active supporters of CPP/NPA and that their
brother Rolando Manalo @ KA BESTRE is an
NPA leader. Being one of the accused, he
claims that on 14 February 2006, he was in his
residence at Sitio Muzon, Brgy. Buhol na
Mangga, San Ildefonso, Bulacan. That he
vehemently denied any participation of the
alleged abduction of the two (2) brothers and
learned only about the incident when rumors
reached him by his barrio mates. He claims that
his implication is merely fabricated because of
his relationship to Roman and Maximo who are
his brothers.
f) Sworn statement of Michael dela Cruz y
Faustino dated 29 May 2006 in (Exhibit G)
states that he is a resident of Sitio Muzon,
Brgy. Buhol na Mangga, San Ildefonso,
Bulacan, the Chief of Brgy. Tanod and a
CAFGU member based at Biak na Bato
Detachment, San Miguel, Bulacan. He claims
that he knew very well the brothers Raymond
and Reynaldo Manalo in their barangay for
having been the Tanod Chief for twenty (20)
years. He alleged further that they are active
supporters or sympathizers of the CPP/NPA
and whose elder brother Rolando Manalo @
KA BESTRE is an NPA leader operating within
the area. Being one of the accused, he claims
that on 14 Feb 2006 he was helping in the
construction of their concrete chapel in their
place and he learned only about the incident
which is the abduction of Raymond and
Reynaldo Manalo when one of the Brgy.
Kagawad in the person of Pablo Cunanan
informed him about the matter. He claims
further that he is truly innocent of the allegation
against him as being one of the abductors and
he considers everything fabricated in order to
destroy his name that remains loyal to his
service to the government as a CAA member.
IV. DISCUSSION
5. Based on the foregoing statements of
respondents in this particular case, the proof of
linking them to the alleged abduction and
disappearance of Raymond and Reynaldo
Manalo that transpired on 14 February 2006 at
Sitio Muzon, Brgy. Buhol na Mangga, San
Ildefonso, Bulacan, is unsubstantiated. Their
alleged involvement theretofore to that incident
is considered doubtful, hence, no basis to indict
them as charged in this investigation.
Though there are previous grudges between
each families (sic) in the past to quote: the
killing of the father of Randy and Rudy
Mendoza by @ KA BESTRE TN: Rolando
Manalo, this will not suffice to establish a fact
that they were the ones who did the abduction
as a form of revenge. As it was also stated in
the testimony of other accused claiming that
the Manalos are active
sympathizers/supporters of the CPP/NPA, this
would not also mean, however, that in the first
place, they were in connivance with the
abductors. Being their neighbors and as
members of CAFGUs, they ought to be vigilant
in protecting their village from any intervention
by the leftist group, hence inside their village,
they were fully aware of the activities of
Raymond and Reynaldo Manalo in so far as
their connection with the CPP/NPA is
concerned.
V. CONCLUSION
6. Premises considered surrounding this case
shows that the alleged charges of abduction
committed by the above named respondents
has not been established in this
investigation. Hence, it lacks merit to indict
them for any administrative punishment and/or
criminal liability. It is therefore concluded that
they are innocent of the charge.
VI. RECOMMENDATIONS
7. That CAAs Michael F. dela Cruz, Maximo F.
Dela Cruz, Roman dela Cruz, Randy Mendoza,
and two (2) civilians Maximo F. Dela Cruz and
Rudy L. Mendoza be exonerated from the case.
8. Upon approval, this case can be dropped
and closed.[69]
 In this appeal under Rule 45, petitioners question the disappearances, its coverage, in its present form, is confined to

appellate courts assessment of the foregoing evidence and assail these two instances or to threats thereof. Extralegal killings are

the December 26, 2007 Decision on the following grounds, viz: killings committed without due process of law, i.e., without legal

I. safeguards or judicial proceedings. [75] On the other hand, enforced

disappearances are attended by the following characteristics: an

THE COURT OF APPEALS SERIOUSLY AND
GRIEVOUSLY ERRED IN BELIEVING AND arrest, detention or abduction of a person by a government official
GIVING FULL FAITH AND CREDIT TO THE
INCREDIBLE, UNCORROBORATED, or organized groups or private individuals acting with the direct or
CONTRADICTED, AND OBVIOUSLY
SCRIPTED, REHEARSED AND SELF- indirect acquiescence of the government; the refusal of the State
SERVING AFFIDAVIT/TESTIMONY OF
HEREIN RESPONDENT RAYMOND MANALO. to disclose the fate or whereabouts of the person concerned or a

refusal to acknowledge the deprivation of liberty which places such

II.
persons outside the protection of law.[76]
THE COURT OF APPEALS SERIOUSLY AND
GRIEVOUSLY ERRED IN REQUIRING The writ of amparo originated in Mexico. Amparo literally means
RESPONDENTS (HEREIN PETITIONERS)
TO: (A) FURNISH TO THE MANALO protection in Spanish.[77] In 1837, de Tocquevilles Democracy in
BROTHER(S) AND TO THE COURT OF
APPEALS ALL OFFICIAL AND UNOFFICIAL America became available in Mexico and stirred great interest. Its
REPORTS OF THE INVESTIGATION
UNDERTAKEN IN CONNECTION WITH description of the practice of judicial review in the U.S.appealed to
THEIR CASE, EXCEPT THOSE ALREADY IN
FILE WITH THE COURT; (B) CONFIRM IN many Mexican jurists.[78] One of them, Manuel Crescencio Rejn,
WRITING THE PRESENT PLACES OF
drafted a constitutional provision for his native
OFFICIAL ASSIGNMENT OF M/SGT. HILARIO
aka ROLLIE CASTILLO AND DONALD state,Yucatan, [79]
which granted judges the power to protect all
CAIGAS; AND (C) CAUSE TO BE PRODUCED
TO THE COURT OF APPEALS ALL MEDICAL persons in the enjoyment of their constitutional and legal
REPORTS, RECORDS AND CHARTS, AND
REPORTS OF ANY TREATMENT GIVEN OR rights. This idea was incorporated into the national constitution in
RECOMMENDED AND MEDICINES
PRESCRIBED, IF ANY, TO THE MANALO 1847, viz:
BROTHERS, TO INCLUDE A LIST OF
The federal courts shall protect any
MEDICAL PERSONNEL (MILITARY AND
inhabitant of the Republic in the exercise and
CIVILIAN) WHO ATTENDED TO THEM FROM
preservation of those rights granted to him by
FEBRUARY 14, 2006 UNTIL AUGUST 12,
this Constitution and by laws enacted pursuant
2007.[70]
hereto, against attacks by the Legislative and
Executive powers of the federal or state
governments, limiting themselves to granting
protection in the specific case in litigation,
The case at bar is the first decision on the application of the Rule
making no general declaration concerning the
on the Writ of Amparo (Amparo Rule). Let us hearken to its statute or regulation that motivated the
violation.[80]
beginning.
Since then, the protection has been an important part of

Mexican constitutionalism.[81] If, after hearing, the judge

The adoption of the Amparo Rule surfaced as a recurring
determines that a constitutional right of the petitioner is being
proposition in the recommendations that resulted from a two-day
violated, he orders the official, or the officials superiors, to cease
National Consultative Summit on Extrajudicial Killings and
the violation and to take the necessary measures to restore the
Enforced Disappearances sponsored by the Court on July 16-17,
petitioner to the full enjoyment of the right in
2007. TheSummit was envisioned to provide a broad and fact-
question. Amparo thus combines the principles of judicial review
based perspective on the issue of extrajudicial killings and
derived from the U.S. with the limitations on judicial power
enforced disappearances,[71] hence representatives from all sides
characteristic of the civil law tradition which prevails in Mexico. It
of the political and social spectrum, as well as all the stakeholders
enables courts to enforce the constitution by protecting individual
in the justice system[72] participated in mapping out ways to resolve
rights in particular cases, but prevents them from using this power
the crisis.
to make law for the entire nation.[82]

On October 24, 2007, the Court promulgated the Amparo Rule in

The writ of amparo then spread throughout the Western
light of the prevalence of extralegal killing and enforced
Hemisphere, gradually evolving into various forms, in response to
disappearances.[73] It was an exercise for the first time of the
the particular needs of each country.[83] It became, in the words of
Courts expanded power to promulgate rules to protect our peoples
a justice of the Mexican Federal Supreme Court, one piece
constitutional rights, which made its maiden appearance in the
ofMexicos self-attributed task of conveying to the worlds legal
1987 Constitution in response to the Filipino experience of the
heritage that institution which, as a shield of human dignity, her
martial law regime.[74] As the Amparo Rule was intended to
own painful history conceived.[84] What began as a protection
address the intractable problem of extralegal killings and enforced
against acts or omissions of public authorities in violation of
constitutional rights later evolved for several purposes: (1) amparo
libertad for the protection of personal freedom, equivalent to
thehabeas corpus writ; (2) amparo contra leyes for the judicial
review of the constitutionality of statutes; (3) amparo casacion for
the judicial review of the constitutionality and legality of a judicial
decision; (4) amparo administrativo for the judicial review of
administrative actions; and (5) amparo agrario for the protection of
peasants rights derived from the agrarian reform process. [85]
In Latin American countries, except Cuba, the writ of amparo has
been constitutionally adopted to protect against human rights
abuses especially committed in countries under military juntas. In
general, these countries adopted an all-encompassing writ to
protect the whole gamut of constitutional rights, including socio-
economic rights.[86] Other countries
like Colombia, Chile,Germany and Spain, however, have chosen
to limit the protection of the writ of amparo only to some
constitutional guarantees or fundamental rights. [87]
In the Philippines, while the 1987 Constitution does not explicitly
provide for the writ of amparo, several of the
above amparoprotections are guaranteed by our charter. The
second paragraph of Article VIII, Section 1 of the 1987
Constitution, the Grave Abuse Clause, provides for the judicial
power to determine whether or not there has been a grave abuse
of discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the Government. The Clause
accords a similar general protection to human rights extended by
the amparo contra leyes, amparo casacion, and amparo
administrativo. Amparo libertad is comparable to the remedy
of habeas corpus found in several provisions of the 1987
Constitution.[88] The Clause is an offspring of the U.S. common law
tradition of judicial review, which finds its roots in the 1803 case
of Marbury v. Madison.[89]
While constitutional rights can be protected under the Grave
Abuse Clause through remedies of injunction or prohibition under
Rule 65 of the Rules of Court and a petition for habeas
corpus under Rule 102,[90] these remedies may not be adequate to
address the pestering problem of extralegal killings and enforced
disappearances. However, with the swiftness required to resolve a
petition for a writ of amparo through summary proceedings and the
availability of appropriate interim and permanent reliefs under
the AmparoRule, this hybrid writ of the common law and civil law
traditions - borne out of the Latin American and Philippine
experience of human rights abuses - offers a better remedy to
extralegal killings and enforced disappearances and threats
thereof. The remedy provides rapid judicial relief as it partakes of a
summary proceeding that requires only substantial evidence to
make the appropriate reliefs available to the petitioner; it is not an
action to determine criminal guilt requiring proof beyond
reasonable doubt, or liability for damages requiring preponderance
of evidence, or administrative responsibility requiring substantial
evidence that will require full and exhaustive proceedings. [91]
The writ of amparo serves both preventive and curative roles in
addressing the problem of extralegal killings and enforced
disappearances. It is preventive in that it breaks the expectation of
impunity in the commission of these offenses; it is curative in that it
facilitates the subsequent punishment of perpetrators as it will
inevitably yield leads to subsequent investigation and action. In the
long run, the goal of both the preventive and curative roles is to
deter the further commission of extralegal killings and enforced
disappearances.
In the case at bar, respondents initially filed an action for
Prohibition, Injunction, and Temporary Restraining Order[92] to stop
petitioners and/or their officers and agents from depriving the
respondents of their right to liberty and other basic rights on
August 23, 2007,[93] prior to the promulgation of
the Amparo Rule. They also sought ancillary remedies including
Protective Custody Orders, Appointment of Commissioner,
Inspection and Access Orders and other legal and equitable
remedies under Article VIII, Section 5(5) of the 1987 Constitution
and Rule 135, Section 6 of the Rules of Court. When
the Amparo Rule came into effect onOctober 24, 2007, they
moved to have their petition treated as an amparo petition as it
would be more effective and suitable to the circumstances of the
Manalo brothers enforced disappearance. The Court granted their
motion.
With this backdrop, we now come to the arguments of the
petitioner. Petitioners first argument in disputing the Decision of
the Court of Appeals states, viz:
The Court of Appeals seriously and grievously
erred in believing and giving full faith and credit
to the incredible uncorroborated, contradicted,
and obviously scripted, rehearsed and self-
serving affidavit/testimony of herein respondent
Raymond Manalo.[94]
In delving into the veracity of the evidence, we need to
mine and refine the ore of petitioners cause of action, to determine
whether the evidence presented is metal-strong to satisfy the
degree of proof required.
Section 1 of the Rule on the Writ of Amparo provides for
the following causes of action, viz:
 Section 1. Petition. The petition for a writ
of amparo is a remedy available to any person
whose right to life, liberty and security is
violated or threatened with violation by an
unlawful act or omission of a public official or
employee, or of a private individual or entity.
The writ shall cover extralegal killings
and enforced disappearances or threats
thereof. (emphasis supplied)
Sections 17 and 18, on the other hand, provide for the degree of
proof required, viz:
Sec. 17. Burden of Proof and Standard of
Diligence Required. The parties shall establish
their claims by substantial evidence.
xxx xxx xxx
Sec. 18. Judgment. If the allegations in the
petition are proven by substantial evidence,
the court shall grant the privilege of the writ
and such reliefs as may be proper and
appropriate; otherwise, the privilege shall
be denied. (emphases supplied)
Substantial evidence has been defined as such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.[95]
After careful perusal of the evidence presented, we affirm the
findings of the Court of Appeals that respondents were abducted
from their houses in Sito Muzon, Brgy. Buhol na Mangga, San
Ildefonso, Bulacan on February 14, 2006 and were continuously
detained until they escaped on August 13, 2007. The abduction,
detention, torture, and escape of the respondents were narrated
by respondent Raymond Manalo in a clear and convincing
manner. His account is dotted with countless candid details of
respondents harrowing experience and tenacious will to escape,
captured through his different senses and etched in his memory. A
few examples are the following: Sumilip ako sa isang haligi ng
kamalig at nakita kong sinisilaban si Manuel. [96] (N)ilakasan ng
mga sundalo ang tunog na galing sa istiryo ng sasakyan. Di
nagtagal, narinig ko ang hiyaw o ungol ni Manuel.[97] May naiwang
mga bakas ng dugo habang hinihila nila ang mga
bangkay. Naamoy ko iyon nang nililinis ang bakas. [98] Tumigil ako
sa may palaisdaan kung saan ginamit ko ang bato para tanggalin
ang mga kadena.[99] Tinanong ko sa isang kapit-bahay kung
paano ako makakakuha ng cell phone; sabi ko gusto kong i-text
ang isang babae na nakatira sa malapit na lugar. [100]
We affirm the factual findings of the appellate court, largely based
on respondent Raymond Manalos affidavit and testimony, viz:
the abduction was perpetrated by armed men
who were sufficiently identified by the petitioners
(herein respondents) to be military personnel
and CAFGU auxiliaries. Raymond recalled that
the six armed men who barged into his house
through the rear door were military men based
on their attire of fatigue pants and army boots,
and the CAFGU auxiliaries, namely: Michael de
la Cruz, Madning de la Cruz, Puti de la Cruz and
Pula de la Cruz, all members of the CAFGU and
residents of Muzon, San Ildefonso, Bulacan, and
the brothers Randy Mendoza and Rudy
Mendoza, also CAFGU members, served as
lookouts during the abduction. Raymond was
sure that three of the six military men were
Ganata, who headed the abducting team, Hilario,
who drove the van, and George. Subsequent
incidents of their long captivity, as narrated by
the petitioners, validated their assertion of the
participation of the elements of the 7th Infantry
Division, Philippine Army, and their CAFGU
auxiliaries.
We are convinced, too, that the reason for the
abduction was the suspicion that the petitioners
were either members or sympathizers of the
NPA, considering that the abductors were
looking for Ka Bestre, who turned out to be
Rolando, the brother of petitioners.
The efforts exerted by the Military Command to
look into the abduction were, at best, merely
superficial. The investigation of the Provost
Marshall of the 7th Infantry Division focused on
the one-sided version of the CAFGU auxiliaries
involved. This one-sidedness might be due to the
fact that the Provost Marshall could delve only
into the participation of military personnel, but
even then the Provost Marshall should have
refrained from outrightly exculpating the CAFGU
auxiliaries he perfunctorily investigated
Gen. Palparans participation in the abduction
was also established. At the very least, he was
aware of the petitioners captivity at the hands of
men in uniform assigned to his command. In
fact, he or any other officer tendered no
controversion to the firm claim of Raymond that
he (Gen. Palparan) met them in person in a
safehouse in Bulacan and told them what he
wanted them and their parents to do or not to be
doing.Gen. Palparans direct and personal role in
the abduction might not have been shown but his
knowledge of the dire situation of the petitioners
during their long captivity at the hands of military
personnel under his command bespoke of his
indubitable command policy that unavoidably
encouraged and not merely tolerated the
abduction of civilians without due process of law
and without probable cause.
In the habeas proceedings, the Court, through
the Former Special Sixth Division (Justices
Buzon, chairman; Santiago-Lagman, Sr.,
member; and Romilla-Lontok, Jr.,
member/ponente.) found no clear and convincing
evidence to establish that M/Sgt. Rizal Hilario
had anything to do with the abduction or the
detention. Hilarios involvement could not,
indeed, be then established after Evangeline
Francisco, who allegedly saw Hilario drive the
van in which the petitioners were boarded and
ferried following the abduction, did not testify.
(See the decision of the habeas proceedings
at rollo, p. 52)
However, in this case, Raymond attested that
Hilario drove the white L-300 van in which the
petitioners were brought away from their houses
on February 14, 2006. Raymond also attested
that Hilario participated in subsequent incidents
during the captivity of the petitioners, one of
which was when Hilario fetched them from Fort
Magsaysay on board a Revo and conveyed them
to a detachment in Pinaud, San Ildefonso,
Bulacan where they were detained for at least a
week in a house of strong materials (Exhibit
D, rollo, p. 205) and then Hilario (along with
Efren) brought them to Sapang, San Miguel,
Bulacan on board the Revo, to an unfinished
house inside the compound ofKapitan where
they were kept for more or less three months.
(Exhibit D, rollo, p. 205) It was there where the
petitioners came face to face with Gen.
Palparan. Hilario and Efren also brought the
petitioners one early morning to the house of the
 petitioners parents, where only Raymond was
presented to the parents to relay the message that much of the information and evidence of the ordeal will come
from Gen. Palparan not to join anymore
rallies. On that occasion, Hilario warned the from the victims themselves, and the veracity of their account will
parents that they would not again see their sons
depend on their credibility and candidness in their written and/or
should they join any rallies to denounce human
rights violations. (Exhibit D,rollo, pp. 205- oral statements. Their statements can be corroborated by other
206) Hilario was also among four Master
Sergeants (the others being Arman, Ganata and evidence such as physical evidence left by the torture they
Cabalse) with whom Gen. Palparan conversed
on the occasion when Gen. Palparan required suffered or landmarks they can identify in the places where they
Raymond to take the medicines for his health.
(Exhibit D, rollo, p. 206) There were other were detained. Where powerful military officers are implicated, the
occasions when the petitioners saw that Hilario
had a direct hand in their torture. hesitation of witnesses to surface and testify against them comes

as no surprise.
It is clear, therefore, that the participation of
Hilario in the abduction and forced
disappearance of the petitioners was We now come to the right of the respondents to the
established. The participation of other military
personnel like Arman, Ganata, Cabalse and privilege of the writ of amparo. There is no quarrel that the
Caigas, among others, was similarly established.
enforced disappearance of both respondents Raymond and
xxx xxx xxx
Reynaldo Manalo has now passed as they have escaped from
As to the CAFGU auxiliaries, the habeas Court captivity and surfaced. But while respondents admit that they are
found them personally involved in the
abduction. We also do, for, indeed, the evidence no longer in detention and are physically free, they assert that they
of their participation is overwhelming.[101]
are not free in every sense of the word[109] as their movements
We reject the claim of petitioners that respondent Raymond
continue to be restricted for fear that people they have named in
Manalos statements were not corroborated by other independent
their Judicial Affidavits and testified against (in the case of
and credible pieces of evidence.[102] Raymonds affidavit and
Raymond) are still at large and have not been held accountable in
testimony were corroborated by the affidavit of respondent
any way. These people are directly connected to the Armed
Reynaldo Manalo. The testimony and medical reports prepared by
Forces of the Philippines and are, thus, in a position to threaten
forensic specialist Dr. Molino, and the pictures of the scars left by
respondents rights to life, liberty and security.[110] (emphasis
the physical injuries inflicted on respondents, [103] also corroborate
supplied) Respondents claim that they are under threat of being
respondents accounts of the torture they endured while in
once again abducted, kept captive or even killed, which
detention.Respondent Raymond Manalos familiarity with the
constitute a direct violation of their right to security of
facilities in Fort Magsaysay such as the DTU, as shown in his
person.[111]
testimony and confirmed by Lt. Col. Jimenez to be the Division

Training Unit,[104] firms up respondents story that they were Elaborating on the right to security, in
detained for some time in said military facility. general, respondents point out that this right is often associated

with liberty; it is also seen as an expansion of rights based on the

In Ortiz v. Guatemala,[105] a case decided by the Inter-American
prohibition against torture and cruel and unusual
Commission on Human Rights, the Commission considered
punishment. Conceding that there is no right to security expressly
similar evidence, among others, in finding that complainant Sister
mentioned in Article III of the 1987 Constitution, they submit that
Diana Ortiz was abducted and tortured by agents of the
their rights to be kept free from torture and
Guatemalan government. In this case, Sister Ortiz was kidnapped
from incommunicado detention and solitary detention
and tortured in early November 1989. The Commissions findings
places[112] fall under the general coverage of the right to security of
of fact were mostly based on the consistent and credible
person under the writ of Amparo. They submit that the Court ought
statements, written and oral, made by Sister Ortiz regarding her
to give an expansive recognition of the right to security of person
ordeal.[106] These statements were supported by her recognition of
in view of the State Policy under Article II of the 1987 Constitution
portions of the route they took when she was being driven out of
which enunciates that, The State values the dignity of every
the military installation where she was detained. [107] She was also
human person and guarantees full respect for human
examined by a medical doctor whose findings showed that the 111
rights. Finally, to justify a liberal interpretation of the right to
circular second degree burns on her back and abrasions on her
security of person, respondents cite the teaching in Moncupa v.
cheek coincided with her account of cigarette burning and torture
Enrile[113] that the right to liberty may be made more meaningful
she suffered while in detention.[108]
only if there is no undue restraint by the State on the exercise of

With the secret nature of an enforced disappearance and the that liberty[114] such as a requirement to report under unreasonable

torture perpetrated on the victim during detention, it logically holds

restrictions that amounted to a deprivation of liberty[115] or being reputation. It includes the right to exist, and the right to enjoyment
[116]
put under monitoring and surveillance. of life while existing, and it is invaded not only by a deprivation of

life but also of those things which are necessary to the enjoyment
In sum, respondents assert that their cause of action consists in
of life according to the nature, temperament, and lawful desires of
the threat to their right to life and liberty, and a violation of
the individual.[123]
their right to security.

A closer look at the right to security of person would yield various

Let us put this right to security under the lens to determine if
permutations of the exercise of this right.
it has indeed been violated as respondents assert. The right

to security or the right to security of person finds a textual hook First, the right to security of person is freedom from fear. In

in Article III, Section 2 of the 1987 Constitution which provides,viz:
Sec. 2. The right of the people to be secure
in their persons, houses, papers and effects
against unreasonable searches and seizures of
whatever nature and for any purpose shall
be inviolable, and no search warrant or
warrant of arrest shall issue except upon
probable cause to be determined personally by
the judge
At the core of this guarantee is the immunity of ones
person, including the extensions of his/her person houses, papers,
and effects against government intrusion. Section 2 not only limits
the states power over a persons home and possessions, but more
importantly, protects the privacy and sanctity of the person
[117]
himself. The purpose of this provision was enunciated by the
Court in People v. CFI of Rizal, Branch IX, Quezon City, viz: [118]
its whereas clauses, the Universal Declaration of Human
Rights(UDHR) enunciates that a world in which human beings
shall enjoy freedom of speech and belief and freedom from
fear and want has been proclaimed as the highest aspiration of
the common people. (emphasis supplied) Some scholars
postulate that freedom from fear is not only an aspirational
principle, but essentially an individual international human
right.[124] It is the right to security of person as the word security
itself means freedom from fear.[125] Article 3 of the UDHR
provides, viz:
Everyone has the right to life, liberty and security of
person.[126] (emphasis supplied)
In furtherance of this right declared in the UDHR, Article
9(1) of the International Covenant on Civil and Political

The purpose of the constitutional guarantee
against unreasonable searches and seizures is
to prevent violations of private security in
person and property and unlawful invasion of the
security of the home by officers of the law acting
under legislative or judicial sanction and to give
remedy against such usurpation when attempted.
(Adams v. New York, 192 U.S. 858; Alvero v.
Dizon, 76 Phil. 637 [1946]). The right to privacy is
an essential condition to the dignity and
happiness and to the peace and security of
every individual, whether it be of home or of
persons and correspondence. (Taada and
Carreon, Political Law of the Philippines, Vol. 2,
139 [1962]). The constitutional inviolability of this
great fundamental right against unreasonable
searches and seizures must be deemed absolute
as nothing is closer to a mans soul than the
serenity of his privacy and the assurance of
his personal security. Any interference
allowable can only be for the best causes and
reasons.[119] (emphases supplied)
Rights(ICCPR) also provides for the right to security of
person, viz:
1. Everyone has the right to liberty
and security of person. No one shall be
subjected to arbitrary arrest or detention. No
one shall be deprived of his liberty except on
such grounds and in accordance with such
procedure as are established by law.
(emphasis supplied)
The Philippines is a signatory to both the UDHR and the
ICCPR.
In the context of Section 1 of the Amparo Rule, freedom
from fear is the right and any threat to the rights to life, liberty or
security is the actionable wrong. Fear is a state of mind, a
reaction; threat is a stimulus, a cause of action. Fear caused by

the same stimulus can range from being baseless to well-founded

While the right to life under Article III, Section
as people react differently. The degree of fear can vary from one
1[120] guarantees essentially the right to be alive[121] - upon which
person to another with the variation of the prolificacy of their
the enjoyment of all other rights is preconditioned - the right to
imagination, strength of character or past experience with the
security of person is a guarantee of the secure quality of this
stimulus. Thus, in the amparo context, it is more correct to say that
life, viz:The life to which each person has a right is not a life lived
the right to security is actually the freedom from threat. Viewed in
in fear that his person and property may be unreasonably violated
this light, the threatened with violation Clause in the latter part of
by a powerful ruler. Rather, it is a life lived with the assurance that
Section 1 of the Amparo Rule is a form of violation of the right to
the government he established and consented to, will protect the
security mentioned in the earlier part of the provision. [127]
security of his person and property. The ideal of security in life and

property pervades the whole history of man. It touches every

Second, the right to security of person is a guarantee
aspect of mans existence.[122] In a broad sense, the right to
of bodily and psychological integrity or security. Article III,
security of person emanates in a persons legal and uninterrupted
Section II of the 1987 Constitution guarantees that, as a general
enjoyment of his life, his limbs, his body, his health, and his
rule, ones body cannot be searched or invaded without a search
[128]
warrant. Physical injuries inflicted in the context of extralegal
killings and enforced disappearances constitute more than a search
or invasion of the body. It may constitute dismemberment, physical
disabilities, and painful physical intrusion. As the degree of physical
injury increases, the danger to life itself escalates. Notably, in
criminal law, physical injuries constitute a crime against persons
because they are an affront to the bodily integrity or security of a
person.[129]
Physical torture, force, and violence are a severe invasion of
bodily integrity. When employed to vitiate the free will such as to
force the victim to admit, reveal or fabricate incriminating
information, it constitutes an invasion of both bodily and
psychological integrity as the dignity of the human person includes
the exercise of free will. Article III, Section 12 of the 1987
Constitution more specifically proscribes bodily and psychological
invasion, viz:
(2) No torture, force, violence, threat or
intimidation, or any other means which vitiate
the free will shall be used against him (any
person under investigation for the commission
of an offense). Secret detention places,
solitary, incommunicado or other similar forms
of detention are prohibited.
Parenthetically, under this provision, threat and intimidation that
vitiate the free will - although not involving invasion of bodily
integrity - nevertheless constitute a violation of the right to security
in the sense of freedom from threat as afore-discussed.
Article III, Section 12 guarantees freedom from
dehumanizing abuses of persons under investigation for the
commission of an offense. Victims of enforced disappearances who
are not even under such investigation should all the more be
protected from these degradations.
An overture to an interpretation of the right to security of
person as a right against torture was made by the European Court
of Human Rights (ECHR) in the recent case of Popov
v. Russia.[130] In this case, the claimant, who was lawfully
detained, alleged that the state authorities had physically abused
him in prison, thereby violating his right to security of
person. Article 5(1) of the European Convention on Human Rights
provides, viz: Everyone has the right to liberty and security of
person. No one shall be deprived of his liberty save in the
following cases and in accordance with a procedure prescribed by
law ... (emphases supplied)Article 3, on the other hand, provides
that (n)o one shall be subjected to torture or to inhuman or
degrading treatment or punishment.Although the application failed
on the facts as the alleged ill-treatment was found baseless, the
ECHR relied heavily on the concept of security in holding, viz:
...the applicant did not bring his allegations
to the attention of domestic authorities at the
time when they could reasonably have been
expected to take measures in order to ensure
his security and to investigate the
circumstances in question.
xxx xxx xxx
... the authorities failed to ensure
his security in custody or to comply with the
procedural obligation under Art.3 to conduct an
effective investigation into his
allegations.[131] (emphasis supplied)
The U.N. Committee on the Elimination of Discrimination against
Women has also made a statement that the protection of the
bodily integrity of women may also be related to the right to
security and liberty, viz:
gender-based violence which impairs or nullifies
the enjoyment by women of human rights and
fundamental freedoms under general
international law or under specific human rights
conventions is discrimination within the meaning
of article 1 of the Convention (on the Elimination
of All Forms of Discrimination Against Women).
These rights and freedoms include . . . the right
to liberty and security of person.[132]
Third, the right to security of person is a guarantee
of protection of ones rights by the government. In the context
of the writ of amparo, this right is built into the guarantees of the
right to life and liberty under Article III, Section 1 of the 1987
Constitution and the right to security of person (as freedom
from threat and guarantee of bodily and psychological integrity)
under Article III, Section 2. The right to security of person in this
third sense is a corollary of the policy that the State guarantees full
respect for human rights under Article II, Section 11 of the 1987
Constitution.[133] As the government is the chief guarantor of order
and security, the Constitutional guarantee of the rights to life,
liberty and security of person is rendered ineffective if government
does not afford protection to these rights especially when they are
under threat. Protection includes conducting effective
investigations, organization of the government apparatus to
extend protection to victims of extralegal killings or enforced
disappearances (or threats thereof) and/or their families, and
bringing offenders to the bar of justice. The Inter-American Court
of Human Rights stressed the importance of investigation in
the Velasquez Rodriguez Case,[134] viz:
(The duty to investigate) must be undertaken
in a serious manner and not as a mere
formality preordained to be ineffective. An
investigation must have an objective and
be assumed by the State as its own legal
duty, not as a step taken by private interests
that depends upon the initiative of the
victim or his family or upon their offer of
proof, without an effective search for the truth
by the government.[135]
 This third sense of the right to security of person as a
guarantee of government protection has been interpreted by the
United Nations Human Rights Committee[136] in not a few cases
involving Article 9[137] of the ICCPR. While the right to security of
person appears in conjunction with the right to liberty under Article
9, the Committee has ruled that the right to security of person
can exist independently of the right to liberty. In other words,
there need not necessarily be a deprivation of liberty for the right to
security of person to be invoked. In Delgado
Colombia,[138] a case involving death threats to a religion teacher
at a secondary school in Leticia, Colombia, whose social views
differed from those of the Apostolic Prefect of Leticia, the
Committee held, viz:
The first sentence of article 9 does
not stand as a separate paragraph. Its location
as a part of paragraph one could lead to the
view that the right to security arises only in the
context of arrest and detention. The travaux
prparatoires indicate that the discussions of the
first sentence did indeed focus on matters dealt
with in the other provisions of article 9. The
Universal Declaration of Human Rights, in
article 3, refers to the right to life, the right
to liberty and the right to security of the
person. These elements have been dealt
with in separate clauses in the Covenant.
Although in the Covenant the only reference
to the right of security of person is to be
found in article 9, there is no evidence that it
was intended to narrow the concept of the
right to security only to situations of formal
deprivation of liberty. At the same time,
States parties have undertaken to guarantee
the rights enshrined in the Covenant. It
cannot be the case that, as a matter of law,
States can ignore known threats to the life
of persons under their jurisdiction, just
because that he or she is not arrested or
otherwise detained. States parties are under
an obligation to take reasonable and
appropriate measures to protect them. An
interpretation of article 9 which would allow
a State party to ignore threats to the
personal security of non-detained persons
within its jurisdiction would render totally
ineffective the guarantees of the
Covenant.[139] (emphasis supplied)
The Paez ruling was reiterated in Bwalya
Zambia,[140] which involved a political activist and prisoner of
conscience who continued to be intimidated, harassed, and
restricted in his movements following his release
detention. In a catena of cases, the ruling of the Committee was of
[141]
a similar import: Bahamonde v. Equatorial Guinea,
discrimination, intimidation and persecution of opponents of the
[142]
ruling party in that state; Tshishimbi v. Zaire, involving the
abduction of the complainants husband who was a supporter of
[143]
democratic reform in Zaire; Dias v. Angola,
the murder of thecomplainants partner and the harassment he
(complainant) suffered because of his investigation of the murder;
and Chongwe v. Zambia,[144] involving an assassination attempt
on the chairman of an opposition alliance.
Similarly, the European Court of Human Rights (ECHR) has
interpreted the right to security not only as prohibiting the State
from arbitrarily depriving liberty, but imposing a positive duty on
the State to afford protection of the right to liberty.[145] The ECHR
interpreted the right to security of person under Article 5(1) of the
European Convention of Human Rights in the leading case on
disappearance of persons, Kurt v. Turkey.[146] In this case,
the claimants son had been arrested by state authorities and had
not been seen since. The familys requests for information and
investigation regarding his whereabouts proved futile. The
Paez v.
claimant suggested that this was a violation of her sons right to
security of person. The ECHR ruled, viz:
... any deprivation of liberty must not
only have been effected in conformity with the
substantive and procedural rules of national law
but must equally be in keeping with the very
purpose of Article 5, namely to protect the
individual from arbitrariness... Having assumed
control over that individual it is incumbent on
the authorities to account for his or her
whereabouts. For this reason, Article 5 must
be seen as requiring the authorities to take
effective measures to safeguard against the
risk of disappearance and to conduct a
prompt effective investigation into an
arguable claim that a person has been taken
into custody and has not been seen
since.[147](emphasis supplied)
Applying the foregoing concept of the right to security of
person to the case at bar, we now determine whether there is a
continuing violation of respondents right to security.
First, the violation of the right to security as freedom from
threat to respondents life, liberty and security.
While respondents were detained, they were threatened that if
they escaped, their families, including them, would be killed. In
Raymonds narration, he was tortured and poured with gasoline
after he was caught the first time he attempted to escape
from FortMagsaysay. A call from a certain Mam, who wanted to
see him before he was killed, spared him.
v.
This time, respondents have finally escaped. The condition of the
threat to be killed has come to pass. It should be stressed that
from they are now free from captivity not because they were released
by virtue of a lawful order or voluntarily freed by their abductors. It
involving ought to be recalled that towards the end of their ordeal, sometime
in June 2007 when respondents were detained in a camp in
Limay, Bataan, respondents captors even told them that they were
still deciding whether they should be executed. Respondent
involving Raymond Manalo attested in his affidavit, viz:
Kinaumagahan, naka-kadena pa
kami. Tinanggal ang mga kadena mga 3 o 4 na
araw pagkalipas. Sinabi sa amin na kaya kami
nakakadena ay dahil pinagdedesisyunan pa ng
mga sundalo kung papatayin kami o hindi.[148]
The possibility of respondents being executed stared
them in the eye while they were in detention. With their escape,
this continuing threat to their life is apparent, moreso now that they
have surfaced and implicated specific officers in the military not
only in their own abduction and torture, but also in those of other apprehension of the person or persons involved in the death or

persons known to have disappeared such as Sherlyn disappearance; and bringing of the suspected offenders before a

Cadapan,Karen Empeo, and Manuel Merino, among others. competent court.[150]Petitioner AFP Chief of Staff also submitted

his own affidavit attesting that he received the above directive of

Understandably, since their escape, respondents have been under
respondent Secretary of National Defense and that acting on this
concealment and protection by private citizens because of the
directive, he immediately caused to be issued a directive to the
threat to their life, liberty and security. The threat vitiates their free
units of the AFP for the purpose of establishing the circumstances
will as they are forced to limit their movements or
of the alleged disappearance and the recent reappearance of the
activities.[149] Precisely because respondents are being shielded
respondents, and undertook to provide results of the investigations
from the perpetrators of their abduction, they cannot be expected
to respondents.[151] To this day, however, almost a year after the
to show evidence of overt acts of threat such as face-to-face
policy directive was issued by petitioner Secretary of National
intimidation or written threats to their life, liberty and
Defense on October 31, 2007, respondents have not been
security. Nonetheless, the circumstances of respondents
furnished the results of the investigation which they now seek
abduction, detention, torture and escape reasonably support a
through the instant petition for a writ of amparo.
conclusion that there is an apparent threat that they will again be

abducted, tortured, and this time, even executed. These constitute Under these circumstances, there is substantial evidence to

threats to their liberty, security, and life, actionable through a warrant the conclusion that there is a violation of respondents right

petition for a writ of amparo. to security as a guarantee of protection by the government.

Next, the violation of the right to security as protection by the In sum, we conclude that respondents right to security as freedom

government. Apart from the failure of military elements to provide from threat is violated by the apparent threat to their life, liberty

protection to respondents by themselves perpetrating the and security of person. Their right to security as a guarantee of

abduction, detention, and torture, they also miserably failed in protection by the government is likewise violated by the ineffective

conducting an effective investigation of respondents abduction as investigation and protection on the part of the military.

revealed by the testimony and investigation report of petitioners

Finally, we come to the reliefs granted by the Court of Appeals,
own witness, Lt. Col. Ruben Jimenez, Provost Marshall of the
which petitioners question.
7th Infantry Division.

First, that petitioners furnish respondents all official and

The one-day investigation conducted by Jimenez was very limited,
unofficial reports of the investigation undertaken in connection
superficial, and one-sided. He merely relied on the Sworn
with their case, except those already in file with the court.
Statements of the six implicated members of the CAFGU and

civilians whom he met in the investigation for the first time. He was
Second, that petitioners confirm in writing the present places
present at the investigation when his subordinate Lingad was
of official assignment of M/Sgt. Hilario aka Rollie Castillo and
taking the sworn statements, but he did not propound a single
Donald Caigas.
question to ascertain the veracity of their statements or their

credibility. He did not call for other witnesses to test the alibis Third, that petitioners cause to be produced to the Court of

given by the six implicated persons nor for the family or neighbors Appeals all medical reports, records and charts, and reports of

of the respondents. any treatment given or recommended and medicines

prescribed, if any, to the Manalo brothers, to include a list of

In his affidavit, petitioner Secretary of National Defense attested
medical personnel (military and civilian) who attended to
that in a Memorandum Directive dated October 31, 2007, he
them from February 14, 2006 until August 12, 2007.
issued a policy directive addressed to the AFP Chief of Staff, that

the AFP should adopt rules of action in the event the writ With respect to the first and second reliefs, petitioners argue that

ofamparo is issued by a competent court against any members of the production order sought by respondents partakes of the

the AFP, which should essentially include verification of the characteristics of a search warrant. Thus, they claim that the

identity of the aggrieved party; recovery and preservation of requisites for the issuance of a search warrant must be complied

relevant evidence; identification of witnesses and securing with prior to the grant of the production order, namely: (1) the

statements from them; determination of the cause, manner, application must be under oath or affirmation; (2) the search

location and time of death or disappearance; identification and warrant must particularly describe the place to be searched and
the things to be seized; (3) there exists probable cause with one Writ of Amparo has been sought for as soon as the same has

specific offense; and (4) the probable cause must be personally been furnished Higher headquarters.

determined by the judge after examination under oath or

With respect to the second and third reliefs, petitioners assert
affirmation of the complainant and the witnesses he may
that the disclosure of the present places of assignment of M/Sgt.
produce.[152] In the case at bar, however, petitioners point out that
Hilario aka Rollie Castillo and Donald Caigas, as well as the
other than the bare, self-serving and vague allegations made by
submission of a list of medical personnel, is irrelevant, improper,
respondent Raymond Manalo in his unverified declaration and
immaterial, and unnecessary in the resolution of the petition for a
affidavit, the documents respondents seek to be produced are only
writ of amparo. They add that it will unnecessarily compromise and
mentioned generally by name, with no other supporting
jeopardize the exercise of official functions and duties of military
details. They also argue that the relevancy of the documents to be
officers and even unwittingly and unnecessarily expose them to
produced must be apparent, but this is not true in the present case
threat of personal injury or even death.
as the involvement of petitioners in the abduction has not been

shown.
On the contrary, the disclosure of the present places of

assignment of M/Sgt. Hilario aka Rollie Castillo and Donald

Petitioners arguments do not hold water. The production order
Caigas, whom respondents both directly implicated as perpetrators
under the Amparo Rule should not be confused with a search
behind their abduction and detention, is relevant in ensuring the
warrant for law enforcement under Article III, Section 2 of the 1987
safety of respondents by avoiding their areas of territorial
Constitution. This Constitutional provision is a protection of the
jurisdiction. Such disclosure would also help ensure that these
people from the unreasonable intrusion of the government, not a
military officers can be served with notices and court processes in
protection of the government from the demand of the people such
relation to any investigation and action for violation of the
as respondents.
respondents rights. The list of medical personnel is also relevant in

Instead, the amparo production order may be likened to the securing information to create the medical history of respondents

production of documents or things under Section 1, Rule 27 of the and make appropriate medical interventions, when applicable and

Rules of Civil Procedure which provides in relevant part, viz: necessary.

Section 1. Motion for production or inspection

order. In blatant violation of our hard-won guarantees to life, liberty and

security, these rights are snuffed out from victims of extralegal

Upon motion of any party showing good cause
therefor, the court in which an action is pending killings and enforced disappearances. The writ of amparo is a tool
may (a) order any party to produce and permit
the inspection and copying or photographing, by that gives voice to preys of silent guns and prisoners behind secret
or on behalf of the moving party, of any
designated documents, papers, books of walls.
accounts, letters, photographs, objects or
tangible things, not privileged, which constitute
or contain evidence material to any matter
involved in the action and which are in his WHEREFORE, premises considered, the petition
possession, custody or control
is DISMISSED. The Decision of the Court of Appeals dated

December 26, 2007 is affirmed.

In Material Distributors (Phil.) Inc. v. Judge Natividad, [153] the

respondent judge, under authority of Rule 27, issued asubpoena

duces tecum for the production and inspection of among others,

the books and papers of Material Distributors (Phil.) Inc.The

company questioned the issuance of the subpoena on the ground

that it violated the search and seizure clause. The Court struck

down the argument and held that the subpoena pertained to a civil

procedure that cannot be identified or confused with unreasonable

searches prohibited by the Constitution

Moreover, in his affidavit, petitioner AFP Chief of Staff himself

undertook to provide results of the investigations conducted or to

be conducted by the concerned unit relative to the circumstances

of the alleged disappearance of the persons in whose favor the

FATHER ROBERT P. REYES,
APPEALS, SECRETARY RAUL M.
IN HIS CAPACITY AS THE
OF THE DEPARTMENT OF JUSTICE,
SSIONER MARCELINO C. LIBANAN,
ACITY AS THE COMMISSIONER OF
U OF IMMIGRATION,
G. R. No. 182161 Commissioner of Immigration to include in the
Hold Departure List of the Bureau of
Immigration and Deportation (BID) the name of
Present: petitioner and 49 others relative to the
aforementioned case in the interest of national
PUNO, C.J., security and public safety.
CARPIO,
CORONA, On December 2, 2007, after finding
CARPIO MORALES, probable cause against petitioner and 36 others
CHICO-NAZARIO, for the crime of Rebellion under Article 134 of
VELASCO, JR., the Revised Penal Code, the DOJ Panel of
NACHURA, Prosecutors filed an Information docketed as
LEONARDO-DE CASTRO, I.S. No. 2007-1045 before the Regional Trial
BRION, Court, Branch 150 of Makati City.
PERALTA,
BERSAMIN, On December 7, 2007, petitioner filed
DEL CASTILLO, a Motion for Judicial Determination of Probable
ABAD, and Cause and Release of the Accused Fr. Reyes
VILLARAMA, JR., JJ. Upon Recognizance asserting that the DOJ
panel failed to produce any evidence indicating
Promulgated: his specific participation in the crime charged;
and that under the Constitution, the
December 3, 2009 determination of probable cause must be made
personally by a judge.

On December 13, 2007, the RTC

issued an Order dismissing the charge for
Rebellion against petitioner and 17 others for
lack of probable cause. The trial court
ratiocinated that the evidence submitted by the
DOJ Panel of Investigating Prosecutors failed
to show that petitioner and the other accused-
civilians conspired and confederated with the
accused-soldiers in taking arms against the
government; that petitioner and other accused-
civilians were arrested because they ignored
the call of the police despite the deadline given
to them to come out from the 2nd Floor of the
Hotel and submit themselves to the police
authorities; that mere presence at the scene of
x--------------------------------------------------------------------------------------------x the crime and expressing ones sentiments on
electoral and political reforms did not make
them conspirators absent concrete evidence
DECISION
that the accused-civilians knew beforehand the
intent of the accused-soldiers to commit
LEONARDO-DE CASTRO, J.: rebellion; and that the cooperation which the
law penalizes must be one that is knowingly
and intentionally rendered.

For resolution is the petition for review under Rule 45 of On December 18, 2007, petitioners
counsel Atty. Francisco L. Chavez wrote the
the Rules of Court, assailing the February 4, 2008 Decision[1] of DOJ Secretary requesting the lifting of HDO
No. 45 in view of the dismissal of Criminal Case
the Court of Appeals (CA) in CA-G.R. No. 00011 which dismissed No. 07-3126.
the petition for the issuance of the writ of amparo under A.M. No. On even date, Secretary Gonzales
07-9-12-SC, as amended. It also assails the CAs Resolution dated replied to petitioners letter stating that the DOJ
could not act on petitioners request until Atty.
March 25, 2008, denying petitioners motion for reconsideration of Chavezs right to represent petitioner is settled
in view of the fact that a certain Atty. J. V.
the aforesaid February 4, 2008 Decision. Bautista representing himself as counsel of
petitioner had also written a letter to the DOJ.

On January 3, 2008, petitioner filed

The undisputed facts as found by the CA are as follows: the instant petition claiming that despite the
dismissal of the rebellion case against
petitioner, HDO No. 45 still subsists; that on
Petitioner was among those arrested December 19, 2007, petitioner was held by BID
in the Manila Peninsula Hotel siege on officials at the NAIA as his name is included in
November 30, 2007. In the morning of the Hold Departure List; that had it not been for
November 30, 2007, petitioner together with the timely intervention of petitioners counsel,
fifty (50) others, were brought petitioner would not have been able to take his
to Camp Crame to await inquest scheduled flight to Hong Kong; that on
proceedings. In the evening of the same day, December 26, 2007, petitioner was able to fly
the Department of Justice (DOJ) Panel of back to the Philippines from Hong Kong but
Prosecutors, composed of Emmanuel Y. every time petitioner would present himself at
Velasco, Phillip L. Dela Cruz and Aristotle M. the NAIA for his flights abroad, he stands to be
Reyes, conducted inquest proceedings to detained and interrogated by BID officers
ascertain whether or not there was probable because of the continued inclusion of his name
cause to hold petitioner and the others for trial in the Hold Departure List; and that the
on charges of Rebellion and/or Inciting to Secretary of Justice has not acted on his
Rebellion. request for the lifting of HDO No. 45. Petitioner
further maintained that immediate recourse to
On December 1, 2007, upon the the Supreme Court for the availment of the writ
request of the Department of Interior and Local is exigent as the continued restraint on
Government (DILG), respondent DOJ Secretary petitioners right to travel is illegal.
Raul Gonzales issued Hold Departure Order
(HDO) No. 45 ordering respondent
 On January 24, 2008, respondents
represented by the Office of the Solicitor Petitioners Motion for Reconsideration[5] thereon was
General (OSG) filed the Return of the Writ
raising the following affirmative defenses: 1) also denied in the assailed Resolution[6] dated March 25, 2008.
that the Secretary of Justice is authorized to
issue Hold Departure Orders under the DOJ
Circulars No. 17, Series of 1998[2] and No. 18 Hence, the present petition which is based on the
Series of 2007[3] pursuant to his mandate under
the Administrative Code of 1987 as ahead of following grounds:
the principal law agency of the government; 2)
that HDO No. 45 dated December 1, 2007 was
issued by the Sec. Gonzales in the course of I.
the preliminary investigation of the case against
herein petitioner upon the request of the DILG; THE DOJ SECRETARYS
3) that the lifting of HDO No. 45 is premature in ARROGATION OF POWER AND
view of public respondents pending Motion for USURPATION OF AUTHORITY TO ISSUE A
Reconsideration dated January 3, 2008 filed by HOLD DEPARTURE ORDER CANNOT BE
the respondents of the Order dated December JUSTIFIED THROUGH A RATIONALE THAT
13, 2007 of the RTC dismissing Criminal Case IT HAS SUPPOSEDLY BEEN REGULARLY
No. 07-3126 for Rebellion for lack of probable EXERCISED IN THE PAST OR HAS NEVER
cause; 4) that petitioner failed to exhaust BEEN QUESTIONED (IN THE PAST).
administrative remedies by filing a motion to lift
HDO No. 45 before the DOJ; and 5) that the
constitutionality of Circulars No. 17 and 18 can II.
not be attacked collaterally in
an amparo proceeding. THE DOJ HAS CLAIMED A POWER
TO ISSUE AN HDO INDEPENDENT OF THAT
During the hearing on January 25, OF THE REGIONAL TRIAL COURTS, HENCE,
2008 at 10:00 a.m. at the Paras Hall of the PETITIONER CANNOT MERELY RELY ON
Court of Appeals, counsels for both parties THE RESIDUAL POWER OF THE
appeared.Petitioners counsel Atty. Francisco RTC MAKATI IN CRIMINAL CASE NO. 07-
Chavez manifested that petitioner is currently in 3126 TO ASSAIL SUCH CLAIMED POWER.
Hong Kong; that every time petitioner would
leave and return to the country, the immigration III.
officers at the NAIA detain and interrogate him
for several minutes because of the existing THE UTMOST EXIGENCY OF THE
HDO; that the power of the DOJ Secretary to PETITION IS EXEMPLIFIED BY THE
issue HDO has no legal basis; and that CONTINUING
petitioner did not file a motion to lift the HDO ACTUAL RESTRAINT ONPETITIONERS
before the RTC nor the DOJ because to do so RIGHT TO TRAVEL THROUGH
would be tantamount to recognizing the power THE MAINTENANCE OF HIS NAME IN THE
of the DOJ Secretary to issue HDO. HDO LIST AND DOES NOT
SIMPLY HINGE ON THE QUESTION OF
For respondents part, the Office of the WHETHER OR NOT PETITIONER WAS ABLE
Solicitor-General (OSG) maintained that the TO TRAVEL DESPITE SUCH A RESTRAINT.
Secretary of the DOJs power to issue HDO
springs from its mandate under the IV.
Administrative Code to investigate and
prosecute offenders as the principal law agency DOJ CIRCULAR 17 SERIES OF 1998
of the government; that in its ten-year PROVIDES NO STATUTORY BASIS FOR THE
existence, the constitutionality of DOJ Circular DOJ SECRETARYS CLAIMED POWER TO
No. 17 has not been challenged except now; ISSUE AN HDO FOR IT IS NOT A
and that on January 3, 2008, the DOJ Panel of STATUTE. THE CIRCULAR ITSELF APPEARS
Investigating Prosecutors had filed a Motion for NOT TO BE BASED ON ANY STATUTE,
Reconsideration of the Order of Dismissal of HENCE, IT DOES NOT HAVE THE FORCE OF
the trial court. LAW AND NEED NOT BE ATTACKED IN A
DIRECT PROCEEDING.[7]
On February 1, 2008, petitioner filed a
Manifestation attaching thereto a copy of the
Order dated January 31, 2008 of the trial court
denying respondent DOJs Motion for Petitioner maintains that the writ of amparo does not only
Reconsideration for utter lack of merit. The trial
court also observed that the said Motion should exclusively apply to situations of extrajudicial killings and enforced
be dismissed outright for being filed out of
time. [4] disappearances but encompasses the whole gamut of liberties

protected by the Constitution. Petitioner argues that [liberty]

includes the right to exist and the right to be free from arbitrary
The petition for a writ of amparo is anchored on the
personal restraint or servitude and includes the right of the citizens
ground that respondents violated petitioners constitutional right to
to be free to use his faculties in all lawful ways. Part of the right to
travel.Petitioner argues that the DOJ Secretary has no power to
liberty guaranteed by the Constitution is the right of a person to
issue a Hold Departure Order (HDO) and the subject HDO No. 45
travel.
has no legal basis since Criminal Case No. 07-3126 has already

been dismissed.
In their Comment,[8] both respondents Secretary

Gonzalez and Commissioner Libanan argue that: 1) HDO No. 45

On February 4, 2008, the CA rendered the assailed
was validly issued by the Secretary of Justice in accordance with
Decision dismissing the petition and denying the privilege of the
Department of Justice Circular No. 17, Series of 1998, [9] and
writ ofamparo.
Circular No. 18, Series of 2007,[10] which were issued pursuant to
 the perceived lack of available and effective
said Secretarys mandate under the Administrative Code of 1987, remedies to address these extraordinary
concerns.It is intended to address violations
as head of the principal law agency of the government, to of or threats to the rights to life, liberty or
security, as an extraordinary and
investigate the commission of crimes, prosecute offenders, and
independent remedy beyond those available
provide immigration regulatory services; and; 2) the issue of the under the prevailing Rules, or as a remedy
supplemental to these Rules. What it is not, is a
constitutionality of the DOJ Secretarys authority to issue hold writ to protect concerns that are purely property
or commercial. Neither is it a writ that we
departure orders under DOJ Circulars Nos. 17 and 18 is not within shall issue on amorphous and uncertain
grounds.Consequently, the Rule on the Writ of
the ambit of a writ of amparo. Amparo in line with the extraordinary character
of the writ and the reasonable certainty that its
issuance demands requires that every petition
for the issuance of the writ must be supported
The case hinges on the issue as to whether or not by justifying allegations of fact, to wit:
petitioners right to liberty has been violated or threatened with
(a) The personal
violation by the issuance of the subject HDO, which would entitle circumstances of the
petitioner;
him to the privilege of the writ of amparo.
(b) The name and
personal circumstances of
the respondent responsible
The petition must fail. for the threat, act or
omission, or, if the name is
unknown or uncertain, the
respondent may be
Section 1 of the Rule on the Writ of Amparo provides:
described by an assumed
appellation;
SECTION 1. Petition. The petition for
a writ of amparo is a remedy available to any (c) The right to life,
person whose right to life, liberty and liberty and security of the
security is violated or threatened with violation aggrieved party violated or
by an unlawful act or omission of a public threatened with violation by
official or employee, or of a private individual or an unlawful act or omission
entity. of the respondent, and how
such threat or violation is
The writ shall cover extralegal killings committed with the
and enforced disappearances or threats attendant circumstances
thereof. detailed in supporting
affidavits;

(d) The
investigation conducted, if
The Court, in Secretary of National Defense et al. v. any, specifying the names,
personal circumstances,
Manalo et al.,[11] made a categorical pronouncement that
and addresses of the
the AmparoRule in its present form is confined to these two investigating authority or
individuals, as well as the
instances of extralegal killings and enforced disappearances, or to manner and conduct of the
investigation, together with
threats thereof, thus: any report;

(e) The actions

x x x As the Amparo Rule was intended to and recourses taken by the
address the intractable problem of extralegal petitioner to determine the
killings and enforced disappearances, its fate or whereabouts of the
coverage, in its present form, is confined to aggrieved party and the
these two instances or to threats identity of the person
thereof. Extralegal killings are killings responsible for the threat,
committed without due process of law, i.e., act or omission; and
without legal safeguards or judicial
proceedings. On the other hand, enforced (f) The relief
disappearances are attended by the following prayed for.
characteristics: an arrest, detention or
abduction of a person by a government official The petition may include a
or organized groups or private individuals general prayer for other just
acting with the direct or indirect acquiescence and equitable reliefs.[14]
of the government; the refusal of the State to
disclose the fate or whereabouts of the person The writ shall issue if the Court is
concerned or a refusal to acknowledge the preliminarily satisfied with the prima
deprivation of liberty which places such facie existence of the ultimate facts
persons outside the protection of law.[12] determinable from the supporting affidavits that
detail the circumstances of how and to what
extent a threat to or violation of the rights to life,
liberty and security of the aggrieved party was
or is being committed. (Emphasis supplied)
In Tapuz v. Del Rosario,[13] the Court laid down the basic

principle regarding the rule on the writ of amparo as follows:

To start off with the basics, the writ of
amparo was originally conceived as a response
to the extraordinary rise in the number of
killings and enforced disappearances, and to
Here, petitioner invokes this extraordinary remedy of
the writ of amparo for the protection of his right to travel. He insists
thathe is entitled to the protection covered by the Rule on the Writ

of Amparo because the HDO is a continuing actual restraint on his
right to travel. The Court is thus called upon to rule whether or not
the right to travel is covered by the Rule on the Writ of Amparo.
The rights that fall within the protective mantle of the Writ
of Amparo under Section 1 of the Rules thereon are the following:
(1) right to life; (2) right to liberty; and (3) right to security.
In Secretary of National Defense et al. v. Manalo et
al.,[15] the Court explained the concept of right to life in this wise:
While the right to life under Article III,
Section 1 guarantees essentially the right to be
alive- upon which the enjoyment of all other
rights is preconditioned - the right to security of
person is a guarantee of the secure quality of
this life, viz: The life to which each person has
a right is not a life lived in fear that his person
and property may be unreasonably violated by
a powerful ruler. Rather, it is a life lived with the
assurance that the government he established
and consented to, will protect the security of his
person and property. The ideal of security in life
and property pervades the whole history of
man. It touches every aspect of mans
existence. In a broad sense, the right to
security of person emanates in a persons legal
and uninterrupted enjoyment of his life, his
limbs, his body, his health, and his reputation. It
includes the right to exist, and the right to
enjoyment of life while existing, and it is
invaded not only by a deprivation of life but also
of those things which are necessary to the
enjoyment of life according to the nature,
temperament, and lawful desires of the
individual.[16]
The right to liberty, on the other hand, was defined in
the City of Manila, et al. v. Hon. Laguio, Jr.,[17] in this manner:
Liberty as guaranteed by the
Constitution was defined by Justice Malcolm to
include the right to exist and the right to be free
from arbitrary restraint or servitude. The term
cannot be dwarfed into mere freedom from
physical restraint of the person of the citizen,
but is deemed to embrace the right of man to
enjoy the facilities with which he has been
endowed by his Creator, subject only to such
restraint as are necessary for the common
welfare. x x x
Secretary of National Defense et al. v. Manalo et
[18]
al. thoroughly expounded on the import of the right
security, thus:
A closer look at the right to security of
person would yield various permutations of the
exercise of this right.
First, the right to security of person is
freedom from fear. In its whereas clauses,
the Universal Declaration of Human
Rights(UDHR) enunciates that a world in which
human beings shall enjoy freedom of speech
and belief and freedom from fear and want
has been proclaimed as the highest aspiration
of the common people. (emphasis supplied)
Some scholars postulate that freedom from fear
is not only an aspirational principle, but
essentially an individual international human
right. It is the right to security of person as the
word security itself means freedom from
fear. Article 3 of the UDHR provides, viz:
Everyone has the
right to life, liberty
and security of person.
xxx
The Philippines is a signatory to both
the UDHR and the ICCPR.
In the context of Section 1 of
the Amparo Rule, freedom from fear is the right
and any threat to the rights to life, liberty or
security is the actionable wrong. Fear is a
state of mind, a reaction; threat is a stimulus,
a cause of action. Fear caused by the same
stimulus can range from being baseless to well-
founded as people react differently. The degree
of fear can vary from one person to another
with the variation of the prolificacy of their
imagination, strength of character or past
experience with the stimulus. Thus, in
the amparocontext, it is more correct to say that
the right to security is actually the freedom
from threat. Viewed in this light, the threatened
with violation Clause in the latter part of Section
1 of the Amparo Rule is a form of violation of
the right to security mentioned in the earlier
part of the provision.
Second, the right to security of
person is a guarantee of bodily and
psychological integrity or security. Article III,
Section II of the 1987 Constitution guarantees
that, as a general rule, ones body cannot be
searched or invaded without a search
warrant. Physical injuries inflicted in the context
of extralegal killings and enforced
disappearances constitute more than a search
or invasion of the body. It may constitute
dismemberment, physical disabilities, and
painful physical intrusion. As the degree of
physical injury increases, the danger to life
itself escalates. Notably, in criminal law,
physical injuries constitute a crime against
persons because they are an affront to the
bodily integrity or security of a person.
xxx
Third, the right to security of
person is a guarantee of protection of ones
rights by the government. In the context of
the writ of amparo, this right is built into the
guarantees of the right to life and
liberty under Article III, Section 1 of the 1987
Constitution and the right to security of
person (as freedom from threat and guarantee
of bodily and psychological integrity) under
Article III, Section 2.The right to security of
person in this third sense is a corollary of the
policy that the State guarantees full respect for
human rights under Article II, Section 11 of the
1987 Constitution. As the government is the
chief guarantor of order and security, the
Constitutional guarantee of the rights to life,
liberty and security of person is rendered
to ineffective if government does not afford
protection to these rights especially when they
are under threat. Protection includes
conducting effective investigations,
organization of the government apparatus to
extend protection to victims of extralegal killings
or enforced disappearances (or threats thereof)
and/or their families, and bringing offenders to
the bar of justice. x x x (emphasis supplied) [19]
The right to travel refers to the right to move from one
place to another.[20] As we have stated
[21]
in Marcos v. Sandiganbayan, xxx a persons right to travel is
subject to the usual constraints imposed by the very necessity of
safeguarding the system of justice. In such cases, whether the

accused should be permitted to leave the jurisdiction for
[22]
humanitarian reasons is a matter of the courts sound discretion.
Here, the restriction on petitioners right to travel as a
consequence of the pendency of the criminal case filed against
him was not unlawful. Petitioner has also failed to establish that his
right to travel was impaired in the manner and to the extent that it
amounted to a serious violation of his right to life, liberty and
security, for which there exists no readily available legal recourse
or remedy.
In Canlas et al. v. Napico Homeowners Association I XIII,
Inc. et al.,[23] this Court ruled that:
This new remedy of writ of
amparo which is made available by this Court is
intended for the protection of the highest
possible rights of any person, which is his or
her right to life, liberty and security. The Court
will not spare any time or effort on its part in
order to give priority to petitions of this
nature. However, the Court will also not waste
its precious time and effort on matters not
covered by the writ.
We find the direct recourse to this Court inappropriate,
considering the provision of Section 22 of the Rule on the Writ of
Amparo which reads:
Section 22. Effect of Filing of a
Criminal Action. When a criminal action has
been commenced, no separate petition for the
writ shall be filed. The reliefs under the writ
shall be available by motion in the criminal
case.
The procedure under this Rule shall
govern the disposition of the reliefs available
under the writ of amparo.
Pursuant to the aforementioned Section 22, petitioner
should have filed with the RTC-Makati a motion to lift HDO No. 45
in Criminal Case No. 07-3126. Petitioner, however, did not file in
the RTC-Makati a motion to lift the DOJs HDO, as his co-accused
did in the same criminal case. Petitioner argues that it was not the
RTC-Makati but the DOJ that issued the said HDO, and that it is
his intention not to limit his remedy to the lifting of the HDO but
also to question before this Court the constitutionality of the power
of the DOJ Secretary to issue an HDO.[24] We quote with approval
the CAs ruling on this matter:
The said provision [Section 22] is an
affirmation by the Supreme Court of its
pronouncement in Crespo v. Mogul[25] that once
a complaint or information is filed in court, any
disposition of the case such as its dismissal or
its continuation rests on the sound discretion of
the court. Despite the denial of respondents
MR of the dismissal of the case against
petitioner, the trial court has not lost control
over Criminal Case No. 07-3126 which is still
pending before it. By virtue of its residual
power, the court a quo retains the authority to
entertain incidents in the instant case to the
exclusion of even this Court. The relief
petitioner seeks which is the lifting of the HDO
was and is available by motion in the criminal
case. (Sec. 22, Rule on the Writ of
amparo, supra).[26]
Even in civil cases pending before the trial courts, the
Court has no authority to separately and directly intervene through
the writ of amparo, as elucidated in Tapuz v. Del Rosario,[27] thus:
Where, as in this case, there is an
ongoing civil process dealing directly with the
possessory dispute and the reported acts of
violence and harassment, we see no point in
separately and directly intervening through a
writ of amparo in the absence of any
clear prima facie showing that the right to life,
liberty or security the personal concern that
the writ is intended to protect is immediately in
danger or threatened, or that the danger or
threat is continuing. We see no legal bar,
however, to an application for the issuance of
the writ, in aproper case, by motion in a
pending case on appeal or on certiorari,
applying by analogy the provisions on the co-
existence of the writ with a separately filed
criminal case.
Additionally, petitioner is seeking the extraordinary writ
of amparo due to his apprehension that the DOJ may deny his
motion to lift the HDO.[28] Petitioners apprehension is at best
merely speculative. Thus, he has failed to show any clear threat to
his right to liberty actionable through a petition for a writ of
amparo. The absence of an actual controversy also renders
it unnecessary for us on this occasion to pass upon the
constitutionality of DOJ Circular No. 17, Series of 1998
(Prescribing Rules and Regulations Governing the Issuance of
Hold Departure Orders); and Circular No. 18, Series of 2007
(Prescribing Rules and Regulations Governing the Issuance and
Implementation of Watchlist Orders and for Other Purposes).
WHEREFORE, the petition is DISMISSED. The assailed
Decision of the CA dated February 4, 2008 in CA-G.R. No.
00011 is hereby AFFIRMED.
DAVID E. SO, on behalf of his daughter MARIA G.R. No. 190
ELENA SO GUISANDE,
Petitioner,
- versus -
HON. ESTEBAN A. TACLA, JR., Regional Trial
Court of Mandaluyong City, Branch 208; and DR.
BERNARDO A. VICENTE, National Center for
Mental Health,
Respondents.
x ------------------------------------------------x
HON. ESTEBAN A. TACLA, JR., Presiding Judge of
the Regional Trial Court, Mandaluyong City,
Branch 208; and PEOPLE OF THE PHILIPPINES,
Petitioners, G.R. No. 190
Present:
 CORONA, C.J.,
CARPIO, the warrant for the arrest of Guisande, issued by Judge Tacla,
CARPIO MORALES,*
stated that the former was confined at MMC for Bipolar Mood
VELASCO, JR.,
- versus - NACHURA,
Disorder and that she was not ready for discharge, as certified by
LEONARDO-DE CASTRO,
BRION, her personal psychiatrist, Dr. Ma. Cecilia Tan.
PERALTA,
*
BERSAMIN,
DEL CASTILLO,
ABAD,* Acting on the prosecutions Urgent Motion to Refer Accuseds
DAVID E. SO, on behalf of his daughter MARIA VILLARAMA, JR.,
ELENA SO GUISANDE, PEREZ, Illness to a Government Hospital, Judge Tacla ordered Guisandes
Respondent. MENDOZA, and
SERENO, JJ.referral to the NCMH for an independent forensic assessment of

Promulgated:Guisandes mental health to determine if she would be able to

stand arraignment and undergo trial for Qualified Theft.
October 19, 2010
x---------------------------------------------------------------------------------------
--x
Subsequently, Judge Tacla, upon motion of the NCMH, ordered

RESOLUTION that accused Guisande be physically brought to the NCMH, with

NACHURA, J.: NCMH Chief Dr. Vicente to have temporary legal custody of the

accused, and thereafter, Judge Tacla would issue the

Before us are consolidated petitions: corresponding order of confinement of Guisande in a regular jail

facility upon the NCMHs determination that she was ready for trial.

(1) A petition for the writs of habeas

corpus and amparo against Judge Esteban A. Tacla, Jr. (Judge Accused Guisande was confined at the NCMH Payward, Pavilion

Tacla) of the Regional Trial Court (RTC), Branch 208, 6-I-E, instead of Pavilion 35, Forensic Psychiatric Section, where

Mandaluyong City, and Dr. Bernardo A. Vicente (Dr. Vicente) of female court case patients are usually confined at the NCMH. In

the National Center for Mental Health (NCMH), docketed as G.R. connection therewith, Dr. Vicente issued a special Memorandum

No. 190108; and on November 9, 2009, reiterating existing hospital policies on the

handling of court case patients undergoing evaluation procedures

(2) G.R. No. 190473, which is a petition for review to foreclose any possibility of malingering[2] on the patients part,

on certiorari under Rule 45 of the Rules of Court filed by the Office specifically patients accused of a non-bailable crime.

of the Solicitor General (OSG) on behalf of Judge Tacla and Dr.

Vicente of the NCMH, assailing the Resolution[1] of the Court of Eventually, claiming life-threatening circumstances surrounding

Appeals (CA) rendered in open court on December 3, 2009, in the her confinement at the NCMH which supposedly worsened her

case docketed as CA-G.R. SP No. 00039. mental condition and violated her constitutional rights against

solitary detention and assistance of counsel, accused Guisande

The antecedents are: and her father simultaneously, albeit separately, filed a Motion for

Relief from Solitary Confinement before

Petitioner David E. So (So) in G.R. No. 190108 filed the the RTC Mandaluyong City, and the present petition in G.R. No.

petition for the writs of habeas corpus and amparo on behalf of his 190108 for the issuance of the writs of habeas corpus and amparo.

daughter, Ma. Elena So Guisande (Guisande), accused of

Qualified Theft in the criminal case pending before Judge On the Motion for Relief filed with RTC Mandaluyong City, Judge

Tacla. Petitioner So alleged, among others, that Guisande was Tacla issued the following Order:

under a life-threatening situation while confined at the NCMH, the

The Court rules to Grant accuseds [Guisandes]
government hospital ordered by the RTC Mandaluyong City to motion subject to the condition that only the
accuseds counsel and the accused physician
ascertain the actual psychological state of Guisande, who was on her hypothyroid condition are allowed to visit
the accused in coordination with the respective
being charged with a non-bailable offense. psychiatrist/doctor of the NCMH taking charge
of the psychiatric examination upon accused.[3]

On the petition for habeas corpus and amparo, this Court issued a
Prior to the institution of the criminal proceedings before
Resolution on November 24, 2009, to wit:
the RTC, Guisande was committed by So for psychiatric treatment

and care at the Makati Medical Center (MMC). Thus, the return of G.R. No. 190108 (David E. So, in Behalf of his
Daughter Maria Elena So Guisande vs. Hon.
 Esteban A. Tacla, Jr., Regional Trial Court of
Mandaluyong, Branch 208, Dr. Bernardo A.
Vicente, National Center for Mental Health).
Acting on the Petition for Writs of Habeas
Corpus and Amparo, the Court Resolved to
(a) ISSUE a JOINT WRIT OF HABEAS
CORPUS AND AMPARO;
(b) REFER the petition to the Court of Appeals,
Manila, for (i) IMMEDIATE RAFFLE among the
Members of the said Court; (ii)HEARING on
December 3, 2009, Thursday, at 10:00 a.m.;
and (iii) DECISION within ten (10) days after its
submission for decision; and
(c) ORDER the respondents to make a
verified RETURN of the Joint Writ of Habeas
Corpus and Amparo before the Court of
Appeals, Manila, on December 1, 2009, and
to COMMENT on the petition before said
date.[4]
As directed by this Court, Judge Tacla and Dr. Vicente appeared
before the CA on December 1, 2009 and, in the afternoon, filed
their Consolidated Return of the Writ.
On December 3, 2009, the NCMH submitted its Evaluation Report
to the RTC Mandaluyong City:
ASSESSMENT AND REMARKS:
Review of the history and clinical reports
from Makati Medical Center revealed that Ma.
Elena So-Guisande was diagnosed and
managed as Bipolar I Disorder. On the other
hand, based on a series of mental status
examinations and observations at our center,
she is found not manifesting signs and
symptoms of psychosis at the present time.
Neither a manic episode nor a severe
depressive episode was manifested during her
confinement at our center, despite voluntarily
not taking her medication is. Although she is
complaining of mood symptoms, these are not
severe enough to impair her fitness to stand
trial.
Ms. Guisande does have sufficient
understanding of the nature and objective of
the court proceedings and the possible
consequences of her cases. She is likewise
capable of communicating with her counsels.
She is therefore deemed COMPETENT to
stand the rigors of court trial. (Emphasis
supplied.)
On even date, pursuant to the directive of this Court, the
CAs Special Seventeenth Division held a hearing. Thereafter,
Justice Normandie B. Pizarro (Justice Pizarro), to whom the
petition was raffled, disposed, in this wise:
JUSTICE PIZARRO:
The essence of the deliberation this
morning is on the proceedings that
obtained pursuant to the September
22, 2009 Order of the Regional Trial
Court, Branch 208, Mandaluyong
City. The parties heard the arguments
of the Petitioner on the right of the
subject patient, Ma. Elena, to avail of
extended medical treatment citing the
Constitution and the Geneva
Convention on Human Rights.
In the course of the proceedings this
morning, Judge Tacla, Jr., informed
this Court that the NCMH submitted to
him a report consisting of eight (8)
pages at about 8:46 this morning. The
parties, specifically the petitioner,
were shown the said report.
Afterwards, Judge Taclas opinion on
the matter was heard and he did not
interpose any objection thereto. The
Accused, subject of this case, Ma.
Elena So-Guisande, may now be
discharged from the custody of the
NCMH and is considered fit for the
rigors of trial. The parties were heard
on the matter and all of them were in
accord with the dispositive portion of
the aforesaid report.
After a prolonged discussion on the
matter, and without objection on the
part of the parties, as the Accused
should now proceed to trial in
accordance with law, and at the same
time recognizing the right of the
Accused to avail of further
medication, this Court decrees the
following set up that should cover this
proceedings: The trial of this case
shall resume and the arraignment
at the Court a quo shall push
through as originally scheduled on
February 2, 2010. To balance the
situation, the right to seek medical
treatment of the subject is hereby
recognized by all and the patient
shall be confined at the St. Clares
Medical Center, 1838 Dian St.,
Palanan, Makati City, her hospital
of choice, under the headship of
Dr. Yat, subject to the twenty-four
(24) hour custodial control of the
NBI.
xxxx
JUSTICE PIZARRO:
Dr. Yat is directed to submit, again by
agreement of the parties, a periodic
report every fifteen days to the RTC,
Branch 208, for its evaluation. The
first report shall be submitted on or
before December 18, 2009.
In this regard, the Director Nestor M.
Mantaring of NBI is
politely DIRECTED to cause the
transfer from NCMH to the St.
ClaresMedical Center of the subject
Accused, Ma. Elena So-Guisande,
and to provide two (2) or three (3)
security personnel to the Accused
after making the proper coordination
with the RTC, Branch 208. Director
Mantaring is to submit a one (1) page
compliance on the matter within three
(3) days from receipt of this
Resolution furnishing Judge Tacla, Jr.
a copy thereof.
xxxx
It is understood that the case pending
before RTC, Branch 208, involves a
non-bailable offense where normally
the Accused should have been
confined in jail. But considering the
peculiarities of this case, the parties
have all agreed to the set up as
provided in this Order. It is also
understood by the parties that
henceforth the control of the trial
proceedings as well as the control
 over the custody of the other pending incidents thereon
accused/patient shall be in the hands be DISMISSED for having been rendered moot
of the Regional Trial Court, Branch and academic.
208, Mandaluyong City.

STATE SOL. DE VERA: Petitioner So filed a Comment[7] refuting the OSGs

Your honor, the Hospital fees to be motion to dismiss G.R. Nos. 190108 and 190473. Through
settled before the transfer, Your
counsel, and using strong words, he vehemently opposed the
Honor.
dismissal of the petitions because they had filed criminal
JUSTICE PIZARRO:
complaints and an administrative case against respondents Judge
As committed in open-Court, Atty.
Carpio shall insure the settlement of Tacla and Dr. Vicente, as well as the NCMH and an attending
the fees for the confinement of
Accused/patient at the NCMH, as a doctor thereat, for purported violations of accused Guisandes
pre-condition for her release
therefrom. rights during her confinement at the NCMH. Adding to the flurry of

WHEREFORE, the foregoing
considering considered, this petition
for Habeas Corpus and Amparo is
considered CLOSE andTERMINATE
D. All parties are notified in open
court of this Order.
cases, petitioner So filed a Verified Petition to cite Judge Tacla and
Dr. Vicente in contempt before the CA for their supposed
submission of an altered and falsified document, which was
attached to, and formed an integral part of, their Consolidated

xxxx Return of the Writ.

JUSTICE PIZARRO:

Let copies of this Order be furnished Posthaste, and even without us requiring the OSG to file
the RTC, Br. 208, Mandaluyong City,
one, it filed a Motion to Admit Reply[8] with its Reply[9] to the
the Director of the National Bureau of
Investigation as well as the Supreme Comment of petitioner So attached thereto. The OSG clarified and
Court, and all the parties.
denied outright petitioner Sos allegation in the Comment that the
SO ORDERED.[5]
criminal case for Qualified Theft against accused Guisande was a

prevarication and concoction of private complainant [10] and that

Hence, the petition for review on certiorari, docketed as G.R. No.
Judge Tacla had conspired to falsely accuse petitioner Sos
190473, filed by the OSG, which was consolidated with G.R. No.
daughter, Guisande. In all, the OSG reiterated that GR. Nos.
190108.
190108 and 190473 had been rendered moot and academic with

the dismissal of the criminal case for Qualified Theft against

During the pendency of these consolidated cases, various events
Guisande.
occurred which ultimately led to the incident before this

Court, i.e.,a Manifestation and Motion[6] dated March 11, 2010,

Significantly, on August 25, 2010, the OSG filed another
filed by the OSG on behalf of public respondents, Judge Tacla and
Manifestation and Motion[11] informing this Court of the following:
Dr. Vicente, to wit:

1. On February 4, 2010, acting on the City (1) Resolution dated June 7, 2010 issued by Assistant
Prosecutors January 25, 2010 Motion to
Withdraw Information, public respondent Judge City Prosecutor Teresa D. Escobar-Pilares (Assistant City
ordered the dismissal of Criminal Case No.
Prosecutor Escobar-Pilares), dismissing the charge of petitioner
MC019-12281. Hence, their Urgent Prayer for
Issuance of a Temporary Restraining Order So against Judge Tacla and Dr. Vicente and their counsels for
(TRO) before this Honorable Court has been
rendered moot and academic. A copy of the Falsification under Article 171 and 172 of the Revised Penal Code,
February 4, 2010 Order dismissing Criminal
Case No. MC019-12281 is attached herewith docketed as I.S. No. XV-07-INV-10B-01371, for insufficiency of
as Annex A.
evidence;[12] and
2. Furthermore, in view of the dismissal of
Criminal Case No. MC019-12281 from which
the Petition for Writ of Habeas Corpus and Writ
of Amparo (docketed before the Supreme Court (2) Resolution dated July 27, 2010 of the CA in CA-G.R.
as G.R. No. 190108 and Court of Appeals as SP No. 00039, where petitioner Sos verified petition for contempt
CA-G.R. SP No. 00039) and the Petition for
Review (docketed as G.R. No. 190473) was dismissed for lack of merit, and where the CA ordered the
stemmed from, these cases and pending
incidents thereon should be dismissed for petition for habeas corpus/writ of amparo closed and
having been rendered moot and academic.
terminated.[13]
WHEREFORE, it is respectfully prayed that the
Petition for Writ of Habeas Corpus and Writ
of Amparo (docketed before the Supreme Court
as G.R. No. 190108 and Court of Appeals as Likewise, the OSG reiterated its motion to dismiss the instant
CA-G.R. SP No. 00039) and the Petition for
consolidated petitions.
Review (docketed as G.R. No. 190473) and all

We completely agree with the OSG. Accordingly, we
deny the petitions in G.R. Nos. 190108 and 190473 for having
been rendered moot and academic by the dismissal of Criminal
Case No. MC09-12281 for Qualified Theft pending before
the RTCMandaluyong City.
As correctly pointed out by the OSG, the petition for the
writs of habeas corpus and amparo was based on the criminal
case for Qualified Theft against petitioner Sos daughter, Guisande.
To recall, petitioner So claimed that the conditions and
circumstances of his daughters, accused Guisandes, confinement
at the NCMH was life threatening; although Guisande was
accused of a non-bailable offense, the NCMH could not
adequately treat Guisandes mental condition. Thus, to balance the
conflicting right of an accused to medical treatment and the right of
the prosecution to subject to court processes an accused charged
with a non-bailable offense, the CA directed the transfer of
Guisande from the NCMH to St. Clares Medical Center, while
noting that because of the peculiarities of this case, there was a
deviation from the regular course of procedure, since accused
Guisande should have been confined in jail because she was
charged with a non-bailable offense.
Notably, nowhere in the transcript of the CA hearing on
December 3, 2009, nor in the Order recited in open court by
Justice Pizarro, is there an affirmation of petitioner Sos claim that
the confinement of accused Guisande at the NCMH was illegal.
Neither were the respective acts performed by respondents Judge
Tacla and Dr. Vicente in ascertaining the mental condition of
accused Guisande to withstand trial declared unlawful. On the
contrary, the NCMH, a well-reputed government forensic facility,
albeit not held in high regard by petitioner Sos and accused
Guisandes family, had assessed Guisande fit for trial.
The Rules on the Writs of Habeas
Corpus and Amparo are clear; the act or omission or the
threatened act or omission complained of - confinement and
custody for habeas corpus and violations of, or threat to violate, a
persons life, liberty, and security for amparo cases - should be
illegal or unlawful.
Rule 102 of the Rules of Court on Habeas
Corpus provides:
Sec. 1. To what habeas corpus extends.
Except as otherwise expressly provided by law,
the writ of habeas corpus shall extend to all
cases of illegal confinement or detention by
which any person is deprived of his liberty, or
by which the rightful custody of any person is
withheld from the person entitled thereto.
while the Rule on the Writ of Amparo states:
Section 1. Petition. The petition for a writ
of amparo is a remedy available to any person
whose right to life, liberty and security is
violated or threatened with violation by an
unlawful act or omission of a public official or
employee, or of a private individual or entity.
The writ shall cover extralegal killings and
enforced disappearances or threats thereof.
Our decisions on the propriety of the issuance of these writs
reiterate the foregoing rules. In Lourdes D. Rubrico, Jean Rubrico
Apruebo, and Mary Joy Rubrico Carbonel v. Gloria Macapagal-
Arroyo, Gen. Hermogenes Esperon, P/Dir. Gen. Avelino Razon,
Maj. Darwin Sy a.k.a Darwin Reyes, Jimmy Santana, Ruben
Alfaro, Capt. Angelo Cuaresma, a certain Jonathan, P/Supt. Edgar
B. Roquero, Arsenio C. Gomez, and Office of the
Ombudsman,[14] we qualified:
The privilege of the writ of amparo is
envisioned basically to protect and guarantee
the rights to life, liberty, and security of
persons, free from fears and threats that vitiate
the quality of this life. It is an extraordinary writ
conceptualized and adopted in light of and in
response to the prevalence of extra-legal
killings and enforced
disappearances. Accordingly, the remedy
ought to be resorted to and granted
judiciously, lest the ideal sought by the
Amparo Rule be diluted and undermined by
the indiscriminate filing of amparo petitions
for purposes less than the desire to
secure amparo reliefs and protection and/or
on the basis of unsubstantiated
allegations.[15]
In the recent Nurhida Juhuri Ampatuan v. Judge Virgilio V.
Macaraig, RTC, Manila, Branch 37, Director General Avelino
Razon, Jr., Director Geary Barias, PSSupt. Co Yee M. Co, Jr., and
Police Chief Inspector Agapito Quimson,[16] we intoned:
The most basic criterion for the issuance of the
writ, therefore, is that the individual seeking
such relief is illegally deprived of his freedom of
movement or place under some form of illegal
restraint. If an individuals liberty is
restrainted via some legal process, the writ
of habeas corpus is unavailing. Fundamentally,
in order to justify the grant of the writ of habeas
corpus, the restraint of liberty must be in the
nature of an illegal and involuntary deprivation
of freedom of action.
In general, the purpose of the writ of habeas
corpus is to determine whether or not a
particular person is legally held. A prime
specification of an application for a writ
of habeas corpus, in fact, is an actual and
effective, and not merely nominal or moral,
illegal restraint of liberty. The writ of habeas
corpus was devised and exists as a speedy
and effectual remedy to relieve persons from
unlawful restraint, and as the best and only
sufficient defense of personal freedom. xxx The
 essential object and purpose of the writ
of habeas corpus is to inquire into all manner of
involuntary restraint as distinguished from
voluntary, and to relieve a person therefrom if
such restraint is illegal. Any restraint which will
preclude freedom of action is sufficient.
In passing upon a petition for habeas corpus, a
court or judge must first inquire into whether the
petitioner is being restrained of his liberty. If he
is not, the writ will be refused. Inquiry into the
cause of detention will proceed only where
such restraint exists. If the alleged cause is
thereafter found to be unlawful, then the writ
should be granted and the petitioner
discharged. Needless to state, if otherwise,
again the writ will be refused.
While habeas corpus is a writ of right, it will
not issue as a matter of course or as a mere
perfunctory operation on the filing of the
petition. Judicial discretion is called for in
its issuance and it must be clear to the
judge to whom the petition is presented
that,prima facie, the petitioner is entitled to
the writ. It is only if the court is satisfied that
a person is being unlawfully restrained of
his liberty will the petition for habeas
corpus be granted. If the respondents are
not detaining or restraining the applicant of
the person in whose behalf the petition is
filed, the petition should be dismissed.[17]
In the cases at bar, the question before the CA was correctly
limited to which hospital, the NCMH or a medical facility of
accuseds own choosing, accused Guisande should be referred for
treatment of a supposed mental condition. [18] In addition, we note
that it was procedurally proper for the RTC to ask the NCMH for a
separate opinion on accuseds mental fitness to be arraigned and
stand trial. Be that as it may, the CA allowed the transfer of
accused to St. Clares Medical Center under the custody of Dr.
Rene Yat, who was required periodically to report on his
evaluation, every fifteen (15) days, to the RTC Mandaluyong City,
although in the same breath, the CA also ordered the continuation
of the arraignment and trial of the accused for Qualified Theft
before the same trial court. In other words, Guisande remained in
custody of the law to answer for the non-bailable criminal charge
against her, and was simply allowed to pursue medical treatment
in the hospital and from a doctor of her choice.
Certainly, with the dismissal of the non-bailable case against
accused Guisande, she is no longer under peril to be confined in a
jail facility, much less at the NCMH. Effectively, accused
Guisandes person, and treatment of any medical and mental
malady she may or may not have, can no longer be subjected to
the lawful processes of the RTC Mandaluyong City. In short, the
cases have now been rendered moot and academic which, in the
often cited David v. Macapagal-Arroyo,[19] is defined as one that
ceases to present a justiciable controversy by virtue of
supervening events, so that a declaration thereon would be of no
practical use or value.
Finally, the Resolutions of the CA and Assistant City Prosecutor
Escobar-Pilares, unmistakably foreclose the justiciability of the
petitions before this Court.
In CA-G.R. SP No. 00039, the CA said:
We are also not swayed by [David Sos]
argument that [petitioners] advanced lies to this
Court when they stated in their petition that
Elena was facing two (2) non-bailable offenses.
During the hearing on the petition for habeas
corpus/writ of amparo, the counsel for [David
So] stated that Elena was facing only one (1)
non-bailable offense to which [petitioners] did
not anymore object. Besides, the number of
non-bailable offenses is not even material in
the instant case for habeas corpus/writ of
amparo as the only issue to be determined
here was whether or not Elenas confinement at
NCMH was lawful.
Finally, the issue in the verified petition, of
whether [petitioners] were in contempt of court,
is rendered moot and academic considering
that this Court had already rendered its open
court Order on December 8, 2009, which was
favorable to [David So], and it was only later
that the latter raised the issue of contempt.
Finding no merit in [David Sos]
verified petition for contempt against [Judge
Tacla, Dr. Vicente and the NCMH], and there
being no other objections made by the parties
against Our March 17, 2010 Resolution, the
instant petition for habeas corpus/writ of
amparo is declared CLOSED and
TERMINATED.
SO ORDERED.[20]
In XV-07-INV-10B-01371 for Falsification under Articles 171 and
172 of the Revised Penal Code, the Assistant City Prosecutor
made the following findings:
x x x [T]he undersigned finds no probable
cause that respondents committed the charges
filed against them.
Examination of the Contract of Confinement
which was claimed to have been falsified
reveals that it was merely a photocopy. The
supposed full photocopy of the original copy of
the subject contract did not contain any
alteration (change) or intercalation (insertion)
that could have changed its meaning or that
could have made it speak of something false.
The contents of the contract depicting that
[Guisandes] yaya (Ms. Galleto) was indeed
confined at the NCMH as claimed by
respondents to accompany [Guisande], [Sos]
daughter who was confined thereat remained
the same. Respondents explained that they
were unaware of the inadvertent partial
reproduction of the document and supported
the same with an affidavit of good faith
executed by an NCMH clerk explaining why it
was only partially reproduced.
Likewise, respondents statement that
[Guisande] is facing non-bailable offenses is
not absolutely false. Respondents satisfactorily
explained that at the time of the filing of their
pleading, they believed in good faith that she
was facing more than one non-bailable
offenses (sic) as she was charged with
Qualified Theft before the Mandaluyong City
RTC, Branch 208 and Syndicated Estafa before
the San Juan Prosecutors office. While it may
be true that [Guisande] has only one (1) non-
 bailable offense pending in court, respondents accusations and threats to be [sic] highly suspicious, doubtful or
proved with their evidence that she had others are just mere jokes if they existed at all.
pending at the time in other forum. Assuming for the sake of argument only, that the alleged threats
exist as the management apparently believe, then my transfer to
WHEREFORE, premises considered, it is
respectfully recommended that the charges for an unfamiliar place and environment which will make me a "sitting
Falsification under Articles 171 and 172 of the duck" so to speak, seems to betray the real intent of management
Revised Penal Code filed against all which is contrary to its expressed concern on my security and
respondents namely: (1) Judge Esteban A. safety . . . Thus, it made me think twice on the rationale for
Tacla, Jr., (2) Dr. Bernardino A. Vicente, (3) management’s initiated transfer. Reflecting further, it appears to
ASG General Magtanggol M. Castro, SSS me that instead of the management supposedly extending favor to
Diana H. Castaeda-de Vera, SS Charina A.
me, the net result and effect of management action would be a
Soria and AS Jefferson C. Secillano,
be DISMISSED for insufficiency of evidence.[21] punitive one.4 (emphasis and underscoring supplied)
Respondent thus requested for the deferment of the
implementation of her transfer pending resolution of the issues she
raised.
WHEREFORE, in light of the foregoing disquisition, the petitions in No response to her request having been received, respondent filed
G.R. Nos. 190108 and 190473 for the Writs of Habeas a petition5 for the issuance of a writ of habeas data against
petitioners before the Regional Trial Court (RTC) of Bulacan,
Corpus and Amparo, and review on certiorari under Rule 45 of the docketed as SP. Proc. No. 213-M-2008.
By respondent’s allegation, petitioners’ unlawful act and
Rules of Court are DENIED for being moot and academic. No
omission consisting of their continued failure and refusalto provide
costs. her with details or information about the alleged report which
MERALCO purportedly receivedconcerning threats to her safety
and security amount to a violation of her right to privacy in life,
G.R. No. 184769 October 5, 2010
liberty and security, correctible by habeas data. Respondent thus
MANILA ELECTRIC COMPANY, ALEXANDER S.
prayed for the issuance of a writ commanding petitioners to file a
DEYTO and RUBEN A. SAPITULA, Petitioners,
written return containing the following:
vs.
a) a full disclosure of the data or information about respondent in
ROSARIO GOPEZ LIM, Respondent.
relation to the report purportedly received by petitioners on the
DECISION
alleged threat to her safety and security; the nature of such data
CARPIO MORALES, J.:
and the purpose for its collection;
The Court is once again confronted with an opportunity to define
b) the measures taken by petitioners to ensure the confidentiality
the evolving metes and bounds of the writ of habeas data. May an
of such data or information; and
employee invoke the remedies available under such writ where an
c) the currency and accuracy of such data or information obtained.
employer decides to transfer her workplace on the basis of copies
Additionally, respondent prayed for the issuance of a Temporary
of an anonymous letter posted therein ─ imputing to her disloyalty
Restraining Order (TRO) enjoining petitioners from effecting her
to the company and calling for her to leave, which imputation it
transfer to the MERALCO Alabang Sector.
investigated but fails to inform her of the details thereof?
By Order6 of August 29, 2008, Branch 7 of the Bulacan RTC
Rosario G. Lim (respondent), also known as Cherry Lim, is an
directed petitioners to file their verified written return. And by Order
administrative clerk at the Manila Electric Company (MERALCO).
of September 5, 2008, the trial court granted respondent’s
On June 4, 2008, an anonymous letter was posted at the door of
application for a TRO.
the Metering Office of the Administration building of MERALCO
Petitioners moved for the dismissal of the petition and recall of the
Plaridel, Bulacan Sector, at which respondent is assigned,
TRO on the grounds that, inter alia, resort to a petition for writ of
denouncing respondent. The letter reads:
habeas data was not in order; and the RTC lacked jurisdiction over
Cherry Lim:
the case which properly belongs to the National Labor Relations
MATAPOS MONG LAMUNIN LAHAT NG BIYAYA NG MERALCO,
Commission (NLRC).7
NGAYON NAMAN AY GUSTO MONG PALAMON ANG BUONG
By Decision8 of September 22, 2008, the trial court granted the
KUMPANYA SA MGA BUWAYA NG GOBYERNO. KAPAL NG
prayers of respondent including the issuance of a writ of
MUKHA MO, LUMAYAS KA RITO, WALANG UTANG NA
preliminary injunction directing petitioners to desist from
LOOB….1
implementing respondent’s transfer until such time that petitioners
Copies of the letter were also inserted in the lockers of MERALCO
comply with the disclosures required.
linesmen. Informed about it, respondent reported the matter on
The trial court justified its ruling by declaring that, inter alia,
June 5, 2008 to the Plaridel Station of the Philippine National
recourse to a writ of habeas data should extend not only to victims
Police.2
of extra-legal killings and political activists but also to ordinary
By Memorandum3 dated July 4, 2008, petitioner Alexander Deyto,
citizens, like respondent whose rights to life and security are
Head of MERALCO’s Human Resource Staffing, directed the
jeopardized by petitioners’ refusal to provide her with information
transfer of respondent to MERALCO’s Alabang Sector in
or data on the reported threats to her person.
Muntinlupa as "A/F OTMS Clerk," effective July 18, 2008 in light of
Hence, the present petition for review under Rule 45 of 1997 Rules
the receipt of "… reports that there were accusations and threats
of Civil Procedure and the Rule on the Writ of Habeas
directed against [her] from unknown individuals and which could
Data9 contending that 1) the RTC lacked jurisdiction over the case
possibly compromise [her] safety and security."
and cannot restrain MERALCO’s prerogative as employer to
Respondent, by letter of July 10, 2008 addressed to petitioner
transfer the place of work of its employees, and 2) the issuance of
Ruben A. Sapitula, Vice-President and Head of MERALCO’s
the writ is outside the parameters expressly set forth in the Rule on
Human Resource Administration, appealed her transfer and
the Writ of Habeas Data.101avvphi1
requested for a dialogue so she could voice her concerns and
Maintaining that the RTC has no jurisdiction over what they
misgivings on the matter, claiming that the "punitive" nature of the
contend is clearly a labor dispute, petitioners argue that "although
transfer amounted to a denial of due process. Citing the grueling
ingeniously crafted as a petition for habeas data, respondent is
travel from her residence in Pampanga to Alabang and back
essentially questioning the transfer of her place of work by her
entails, and violation of the provisions on job security of their
employer"11 and the terms and conditions of her
Collective Bargaining Agreement (CBA), respondent expressed
employment which arise from an employer-employee relationship
her thoughts on the alleged threats to her security in this wise:
over which the NLRC and the Labor Arbiters under Article 217 of
xxxx
the Labor Code have jurisdiction.
I feel that it would have been better . . . if you could have intimated
Petitioners thus maintain that the RTC had no authority to restrain
to me the nature of the alleged accusations and threats so that at
the implementation of the Memorandum transferring respondent’s
least I could have found out if these are credible or even serious.
place of work which is purely a management prerogative, and that
But as you stated, these came from unknown individuals and the
way they were handled, it appears that the veracity of these
OCA-Circular No. 79-200312 expressly prohibits the issuance of RODOLFO NOEL LOZADA, G.R. Nos. 184379-80
TROs or injunctive writs in labor-related cases. JR., VIOLETA LOZADA and
Petitioners go on to point out that the Rule on the Writ of Habeas
ARTURO LOZADA, Present:
Data directs the issuance of the writ only against public officials or
employees, or private individuals or entities engaged in the Petitioners,
CORONA, C.J.,
gathering, collecting or storing of data or information regarding an CARPIO,
aggrieved party’s person, family or home; and that MERALCO (or VELASCO, JR.,
its officers) is clearly not engaged in such activities. LEONARDO-DE CASTRO,
The petition is impressed with merit. BRION,
Respondent’s plea that she be spared from complying with PERALTA,
MERALCO’s Memorandum directing her reassignment to the BERSAMIN,
DEL CASTILLO,
Alabang Sector, under the guise of a quest for information or data
- versus - ABAD,
allegedly in possession of petitioners, does not fall within the VILLARAMA, JR.,
province of a writ of habeas data. PEREZ,
Section 1 of the Rule on the Writ of Habeas Data provides: MENDOZA,
Section 1. Habeas Data. – The writ of habeas data is a remedy SERENO,
available to any person whose right to privacy in life, liberty or REYES, and
security is violated or threatened by an unlawful act or PERLAS-BERNABE, JJ.
omission of a public official or employee or of a private individual PRESIDENT GLORIA
or entity engaged in the gathering, collecting or storing of data Promulgated:
MACAPAGAL ARROYO,
or information regarding the person, family, home and
EDUARDO ERMITA,
correspondence of the aggrieved party. (emphasis and April 24, 2012
underscoring supplied) AVELINO RAZON, ANGEL
The habeas data rule, in general, is designed to protect by means ATUTUBO and SPO4
*
of judicial complaint the image, privacy, honor, information, and ROGER VALEROSO,
freedom of information of an individual. It is meant to provide a Respondents.
forum to enforce one’s right to the truth and to informational x-----------------------------------------------
privacy, thus safeguarding the constitutional guarantees of a - - - -x
person’s right to life, liberty and security against abuse in this age
of information technology.
It bears reiteration that like the writ of amparo, habeas data was DECISION
conceived as a response, given the lack of effective and available
remedies, to address the extraordinary rise in the number of
killings and enforced disappearances. Its intent is to address SERENO, J.:
violations of or threats to the rights to life, liberty or security as a
remedy independently from those provided under prevailing
Rules.13
What the Court decides today has nothing to do with the
Castillo v. Cruz14 underscores the emphasis laid down in Tapuz v.
del Rosario15 that the writs of amparo and habeas data will NOT substance or merits surrounding the aborted deal of the Philippine
issue to protect purely property or commercial concerns nor when government with the National Broadband Network and ZTE
the grounds invoked in support of the petitions therefor are vague
or doubtful.16 Employment constitutes a property right under the Corporation, or any allegation of petitioner Rodolfo Noel June
context of the due process clause of the Constitution.17 It is evident Lozada, Jr., (Lozada) regarding the same. There is only one issue
that respondent’s reservations on the real reasons for her transfer
- a legitimate concern respecting the terms and conditions of one’s that we decide today whether circumstances are adequately
employment - are what prompted her to adopt the extraordinary alleged and proven by petitioner Lozada to entitle him to the
remedy of habeas data. Jurisdiction over such concerns is
inarguably lodged by law with the NLRC and the Labor Arbiters. protection of the writ of amparo. Before us is a Petition for Review
In another vein, there is no showing from the facts presented that on Certiorari of the Decision dated 12 September 2008 of the
petitioners committed any unjustifiable or unlawful violation of
Court of Appeals (CA), dismissing the Petition for the Issuance of a
respondent’s right to privacy vis-a-vis the right to life, liberty or
security. To argue that petitioners’ refusal to disclose the contents Writ of Amparo.[1]
of reports allegedly received on the threats to respondent’s safety
amounts to a violation of her right to privacy is at best speculative.
Respondent in fact trivializes these threats and accusations from
unknown individuals in her earlier-quoted portion of her July 10, Petitioner Lozada was the former President and Chief
2008 letter as "highly suspicious, doubtful or are just mere jokes if Executive Officer of the Philippine Forest Corporation (PFC), a
they existed at all."18 And she even suspects that her transfer to
government-owned- and -controlled corporation under the
another place of work "betray[s] the real intent of management]"
and could be a "punitive move." Her posture unwittingly concedes Department of Environment and Natural Resources
that the issue is labor-related.
(DENR).[2]Petitioner Violeta Lozada (Violeta) is his wife, while
WHEREFORE, the petition is GRANTED. The assailed September
22, 2008 Decision of the Bulacan RTC, Branch 7 in SP. Proc. No. petitioner Arturo Lozada (Arturo) is his brother.
213-M-2008 is hereby REVERSED and SET ASIDE. SP. Proc. No.
213-M-2008 is, accordingly, DISMISSED.
No costs.
SO ORDERED. At the time the Petition for the Writ of Amparo was filed,
respondent former President Gloria Macapagal Arroyo (former
President Arroyo) was the incumbent President of the Philippines.
Meanwhile, Eduardo Ermita (ES Ermita) was then the Executive
Secretary; Avelino Razon (Razon), the Director General of the
Philippine National Police (PNP); Angel Atutubo (Atutubo), the
Assistant General Manager for Security and Emergency Services of
the Manila International Airport Authority; and Rodolfo Valeroso
(Valeroso), an agent of the Aviation Security Group (ASG) of the
PNP.
Antecedent Facts
The instant Petition stems from the alleged corruption
scandal precipitated by a transaction between the Philippine
government, represented by the National Broadband Network
(NBN), and ZTE Corporation (ZTE), a Chinese manufacturer of
telecommunications equipment.[3] Former National
Development Authority (NEDA) Secretary Romulo Neri (Sec. Neri)
sought the services of Lozada as an unofficial consultant in the
ZTE-NBN deal.[4] The latter avers that during the course of his
engagement, he discovered several anomalies in the said
transaction involving certain public officials. [5] These events
impelled the Senate of the Philippines Blue Ribbon Committee
(Blue Ribbon Committee) to conduct an investigation thereon,
which it issued a subpoena directing Lozada to appear and testify
[7]
on 30 January 2008.
the departure area of the airport and into a car waiting for
them.[15]They made him sit alone at the back of the vehicle, while a
man, whom he later discovered to be respondent Valeroso, took
the passenger seat and was always in contact with other
individuals.[16] Lozada observed that other cars tailed their
vehicle.[17]
Sec. Atienza then phoned Lozada, assuring the
latter that he was with people from the government, and that the
former was going to confer with ES and Ma[a]m. Lozada surmised
Economic
that these individuals referred to ES Ermita and former President
Arroyo, respectively.[18] Sec. Atienza also purportedly instructed
Lozada to pacify his wife, petitioner Violeta, who was making
public statements asking for her husbands return.[19]
The vehicle traversed the South Luzon Expressway and
[6]
for drove towards the direction of Laguna. [20] Along the way, the men
asked Lozada to draft an antedated letter requesting police
protection.[21]

On that date, instead of appearing before the Blue
Ribbon Committee, Lozada left the country for a purported official
trip to London, as announced by then DENR Secretary Lito
Atienza (Sec. Atienza).[8] In the Petition, Lozada alleged that his
failure to appear at the scheduled hearing was upon the
instructions of then Executive Assistant Undersecretary Manuel
[9]
Gaite (Usec. Gaite). Consequently, the Senate issued an Order
dated 30 January 2008: (a) citing Lozada for contempt; (b)
ordering his arrest and detention; and (c) directing the Senate
Sergeant-at-Arms to implement the Order and make a return
thereon.[10]
While overseas, Lozada asked Sec. Atienza whether the
[11]
former could be allowed to go back to the Philippines.
approval of Sec. Atienza, Lozada informed his family that he was
returning from Hong Kong on 5 February 2008 on board Cathay
Pacific Flight No. 919, bound to arrive in Manila at 4:40 p.m. on the
same day.[12]
In the Petition, Lozada claims that, upon disembarking
from the aircraft, several men held his arms and took his bag.
Although he allegedly insisted on meeting with his family, he later
realized that it was wiser to just follow them, especially when he
overheard from their handheld radio: [H]wag kayong dumaan diyan
sir nandyan ang mga taga senado.[13]
Lozada requested that he be brought home to Pasig, but
the men were allegedly compelled to deny his request on account
of unidentified security risks.[22] Eventually, however, the vehicle
turned around and drove to Libis, Quezon City. The group stopped
at The Outback restaurant to meet with certain individuals, who
turned out to be Atty. Antonio Bautista (Atty. Bautista) and Colonel
Paul Mascarinas (Col. Mascarinas) of the Police Special Protection
Office (PSPO). At the restaurant, Lozada claimed that he was
made to fill in the blanks of a prepared affidavit. [23]
After the meeting, the men informed Lozada that they
were going to billet him in a hotel for a night, but he suggested that
they take him to La Salle Green Hills instead. The men
Upon the acquiesced.[24]
Upon arriving in La Salle Green Hills, Lozada was met by
Violeta and his sister, Carmen Lozada (Carmen). [25] He observed
that the perimeter was guarded by policemen, purportedly
restraining his liberty and threatening not only his security, but also
that of his family and the De La Salle brothers.[26]
On 6 February 2008, at around 10:00 a.m., Col.
Mascarinas supposedly brought Lozada to the office of Atty.
Bautista to finalize and sign an affidavit.[27]

At about 1:00 p.m., Violeta filed before this Court a

Petition for Habeas Corpus, docketed as G.R. No. 181342
Lozada asked if he could go to the comfort room, an
(the Habeas Corpus case).[28] Arturo likewise filed before this Court
opportunity he used to call up his brother, petitioner Arturo, and
a Petition for a Writ of Amparo, docketed as G.R. No. 181356
inform him of his situation.[14] The men thereafter led him through
(theAmparo case), and prayed for the issuance of (a) the writ
of amparo; (b) a Temporary Protection Order (TPO); and (c)
Inspection and Production Orders as regards documents related to
the authority ordering custody over Lozada, as well as any other
document that would show responsibility for his alleged
[29]
abduction.
At around the same time that Arturo filed the Petition for
a Writ of Amparo, Col. Mascarinas drove Lozada back to La Salle
Green Hills.[30] Lozada was then made to sign a typewritten,
antedated letter requesting police protection. [31] Thereafter, former
Presidential Spokesperson Michael Defensor (Sec. Defensor)
supposedly came and requested Lozada to refute reports that the
latter was kidnapped and to deny knowledge of alleged anomalies
in the NBN-ZTE deal. Sec. Defensor then purportedly gave
LozadaP50,000 for the latters expenses.[32]
On 7 February 2008, Lozada decided to hold a press
conference and contact the Senate Sergeant-at-Arms, who served
the warrant of arrest on him.[33] Lozada claimed that after his press
conference and testimony in the Senate, he and his family were
since then harassed, stalked and threatened. [34]
On the same day, this Court issued a Resolution (a)
consolidating the Habeas Corpus case and the Amparo case; (b)
requiring respondents in the Habeas Corpus case to comment on
the Petition; (c) issuing a Writ of Amparo; (d) ordering respondents
in theAmparo case to file their verified Return; (e) referring the
consolidated Petitions to the CA; and (f) directing the CA to set the
cases for hearing on 14 February 2008.[35] Accordingly, the court a
quo set both cases for hearing on 14 February 2008. [36]
During the initial hearing on 14 February 2008, Lozada
and Violeta ratified the Petition in the Amparo case[41] to comply
with Section 2 of the Rule on the Writ of Amparo, [42] which imposes
an order to be followed by those who can sue for the writ. [43]The
CA also dismissed the Habeas Corpus case in open court for
being moot and academic, as Lozada was physically present and
was not confined or detained by any of the
[44]
respondents. Considering that petitioners failed to question the
dismissal of theHabeas Corpus case, the said dismissal had
lapsed into finality, leaving only the Amparo case open for
disposition.
Thereafter, Lozada filed a Motion for Temporary
Protection Order and Production of Documents, [45] while Arturo
filed a Motion for Production of Documents. [46] Additionally, Arturo
also filed a Motion for the Issuance of Subpoena Ad
Testificandumand Presentation of Hostile Witnesses and Adverse
Parties Romulo Neri, Benjamin Abalos, [Sr.], Rodolfo Valeroso,
Jaime the Driver and Other Respondents. Respondents opposed
these motions.[47] The CA denied the Motion for the Issuance
of Subpoenaon the ground that the alleged acts and statements
attributed to Sec. Neri and Benjamin Abalos (Abalos) were
irrelevant to theAmparo case, and that to require them to testify
would only result in a fishing expedition. [48] The CA likewise denied
Arturos subsequent Motion for Reconsideration.[49]
In its Resolution dated 5 March 2008, the CA dropped
former President Arroyo as a respondent on the ground that at the
time the Petition in the Amparo case was filed, she was still the
incumbent President enjoying immunity from suit. [50] Arturo filed a
Motion for Reconsideration,[51] which the CA denied in its
Resolution dated 25 March 2008.[52]

On 12 February 2008, respondents filed before the CA a

On 12 September 2008, the CA rendered its Decision
Manifestation and Motion, praying for the dismissal of the Habeas
denying petitioners the privilege of the Writ of Amparo and
Corpus case.[37] They asserted that Lozada was never illegally
dismissing the Petition.[53] The CA found that petitioners were
deprived of his liberty and was, at that time, no longer in their
unable to prove through substantial evidence that respondents
custody. They likewise averred that, beginning 8 February 2008,
violated, or threatened with violation, the right to life, liberty and
Lozada had already been under the supervision of the Senate and,
security of Lozada.
from then on, had been testifying before it. [38]

Petitioners thus filed the instant Petition, praying for: (a)

In their verified Return, respondents claimed that Sec.
the reversal of the assailed CA Decision; (b) the issuance of the
Atienza had arranged for the provision of a security team to be
TPO; and (c) the accreditation of the Association of Major
assigned to Lozada, who was then fearful for his safety. [39] In
Religious Superiors of the Philippines and the De La Salle
effect, respondents asserted that Lozada had knowledge and
Brothers as the sanctuaries of Lozada and his family. [54] In the
control of the events that took place on 5 February 2008,
alternative, petitioners pray that this Court remand the case to the
voluntarily entrusted himself to their company, and was never
CA for further hearings and reverse the latters Orders: (a) denying
deprived of his liberty. Hence, respondents prayed for the denial of
the Motion to Issue a Subpoena Ad Testificandum and (b)
the interim reliefs and the dismissal of the Petition.[40]
dropping former President Arroyo as a respondent. Petitioners
raise the following issues:
 (1) Whether the Court a [q]uo
erred in ruling to dismiss the petition for a writ Issues
of amparo and deny Petitioners prayer for a
Temporary Protection Order, inter alia, because
there is no substantial evidence to prove that
the right to life, liberty or security of Jun Lozada In ruling on whether the CA committed reversible error in
was violated or threatened with violation. This
issuing its assailed Decision, three issues must be discussed:
rule is not in accord with the rule on the writ of
amparo and Supreme Court jurisprudence on
substantial evidence[.]

(2) Whether the Ponencia I. Whether the CA committed an error in

erred and gravely abused its discretion by dropping former President Arroyo as a
prematurely ruling that the testimony of
witnesses which Petitioners sought to present respondent in the Amparo case.
and who are subject of the Motion for Issuance
of Subpoena ad testificandum were irrelevant
to the Petition for a Writ of Amparo in a way not II. Whether the CA committed an error in
in accord with the Rules of Court and Supreme
Court decisions. denying petitioners Motion for the Issuance of a
Subpoena Ad Testificandum.
(3) Whether the Court a quo
erred in using and considering the affidavits of
respondents in coming up with the questioned III. Whether petitioners should be granted the
decision when these were not offered as
evidence and were not subjected to cross- privilege of the writ of amparo.
examination. This ruling is not in accord with
the Rules of Court and jurisprudence.

(4) Whether the Court a [q]uo

erred in dropping as respondent Pres. Gloria
Arroyo despite her failure to submit a verified
return and personally claim presidential
immunity in a way not in accord with the Rule
on the Writ of Amparo.[55]

The Office of the Solicitor General (OSG) asserts that

petitioners failed to adduce substantial evidence, as the allegations
they propounded in support of their Petition were largely
hearsay.[56] The OSG also maintains that it was proper for the CA
to have dropped former President Arroyo as respondent on
account of her presidential immunity from suit.[57]

Respondent Atutubo also alleges, among others, that: (a)

Lozada voluntarily asked for security and protection; (b) Lozada
willingly submitted himself to the company of the police escorts; (c)
Atutubo merely accompanied him to pass through the contingency
route customarily provided to VIP passengers, public figures,
foreign dignitaries, and the like; and (d) Atutubo only performed his
job to ensure security and maintain order at the airport upon the
arrival of Lozada.[58]

In the face of these assertions by respondents,

petitioners nevertheless insist that while they have sufficiently
established that Lozada was taken against his will and was put
under restraint, respondents have failed to discharge their own
burden to prove that they exercised extraordinary diligence as
public officials.[59] Petitioners also maintain that it was erroneous
for the CA to have denied their motion for subpoena ad
testificandum for being irrelevant, given that the relevancy of
evidence must be examined after it is offered, and not
before.[60] Finally, petitioners contend that the presidential
immunity from suit cannot be invoked in amparoactions.[61]
Discussion
The writ of amparo is an independent and summary
remedy that provides rapid judicial relief to protect the peoples
right to life, liberty and security. [62] Having been originally intended
as a response to the alarming cases of extrajudicial killings and
enforced disappearances in the country, it serves both preventive
and curative roles to address the said human rights violations. It is
preventive in that it breaks the expectation of impunity in the
commission of these offenses, and it is curative in that it facilitates
the subsequent punishment of perpetrators by inevitably leading to
subsequent investigation and action.[63]
As it stands, the writ of amparo is confined only to cases
of extrajudicial killings and enforced disappearances, or to threats
[64]
thereof. Considering that this remedy is aimed at addressing
these serious violations of or threats to the right to life, liberty and
security, it cannot be issued on amorphous and uncertain
[65]
grounds, or in cases where the alleged threat has ceased and
is no longer imminent or continuing.[66] Instead, it must be
granted judiciously so as not to dilute the extraordinary and
remedial character of the writ, thus:
The privilege of the writ of amparo is
envisioned basically to protect and guarantee
the rights to life, liberty, and security of
persons, free from fears and threats that vitiate
the quality of this life. It is an extraordinary writ
conceptualized and adopted in light of and in
response to the prevalence of extra-legal
killings and enforced
disappearances. Accordingly, the remedy
ought to be resorted to and granted
judiciously, lest the ideal sought by
the Amparo Rule be diluted and undermined
by the indiscriminate filing
of amparopetitions for purposes less than
the desire to secure amparo reliefs and
protection and/or on the basis of
unsubstantiated allegations.[67] (Emphasis
supplied.)
Using this perspective as the working framework for
evaluating the assailed CA decision and the evidence adduced by
the parties, this Court denies the Petition.
First
issue:
Presiden
tial
immunit
y from
suit
It is settled in jurisprudence that the President enjoys
immunity from suit during his or her tenure of office or actual
incumbency.[68] Conversely, this presidential privilege of immunity
cannot be invoked by a non-sitting president even for acts
committed during his or her tenure.[69]
In the case at bar, the events that gave rise to the
present action, as well as the filing of the original Petition and the
issuance of the CA Decision, occurred during the incumbency of
former President Arroyo. In that respect, it was proper for the
court a quo to have dropped her as a respondent on account of
her presidential immunity from suit.
It must be underscored, however, that since her tenure of
office has already ended, former President Arroyo can no longer
invoke the privilege of presidential immunity as a defense to evade
judicial determination of her responsibility or accountability for the
alleged violation or threatened violation of the right to life, liberty
and security of Lozada.
Nonetheless, examining the merits of the case still results
in the denial of the Petition on the issue of former President Arroyos
alleged responsibility or accountability. A thorough examination of
the allegations postulated and the evidence adduced by petitioners
reveals their failure to sufficiently establish any unlawful act or
omission on her part that violated, or threatened with violation, the
right to life, liberty and security of Lozada. Except for the bare claims
that: (a) Sec. Atienza mentioned a certain Ma[a]m,[70] whom Lozada
speculated to have referred to her, and (b) Sec. Defensor told
Lozada that the President was hurting from all the media
frenzy,[71] there is nothing in the records that would sufficiently
establish the link of former President Arroyo to the events that
transpired on 5-6 February 2010, as well as to the subsequent
threats that Lozada and his family purportedly received.
Second
issue:
Denial of
the
issuanc
e of a
subpoen
a ad
testifica
ndum
This Court, in Roco v. Contreras,[72] ruled that for a
subpoena to issue, it must first appear that the person or
documents sought to be presented are prima facie relevant to the
issue subject of the controversy, to wit:
A subpoena is a process directed to a
person requiring him to attend and to testify at
the hearing or trial of an action or at any
investigation conducted under the laws of the
Philippines, or for the taking of his deposition.
In this jurisdiction, there are two (2)
kinds of subpoena, to wit: subpoena ad
testificandum and subpoena duces tecum. The
first is used to compel a person to testify, while
the second is used to compel the production of
books, records, things or documents therein
specified. As characterized in H.C. Liebenow
vs. The Philippine Vegetable Oil Company:
 The
subpoena duces tecum is, the CA did not commit any reversible error in denying the Motion
in all respects, like the for the Issuance of Subpoena Ad Testificandum.
ordinary subpoena ad
testificandum with the
exception that it concludes
with an injunction that the Third
witness shall bring with him issue:
and produce at the Grant of
examination the books, the
documents, or things privilege
described in the subpoena. of the
writ
Well-settled is the rule that before a of ampar
subpoena duces tecum may issue, the court o
must first be satisfied that the following
requisites are present: (1) the books,
documents or other things requested A. Alle
must appear prima facie relevant to the ged
issue subject of the controversy (test of viol
relevancy); and (2) such books must be atio
reasonably described by the parties to be n of
readily identified (test of or
definiteness).[73](Emphasis supplied.) thre
at to
the
righ
t to
In the present case, the CA correctly denied petitioners
life,
Motion for the Issuance of Subpoena Ad Testificandum on the liber
ty
ground that the testimonies of the witnesses sought to be and
sec
presented during trial were prima facie irrelevant to the issues of
urit
the case. The court a quo aptly ruled in this manner: y of
Loz
ada
The alleged acts and statements
attributed by the petitioner to Neri and Abalos
are not relevant to the instant Amparo Petition
where the issue involved is whether or not Sections 17 and 18 of the Rule on the Writ
Lozadas right to life, liberty and security was
threatened or continues to be threatened with of Amparo requires the parties to establish their claims by
violation by the unlawful act/s of the
substantial evidence,[75] or such relevant evidence as a reasonable
respondents. Evidence, to be relevant, must
have such a relation to the fact in issue as to mind might accept as adequate to support a conclusion.[76] The
induce belief in its existence or nonexistence.
Further, Neri, Abalos and a certain driver Jaime use of this evidentiary threshold reveals the clear intent of the
are not respondents in this Amparo Petition and
framers of the Rule on the Writ of Amparo to have the equivalent
the vague allegations averred in the Motion
with respect to them do not pass the test of of an administrative proceeding, albeit judicially conducted, in
relevancy. To Our mind, petitioner appears to
be embarking on a fishing expedition. Petitioner addressing amparo situations.[77]
should present the aggrieved party [Lozada],
who has been regularly attending the hearings,
to prove the allegations in the Amparo Petition,
instead of dragging the names of other people
into the picture. We have repeatedly In cases where the violation of the right to life, liberty or
reminded the parties, in the course of the security has already ceased, it is necessary for the petitioner in
proceedings, that the
instant Amparo Petition does not involve anamparo action to prove the existence of a continuing
the investigation of the ZTE-[NBN] contract. [78]
Petitioner should focus on the fact in issue and threat. Thus, this Court held in its Resolution in Razon v.
not embroil this Court into said ZTE-NBN Tagitis: [79]
contract, which is now being investigated by the
Senate Blue Ribbon Committee and the Office
of the Ombudsman.[74] (Emphasis supplied.)
Manalo is different from Tagitis in
terms of their factual settings, as enforced
disappearance was no longer a problem in
All the references of petitioners to either Sec. Neri or that case. The enforced disappearance of
the brothers Raymond and Reynaldo
Abalos were solely with respect to the ZTE-NBN deal, and not to Manalo effectively ended when they
escaped from captivity and surfaced, while
the events that transpired on 5-6 February 2008, or to the ensuing Tagitis is still nowhere to be found and remains
threats that petitioners purportedly received. Although the present missing more than two years after his reported
disappearance. An Amparo situation
action is rooted from the involvement of Lozada in the said subsisted in Manalo, however, because of
the continuing threat to the brothers right to
government transaction, the testimonies of Sec. Neri or Abalos are security; the brothers claimed that since the
nevertheless not prima facie relevant to the main issue of whether persons responsible for their enforced
disappearance were still at large and had not
there was an unlawful act or omission on the part of respondents been held accountable, the former were still
under the threat of being once again abducted,
that violated the right to life, liberty and security of Lozada. Thus, kept captive or even killed, which threat
constituted a direct violation of their right to
security of person.[80] (Emphasis supplied.)
 In the present case, the totality of the evidence adduced
by petitioners failed to meet the threshold of substantial evidence.
Sifting through all the evidence and allegations presented, the crux
of the case boils down to assessing the veracity and credibility of
the parties diverging claims as to what actually transpired on 5-6
February 2008. In this regard, this Court is in agreement with the
factual findings of the CA to the extent that Lozada was not
illegally deprived of his liberty from the point when he disembarked
from the aircraft up to the time he was led to the departure area of
the airport,[81] as he voluntarily submitted himself to the custody of
respondents:
[Lozada] was one of the first few
passengers to get off the plane because he
was instructed by Secretary Atienza, th[r]ough
a phone call on the night of 04 February 2008,
while he was still in Hong Kong, to proceed
directly to the Bureau of Immigration so that
few people would notice him and he could
be facilitated in going out of the
airport without any hassle from the people of
the Senate Sergeant-at-Arms. Again, [Lozada]
stated that he wanted to get away from the
Senate people. [Lozada] even went to the
mens room of the airport, after he was allegedly
grabbed, where he made a call to his brother
Arturo, using his Globe phone, and he was not
prevented from making said call, and was
simply advised by the person who met him at
the tube to (sic) sir, bilisan mo na. When they
proceeded out of the tube and while walking,
[Lozada] heard from the radio track down, wag
kayo dyan, sir, nandyan yong mga taga
Senado, so they took a detour and went up to
the departure area, did not go out of the normal
arrival area, and proceeded towards the
elevator near the Duty Free Shop and then
down towards the tarmac. Since [Lozada] was
avoiding the people from the Office of the
Senate Sergeant-at-Arms, said detour
appears to explain why they did not get out
at the arrival area, where [Lozada] could have
passed through immigration so that his
passport could be properly stamped.
This Court does not find any
evidence on record that [Lozada] struggled
or made an outcry for help when he was
allegedly grabbed or abducted at the airport.
[Lozada] even testified that nobody held
him, and they were not hostile to him nor
shouted at him. With noon day clarity, this
Court finds that the reason why [Lozada] was
fetched at the airport was to help him avoid the
Senate contingent, who would arrest and detain
him at the Office of the Senate Sergeant-at-
Arms, until such time that he would appear and
give his testimony, pursuant to the Order of the
Senate on the NBN-ZTE Project. [Lozada]
clearly knew this because at that time, it
was still his decision not to testify before
the Senate. He agreed with that
plan.[82] (Emphases supplied.)
The foregoing statements show that Lozada personally
sought the help of Sec. Atienza to avoid the Senate personnel, and
thus knew that the men who met him at the airport were there to
aid him in such objective. Surely, the actions of Lozada evinced
knowledge and voluntariness, uncharacteristic of someone who
claims to have been forcibly abducted.
However, these mens subsequent acts of directing
Lozada to board the vehicle and driving him around, without
disclosing the exact purpose thereof, appear to be beyond what he
had consented to and requested from Sec. Atienza. These men
neither informed him of where he was being transported nor
provided him complete liberty to contact his family members to
assure them of his safety. These acts demonstrated that he lacked
absolute control over the situation, as well as an effective capacity
to challenge their instructions.
Nevertheless, it must be emphasized that if Lozada had
in fact been illegally restrained, so much so that his right to liberty
and security had been violated, the acts that manifested this
restraint had already ceased and has consequently rendered the
grant of the privilege of the writ of amparo moot. Whether or not
Lozada was deprived of his liberty from the point when he was led
inside the vehicle waiting for him at the airport up to the time he
was taken to La Salle Green Hills, petitioners assertions that
Lozada and his family continue to suffer various threats from
respondents remain unproven. The CA correctly found as follows:
The supposed announcement of
General Razon over the radio that [Lozada]
was in the custody of the PNP can neither be
construed as a threat to [Lozadas] life, liberty
and security. Certainly, no person in his right
mind would make that kind of media
announcement if his intent was indeed to
threaten somebodys life, liberty and
security.
xxx xxx xxx
He claims that he is threatened by the
alleged presence of armed men riding in
motorcycle passing outside the De La Salle
premises where he and his family are staying
and by alleged threats of armed men around
him at places where he went to. Again, these
alleged threats were not proven by any
evidence at all, as having originated from
any of the respondents.
[Lozada] also considers
the installation of the surveillance camera at
the De La Salle and at St. Scholastica as
indirect threat to his right to life, liberty and
security. He claims that these are spy cameras.
However, save for [Lozadas] self-serving claim,
he simplyfailed to prove that they were
installed or ordered installed by the
respondents for the purpose of threatening his
right to life, liberty and security.
[Lozada] further maintains that there
is an alleged trend, i.e., wherever he goes,
there is a bomb threat. There were bomb
threats in the places where he went to like in
[the Polytechnic University of the Philippines],
Dagupan, Cebu and Bohol. However, [Lozada]
himself testified that he did not try to ascertain
where the bomb threats emanated. Plainly,
there is no evidence on record that the bomb
threats were made by the respondents or
done upon their instigation.
Moreover, [Lozada] views the
pronouncement of the Secretary of Justice that
he was put on the watch list of the Bureau of
Immigration as a threat to his life, liberty and
security. This alleged threat is again
 unsupported by evidence, as in fact, [Lozada]
testified that he did not ascertain from the As previously discussed, there is no basis to grant
Bureau of Immigration whether his name Lozada the privilege of the writ of amparo, considering that the
was actually in the official watch list of the
Bureau. At any rate, the Secretary of Justice is illegal restraint alleged in this case had already ceased and there
not one of the respondents in
the amparo petition, and there is no showing in is no imminent or continuing restriction on his liberty. In Castillo v.
the record that it was the respondents who
Cruz,[86] this Court held as follows:
ordered the same for the purpose of
threatening him.

[Lozada] harps on the filing of Although respondents release from

alleged frivolous cases against him and his
family as threat to his life, liberty and security.
xxx However, [Lozada] himself testified that
he does not know whether the respondents
or any of the respondents ordered the filing
of these cases against him. In any event,
said purported cases are to be determined
based on their own merits and are clearly
beyond the realm of the
instant amparo petition filed against the
respondents.[83] (Emphasis supplied.)
confinement does not necessarily hinder
supplication for the writ of amparo, absent any
evidence or even an allegation in the
petition that there is undue and continuing
restraint on their liberty, and/or that there
exists threat or intimidation that destroys the
efficacy of their right to be secure in their
persons, the issuance of the writ cannot be
justified. (Emphasis supplied.)

Further, it appears that Lozada had already filed before

the Department of Justice (DOJ) a Complaint charging
Finally, petitioners insist that while they were able to
respondents with kidnapping and attempted murder, docketed as
sufficiently establish their case by the required evidentiary
I.S. No. 2008-467.[87] In this regard, this Courts ruling in Rubrico v.
standard, respondents failed to discharge their burden to prove
Arroyo[88] is worth considering:
their defenses by substantial evidence and to show that
respondents exercised extraordinary diligence as required by the First, a criminal complaint for
kidnapping and, alternatively, for arbitrary
Rule on the Writ of Amparo.[84] This Court has squarely passed detention rooted in the same acts and
incidents leading to the filing of the
upon this contention inYano v. Sanchez,[85] to wit:
subject amparo petition has been instituted
with the OMB, docketed as OMB-P-C-O7-
0602-E. The usual initial steps to determine the
The failure to establish that the public existence of a prima facie case against the five
official observed extraordinary diligence in the (5) impleaded individuals suspected to be
performance of duty does not result in the actually involved in the detention of Lourdes
automatic grant of the privilege of have been set in motion. It must be pointed out,
the amparo writ. It does not relieve the though, that the filing of the OMB complaint
petitioner from establishing his or her claim by came before the effectivity of the Amparo Rule
substantial evidence. on October 24, 2007.

Second, Sec. 22 of the Amparo Rule

proscribes the filing of an amparo petition
should a criminal action have, in the
Thus, in amparo actions, petitioners must establish their
meanwhile, been commenced. The succeeding
claims by substantial evidence, and they cannot merely rely on the Sec. 23, on the other hand, provides that when
the criminal suit is filed subsequent to a petition
supposed failure of respondents to prove either their defenses or foramparo, the petition shall be consolidated
with the criminal action where the Amparo Rule
their exercise of extraordinary diligence. In this case, the totality of
shall nonetheless govern the disposition of the
the evidence presented by petitioners fails to meet the requisite relief under the Rule. Under the terms of said
Sec. 22, the present petition ought to have
evidentiary threshold, and the privilege of the writ of amparo has been dismissed at the outset. But as things
stand, the outright dismissal of the petition by
already been rendered moot and academic by the cessation of the force of that section is no longer technically
restraint to Lozadas liberty. feasible in light of the interplay of the following
factual mix: (1) the Court has, pursuant to Sec.
6 of the Rule, already issued ex parte the writ
of amparo; (2) the CA, after a summary
B. Prop hearing, has dismissed the petition, but not on
riety the basis of Sec. 22; and (3) the complaint in
of OMB-P-C-O7-0602-E named as respondents
the only those believed to be the actual abductors
privi of Lourdes, while the instant petition impleaded,
lege in addition, those tasked to investigate the
of kidnapping and detention incidents and their
the superiors at the top. Yet, the acts and/or
writ omissions subject of the criminal complaint and
of a theamparo petition are so linked as to call for
mpa the consolidation of both proceedings to
ro a obviate the mischief inherent in a multiplicity-of-
nd suits situation.
its
inte
Given the above perspective and to
rim
fully apply the beneficial nature of the writ
relie
of amparo as an inexpensive and effective tool
fs
to protect certain rights violated or threatened
to be violated, the Court hereby adjusts to a
degree the literal application of Secs. 22 and 23
of the Amparo Rule to fittingly address the
 situation obtaining under the
premises. Towards this end, two things are at
once indicated: (1) the consolidation of the
probe and fact-finding aspects of the instant
petition with the investigation of the criminal
complaint before the OMB; and (2) the
incorporation in the same criminal complaint of
the allegations in this petition bearing on the
threats to the right to security. Withal, the OMB
should be furnished copies of the investigation
reports to aid that body in its own investigation
and eventual resolution of OMB-P-C-O7-0602-
E. Then, too, the OMB shall be given easy
access to all pertinent documents and
evidence, if any, adduced before the CA.
Necessarily, Lourdes, as complainant in OMB-
P-C-O7-0602-E, should be allowed, if so
minded, to amend her basic criminal complaint
if the consolidation of cases is to be fully
effective. (Emphasis supplied.)
Thus, if the Complaint filed before the DOJ had already
progressed into a criminal case, then the latter action can more
adequately dispose of the allegations made by petitioners. After
all, one of the ultimate objectives of the writ of amparo as a
curative remedy is to facilitate the subsequent punishment of
[89]
perpetrators. On the other hand, if there is no actual criminal
case lodged before the courts, then the denial of the Petition is
without prejudice to the filing of the appropriate administrative, civil
or criminal case, if applicable, against those individuals whom
Lozada deems to have unduly restrained his liberty.
Finally, with respect to the interim reliefs sought by
[90]
petitioners, this Court, in Yano v. Sanchez, declined to grant the
prayer for the issuance of a TPO, as well as Inspection and
Production Orders, upon a finding that the implicated public
officials were not accountable for the disappearance subject of that
case. Analogously, it would be incongruous to grant herein
petitioners prayer for a TPO and Inspection and Production Orders
and at the same time rule that there no longer exists any imminent
or continuing threat to Lozadas right to life, liberty and security.
Thus, there is no basis on which a prayer for the issuance of these
interim reliefs can be anchored.
WHEREFORE, the instant petition is DENIED for being
moot and academic. The Court of Appeals denial of the privilege of
the writ of amparo is hereby AFFIRMED.
EDGARDO G.R. No. 184467
NAVIA,[1] RUBEN
DIO,[2] and ANDREW
BUISING,
Petitioners,
Present:
CARPIO,
VELASCO, JR.,
LEONARDO-DE
CASTRO,
BRION,
PERALTA,
- versus - BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA,
SERENO,
REYES, and
VIRGINIA PARDICO, for and PERLAS-BERNABE, JJ.
in
behalf and in
representation of
BENHUR V. PARDICO Promulgated:
Respondent. June 19, 2012
x-----------------------------------------------
---------x
DECISION
DEL CASTILLO, J.:
For the protective writ of amparo to issue in enforced
disappearance cases, allegation and proof that the persons
subject thereof are missing are not enough. It must also be shown
by the required quantum of proof that their disappearance was
carried out by, or with the authorization, support or acquiescence
of, [the government] or a political organization, followed by a
refusal to acknowledge [the same or] give information on the fate
or whereabouts of [said missing] persons.[3]
This petition for review on certiorari[4] filed in relation to Section 19
of A.M. No. 07-9-12-SC[5] challenges the July 24, 2008
Decision[6] of the Regional Trial Court (RTC), Branch 20, Malolos
City which granted the Petition for Writ of Amparo[7] filed by herein
respondent against the petitioners.
Factual Antecedents
On March 31, 2008, at around 8:30 p.m., a vehicle of Asian Land
Strategies Corporation[8] (Asian Land) arrived at the house of Lolita
M. Lapore (Lolita) located at 7A Lot 9, Block 54, Grand Royale
Subdivision, Barangay Lugam, Malolos City. The arrival of the
vehicle awakened Lolitas son, Enrique Lapore (Bong), and Benhur
Pardico (Ben), who were then both staying in her house. When
Lolita went out to investigate, she saw two uniformed guards
disembarking from the vehicle. One of them immediately asked
Lolita where they could find her son Bong. Before Lolita could
answer, the guard saw Bong and told him that he and Ben should
go with them to the security office of AsianLand because a
complaint was lodged against them for theft of electric wires and
lamps in the subdivision.[9]
Shortly thereafter, Bong, Lolita and Ben were in the office of the
security department of Asian Land also located in Grand Royale
Subdivision.[10] The supervisor of the security guards, petitioner
Edgardo Navia (Navia), also arrived thereat.
As to what transpired next, the parties respective versions diverge.

Version of the Petitioners
Petitioners alleged that they invited Bong and Ben to their office
because they received a report from a certain Mrs. Emphasis, a
resident of Grand Royale Subdivision, that she saw Bong and Ben
removing a lamp from a post in said subdivision.[11] The reported
unauthorized taking of the lamp was relayed thru radio to
petitioners Ruben Dio (Dio) and Andrew Buising (Buising), who
both work as security guards at the Asian Land security
department. Following their departments standard operating
procedure, Dio and Buising entered the report in their logbook and
proceeded to the house of Mrs. Emphasis. It was there where Dio
and Buising were able to confirm who the suspects were. They
thus repaired to the house of Lolita where Bong and Ben were
staying to invite the two suspects to their office. Bong and Ben
voluntarily went with them.
At the security office, Dio and Buising interviewed Bong and
Ben. The suspects admitted that they took the lamp but clarified
that they were only transferring it to a post nearer to the house of
Lolita.[12] Soon, Navia arrived and Buising informed him that the
complainant was not keen in participating in the
investigation. Since there was no complainant, Navia ordered the
release of Bong and Ben. Bong then signed a statement to the
effect that the guards released him without inflicting any harm or
injury to him.[13] His mother Lolita also signed the logbook below an
entry which states that she will never again harbor or entertain Ben
in her house. Thereafter, Lolita and Bong left the security office.
Ben was left behind as Navia was still talking to him about those
who might be involved in the reported loss of electric wires and
lamps within the subdivision. After a brief discussion though, Navia
allowed Ben to leave. Ben also affixed his signature on the
logbook to affirm the statements entered by the guards that he was
released unharmed and without any injury. [14]
Upon Navias instructions, Dio and Buising went back to the house
of Lolita to make her sign the logbook as witness that they indeed
released Ben from their custody. Lolita asked Buising to read
aloud that entry in the logbook where she was being asked to sign,
to which Buising obliged. Not contented, Lolita put on her reading
glasses and read the entry in the logbook herself before affixing
her signature therein. After which, the guards left.
Subsequently, petitioners received an invitation[15] from the
Malolos City Police Station requesting them to appear thereat on
April 17, 2008 relative to the complaint of Virginia Pardico
(Virginia) about her missing husband Ben. In compliance with the
invitation, all three petitioners appeared at the Malolos City Police
Station. However, since Virginia was not present despite having
received the same invitation, the meeting was reset to April 22,
2008.[16]
On April 22, 2008, Virginia attended the investigation. Petitioners
informed her that they released Ben and that they have no
information as to his present whereabouts.[17] They
assured Virginia though that they will cooperate and help in the
investigation of her missing husband.[18]
Version of the Respondent
According to respondent, Bong and Ben were not merely
invited. They were unlawfully arrested, shoved into
the Asian Land vehicle and brought to the security office for
investigation. Upon seeing Ben at the security office, Navia lividly
grumbled Ikaw na naman?[19] and slapped him while he was still
seated. Ben begged for mercy, but his pleas were met with a flurry
of punches coming from Navia hitting him on different parts of his
body.[20] Navia then took hold of his gun, looked at Bong, and
said, Wala kang nakita at wala kang narinig, papatayin ko na si
Ben.[21]
Bong admitted that he and Ben attempted to take the lamp. He
explained that the area where their house is located is very dark
and his father had long been asking the administrator of Grand
Royale Subdivision to install a lamp to illumine their area. But
since nothing happened, he took it upon himself to take a lamp
from one of the posts in the subdivision and transfer it to a post
near their house. However, the lamp Bong got was no longer
working. Thus, he reinstalled it on the post from which he took it
and no longer pursued his plan. [22]
Later on, Lolita was instructed to sign an entry in the guards
logbook where she undertook not to allow Ben to stay in her house
anymore.[23] Thereafter, Navia again asked Lolita to sign the
logbook. Upon Lolitas inquiry as to why she had to sign again,
Navia explained that they needed proof that they released her son
Bong unharmed but that Ben had to stay as the latters case will be
forwarded to the barangay.Since she has poor eyesight, Lolita
obligingly signed the logbook without reading it and then left with
Bong.[24] At that juncture, Ben grabbed Bong and pleaded not to be
left alone. However, since they were afraid of Navia, Lolita and
Bong left the security office at once leaving Ben behind. [25]
Moments after Lolita and Bong reached their house, Buising
arrived and asked Lolita to sign the logbook again. Lolita asked
Buising why she had to sign again when she already twice signed
the logbook at the headquarters. Buising assured her that what
she was about to sign only pertains to Bongs release. Since it was
dark and she has poor eyesight, Lolita took Buisings word and
signed the logbook without, again, reading what was written in
it. [26]
The following morning, Virginia went to the Asian Land security
office to visit her husband Ben, but only to be told that petitioners
had already released him together with Bong the night before. She
then looked for Ben, asked around, and went to
the barangay. Since she could not still find her
husband, Virginia reported the matter to the police.
In the course of the investigation on Bens disappearance, it
dawned upon Lolita that petitioners took advantage of her poor
eyesight and naivete. They made her sign the logbook as a
witness that they already released Ben when in truth and in fact
she never witnessed his actual release. The last time she saw Ben
was when she left him in petitioners custody at the security
office.[27]
Exasperated with the mysterious disappearance of her
husband, Virginia filed a Petition for Writ of Amparo[28] before the
RTC of Malolos City. Finding the petition sufficient in form and
substance, the amparo court issued an Order[29] dated June 26,
2008 directing, among others, the issuance of a writ of amparo and
the production of the body of Ben before it on June 30,
2008. Thus:
WHEREFORE, conformably with Section 6 of the Supreme Court
Resolution [in] A.M. No. 07-[9]-12-SC, also known as The Rule On
The Writ Of Amparo, let a writ of amparo be issued, as follows:
(1) ORDERING [petitioners] Edgardo Navia, Ruben Dio and
Andrew Buising of the Asian Land Security Agency to produce
before the Court the body of aggrieved party Benhur Pardico, on
Monday, June 30, 2008, at 10:30 a.m.;
(2) ORDERING the holding of a summary hearing of the
petition on the aforementioned date and time, and DIRECTING the
[petitioners] to personally appear thereat;
(3) COMMANDING [petitioners] Edgardo Navia, Ruben Dio
and Andrew Buising to file, within a non-extendible period of
seventy-two (72) hours from service of the writ, a verified written
return with supporting affidavits which shall, among other things,
contain the following:
a) The lawful defenses to show that the [petitioners] did not violate
or threaten with violation the right to life, liberty and security of the
aggrieved party, through any act or omission;
b) The steps or actions taken by the [petitioners] to
determine the fate or whereabouts of the aggrieved party and the
person or persons responsible for the threat, act or omission; and
c) All relevant information in the possession of the
[petitioners] pertaining to the threat, act or omission against the
aggrieved party.
(4) GRANTING, motu proprio, a Temporary Protection Order
prohibiting the [petitioners], or any persons acting for and in their
behalf, under pain of contempt, from threatening, harassing or
inflicting any harm to [respondent], his immediate family and any
[member] of his household.
The Branch Sheriff is directed to immediately serve personally on
the [petitioners], at their address indicated in the petition, copies of
the writ as well as this order, together with copies of the petition
and its annexes.[30]
A Writ of Amparo[31] was accordingly issued and served on the
petitioners on June 27, 2008.[32] On June 30, 2008, petitioners filed
their Compliance[33] praying for the denial of the petition for lack of
merit.
A summary hearing was thereafter conducted. Petitioners
presented the testimony of Buising, while Virginia submitted the
sworn statements[34] of Lolita and Enrique which the two affirmed
on the witness stand.
Ruling of the Regional Trial Court
On July 24, 2008, the trial court issued the challenged
Decision[35] granting the petition. It disposed as follows:
WHEREFORE, the Court hereby grants the privilege of the writ of
amparo, and deems it proper and appropriate, as follows:
(a) To hereby direct the National Bureau of Investigation
(NBI) to immediately conduct a deep and thorough investigation of
the [petitioners] Edgardo Navia, Ruben Dio and Andrew Buising in
connection with the circumstances surrounding the disappearance
of [Benhur] Pardico, utilizing in the process, as part of the
investigation, the documents forming part of the records of this
case;
(b) To hereby direct the NBI to extend to the family of
[Benhur] Pardico and the witnesses who testified in this case
protection as it may deem necessary to secure their safety and
security; and
(c) To hereby direct the Office of the Provincial Prosecutor of
Bulacan to investigate the circumstances concerning the legality of
the arrest of [Benhur] Pardico by the [petitioners] in this case,
utilizing in the process, as part of said investigation, the pertinent
documents and admissions forming part of the record of this case,
and take whatever course/s of action as may be warranted.
Furnish immediately copies of this decision to the NBI, through the
Office of Director Nestor Mantaring, and to the Provincial
Prosecutor of Bulacan.
SO ORDERED.[36]
Petitioners filed a Motion for Reconsideration[37] which was denied
by the trial court in an Order[38] dated August 29, 2008.
Hence, this petition raising the following issues for our
consideration:
4.1. WHETHER X X X THE HONORABLE TRIAL COURT
GRAVELY ERRED IN RULING THAT RESPONDENT IS
ENTITLED TO THE PRIVILEGE OF THE WRIT OF AMPARO.
4.1.1. WHETHER X X X RESPONDENT WAS ABLE TO
ESTABLISH THAT PETITIONERS HAVE COMMITTED OR ARE
COMMITTING ACTS IN VIOLATION OF HER HUSBANDS RIGHT
TO LIFE, LIBERTY, OR SECURITY.
4.1.2. WHETHER X X X RESPONDENT SUFFICIENTLY
ESTABLISHED THE FACT OF THE DISAPPEARANCE OF
BENHUR PARDICO.
4.1.3. WHETHER X X X RESPONDENT WAS ABLE TO
ESTABLISH THAT THE ALLEGED DISAPPEARANCE OF
BENHUR PARDICO WAS AT THE INSTANCE OF HEREIN
PETITIONERS.[39]
Petitioners Arguments
Petitioners essentially assail the sufficiency of
the amparo petition. They contend that the writ of amparo is
available only in cases where the factual and legal bases of the
violation or threatened violation of the aggrieved partys right to life,
liberty and security are clear.Petitioners assert that in the case at
bench, Virginia miserably failed to establish all these. First, the
petition is wanting on its face as it failed to state with some degree
of specificity the alleged unlawful act or omission of the petitioners
constituting a violation of or a threat to Bens right to life, liberty and
security. And second, it cannot be deduced from the
evidence Virginia adduced that Ben is missing; or that petitioners
had a hand in his alleged disappearance. On the other hand, the
entries in the logbook which bear the signatures of Ben and Lolita
are eloquent proof that petitioners released Ben on March 31,
2008 at around 10:30 p.m. Petitioners thus posit that the trial court
erred in issuing the writ and in holding them responsible for Bens
disappearance.
Our Ruling
Virginias Petition for Writ of Amparo is fatally defective and must
perforce be dismissed, but not for the reasons adverted to by the
petitioners.
A.M. No. 07-9-12-SC or The Rule on the Writ of Amparo was
promulgated to arrest the rampant extralegal killings and enforced
disappearances in the country. Its purpose is to provide an
expeditious and effective relief to any person whose right to life,
liberty and security is violated or threatened with violation by an
unlawful act or omission of a public official or employee, or of a
private individual or entity. [40]
Here, Bens right to life, liberty and security is firmly settled as the
parties do not dispute his identity as the same person summoned
and questioned at petitioners security office on the night of March
31, 2008. Such uncontroverted fact ipso facto established Bens
inherent and constitutionally enshrined right to life, liberty and
security. Article 6[41] of the International Covenant on Civil and
Political Rights[42]recognizes every human beings inherent right to
life, while Article 9[43] thereof ordains that everyone has the right to
liberty and security. The right to life must be protected by law while
the right to liberty and security cannot be impaired except on
grounds provided by and in accordance with law. This overarching
command against deprivation of life, liberty and security without
due process of law is also embodied in our fundamental law. [44]
The pivotal question now that confronts us is whether Bens
disappearance as alleged in Virginias petition and proved during
the summary proceedings conducted before the court a quo, falls
within the ambit of A.M. No. 07-9-12-SC and relevant laws.
It does not. Section 1 of A.M. No. 07-9-12-SC provides:
SECTION 1. Petition. The petition for a writ of amparo is a remedy
available to any person whose right to life, liberty and security is
violated or threatened with violation by an unlawful act or omission
of a public official or employee, or of a private individual or entity.
The writ shall cover extralegal killings and enforced
disappearances or threats thereof. (Emphasis ours.)
While Section 1 provides A.M. No. 07-9-12-SCs coverage, said
Rules does not, however, define extralegal killings and enforced
disappearances. This omission was intentional as the Committee
on Revision of the Rules of Court which drafted A.M. No. 07-9-12-
SC chose to allow it to evolve through time and jurisprudence and
through substantive laws as may be promulgated by
Congress.[45] Then, the budding jurisprudence
on amparo blossomed in Razon, Jr. v. Tagitis[46] when this Court
defined enforced disappearances. The Court in that case applied
the generally accepted principles of international law and adopted
the International Convention for the Protection of All Persons from
Enforced Disappearances definition of enforced disappearances,
as the arrest, detention, abduction or any other form of deprivation
of libertyby agents of the State or by persons or groups of persons
acting with the authorization, support or acquiescence of the State,
followed by a refusal to acknowledge the deprivation of liberty or
by concealment of the fate or whereabouts of the disappeared
person, which place such a person outside the protection of the
law.[47]
Not long thereafter, another significant development affecting A.M.
No. 07-9-12-SC came about after Congress enacted Republic Act
(RA) No. 9851[48] on December 11, 2009. Section 3(g) thereof
defines enforced or involuntary disappearances as follows:
(g) "Enforced or involuntary disappearance of persons" means the
arrest, detention, or abduction of persons by, or with the
authorization, support or acquiescence of, a State or a political
organization followed by a refusal to acknowledge that deprivation
of freedom or to give information on the fate or whereabouts of
those persons, with the intention of removing from the protection of
the law for a prolonged period of time.
Then came Rubrico v. Macapagal-Arroyo[49] where Justice Arturo
D. Brion wrote in his Separate Opinion that with the enactment of
RA No. 9851, the Rule on the Writ of Amparo is now a procedural
law anchored, not only on the constitutional rights to the rights to
life, liberty and security, but on a concrete statutory definition as
well of what an enforced or involuntary disappearance
is.[50] Therefore, A.M. No. 07-9-12-SCs reference to enforced
disappearances should be construed to mean the enforced or
involuntary disappearance of persons contemplated in Section 3(g)
of RA No. 9851. Meaning, in probing enforced disappearance
cases, courts should read A.M. No. 07-9-12-SC in relation to RA
No. 9851.
From the statutory definition of enforced disappearance, thus, we
can derive the following elements that constitute it:
(a) that there be an arrest, detention, abduction or any form
of deprivation of liberty;
(b) that it be carried out by, or with the authorization, support
or acquiescence of, the State or a political organization;
(c) that it be followed by the State or political organizations
refusal to acknowledge or give information on the fate or
whereabouts of the person subject of the amparo petition; and,
(d) that the intention for such refusal is to remove subject
person from the protection of the law for a prolonged period of
time.
As thus dissected, it is now clear that for the protective writ
of amparo to issue, allegation and proof that the persons subject
thereof are missing are not enough. It must also be shown and
proved by substantial evidence that the disappearance was carried
out by, or with the authorization, support or acquiescence of, the
State or a political organization, followed by a refusal to
acknowledge the same or give information on the fate or
whereabouts of said missing persons, with the intention of
removing them from the protection of the law for a prolonged
period of time. Simply put, the petitioner in an amparo case has
the burden of proving by substantial evidence the indispensable
element of government participation.
In the present case, we do not doubt Bongs testimony that Navia
had a menacing attitude towards Ben and that he slapped and
inflicted fistic blows upon him. Given the circumstances and the
pugnacious character of Navia at that time, his threatening
statement, Wala kang nakita at wala kang narinig, papatayin ko na
si Ben, cannot be taken lightly. It unambiguously showed his
predisposition at that time. In addition, there is nothing on record
which would support petitioners assertion that they released Ben
on the night of March 31, 2008 unscathed from their wrath. Lolita
sufficiently explained how she was prodded into affixing her
signatures in the logbook without reading the entries therein. And
so far, the information petitioners volunteered are sketchy at best,
like the alleged complaint of Mrs. Emphasis who was never
identified or presented in court and whose complaint was never
reduced in writing.

But lest it be overlooked, in an amparo petition, proof of
disappearance alone is not enough. It is likewise essential to
establish that such disappearance was carried out with the direct
or indirect authorization, support or acquiescence of the
government. This indispensable element of State participation is
not present in this case. The petition does not contain any
allegation of State complicity, and none of the evidence presented
tend to show that the government or any of its agents orchestrated
Bens disappearance. In fact, none of its agents, officials, or
employees were impleaded or implicated
in Virginias amparo petition whether as responsible or accountable
persons.[51] Thus, in the absence of an allegation or proof that the
government or its agents had a hand in Bens disappearance or
that they failed to exercise extraordinary diligence in investigating
his case, the Court
will definitely not hold the government or its agents either as respo
nsible or
accountable persons.
We are aware that under Section 1 of A.M. No. 07-9-12-SC a writ
of amparo may lie against a private individual or entity. But even if
the person sought to be held accountable or responsible in
an amparo petition is a private individual or entity, still, government
involvement in the disappearance remains an indispensable
element. Here, petitioners are mere security guards at Grand
Royale Subdivision in Brgy. Lugam,Malolos City and their
principal, the Asian Land, is a private entity. They do not work for
the government and nothing has been presented that would link or
connect them to some covert police, military or governmental
operation. As discussed above, to fall within the ambit of A.M. No.
07-9-12-SC in relation to RA No. 9851, the disappearance must be
attended by some governmental involvement. This hallmark of
State participation differentiates an enforced disappearance case
from an ordinary case of a missing person.
WHEREFORE, the July 24, 2008 Decision of the Regional Trial
Court, Branch 20, Malolos City, is REVERSED and SET
ASIDE. The Petition for Writ of Amparo filed by Virginia Pardico is
hereby DISMISSED.
G.R. No. 183533 September 25, 2012
IN THE MATTER OF THE PETITION FOR THE WRIT OF
AMPARO AND THE WRIT OF HABEAS DATA IN FAVOR OF
FRANCIS SAEZ, Petitioner,
vs.
GLORIA MACAPAGAL ARROYO, GEN. HERMOGENES
ESPERON, P/DIR. GEN. AVELINO RAZON, 22ND MICO, CAPT.
LAWRENCE BANAAG, SGT. CASTILLO, CAPT. ROMMEL
GUTIERREZ, CAPT. JAKE OBLIGADO, CPL. ROMAN ITO
QUINT ANA, PVT. JERICO DUQUIL, CPL. ARIEL FONTANILLA,
A CERTAIN CAPT. ALCA YDO, A CERTAIN FIRST SERGEANT,
PVT. ZALDY OSlO, A CERTAIN PFC. SONNY, A CERTAIN CPL.
JAMES, A CERTAIN JOEL, RODERICK CLANZA and JEFFREY
GOMEZ, Respondents.
For action by the Court is the Motion for Reconsideration1 dated
September 26, 2010 filed by petitioner Francis Saez of our
Resolution2 dated August 31, 2010 denying the Petition for
Review3 he filed on July 21, 2008.
The Office of the Solicitor General (OSG) filed its
Comment4 thereon stating that it does not find cogent grounds to
warrant setting aside our decision.
Antecedent Facts
On March 6, 2008, the petitioner filed with the Court a petition to
be granted the privilege of the writs of amparo and habeas data
with prayers for temporary protection order, inspection of place
and production of documents.5 In the petition, he expressed his
fear of being abducted and killed; hence, he sought that he be
placed in a sanctuary appointed by the Court. He likewise prayed
for the military to cease from further conducting surveillance and
monitoring of his activities and for his name to be excluded from
the order of battle and other government records connecting him to
the Communist Party of the Philippines (CPP).
Without necessarily giving due course to the petition, the Court
issued the writ of amparo commanding the respondents to make a
verified return, and referred the case to the Court of Appeals (CA)
for hearing and decision.The case before the CA was docketed as
CA-G.R. SP No. 00024 WOA.
In the Return of the Writ,6 the respondents denied the assignment
in the units of Captains Lawrence Banaag and Rommel Gutierrez
and Corporal Ariel Fontanilla. The respondents also alleged that
the names and descriptions of "Capt. Alcaydo," "a certain First
Sergeant," "Cpl. James," "Pfc. Sonny," and "Joel" were insufficient
to properly identify some of the persons sought to be included as
among the respondents in the petition.
On the other hand, respondents General Hermogenes Esperon, Jr.
(Gen. Esperon), Capt. Jacob Thaddeus Obligado, Pvt. Rizaldy A.
Osio (Pvt. Osio), Pfc. Romanito C. Quintana, Jr. and Pfc. Jerico
Duquil submitted their affidavits.
The CA conducted hearings with an intent to clarify what actually
transpired and to determine specific acts which threatened the
petitioner’s right to life, liberty or security.
During the hearings, the petitioner narrated that starting April 16,
2007, he noticed that he was always being followed by a certain
"Joel," a former colleague at Bayan Muna. "Joel" pretended
peddling pandesal in the vicinity of the petitioner’s store. Three
days before the petitioner was apprehended, "Joel" approached
and informed him of his marital status and current job as a baker in
Calapan, Mindoro Oriental. "Joel" inquired if the petitioner was still
involved with ANAKPAWIS. When asked by the CA justices during
the hearing if the petitioner had gone home to Calapan after
having filed the petition, he answered in the negative explaining
that he was afraid of Pvt. Osio who was always at the pier.
CA-G.R. SP No. 00024 WOA
On July 9, 2008, the CA rendered its Decision, 7 denying on formal
and substantial grounds the reliefs prayed for in the petition and
dropping former President Gloria Macapagal Arroyo as a
respondent. The CA ratiocinated:
There was no attempt at all to clarify how petitioner came to know
about Zaldy Osio’s presence at their pier if the former had not
gone home since the petition was filed and what Zaldy Osio was
doing there to constitute violation or threat to violate petitioner’s
right to life, liberty or security. This Court cannot just grant the
privilege of the writs without substantial evidence to establish
petitioner’s entitlement thereto. This Court cannot grant the
privilege of the writs applied for on mere speculation or conjecture.
This Court is convinced that the Supreme Court did not intend it to
be so when the rules on the writs of Amparo and Habeas Data
were adopted. It is the impression of this Court that the privilege of
the writs herein prayed for should be considered as extraordinary
remedies available to address the specific situations enumerated
in the rules and no other.
xxxx
Not only did the petition and the supporting affidavit x x x fail to
allege how the supposed threat or violation of petitioner’s [right to]
life, liberty and security is committed. Neither is there any narration
of any circumstances attendant to said supposed violation or threat
to violatepetitioner’s right to life, liberty or security to warrant
entitlement to the privilege of the writs prayed for.
xxxx
A reading of the petition will show that the allegations therein do
not comply with the aforestated requirements of Section 6 Rule on
the Writ of Habeas Data of the pertinent rule. The petition is bereft
of any allegation stating with specific definiteness as to how
petitioner’s right to privacy was violated or threatened to be
violated. He did not include any allegation as to what recourses he
availed of to obtain the alleged documents from respondents.
Neither did petitioner allege what specific documents he prays for
and from whom or [sic] from what particular office of the
government he prays to obtain them. The petition prays "to order
respondents to produce any documents submitted to any of them
in the matter of any report on the case of FRANCIS SAEZ,
including all military intelligence reports."
xxxx
Both the rules on the writs of Amparo and Habeas Data (Section
17, A.M. No. 07-9-12-SC and Section 16, A.M. No. 08-1-16-SC)
provide that the parties shall establish their claims by substantial
evidence. Not only was petitioner unable to establish his
entitlement to the privilege of the writs applied for, the exigency
thereof was negated by his own admission that nothing happened
between him and Joel after July 21, 2007. The filing of the petition
appears to have been precipitated by his fear that something might
happen to him, not because of any apparent violation or visible
threat to violate his right to life, liberty or security. Petitioner was, in
fact, unable to establish likewise who among the respondents
committed specific acts defined under the rules on both writs to
constitute violation or threat to violate petitioner’s rights to life,
liberty or security or his right to privacy thereof.
xxxx
x x x The ruling in David, et al. vs. Gloria Macapagal Arroyo, et al.
(G.R. No. 171396, May 3, 2006, 489 SCRA 160, 224) is aptly
instructive:
"Settled is the doctrine that the President, during his tenure of
office or actual incumbency, may not be sued in any civil or
criminal case, and there is no need to provide for it in the
Constitution or law. It will degrade the dignity of the high office of
the President, the Head of State, if he can be dragged into court
litigations while serving as such. Furthermore, it is important that
he be freed from any form of harassment, hindrance or distraction
to enable him to fully attend to the performance of his official duties
and functions. x x x."
xxxx
IV. The petition lacks proper verification in violation of Section 12,
2004 Rules on Notarial Practice.8
On July 21, 2008, Petition for Review was filed assailing the
foregoing CA decision with the following issues submitted for
resolution:
WHETHER OR NOT THE CA COMMITTED REVERSIBLE
ERROR IN DISMISSING THE PETITION AND DROPPING
GLORIA MACAPAGAL ARROYO AS PARTY RESPONDENT.
WHETHER OR NOT THE NOTARIAL OFFICER’S OMISSION OF
REQUIRING FROM THE PETITIONER IDENTIFICATION CARDS
RELATIVE TO THE LATTER’S EXECUTION OF THE
VERIFICATION AND CERTIFICATION OF NON-FORUM
SHOPPING JUSTIFIES THE DENIAL OF THE PETITION.
WHETHER OR NOT THE CA COMMITTED GROSS ABUSE OF
DISCRETION WHEN IT FAILED TO CONCLUDE FROM THE
EVIDENCE OFFERED BY THE PETITIONER THE FACT THAT
BY BEING PLACED IN THE ORDER OF BATTLE LIST,
THREATS AND VIOLATIONS TO THE LATTER’S LIFE, LIBERTY
AND SECURITY WERE ACTUALLY COMMITTED BY THE
RESPONDENTS.9
Court’s Resolution dated August 31, 2010
10
On August 31, 2010, the Court issued the Resolution denying the
petition for review for the following reasons, viz:
A careful perusal of the subject petition shows that the CA
correctly found that the petition was bereft of any allegation as to
what particular acts or omission of respondents violated or
threatened petitioner’s right to life, liberty and security. His claim
that he was incommunicado lacks credibility as he was given a
cellular phone and allowed to go back to Oriental Mindoro. The CA
also correctly held that petitioner failed to present substantial
evidence that his right to life, liberty and security were violated, or
how his right to privacy was threatened by respondents. He did not
specify the particular documents to be secured, their location or
what particular government office had custody thereof, and who
has possession or control of the same. He merely prayed that the
respondents be ordered "to produce any documents submitted to
any of them in the matter of any report on the case of FRANCIS
SAEZ, including all military intelligence reports."
Petitioner assails the CA in failing to appreciate that in his Affidavit
and Fact Sheet, he had specifically detailed the violation of his
right to privacy as he was placed in the Order of Battle and
promised to have his record cleared if he would cooperate and
become a military asset. However, despite questions propounded
by the CA Associate Justices during the hearing, he still failed to
enlighten the appellate court as to what actually transpired to
enable said court to determine whether his right to life, liberty or
security had actually been violated or threatened. Records bear
out the unsubstantiated claims of petitioner which justified the
appellate court’s dismissal of the petition.
As to petitioner’s argument that the CA erred in deleting the
President as party-respondent, we find the same also to be without
merit. The Court has already made it clear in David v. Macapagal-
Arroyo that the President, during his or her tenure of office or
actual incumbency, may not be sued in any civil or criminal case,
and there is no need to provide for it in the Constitution or law. It
will degrade the dignity of the high office of the President, the
Head of State, if the President can be dragged into court litigations
while serving as such. Furthermore, it is important that the
President be freed from any form of harassment, hindrance or
distraction to enable the President to fully attend to the
performance of official duties and functions. 11 (Citation omitted)
Hence, the petitioner filed the instant motion for reconsideration. 12
Petitioner’s Arguments
Contrary to the CA’s findings, it had been shown by substantial
evidence and even by the respondents’ own admissions that the
petitioner’s life, liberty and security were threatened. Military
personnel, whom the petitioner had named and described, knew
where to get him and they can do so with ease. He also became a
military asset, but under duress, as the respondents had
documents allegedly linking him to the CPP and including him in
the order of battle. The petitioner claims that the foregoing
circumstances were not denied by the respondents.
The petitioner likewise challenges the CA’s finding that he was not
rendered incommunicado as he was even provided with a cellular
phone. The petitioner argues that the phone was only given to him
for the purpose of communicating with the respondents matters
relative to his infiltration activities of target legal organizations.
The petitioner cites Secretary of National Defense v.
Manalo,13 which pronounced that "in the amparo context, it is more
correct to say that the ‘right to security’ is actually the ‘freedom
from threat’".14 According to the petitioner, his freedom from fear
was undoubtedly violated, hence, to him pertains a cause of
action. Anent the quantum of proof required in a petition for the
issuance of the writ of amparo, mere substantial evidence is
sufficient. The petition "is not an action to determine criminal guilt
requiring proof beyond reasonable doubt, or liability for damages
requiring preponderance of evidence, or administrative
responsibility requiring substantial evidence that will require full
and exhaustive proceedings".15
Sadly, in the petitioner’s case, the court not only demanded a
greater quantum of proof than what the rules require, but it also
accorded special preference for the respondents’ evidence.
The petitioner also cites a speech delivered in Siliman University
by former Chief Justice Reynato Puno who expressed that "the
remedy of habeas data can be used by any citizen against any
governmental agency or register to find out what information is
held about his or her person." The person can likewise "request
the rectification or even the destruction of erroneous data gathered
and kept against him or her." In the petitioner’s case, he
specifically sought the production of the order of battle, which
allegedly included his name, and other records which supposedly
contain erroneous data relative to his involvement with the CPP.
OSG’s Comment
In the respondents’ comment16 filed by the OSG, it is generally
claimed that the petitioner advances no cogent grounds to justify
the reversal of the Court’s Resolution dated August 31, 2010.
The Court’s Disquisition
While the issuance of the writs sought by the petitioner cannot be
granted, the Court nevertheless finds ample grounds to modify the
Resolution dated August 31, 2010.
The petition conforms to the
requirements of the Rules on the
Writs of Amparo and Habeas Data
Section 517 of A.M. No. 07-9-12-SC (Rule on the Writ of Amparo)
and Section 618 of A.M. 08-1-16-SC (Rule on the Writ of Habeas
Data) provide for what the said petitions should contain.
In the present case, the Court notes that the petition for the
issuance of the privilege of the writs of amparo and habeas data is
sufficient as to its contents. The petitioner made specific
allegations relative to his personal circumstances and those of the
respondents. The petitioner likewise indicated particular acts,
which are allegedly violative of his rights and the participation of
some of the respondents in their commission. As to the pre-
requisite conduct and result of an investigation prior to the filing of
the petition, it was explained that the petitioner expected no relief
from the military, which he perceived as his oppressors, hence, his
request for assistance from a human rights organization, then a
direct resort to the court. Anent the documents sought to be the
subject of the writ of habeas data prayed for, the Court finds the
requirement of specificity to have been satisfied. The documents
subject of the petition include the order of battle, those linking the
petitioner to the CPP and those he signed involuntarily, and
military intelligence reports making references to him. Although the
exact locations and the custodians of the documents were not
identified, this does not render the petition insufficient. Section 6(d)
of the Rule on the Writ of Habeas Data is clear that the
requirement of specificity arises only when the exact locations and
identities of the custodians are known. The Amparo Rule was not
promulgated with the intent to make it a token gesture of concern
for constitutional rights.19 Thus, despite the lack of certain
contents, which the Rules on the Writs of Amparo and Habeas
Data generally require, for as long as their absence under
exceptional circumstances can be reasonably justified, a petition
should not be susceptible to outright dismissal.
From the foregoing, the Court holds that the allegations stated in
the petition for the privilege of the writs of amparo and habeas data
filed conform to the rules. However, they are mere allegations,
which the Court cannot accept "hook, line and sinker", so to speak,
and whether substantial evidence exist to warrant the granting of
the petition is a different matter altogether.
No substantial evidence exists to
prove the petitioner’s claims
The Court has ruled that in view of the recognition of the
evidentiary difficulties attendant to the filing of a petition for the
privilege of the writs of amparo and habeas data, not only direct
evidence, but circumstantial evidence, indicia, and presumptions
may be considered, so long as they lead to conclusions consistent
with the admissible evidence adduced.20
With the foregoing in mind, the Court still finds that the CA did not
commit a reversible error in declaring that no substantial evidence
exist to compel the grant of the reliefs prayed for by the petitioner.
The Court took a second look on the evidence on record and finds
no reason to reconsider the denial of the issuance of the writs
prayed for.
In the hearing before the CA, it was claimed that "Joel" once
inquired from the petitioner if the latter was still involved with
ANAKPAWIS. By itself, such claim cannot establish with certainty
that the petitioner was being monitored. The encounter happened
once and the petitioner, in his pleadings, nowhere stated that
subsequent to the time he was asked about his involvement with
ANAKPAWIS, he still noticed "Joel" conducting surveillance
operations on him. He alleged that he was brought to the camp of
the 204th Infantry Brigade in Naujan, Oriental Mindoro but was
sent home at 5:00 p.m. The petitioner and the respondents have
conflicting claims about what transpired thereafter. The petitioner
insisted that he was brought against his will and was asked to stay
by the respondents in places under the latter’s control. The
respondents, on the other hand, averred that it was the petitioner
who voluntarily offered his service to be a military asset, but was
rejected as the former still doubted his motives and affiliations.
Section 19 of both the Rules on the Writ of Amparo and Habeas
Data is explicit that questions of fact and law can be raised before
the Court in a petition for review on certiorari under Rule 45. As a
rule then, the Court is not bound by the factual findings made by
the appellate court which rendered the judgment in a petition for
the issuance of the writs of amparo and habeas data. Be that as it
may, in the instant case, the Court agrees with the CA that the
petitioner failed to discharge the burden of proof imposed upon
him by the rules to establish his claims. It cannot be
overemphasized that Section 1 of both the Rules on the Writ of
Amparo and Habeas Data expressly include in their coverage even
threatened violations against a person’s right to life, liberty or
security. Further, threat and intimidation that vitiate the free will –
although not involving invasion of bodily integrity – nevertheless
constitute a violation of the right to security in the sense of
"freedom from threat".21
It must be stressed, however, that such "threat" must find rational
basis on the surrounding circumstances of the case. In this case,
the petition was mainly anchored on the alleged threats against his
life, liberty and security by reason of his inclusion in the military’s
order of battle, the surveillance and monitoring activities made on
him, and the intimidation exerted upon him to compel him to be a
military asset. While as stated earlier, mere threats fall within the
mantle of protection of the writs of amparo and habeas data, in the
petitioner’s case, the restraints and threats allegedly made
allegations lack corroborations, are not supported by independent
and credible evidence, and thus stand on nebulous grounds.
The Court is cognizant of the evidentiary difficulties attendant to a
petition for the issuance of the writs. Unlike, however, the unique
nature of cases involving enforced disappearances or extra-judicial
killings that calls for flexibility in considering the gamut of evidence
presented by the parties, this case sets a different scenario and a
significant portion of the petitioner’s testimony could have been
easily corroborated. In his Sinumpaang Salaysay22dated March 5,
2008 and the Fact Sheet dated December 9, 200723 executed
before the Alliance for the Advancement of People’s Rights-
Southern Tagalog (KARAPATAN-ST), the petitioner stated that
when he was invited and interrogated at the military camp in
Naujan, Oriental Mindoro, he brought with him his uncle Norberto
Roxas, Barangay Captain Mario Ilagan and two of his bodyguards,
and Edwardo Estabillo – five witnesses who can attest and easily
corroborate his statement – but curiously, the petitioner did not
present any piece of evidence, whether documentary or
testimonial, to buttress such claim nor did he give any reason for
their non-presentation.This could have made a difference in light of
the denials made by the respondents as regards the petitioner’s
claims.
The existence of an order of battle and inclusion of the petitioner’s
name in it is another allegation by the petitioner that does not find
support on the evidence adduced. The Court notes that such
allegation was categorically denied by respondent Gen. Avelino I.
Razon, Jr. who, in his Affidavit dated March 31, 2008, stated that
he "does not have knowledge about any Armed Forces of the
Philippines (AFP) ‘order of battle’ which allegedly lists the
petitioner as a member of the CPP."24 This was also denied by Pvt.
Osio, who the petitioner identified as the one who told him that he
was included in the order of battle. 25 The 2nd Infantry (Jungle
Fighter) Division of the Philippine Army also conducted an
investigation pursuant to the directive of AFP Chief of Staff Gen.
Esperon,26 and it was shown that the persons identified by the
petitioners who allegedly committed the acts complained of were
not connected or assigned to the 2nd Infantry Division. 27
Moreover, the evidence showed that the petitioner’s mobility was
never curtailed. From the time he was allegedly brought to
Batangas in August of 2007 until the time he sought the assistance
of KARAPATAN-ST, there was no restraint upon the petitioner to
go home, as in fact, he went home to Mindoro on several
instances. And while he may have been wary of Pvt. Osio’s
presence at the pier, there was no claim by the petitioner that he
was threatened or prevented by Pvt. Osio from boarding any
vehicle that may transport him back home. The petitioner also
admitted that he had a mobile phone; hence, he had unhampered
access to communication and can readily seek assistance from
non-governmental organizations and even government agencies.
The respondents also belied the petitioner’s claim that they forced
him to become a military informant and instead, alleged that it was
the petitioner who volunteered to be one. Thus, in his Sinumpaang
Salaysay28 executed on March 25, 2008, Pvt. Osio admitted that
he actually knew the petitioner way back in 1998 when they were
still students. He also stated that when he saw the petitioner again
in 2007, the latter manifested his intention to become a military
informant in exchange for financial and other forms of assistance.
The petitioner also harps on the alleged "monitoring" activities
being conducted by a certain "Joel", e.g., the latter’s alleged act of
following him, pretending to peddle pandesal and asking him about
his personal circumstances. Such allegation by the petitioner,
however, is, at best, a conclusion on his part, a mere impression
that the petitioner had, based on his personal assessment of the
circumstances. The petitioner even admitted in his testimony
before the CA that when he had a conversation with "Joel"
sometime in July 2007, the latter merely asked him whether he
was still connected with ANAKPAWIS, but he was not threatened
"with anything" and no other incident occurred between them since
then.29 There is clearly nothing on record which shows that "Joel"
committed overt acts that will unequivocally lead to the conclusion
arrived at by the petitioner, especially since the alleged acts
committed by "Joel" are susceptible of different interpretations.
Given that the totality of the evidence presented by the petitioner
failed to support his claims, the reliefs prayed for, therefore, cannot
be granted. The liberality accorded to amparo and habeas data
cases does not mean that a claimant is dispensed with the onus of
proving his case. "Indeed, even the liberal standard of substantial
evidence demands some adequate evidence."30
The President cannot be
automatically dropped as a
respondent pursuant to the doctrine
of command responsibility
In Noriel Rodriguez v. Gloria Macapagal Arroyo, et al.,31 the Court
stated:
a. Command responsibility of the President
Having established the applicability of the doctrine of command
responsibility in amparo proceedings, it must now be resolved
whether the president, as commander-in-chief of the military, can
be held responsible or accountable for extrajudicial killings and
enforced disappearances. We rule in the affirmative.
To hold someone liable under the doctrine of command
responsibility, the following elements must obtain:
a. the existence of a superior-subordinate relationship
between the accused as superior and the perpetrator of
the crime as his subordinate;
b. the superior knew or had reason to know that the
crime was about to be or had been committed; and
c. the superior failed to take the necessary and
reasonable measures to prevent the criminal acts or
punish the perpetrators thereof.
The president, being the commander-in-chief of all armed forces,
necessarily possesses control over the military that qualifies him
as a superior within the purview of the command responsibility
doctrine.
On the issue of knowledge, it must be pointed out that although
international tribunals apply a strict standard of knowledge, i.e.,
actual knowledge, such may nonetheless be established through
circumstantial evidence. In the Philippines, a more liberal view is
adopted and superiors may be charged with constructive
knowledge. This view is buttressed by the enactment of Executive
Order No. 226, otherwise known as the Institutionalization of the
Doctrine of ‘Command Responsibility’ in all Government Offices,
particularly at all Levels of Command in the
Philippine National Police and other Law Enforcement Agencies
(E.O. 226). Under E.O. 226, a government official may be held
liable for neglect of duty under the doctrine of command
responsibility if he has knowledge that a crime or offense shall be
committed, is being committed, or has been committed by his
subordinates, or by others within his area of responsibility and,
despite such knowledge, he did not take preventive or corrective
action either before, during, or immediately after its commission.
Knowledge of the commission of irregularities, crimes or offenses
is presumed when (a) the acts are widespread within the
government official’s area of jurisdiction; (b) the acts have been
repeatedly or regularly committed within his area of responsibility;
or (c) members of his immediate staff or office personnel are
involved.
Meanwhile, as to the issue of failure to prevent or punish, it is
important to note that as the commander-in-chief of the armed
forces, the president has the power to effectively command,
control and discipline the military. (Citations omitted)
Pursuant to the doctrine of command responsibility, the President,
as the Commander-in-Chief of the AFP, can be held liable for
affront against the petitioner’s rights to life, liberty and security as
long as substantial evidence exist to show that he or she had
exhibited involvement in or can be imputed with knowledge of the
violations, or had failed to exercise necessary and reasonable
diligence in conducting the necessary investigations required
under the rules.1âwphi1
The Court also stresses that rule that the presidential immunity
from suit exists only in concurrence with the president’s
incumbency.32
Conversely, this presidential privilege of immunity cannot be
invoked by a non-sitting president even for acts committed during
his or her tenure.33 Courts look with disfavor upon the presidential
privilege of immunity, especially when it impedes the search for
truth or impairs the vindication of a right.34
The petitioner, however, is not exempted from the burden of
proving by substantial evidence his allegations against the
President to make the latter liable for either acts or omissions
violative of rights against life, liberty and security. In the instant
case, the petitioner merely included the President’s name as a
party respondent without any attempt at all to show the latter’s
actual involvement in, or knowledge of the alleged violations.
Further, prior to the filing of the petition, there was no request or
demand for any investigation that was brought to the President’s
attention. Thus, while the President cannot be completely dropped
as a respondent in a petition for the privilege of the writs of amparo
and habeas data merely on the basis of the presidential immunity
from suit, the petitioner in this case failed to establish
accountability of the President, as commander-in-chief, under the
doctrine of command responsibility.
Compliance with technical rules of
procedure is ideal but it cannot be
accorded primacy
Among the grounds cited by the CA in denying the petition for the
issuance of the writs of amparo and habeas data was the defective
verification which was attached to the petition. In
Tagitis,35 supporting affidavits required under Section 5(c) of the
Rule on the Writ of Amparo were not submitted together with the
petition and it was ruled that the defect was fully cured when the
petitioner and the witness personally testified to prove the truth of
their allegations in the hearings held before the CA. In the instant
case, the defective verification was not the sole reason for the
CA’s denial of the petition for the issuance of the writs of amparo
and habeas data. Nonetheless, it must be stressed that although
rules of procedure play an important rule in effectively
administering justice, primacy should not be accorded to them
especially in the instant case where there was at least substantial
compliance with the requirements and where petitioner himself
testified in the hearings to attest to the veracity of the claims which
he stated in his petition.
To conclude, compliance with technical rules of procedure is ideal
but it cannot be accorded primacy. In the proceedings before the
CA, the petitioner himself testified to prove the veracity of his
allegations which he stated in the petition. Hence, the defect in the
verification attached to the petition. Hence, the defect in the
verification attached to the petition was deemed cured.
WHEREFORE, premises considered, the petitioner's motion for
reconsideration is DENIED WITH FINALITY.
SO ORDERED.
G.R. No. 204528 February 19, 2013
SECRETARY LEILA M. DE LIMA, DIRECTOR NONNATUS R.
ROJAS and DEPUTY DIRECTOR REYNALDO 0.
ESMERALDA, Petitioners,
vs.
MAGTANGGOL B. GATDULA, Respondent.
RESOLUTION
LEONEN, J.:
Submitted for our resolution is a prayer for the issuance of a
temporary restraining order and/or writ of preliminary injunction to
enjoin "the Regional Trial Court, Branch 26, in Manila from
implementing its Decision x x x in Civil Case No. 12-127405
granting respondent's application for the issuance of inspection
and production orders x x x."1 This is raised through a Petition for
Review on Certiorari under Rule 45 from the "Decision" rendered
by the Regional Trial Court dated 20 March 2012.
From the records, it appears that on 27 February 2012, respondent
Magtanggol B. Gatdula filed a Petition for the Issuance of a Writ of
Amparo in the Regional Trial Court of Manila. 2 This case was
docketed as In the Matter of the Petition for Issuance of Writ of
Amparo of Atty. Magtanggol B. Gatdula, SP No. 12-127405. It was
raffled to the sala of Judge Silvino T. Pampilo, Jr. on the same
day.
The Amparo was directed against petitioners Justice Secretary
Leila M. De Lima, Director Nonnatus R. Rojas and Deputy Director
Reynaldo O. Esmeralda of the National Bureau of Investigation
(DE LIMA, ET AL. for brevity). Gatdula wanted De Lima, et al. "to
cease and desist from framing up Petitioner [Gatdula] for the fake
ambush incident by filing bogus charges of Frustrated Murder
against Petitioner [Gatdula] in relation to the alleged ambush
incident."3
Instead of deciding on whether to issue a Writ of Amparo, the
judge issued summons and ordered De Lima, et al. to file an
Answer.4 He also set the case for hearing on 1 March 2012. The
hearing was held allegedly for determining whether a temporary
protection order may be issued. During that hearing, counsel for
De Lima, et al. manifested that a Return, not an Answer, is
appropriate for Amparo cases.5
In an Order dated 2 March 2012,6 Judge Pampilo insisted that
"[s]ince no writ has been issued, return is not the required pleading
but answer".7 The judge noted that the Rules of Court apply
suppletorily in Amparo cases.8 He opined that the Revised Rules
of Summary Procedure applied and thus required an Answer. 9
Judge Pampilo proceeded to conduct a hearing on the main case
on 7 March 2012.10 Even without a Return nor an Answer, he
ordered the parties to file their respective memoranda within five
(5) working days after that hearing. Since the period to file an
Answer had not yet lapsed by then, the judge also decided that the
memorandum of De Lima, et al. would be filed in lieu of their
Answer.11
On 20 March 2012, the RTC rendered a "Decision" granting the
issuance of the Writ of Amparo. The RTC also granted the interim
reliefs prayed for, namely: temporary protection, production and
inspection orders. The production and inspection orders were in
relation to the evidence and reports involving an on-going
investigation of the attempted assassination of Deputy Director
Esmeralda. It is not clear from the records how these pieces of
evidence may be related to the alleged threat to the life, liberty or
security of the respondent Gatdula.
In an Order dated 8 October 2012, the RTC denied the Motion for
Reconsideration dated 23 March 2012 filed by De Lima, et al.
Petitioners Sec. De Lima, et al. thus came to this Court assailing
the RTC "Decision" dated 20 March 2012 through a Petition for
Review on Certiorari (With Very Urgent Application for the
Issuance of a Temporary Restraining Order/Writ of Preliminary
Injunction) via Rule 45, as enunciated in Section 19 of the Rule on
the Writ of Amparo(A.M. No. 07-9- 12-SC, 25 September 2007),
viz:
SEC. 19. Appeal. – Any party may appeal from the final
judgment or order to the Supreme Court under Rule 45. The
appeal may raise questions of fact or law or both. x x x (Emphasis
supplied).
It is the Court’s view that the "Decision" dated 20 March 2012
granting the writ of Amparo is not the judgment or final order
contemplated under this rule. Hence, a Petition for Review under
Rule 45 may not yet be the proper remedy at this time.
The RTC and the Parties must understand the nature of the
remedy of Amparo to put its procedures in the proper context.
The remedy of the Writ of Amparo is an equitable and
extraordinary remedy to safeguard the right of the people to life,
liberty12 and security13 as enshrined in the 1987 Constitution. 14 The
Rule on the Writ of Amparo was issued as an exercise of the
Supreme Court's power to promulgate rules concerning the
protection and enforcement of constitutional rights.15 It aims to
address concerns such as, among others, extrajudicial killings and
enforced disappearances.16
Due to the delicate and urgent nature of these controversies, the
procedure was devised to afford swift but decisive relief. 17 It is
initiated through a petition18 to be filed in a Regional Trial Court,
Sandiganbayan, the Court of Appeals, or the Supreme
Court.19 The judge or justice then makes an "immediate"
evaluation20 of the facts as alleged in the petition and the affidavits
submitted "with the attendant circumstances detailed". 21 After
evaluation, the judge has the option to issue the
Writ of Amparo22 or immediately dismiss the case. Dismissal is
proper if the petition and the supporting affidavits do not show that
the petitioner's right to life, liberty or security is under threat or the
acts complained of are not unlawful. On the other hand, the
issuance of the writ itself sets in motion presumptive judicial
protection for the petitioner. The court compels the respondents to
appear before a court of law to show whether the grounds for more
permanent protection and interim reliefs are necessary.
The respondents are required to file a Return23 after the issuance
of the writ through the clerk of court. The Return serves as the
responsive pleading to the petition.24 Unlike an Answer, the Return
has other purposes aside from identifying the issues in the case.
Respondents are also required to detail the actions they had taken
to determine the fate or whereabouts of the aggrieved party.
If the respondents are public officials or employees, they are also
required to state the actions they had taken to: (i) verify the identity
of the aggrieved party; (ii) recover and preserve evidence related
to the death or disappearance of the person identified in the
petition; (iii) identify witnesses and obtain statements concerning
the death or disappearance; (iv) determine the cause, manner,
location, and time of death or disappearance as well as any
pattern or practice that may have brought about the death or
disappearance; and (vi) bring the suspected offenders before a
competent court.25 Clearly these matters are important to the judge
so that s/he can calibrate the means and methods that will be
required to further the protections, if any, that will be due to the
petitioner.
There will be a summary hearing26 only after the Return is filed to
determine the merits of the petition and whether interim reliefs are
warranted. If the Return is not filed, the hearing will be done ex
parte.27 After the hearing, the court will render the judgment within
ten (10) days from the time the petition is submitted for decision. 28
If the allegations are proven with substantial evidence, the court
shall grant the privilege of the writ and such reliefs as may be
proper and appropriate.29 The judgment should contain measures
which the judge views as essential for the continued protection of
the petitioner in the Amparo case. These measures must be
detailed enough so that the judge may be able to verify and
monitor the actions taken by the respondents. It is this judgment
that could be subject to appeal to the Supreme Court via Rule
45.30 After the measures have served their purpose, the judgment
will be satisfied. In Amparo cases, this is when the threats to the
petitioner’s life, liberty and security cease to exist as evaluated by
the court that renders the judgment. Parenthetically, the case may
also be terminated through consolidation should a subsequent
case be filed – either criminal or civil.31 Until the full satisfaction of
the judgment, the extraordinary remedy of Amparo allows vigilant
judicial monitoring to ensure the protection of constitutional rights.
The "Decision" dated 20 March 2012 assailed by the
petitioners could not be the judgment or final order that is
appealable under Section 19 of the Rule on the Writ of Amparo.
This is clear from the tenor of the dispositive portion of the
"Decision", to wit:
The Branch Clerk of Court of Court [sic] is hereby DIRECTED to
issue the Writ of Amparo.
Likewise, the Branch Clerk of Court is hereby DIRECTED to effect
the service of the Writ of Amparo in an expeditious manner upon
all concerned, and for this purpose may call upon the assistance of
any military or civilian agency of the government.
This "Decision" pertained to the issuance of the writ under
Section 6 of the Rule on the Writ of Amparo, not
thejudgment under Section 18. The "Decision" is thus an
interlocutory order, as suggested by the fact that temporary
protection, production and inspection orders were given together
with the decision. The temporary protection, production and
inspection orders are interim reliefs that may be granted by the
court upon filing of the petition butbefore final judgment is
rendered.32
The confusion of the parties arose due to the procedural
irregularities in the RTC.
First, the insistence on filing of an Answer was inappropriate. It is
the Return that serves as the responsive pleading for petitions for
the issuance of Writs of Amparo. The requirement to file an
Answer is contrary to the intention of the Court to provide a speedy
remedy to those whose right to life, liberty and security are violated
or are threatened to be violated. In utter disregard of the Rule on
the Writ of Amparo, Judge Pampilo insisted on issuing summons
and requiring an Answer.
Judge Pampilo’s basis for requiring an Answer was mentioned in
his Order dated 2 March 2012:
Under Section 25 of the same rule [on the Writ of Amparo], the
Rules of Court shall apply suppletorily insofar as it is not
inconsistent with the said rule.
Considering the summary nature of the petition, Section 5 of the
Revised Rules of Summary Procedure shall apply.
Section 5. Answer – Within ten (10) days from service of
summons, the defendant shall file his Answer to the complaint and
serve a copy thereof on the plaintiff. x x x
WHEREFORE, based on the foregoing, the respondents are
required to file their Answer ten (days) from receipt of this Order. 33
The 1991 Revised Rules of Summary Procedure is a special rule
that the Court has devised for the following circumstances:
SECTION 1. Scope. – This rule shall govern the summary
procedure in the Metropolitan Trial Courts, the Municipal Trial
Courts in Cities, the Municipal Trial Courts, and the Municipal
Circuit Trial Courts in the following cases falling within their
jurisdiction:
A. Civil Cases:
(1) All cases of forcible entry and unlawful
detainer, x x x.
(2) All other cases, except probate
proceedings, where the total amount of the
plaintiff’s claim does not exceed x x x.
B. Criminal Cases:
(1) Violations of traffic laws, rules and
regulations;
(2) Violations of the rental law;
(3) Violations of municipal or city ordinances;
(4) All other criminal cases where the penalty
prescribed by law for the offense charged is
imprisonment not exceeding six months, or a
fine not exceeding one thousand pesos
(P1,000.00), or both, x x x.
xxxx
It is clear from this rule that this type of summary procedure only
applies to MTC/MTCC/MCTCs. It is mind-boggling how this rule
could possibly apply to proceedings in an RTC. Aside from that,
this Court limited the application of summary procedure to
certain civil and criminal cases. A writ of Amparo is a special
proceeding. It is a remedy by which a party seeks to establish a
status, a right or particular fact.34 It is not a civil nor a criminal
action, hence, the application of the Revised Rule on Summary
Procedure is seriously misplaced.
The second irregularity was the holding of a hearing on the main
case prior to the issuance of the writ and the filing of a Return.
Without a Return, the issues could not have been properly joined.
Worse, is the trial court’s third irregularity: it required a
memorandum in lieu of a responsive pleading (Answer) of De
Lima, et al.
The Return in Amparo cases allows the respondents to frame the
issues subject to a hearing. Hence, it should be done prior to the
hearing, not after. A memorandum, on the other hand, is a
synthesis of the claims of the party litigants and is a final pleading
usually required before the case is submitted for decision. One
cannot substitute for the other since these submissions have
different functions in facilitating the suit.
More importantly, a memorandum is a prohibited pleading under
the Rule on the Writ of Amparo.35
The fourth irregularity was in the "Decision" dated 20 March 2012
itself. In the body of its decision, the RTC stated:
"Accordingly this court GRANTS the privilege of the writ and
the interim reliefs prayed for by the petitioner." (Emphasis
supplied).
This gives the impression that the decision was
the judgment since the phraseology is similar to Section 18 of the
Rule on the Writ of Amparo:
"SEC. 18. Judgment. — The court shall render judgment within ten
(10) days from the time the petition is submitted for decision. If the
allegations in the petition are proven by substantial evidence, the
court shall grant the privilege of the writ and such reliefs as
may be proper and appropriate; otherwise, the privilege shall be
denied." (Emphasis supplied).
The privilege of the Writ of Amparo should be distinguished
from the actual order called the Writ of Amparo. The privilege
includes availment of the entire procedure outlined in A.M. No. 07-
9-12-SC, the Rule on the Writ ofAmparo. After examining the
petition and its attached affidavits, the Return and the evidence
presented in the summary hearing, the judgment should detail the
required acts from the respondents that will mitigate, if not totally
eradicate, the violation of or the threat to the petitioner's life, liberty
or security.
A judgment which simply grants "the privilege of the writ" cannot
be executed.1âwphi1 It is tantamount to a failure of the judge to
intervene and grant judicial succor to the petitioner. Petitions filed
to avail of the privilege of the Writ ofAmparo arise out of very real
and concrete circumstances. Judicial responses cannot be as
tragically symbolic or ritualistic as "granting the privilege of the Writ
of Amparo."
The procedural irregularities in the RTC affected the mode of
appeal that petitioners used in elevating the matter to this Court.
It is the responsibility of counsels for the parties to raise issues
using the proper procedure at the right time. Procedural rules are
meant to assist the parties and courts efficiently deal with the
substantive issues pertaining to a case. When it is the judge
himself who disregards the rules of procedure, delay and
confusion result.
The Petition for Review is not the proper remedy to assail the
interlocutory order denominated as "Decision" dated 20 March
2012. A Petition for Certiorari, on the other hand, is
prohibited.36 Simply dismissing the present petition, however, will
cause grave injustice to the parties involved. It undermines the
salutary purposes for which the Rule on the Writ of Amparo were
promulgated.
In many instances, the Court adopted a policy of liberally
construing its rules in order to promote a just, speedy and
inexpensive disposition of every action and proceeding. 37 The
rules can be suspended on the following grounds: (1) matters of
life, liberty, honor or property, (2) the existence of special or
compelling circumstances, (3) the merits of the case, (4) a cause
not entirely attributable to the fault or negligence of the party
favored by the suspension of the rules, (5) a lack of any showing
that the review sought is merely frivolous and dilatory, and (6) the
other party will not be unjustly prejudiced thereby.38
WHEREFORE, in the interest of justice, as a prophylactic to the
irregularities committed by the trial court judge, and by virtue of its
powers under Article VIII, Section 5 (5) of the Constitution, the
Court RESOLVES to:
(1) NULLIFY all orders that are subject of
this Resolution issued by Judge Silvino T. Pampilo, Jr.
after respondent Gatdula filed the Petition for the
Issuance of a Writ of Amparo;
(2) DIRECT Judge Pampilo to determine within forty-
eight (48) hours from his receipt of
this Resolutionwhether the issuance of the Writ
of Amparo is proper on the basis of the petition and its
attached affidavits.
The Clerk of Court is DIRECTED to cause the personal service of
this Resolution on Judge Silvino T. Pampilo, Jr. of Branch 26 of the
Regional Trial Court of Manila for his proper guidance together
with a WARNING that further deviation or improvisation from the
procedure set in A.M. No. 07-9-12-SC shall be meted with severe
consequences.
SO ORDERED.
G.R. No. 183460 March 12, 2013
Spouses NERIO and SOLEDAD PADOR and REY
PADOR, Petitioners,
vs.
Barangay Captain BERNABE ARCAYAN, Barangay Tanod
CHIEF ROMEO PADOR, Barangay Tanods ALBERTO ALIVIO,
CARMELO REVALES, ROBERTO ALIMORIN, WINELO
ARCAYAN, CHRISTOPHER ALIVIO & BIENVENIDO ARCAYAN,
all of Barangay Tabunan, Cebu City, Respondents.
DECISION
SERENO, J.:
This Petition for Review on Certiorari 1 assails the Resolution2 of
the Regional Trial Court (RTC), Branch 17, Cebu City, in Spec.
Proc. No. 16061-CEB. The RTC Resolution denied the Petition for
a Writ of Amparo filed by petitioner-spouses Nerio and Soledad
Pador and Rey Pador against respondents - Barangay Captain
Bernabe Arcayan, Barangay Tanod Chief Romeo Pador, and
Barangay Tanods Alberto Alivio, Carmela Revales, Roberto
Alimorin, Winelo Arcayan, Christopher Alivio and Bienvenido
Arcayan.
On 22 March 2008, petitioners filed with the RTC a Verified
Petition for the Issuance of a Writ of Amparo. 3
Petitioners alleged that in February 2008, rumors circulated that
petitioner Nerio Pador was a marijuana planter in Barangay
Tabunan, Cebu City.4 On 17 March 2008, respondents Alberto
Alivio, Carmelo Revales and Roberto Alimorin raided their
ampalaya farm to search for marijuana plants, but found
none.5 After the raid, petitioners Nerio and Rey Pador received
invitation letters for a conference from respondent Barangay
Captain Arcayan.6 They referred the invitation letters to their
counsel, who advised them not to attend and, instead, send a
letter-reply to Barangay Captain Arcayan. When the latter received
the letter-reply, he allegedly read its contents, got one copy, and
refused to sign a receipt of the document. 7 Petitioners then
concluded that the conduct of the raid, the sending of the invitation
letters, the refusal of respondent barangay captain to receive their
letter-reply – as well as the possibility of more harassment cases,
false accusations, and possible violence from respondents –
gravely threatened their right to life, liberty and security and
necessitated the issuance of a writ of amparo.8
After examining the contents of the petition and the affidavits
attached to it, the RTC issued the Writ and directed respondents to
make a verified return.9
In compliance with the RTC’s directive, respondents filed their
Verified Return and/or Comment.10 In their counter-statement of
facts, they alleged that on 16 March 2008, respondent Winelo
Arcayan received a report regarding the alleged existence of a
marijuana plantation in a place called Sitio Gining in Barangay
Tabunan.11 He then referred the matter to Barangay Tanod Chief
Romeo Pador and Barangay Captain Arcayan, who commenced to
organize a patrol.12
On the morning of 17 March 2008, while the barangay tanods were
having a final briefing, Carmelo Revales left the place to take his
breakfast.13 While he was taking his breakfast, Nerio Pador, who
was riding a motorcycle, stopped and accused the former of
uprooting the marijuana plants.14 Carmelo denied any knowledge
about the incident, and Nerio thereafter threatened to have him
killed. Carmelo promptly reported this threat to the other barangay
tanods.15
Respondents recounted that, notwithstanding Nerio’s actions, they
proceeded to patrol the area.16 When they passed by the house of
Nerio, he angrily uttered in Cebuano, "If I will be informed who
reported the matter to the police, I will attack the informant."
Carmelo then asked him, "Who reported to you?" Nerio replied, "I
will tell you later once I will be captured by police authorities. All of
us will be dead this afternoon. I want a shoot out!"17
Respondents thereafter commenced their patrol of a place owned
by a certain David Quintana, but their rounds yielded a negative
result.18
Later that evening, while respondent Alberto Alivio was passing by
the house of Nerio, the latter threatened to kill him, saying, "I want
to kill now!"19 Alberto then asked him, "Who reported to you so that
the truth will come out?" Nerio then punched the door of his house
and said, "I will tell you later when I will be captured by the police
authorities!" Alberto then left the place and reported the matter to
respondent Barangay Captain Arcayan.20
In response to the reports, Barangay Captain Arcayan stated that
he ordered his secretary to prepare invitation letters for petitioners
Nerio and Rey Pador, as the allegations of threats and intimidation
made by Nerio against some of the barangay tanods were serious.
Barangay Captain Arcayan explained that he no longer signed a
copy of petitioners’ letter-reply, as he had already been given a
copy of it.21
The RTC then heard the Petition. On 3 July 2008, it issued the
assailed Resolution22 finding that petitioners’ claims were based
merely on hearsay, speculations, surmises and conjectures, and
that respondents had sufficiently explained the reason behind the
issuance of the letters of invitation. It thereafter proceeded to deny
petitioners the privilege of the writ of amparo. 23
Dissatisfied with the ruling of the RTC, petitioners filed the instant
Petition for Review24 before this Court, ascribing grave and serious
error on the part of the trial court.25
The Court’s Ruling
We uphold the RTC’s Resolution and deny the instant Petition.
Section 1 of the Rule on the Writ of Amparo26 provides for the
grounds that may be relied upon in a petition therefor, as follows:
SEC. 1. Petition. – The petition for a writ of amparo is a remedy
available to any person whose right to life, liberty and security is
violated or threatened with violation by an unlawful act or omission
of a public official or employee, or of a private individual or entity.
The writ shall cover extralegal killings and enforced
disappearances or threats thereof.
Thus, to be entitled to the privilege of the writ, petitioners must
prove by substantial evidence27 that their rights to life, liberty and
security are being violated or threatened by an unlawful act or
omission.
A closer look at the instant Petition shows that it is anchored on
the following allegations: first, that respondents conducted a raid
on the property of petitioner based on information that the latter
were cultivators of marijuana; second, that respondent barangay
captain sent them invitation letters without stating the purpose of
the invitation; third, that respondent barangay captain refused to
receive petitioners’ letter-reply; and fourth, that petitioners
anticipate the possibility of more harassment cases, false
accusations, and potential violence from respondents.
All these allegations are insufficient bases for a grant of the
privilege of the writ.
On the first allegation, we find that the supposed raid on
petitioners’
ampalaya farm was sufficiently controverted by respondents.
Respondents alleged, and the trial court found, that a roving patrol
was conducted, not on the ampalaya farm of Nerio Pador, but on
an area locally called Sitio Gining, which was beside the lot
possessed by David Quintana.28
Assuming, however, that respondents had in fact entered the
ampalaya farm, petitioner Rey Pador himself admitted that they
had done so with his permission, as stated in his affidavit:
5. Around 8:00 a.m., I saw Tabunan barangay tanod Roberto
Alimorin. I greeted him good morning. He told me that there are
reports that marijuana plants were grown at our ampalaya farm
and that there is already a raid.
6. Being innocent and nothing to hide, I allowed Mr. Alimorin to
search the ampalaya farm for marijuana plants. 29
Finally, even assuming that the entry was done without petitioners’
permission, we cannot grant the privilege of the writ of amparo
based upon a trespass on their ampalaya farm. Granting that the
intrusion occurred, it was merely a violation of petitioners’ property
rights. In Tapuz v. Del Rosario,30 we ruled that the writ of amparo
does not envisage the protection of concerns that are purely
property or commercial in nature, as follows:
The writ of amparo was originally conceived as a response to the
extraordinary rise in the number of killings and enforced
disappearances, and to the perceived lack of available and
effective remedies to address these extraordinary concerns. It is
intended to address violations of or threats to the rights to life,
liberty or security, as an extraordinary and independent remedy
beyond those available under the prevailing Rules, or as a remedy
supplemental to these Rules. What it is not, is a writ to protect
concerns that are purely property or commercial. Neither is it a writ
that we shall issue on amorphous and uncertain grounds. 31 x x x.
(Emphasis in the original)
We therefore rule that the alleged intrusion upon petitioners’
ampalaya farm is an insufficient ground to grant the privilege of the
writ of amparo.
On petitioners’ second and third allegations, we find that the
barangay captain’s act of sending invitation letters to petitioners
and failure to sign the receiving copy of their letter-reply did not
violate or threaten their constitutional right to life, liberty or security.
The records show that Barangay Captain Arcayan sufficiently
explained the factual basis for his actions. Moreover, the records
are bereft of any evidence that petitioners were coerced to attend
the conference through the use of force or intimidation. On the
contrary, they had full freedom to refuse to attend the conference,
as they have in fact done in this case.1âwphi1
The fourth allegation of petitioner – that, following these events,
they can anticipate more harassment cases, false accusations and
possible violence from respondents – is baseless, unfounded, and
grounded merely on pure speculations and conjectures. As such,
this allegation does not warrant the consideration of this Court.
On a final note, we reiterate that the privilege of the writ of amparo
is an extraordinary remedy adopted to address the special
concerns of extra-legal killings and enforced disappearances.
"Accordingly, the remedy ought to be resorted to and granted
judiciously, lest the ideal sought by the Amparo Rule be diluted
and undermined by the indiscriminate filing of amparo petitions for
purposes less than the desire to secure amparo reliefs and
protection and/or on the basis of unsubstantiated allegations."32
WHEREFORE, premises considered, the instant Petition for
Review is DENIED. The 3 July 2008 Resolution of the Regional
Trial Court, Branch 17, Cebu City, in Spec. Proc. No. 16061-CEB
is AFFIRMED.
SO ORDERED.
G.R. No. 191805 April 16, 2013
IN THE MATTER OF THE PETITION FOR THE WRIT OF
AMPARO AND HABEAS DATA IN FAVOR OF NORIEL
RODRIGUEZ, NORIEL RODRIGUEZ, Petitioner,
vs.
GLORIA MACAPAGAL-ARROYO, GEN. VICTOR S. IBRADO,
PDG JESUS AME VERSOZA, LT. GEN. DELFIN BANGIT, MAJ.
GEN. NESTOR Z. OCHOA, P/CSUPT. AMETO G. TOLENTINO,
P/SSUPT. JUDE W. SANTOS, COL. REMIGIO M. DE VERA, an
officer named MATUTINA, LT. COL. MINA, CALOG, GEORGE
PALACPAC under the name "HARRY," ANTONIO CRUZ,
ALDWIN "BONG" PASICOLAN and VINCENT
CALLAGAN,Respondents.
x-----------------------x
G.R. No. 193160
IN THE MATTER OF THE PETITION FOR THE WRIT OF
AMPARO AND HABEAS DATA IN FAVOR OF NORIEL
RODRIGUEZ, POLICE DIR. GEN. JESUS A. VERSOZA,
P/SSUPT. JUDE W. SANTOS, BGEN. REMEGIO M. DE VERA,
1ST LT. RYAN S. MATUTINA, LT. COL. LAURENCE E. MINA,
ANTONIO C. CRUZ, ALDWIN C. PASICOLAN and VICENTE A.
CALLAGAN, Petitioners,
vs.
NORIEL H. RODRIGUEZ, Respondent.
RESOLUTION
SERENO, CJ.:
On 15 November 2011, the Court promulgated its Decision in the
present case, the dispositive portion of which reads:
WHEREFORE, we resolve to GRANT the Petition for Partial
Review in G.R. No. 191805 and DENY the Petition for Review in
G.R. No. 193160. The Decision of the Court of Appeals is hereby
AFFIRMED WITH MODIFICATION.
The case is dismissed with respect to respondents former
President Gloria Macapagal-Arroyo, P/CSupt. Ameto G. Tolentino,
and P/SSupt. Jude W. Santos, Calog, George Palacpac, Antonio
Cruz, Aldwin Pasicolan and Vincent Callagan for lack of merit.
This Court directs the Office of the Ombudsman (Ombudsman)
and the Department of Justice (DOJ) to take the appropriate action
with respect to any possible liability or liabilities, within their
respective legal competence, that may have been incurred by
respondents Gen. Victor lbrado, PDG. Jesus Verzosa, Lt. Gen.
Delfin Bangit, Maj. Gen. Nestor Ochoa, Brig. Gen. Remegio De
Vera, 1st Lt. Ryan Matutina, and Lt. Col. Laurence Mina. The
Ombudsman and the DOJ are ordered to submit to this Court the
results of their action within a period of six months from receipt of
this Decision.
In the event that herein respondents no longer occupy their
respective posts, the directives mandated in this Decision and in
the Court of Appeals are enforceable against the incumbent
officials holding the relevant positions. Failure to comply with the
foregoing shall constitute contempt of court.
SO ORDERED.
After a careful examination of the records, the Court was
convinced that the Court of Appeals correctly found sufficient
evidence proving that the soldiers of the 17th Infantry Battalion, 5th
Infantry Division of the military abducted petitioner Rodriguez on 6
September 2009, and detained and tortured him until 17
September 2009.
Pursuant to the Decision ordering the Office of the Ombudsman to
take further action, Ombudsman Conchita Carpio Morales sent this
Court a letter dated 23 May 2012, requesting an additional two-
month period, or until 24 July 2012, within which to submit a report.
The Ombudsman stated that Noriel Rodriguez (Rodriguez) and his
family refused to cooperate with the investigation for security
reasons.
On 6 January 2012, respondents filed their Motion for
Reconsideration,1 arguing that the soldiers belonging to the 17th
Infantry Battalion, 5th Infantry Division of the military cannot be
held accountable for authoring the abduction and torture of
petitioner. Their arguments revolve solely on the claim that
respondents were never specifically mentioned by name as having
performed, permitted, condoned, authorized, or allowed the
commission of any act or incurrence omission which would violate
or threaten with violation the rights to life, liberty, and security of
petitioner-respondent and his family.2
On 18 January 2013, the Ombudsman submitted the Investigation
Report, as compliance with the Court’s directive to take
appropriate action with respect to possible liabilities respondents
may have incurred. The exhaustive report detailed the steps taken
by the Field Investigation Office (FIO) of the Office of the
Ombudsman, concluding that no criminal, civil, or administrative
liabilities may be imputed to the respondents. It was reflected
therein that the lawyers for the Rodriguezes had manifested to the
FIO that the latter are hesitant to appear before them for security
reasons, viz:
Karapatan (a non-governmental organization that provides legal
assistance to victims of human rights violations and their families)
could not locate Noriel and Rodel. As of this writing, the
Rodriguezes refused to participate in the present fact-finding
investigation ‘for security reasons.’ Atty. Yambot disclosed
(through a Manifestation dated March 30, 2012 that despite efforts
to convince Noriel to participate in the present proceedings, the
latter ‘remains unconvinced and unwilling to this date.’
Recent information, however, revealed that Noriel and his family
are no longer interested in participating in the present case.
Instead of appearing before this Office for a conference under
oath, SPO1 Robert B. Molina submitted an Affidavit dated June 13,
2012 stating that on September 15, 2009, at around 11:00 o’clock
in the morning, Wilma H. Rodriguez appeared before the Gonzaga
Police Station and requested to enter into the blotter that her son,
Noriel, was allegedly missing in Sitio Comunal, Gonzaga,
Cagayan. Thereupon, he gathered information relative to Wilma’s
report "but the community residence failed to reveal anything". 3
The other accounts – specifically that of respondent Antonino C.
Cruz, Special Investigator II of the Commission on Human Rights
(CHR), as well as the claims of respondents Mina and De Vera
that they had disclosed to the CHR that Noriel had become an
agent ("asset") of the 17th Infantry Battalion – have been
thoroughly evaluated and ruled upon in our Decision. The OMB
further laments, "If only he (Noriel) could be asked to verify the
circumstances under which he executed these subsequent
affidavits, his inconsistent claims will finally be settled," and that
"(I)f there is one person who can attest on whether detention and
torture were indeed committed by any of the Subjects herein, it is
Noriel Rodriguez himself, the supposed victim."4
The purported unwillingness of the petitioner to appear or
participate at this stage of the proceedings due to security reasons
does not affect the rationale of the writ granted by the CA, as
affirmed by this Court. In any case, the issue of the existence of
criminal, civil, or administrative liability which may be imputed to
the respondents is not the province of amparo proceedings --
rather, the writ serves both preventive and curative roles in
addressing the problem of extrajudicial killings and enforced
disappearances. It is preventive in that it breaks the expectation of
impunity in the commission of these offenses, and it is curative in
that it facilitates the subsequent punishment of perpetrators by
inevitably leading to subsequent investigation and action. 5 In this
case then, the thrust of ensuring that investigations are conducted
and the rights to life, liberty, and security of the petitioner, remains.
We deny the motion for reconsideration.
The writ of amparo partakes of a summary proceeding that
requires only substantial evidence to make the appropriate interim
and permanent reliefs available to the petitioner. As explained in
the Decision, it is not an action to determine criminal guilt requiring
proof beyond reasonable doubt, or liability for damages requiring
preponderance of evidence, or even administrative responsibility
requiring substantial evidence. The totality of evidence as a
standard for the grant of the writ was correctly applied by this
Court, as first laid down in Razon v. Tagitis:
The fair and proper rule, to our mind, is to consider all the pieces
of evidence adduced in their totality, and to consider any evidence
otherwise inadmissible under our usual rules to be admissible if it
is consistent with the admissible evidence adduced. In other
words, we reduce our rules to the most basic test of reason – i.e.,
to the relevance of the evidence to the issue at hand and its
consistency with all other pieces of adduced evidence. Thus, even
hearsay evidence can be admitted if it satisfies this basic minimum
test.6 (Emphasis supplied.)
No reversible error may be attributed to the grant of the privilege of
the writ by the CA, and the present motion for reconsideration
raises no new issues that would convince us otherwise.
Respondents’ claim that they were not competently identified as
the soldiers who abducted and detained the petitioner, or that
there was no mention of their names in the documentary evidence,
is baseless. The CA rightly considered Rodriguez’s Sinumpaang
Salaysay7 as a meticulous and straightforward account of his
horrific ordeal with the military, detailing the manner in which he
was captured and maltreated on account of his suspected
membership in the NPA.8
Petitioner narrated that at dawn on 9 September 2009, he noticed
a soldier with the name tag "Matutina," who appeared to be an
official because the other soldiers addressed him as "sir."9 He saw
Matutina again at 11:00 p.m. on 15 September 2009, when his
abductors took him to a military operation in the mountains. His
narration of his suffering included an exhaustive description of his
physical surroundings, personal circumstances, and perceived
observations. He likewise positively identified respondents 1st Lt.
Matutina and Lt. Col. Mina to be present during his abduction,
detention and torture.10 These facts were further corroborated by
Hermie Antonio Carlos in his Sinumpaang Salaysay dated 16
September 2009,11 wherein he recounted in detail the
circumstances surrounding the victim’s capture.
Respondents’ main contention in their Return of the Writ was
correctly deemed illogical and contradictory by the CA. They claim
that Rodriguez had complained of physical ailments due to
activities in the CPP-NPA, yet nevertheless signified his desire to
become a double-agent for the military. The CA stated:
In the Return of the Writ, respondent AFP members alleged that
petitioner confided to his military handler, Cpl. Navarro, that
petitioner could no longer stand the hardships he experienced in
the wilderness, and that he wanted to become an ordinary citizen
again because of the empty promises of the CPP-NPA. However,
in the same Return, respondents state that petitioner agreed to
become a double agent for the military and wanted to re-enter the
CPP-NPA, so that he could get information regarding the
movement directly from the source. If petitioner was tired of life in
the wilderness and desired to become an ordinary citizen again, it
defies logic that he would agree to become an undercover agent
and work alongside soldiers in the mountains – or the wilderness
he dreads – to locate the hideout of his alleged NPA
comrades.12 (Emphasis supplied.)
Respondents conveniently neglect to address the findings of both
the CA and this Court that aside from the abduction of Rodriguez,
respondents, specifically 1st Lt. Matutina, had violated and
threatened the former’s right to security when they made a visual
recording of his house, as well as the photos of his relatives. The
CA found that the soldiers even went as far as taking videos of the
photos of petitioner’s relatives hung on the wall of the house, and
the innermost portions of the house.13 There is no reasonable
justification for this violation of the right to privacy and security of
petitioner’s abode, which strikes at the very heart and rationale of
the Rule on the Writ of Amparo. More importantly, respondents
also neglect to address our ruling that the failure to conduct a fair
and effective investigation similarly amounted to a violation of, or
threat to Rodriguez’s rights to life, liberty, and security. 14
The writ’s curative role is an acknowledgment that the violation of
the right to life, liberty, and security may be caused not only by a
public official’s act, but also by his omission. Accountability may
attach to respondents who are imputed with knowledge relating to
the enforced disappearance and who carry the burden of
disclosure; or those who carry, but have failed to discharge, the
burden of extraordinary diligence in the investigation of the
enforced disappearance.15 The duty to investigate must be
undertaken in a serious manner and not as a mere formality
preordained to be ineffective.16
The CA found that respondents Gen. Ibrado, PDG Verzosa, LT.
Gen. Bangit, Maj. Gen. Ochoa, Col. De Vera, and Lt. Col. Mina
conducted a perfunctory investigation which relied solely on the
accounts of the military. Thus, the CA correctly held that the
investigation was superficial, one-sided, and depended entirely on
the report prepared by 1st Lt. Johnny Calub. No efforts were
undertaken to solicit petitioner’s version of the incident, and no
witnesses were questioned regarding it. 17 The CA also took into
account the palpable lack of effort from respondent Versoza, as
the chief of the Philippine National Police.
WHEREFORE, in view of the foregoing, the Motion for
Reconsideration is hereby DENIED with FINALITY. Let a copy of
this Resolution be furnished the Ombudsman for whatever
appropriate action she may still take under circumstances.
SO ORDERED.
G.R. No. 193636 July 24, 2012
MARYNETTE R. GAMBOA, Petitioner,
vs.
P/SSUPT. MARLOU C. CHAN, in his capacity as the PNP-
Provincial Director of Ilocos Norte, and P/SUPT. WILLIAM 0.
FANG, in his capacity as Chief, Intelligence Division, PNP
Provincial Office, Ilocos Norte,Respondents.
DECISION
SERENO, J.:
Before this Court is an Appeal by Certiorari (Under Rule 45 of the
Rules of Court) filed pursuant to Rule 191 of the Rule on the Writ of
Habeas Data,2 seeking a review of the 9 September 2010 Decision
in Special Proc. No. 14979 of the Regional Trial Court, First
Judicial Region, Laoag City, Branch 13 (RTC Br. 13). 3 The
questioned Decision denied petitioner the privilege of the writ of
habeas data.4
At the time the present Petition was filed, petitioner Marynette R.
Gamboa (Gamboa) was the Mayor of Dingras, Ilocos
Norte.5 Meanwhile, respondent Police Senior Superintendent
(P/SSUPT.) Marlou C. Chan was the Officer-in-Charge, and
respondent Police Superintendent (P/SUPT.) William O. Fang was
the Chief of the Provincial Investigation and Detective
Management Branch, both of the Ilocos Norte Police Provincial
Office.6
On 8 December 2009, former President Gloria Macapagal-Arroyo
issued Administrative Order No. 275 (A.O. 275), "Creating an
Independent Commission to Address the Alleged Existence of
Private Armies in the Country."7 The body, which was later on
referred to as the Zeñarosa Commission, 8 was formed to
investigate the existence of private army groups (PAGs) in the
country with a view to eliminating them before the 10 May 2010
elections and dismantling them permanently in the future. 9 Upon
the conclusion of its investigation, the Zeñarosa Commission
released and submitted to the Office of the President a confidential
report entitled "A Journey Towards H.O.P.E.: The Independent
Commission Against Private Armies’ Report to the President" (the
Report).10
Gamboa alleged that the Philippine National Police in Ilocos Norte
(PNP–Ilocos Norte) conducted a series of surveillance operations
against her and her aides,11 and classified her as someone who
keeps a PAG.12Purportedly without the benefit of data verification,
PNP–Ilocos Norte forwarded the information gathered on her to
the Zeñarosa Commission,13 thereby causing her inclusion in the
Report’s enumeration of individuals maintaining PAGs. 14 More
specifically, she pointed out the following items reflected therein:
(a) The Report cited the PNP as its source for the portion
regarding the status of PAGs in the Philippines. 15
(b) The Report stated that "x x x the PNP organized one
dedicated Special Task Group (STG) for each private
armed group (PAG) to monitor and counteract their
activities."16
(c) Attached as Appendix "F" of the Report is a tabulation
generated by the PNP and captioned as "Status of PAGs
Monitoring by STGs as of April 19, 2010," which
classifies PAGs in the country according to region,
indicates their identity, and lists the prominent
personalities with whom these groups are
associated.17 The first entry in the table names a PAG,
known as the Gamboa Group, linked to herein petitioner
Gamboa.18
(d) Statistics on the status of PAGs were based on data
from the PNP, to wit:
The resolutions were the subject of a national press
conference held in Malacañang on March 24, 2010 at
which time, the Commission was also asked to comment
on the PNP report that out of one hundred seventeen
(117) partisan armed groups validated, twenty-four (24)
had been dismantled with sixty-seven (67) members
apprehended and more than eighty-six (86) firearms
confiscated.
Commissioner Herman Basbaño qualified that said
statistics were based on PNP data but that the more
significant fact from his report is that the PNP has been
vigilant in monitoring the activities of these armed groups
and this vigilance is largely due to the existence of the
Commission which has continued communicating with
the Armed Forces of the Philippines (AFP) and PNP
personnel in the field to constantly provide data on the
activities of the PAGs. Commissioner Basbaño stressed
that the Commission’s efforts have preempted the
formation of the PAGs because now everyone is aware
that there is a body monitoring the PAGs movement
through the PNP. Commissioner Lieutenant General
Edilberto Pardo Adan also clarified that the PAGs are
being destabilized so that their ability to threaten and sow
fear during the election has been considerably
weakened.19
(e) The Report briefly touched upon the validation system
of the PNP:
Also, in order to provide the Commission with accurate data which
is truly reflective of the situation in the field, the PNP complied with
the Commission’s recommendation that they revise their validation
system to include those PAGs previously listed as dormant. In the
most recent briefing provided by the PNP on April 26, 2010, there
are one hundred seven (107) existing PAGs. Of these groups, the
PNP reported that seven (7) PAGs have been reorganized. 20
On 6 and 7 July 2010, ABS-CBN broadcasted on its evening news
program the portion of the Report naming Gamboa as one of the
politicians alleged to be maintaining a PAG. 21 Gamboa averred
that her association with a PAG also appeared on print
media.22 Thus, she was publicly tagged as someone who
maintains a PAG on the basis of the unverified information that the
PNP-Ilocos Norte gathered and forwarded to the Zeñarosa
Commission.23 As a result, she claimed that her malicious or
reckless inclusion in the enumeration of personalities maintaining a
PAG as published in the Report also made her, as well as her
supporters and other people identified with her, susceptible to
harassment and police surveillance operations.24
Contending that her right to privacy was violated and her
reputation maligned and destroyed, Gamboa filed a Petition dated
9 July 2010 for the issuance of a writ of habeas data against
respondents in their capacities as officials of the PNP-Ilocos
Norte.25 In her Petition, she prayed for the following reliefs: (a)
destruction of the unverified reports from the PNP-Ilocos Norte
database; (b) withdrawal of all information forwarded to higher
PNP officials; (c) rectification of the damage done to her honor; (d)
ordering respondents to refrain from forwarding unverified reports
against her; and (e) restraining respondents from making baseless
reports.26
The case was docketed as Special Proc. No. 14979 and was
raffled to RTC Br. 13, which issued the corresponding writ on 14
July 2010 after finding the Petition meritorious on its face. 27 Thus,
the trial court (a) instructed respondents to submit all information
and reports forwarded to and used by the Zeñarosa Commission
as basis to include her in the list of persons maintaining PAGs; (b)
directed respondents, and any person acting on their behalf, to
cease and desist from forwarding to the Zeñarosa Commission, or
to any other government entity, information that they may have
gathered against her without the approval of the court; (c) ordered
respondents to make a written return of the writ together with
supporting affidavits; and (d) scheduled the summary hearing of
the case on 23 July 2010.28
In their Return of the Writ, respondents alleged that they had acted
within the bounds of their mandate in conducting the investigation
and surveillance of Gamboa.29 The information stored in their
database supposedly pertained to two criminal cases in which she
was implicated, namely: (a) a Complaint for murder and frustrated
murder docketed as NPS DOC No. 1-04-INQ-091-00077, and (b) a
Complaint for murder, frustrated murder and direct assault upon a
person in authority, as well as indirect assault and multiple
attempted murder, docketed as NPS DOCKET No. 1-04-INV-10-A-
00009.30
Respondents likewise asserted that the Petition was incomplete for
failing to comply with the following requisites under the Rule on the
Writ of Habeas Data: (a) the manner in which the right to privacy
was violated or threatened with violation and how it affected the
right to life, liberty or security of Gamboa; (b) the actions and
recourses she took to secure the data or information; and (c) the
location of the files, registers or databases, the government office,
and the person in charge, in possession or in control of the data or
information.31 They also contended that the Petition for Writ of
Habeas Data, being limited to cases of extrajudicial killings and
enforced disappearances, was not the proper remedy to address
the alleged besmirching of the reputation of Gamboa.32
RTC Br. 13, in its assailed Decision dated 9 September 2010,
dismissed the Petition.33 The trial court categorically ruled that the
inclusion of Gamboa in the list of persons maintaining PAGs, as
published in the Report, constituted a violation of her right to
privacy, to wit:
In this light, it cannot also be disputed that by her inclusion in the
list of persons maintaining PAGs, Gamboa’s right to privacy
indubitably has been violated. The violation understandably affects
her life, liberty and security enormously. The untold misery that
comes with the tag of having a PAG could even be
insurmountable. As she essentially alleged in her petition, she
fears for her security that at any time of the day the unlimited
powers of respondents may likely be exercised to further malign
and destroy her reputation and to transgress her right to life.
By her inclusion in the list of persons maintaining PAGs, it is
likewise undisputed that there was certainly intrusion into
Gamboa’s activities. It cannot be denied that information was
gathered as basis therefor. After all, under Administrative Order
No. 275, the Zeñarosa Commission was tasked to investigate the
existence of private armies in the country, with all the powers of an
investigative body under Section 37, Chapter 9, Book I of the
Administrative Code of 1987.
xxx xxx xxx
By her inclusion in the list of persons maintaining PAGs, Gamboa
alleged as she accused respondents, who are public officials, of
having gathered and provided information that made the Zeñarosa
Commission to include her in the list. Obviously, it was this
gathering and forwarding of information supposedly by
respondents that petitioner barks at as unlawful. x x x. 34
Despite the foregoing findings, RTC Br. 13 nevertheless dismissed
the Petition on the ground that Gamboa failed to prove through
substantial evidence that the subject information originated from
respondents, and that they forwarded this database to the
Zeñarosa Commission without the benefit of prior
verification.35 The trial court also ruled that even before
respondents assumed their official positions, information on her
may have already been acquired.36 Finally, it held that the
Zeñarosa Commission, as the body tasked to gather information
on PAGs and authorized to disclose information on her, should
have been impleaded as a necessary if not a compulsory party to
the Petition.37
Gamboa then filed the instant Appeal by Certiorari dated 24
September 2010,38 raising the following assignment of errors:
1. The trial court erred in ruling that the Zeñarosa
Commission be impleaded as either a necessary or
indispensable party;
2. The trial court erred in declaring that Gamboa failed to
present sufficient proof to link respondents as the
informant to [sic] the Zeñarosa Commission;
3. The trial court failed to satisfy the spirit of Habeas
Data;
4. The trial court erred in pronouncing that the reliance of
the Zeñarosa Commission to [sic] the PNP as alleged by
Gamboa is an assumption;
5. The trial court erred in making a point that respondents
are distinct to PNP as an agency.39
On the other hand, respondents maintain the following arguments:
(a) Gamboa failed to present substantial evidence to show that her
right to privacy in life, liberty or security was violated, and (b) the
trial court correctly dismissed the Petition on the ground that she
had failed to present sufficient proof showing that respondents
were the source of the report naming her as one who maintains a
PAG.40
Meanwhile, Gamboa argues that although A.O. 275 was a lawful
order, fulfilling the mandate to dismantle PAGs in the country
should be done in accordance with due process, such that the
gathering and forwarding of unverified information on her must be
considered unlawful.41 She also reiterates that she was able to
present sufficient evidence showing that the subject information
originated from respondents.42
In determining whether Gamboa should be granted the privilege of
the writ of habeas data, this Court is called upon to, first, unpack
the concept of the right to privacy; second, explain the writ of
habeas data as an extraordinary remedy that seeks to protect the
right to informational privacy; and finally, contextualize the right to
privacy vis-à-vis the state interest involved in the case at bar.
The Right to Privacy
The right to privacy, as an inherent concept of liberty, has long
been recognized as a constitutional right. This Court, in Morfe v.
Mutuc,43 thus enunciated:
The due process question touching on an alleged deprivation of
liberty as thus resolved goes a long way in disposing of the
objections raised by plaintiff that the provision on the periodical
submission of a sworn statement of assets and liabilities is
violative of the constitutional right to privacy. There is much to be
said for this view of Justice Douglas: "Liberty in the constitutional
sense must mean more than freedom from unlawful governmental
restraint; it must include privacy as well, if it is to be a repository of
freedom. The right to be let alone is indeed the beginning of all
freedom." As a matter of fact, this right to be let alone is, to quote
from Mr. Justice Brandeis "the most comprehensive of rights and
the right most valued by civilized men."
The concept of liberty would be emasculated if it does not likewise
compel respect for his personality as a unique individual whose
claim to privacy and interference demands respect. xxx.
xxx xxx xxx
x x x In the leading case of Griswold v. Connecticut, Justice
Douglas, speaking for five members of the Court, stated: "Various
guarantees create zones of privacy. The right of association
contained in the penumbra of the First Amendment is one, as we
have seen. The Third Amendment in its prohibition against the
quartering of soldiers ‘in any house’ in time of peace without the
consent of the owner is another facet of that privacy. The Fourth
Amendment explicitly affirms the ‘right of the people to be secure
in their persons, houses, papers, and effects, against
unreasonable searches and seizures.’ The Fifth Amendment in its
Self-Incrimination Clause enables the citizen to create a zone of
privacy which government may not force him to surrender to his
detriment. The Ninth Amendment provides: ‘The enumeration in
the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people." After referring to various
American Supreme Court decisions, Justice Douglas continued:
"These cases bear witness that the right of privacy which presses
for recognition is a legitimate one."
xxx xxx xxx
So it is likewise in our jurisdiction. The right to privacy as such is
accorded recognition independently of its identification with liberty;
in itself, it is fully deserving of constitutional protection. The
language of Prof. Emerson is particularly apt: "The concept of
limited government has always included the idea that
governmental powers stop short of certain intrusions into the
personal life of the citizen. This is indeed one of the basic
distinctions between absolute and limited government. Ultimate
and pervasive control of the individual, in all aspects of his life, is
the hallmark of the absolute state. In contrast, a system of limited
government, safeguards a private sector, which belongs to the
individual, firmly distinguishing it from the public sector, which the
state can control. Protection of this private sector — protection, in
other words, of the dignity and integrity of the individual — has
become increasingly important as modern society has developed.
All the forces of a technological age — industrialization,
urbanization, and organization — operate to narrow the area of
privacy and facilitate intrusion into it. In modern terms, the capacity
to maintain and support this enclave of private life marks the
difference between a democratic and a totalitarian
society."44 (Emphases supplied)
In Ople v. Torres,45 this Court traced the constitutional and
statutory bases of the right to privacy in Philippine jurisdiction, to
wit:
Indeed, if we extend our judicial gaze we will find that the right of
privacy is recognized and enshrined in several provisions of our
Constitution. It is expressly recognized in section 3 (1) of the Bill of
Rights:
Sec. 3. (1) The privacy of communication and correspondence
shall be inviolable except upon lawful order of the court, or when
public safety or order requires otherwise as prescribed by law.
Other facets of the right to privacy are protected in various
provisions of the Bill of Rights, viz:
Sec. 1. No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the
equal protection of the laws.
Sec. 2. The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to
be seized.
xxx xxx xxx
Sec. 6. The liberty of abode and of changing the same within the
limits prescribed by law shall not be impaired except upon lawful
order of the court. Neither shall the right to travel be impaired
except in the interest of national security, public safety, or public
health as may be provided by law.
xxx xxx xxx
Sec. 8. The right of the people, including those employed in the
public and private sectors, to form unions, associations, or
societies for purposes not contrary to law shall not be abridged.
Sec. 17. No person shall be compelled to be a witness against
himself.
Zones of privacy are likewise recognized and protected in our
laws. The Civil Code provides that "every person shall respect the
dignity, personality, privacy and peace of mind of his neighbors
and other persons" and punishes as actionable torts several acts
by a person of meddling and prying into the privacy of another. It
also holds a public officer or employee or any private individual
liable for damages for any violation of the rights and liberties of
another person, and recognizes the privacy of letters and other
private communications. The Revised Penal Code makes a crime
the violation of secrets by an officer, the revelation of trade and
industrial secrets, and trespass to dwelling. Invasion of privacy is
an offense in special laws like the Anti-Wiretapping Law, the
Secrecy of Bank Deposits Act and the Intellectual Property Code.
The Rules of Court on privileged communication likewise
recognize the privacy of certain information.
Unlike the dissenters, we prescind from the premise that the right
to privacy is a fundamental right guaranteed by the Constitution,
hence, it is the burden of government to show that A.O. No. 308 is
justified by some compelling state interest and that it is narrowly
drawn. x x x.46 (Emphases supplied)
Clearly, the right to privacy is considered a fundamental right that
must be protected from intrusion or constraint. However, in
Standard Chartered Bank v. Senate Committee on Banks, 47 this
Court underscored that the right to privacy is not absolute, viz:
With respect to the right of privacy which petitioners claim
respondent has violated, suffice it to state that privacy is not an
absolute right. While it is true that Section 21, Article VI of the
Constitution, guarantees respect for the rights of persons affected
by the legislative investigation, not every invocation of the right to
privacy should be allowed to thwart a legitimate congressional
inquiry. In Sabio v. Gordon, we have held that the right of the
people to access information on matters of public concern
generally prevails over the right to privacy of ordinary financial
transactions. In that case, we declared that the right to privacy is
not absolute where there is an overriding compelling state interest.
Employing the rational basis relationship test, as laid down in
Morfe v. Mutuc, there is no infringement of the individual’s right to
privacy as the requirement to disclosure information is for a valid
purpose, in this case, to ensure that the government agencies
involved in regulating banking transactions adequately protect the
public who invest in foreign securities. Suffice it to state that this
purpose constitutes a reason compelling enough to proceed with
the assailed legislative investigation. 48
Therefore, when the right to privacy finds tension with a competing
state objective, the courts are required to weigh both notions. In
these cases, although considered a fundamental right, the right to
privacy may nevertheless succumb to an opposing or overriding
state interest deemed legitimate and compelling.
The Writ of Habeas Data
The writ of habeas data is an independent and summary remedy
designed to protect the image, privacy, honor, information, and
freedom of information of an individual, and to provide a forum to
enforce one’s right to the truth and to informational privacy. 49 It
seeks to protect a person’s right to control information regarding
oneself, particularly in instances in which such information is being
collected through unlawful means in order to achieve unlawful
ends.50 It must be emphasized that in order for the privilege of the
writ to be granted, there must exist a nexus between the right to
privacy on the one hand, and the right to life, liberty or security on
the other. Section 1 of the Rule on the Writ of Habeas Data reads:
Habeas data. – The writ of habeas data is a remedy available to
any person whose right to privacy in life, liberty or security is
violated or threatened by an unlawful act or omission of a public
official or employee, or of a private individual or entity engaged in
the gathering, collecting or storing of data information regarding
the person, family, home and correspondence of the aggrieved
party.
The notion of informational privacy is still developing in Philippine
law and jurisprudence. Considering that even the Latin American
habeas data, on which our own Rule on the Writ of Habeas Data is
rooted, finds its origins from the European tradition of data
protection,51 this Court can be guided by cases on the protection of
personal data decided by the European Court of Human Rights
(ECHR). Of particular note is Leander v. Sweden, 52 in which the
ECHR balanced the right of citizens to be free from interference in
their private affairs with the right of the state to protect its national
security. In this case, Torsten Leander (Leander), a Swedish
citizen, worked as a temporary replacement museum technician at
the Naval Museum, which was adjacent to a restricted military
security zone.53He was refused employment when the requisite
personnel control resulted in an unfavorable outcome on the basis
of information in the secret police register, which was kept in
accordance with the Personnel Control Ordinance and to which he
was prevented access.54 He claimed, among others, that this
procedure of security control violated Article 8 of the European
Convention of Human Rights55 on the right to privacy, as nothing in
his personal or political background would warrant his
classification in the register as a security risk. 56
The ECHR ruled that the storage in the secret police register of
information relating to the private life of Leander, coupled with the
refusal to allow him the opportunity to refute the same, amounted
to an interference in his right to respect for private life. 57 However,
the ECHR held that the interference was justified on the following
grounds: (a) the personnel control system had a legitimate aim,
which was the protection of national security, 58 and (b) the
Personnel Control Ordinance gave the citizens adequate indication
as to the scope and the manner of exercising discretion in the
collection, recording and release of information by the
authorities.59 The following statements of the ECHR must be
emphasized:
58. The notion of necessity implies that the interference
corresponds to a pressing social need and, in particular,
that it is proportionate to the legitimate aim pursued (see,
inter alia, the Gillow judgment of 24 November 1986,
Series A no. 109, p. 22, § 55).
59. However, the Court recognises that the national
authorities enjoy a margin of appreciation, the scope of
which will depend not only on the nature of the legitimate
aim pursued but also on the particular nature of the
interference involved. In the instant case, the interest of
the respondent State in protecting its national security
must be balanced against the seriousness of the
interference with the applicant’s right to respect for his
private life.
There can be no doubt as to the necessity, for the purpose of
protecting national security, for the Contracting States to have laws
granting the competent domestic authorities power, firstly, to
collect and store in registers not accessible to the public
information on persons and, secondly, to use this information when
assessing the suitability of candidates for employment in posts of
importance for national security.
Admittedly, the contested interference adversely affected Mr.
Leander’s legitimate interests through the consequences it had on
his possibilities of access to certain sensitive posts within the
public service. On the other hand, the right of access to public
service is not as such enshrined in the Convention (see, inter alia,
the Kosiek judgment of 28 August 1986, Series A no. 105, p. 20,
§§ 34-35), and, apart from those consequences, the interference
did not constitute an obstacle to his leading a private life of his own
choosing.
In these circumstances, the Court accepts that the margin of
appreciation available to the respondent State in assessing the
pressing social need in the present case, and in particular in
choosing the means for achieving the legitimate aim of protecting
national security, was a wide one.
xxx xxx xxx
66. The fact that the information released to the military authorities
was not communicated to Mr. Leander cannot by itself warrant the
conclusion that the interference was not "necessary in a
democratic society in the interests of national security", as it is the
very absence of such communication which, at least partly,
ensures the efficacy of the personnel control procedure (see,
mutatis mutandis, the above-mentioned Klass and Others
judgment, Series A no. 28, p. 27, § 58).
The Court notes, however, that various authorities consulted
before the issue of the Ordinance of 1969, including the Chancellor
of Justice and the Parliamentary Ombudsman, considered it
desirable that the rule of communication to the person concerned,
as contained in section 13 of the Ordinance, should be effectively
applied in so far as it did not jeopardise the purpose of the control
(see paragraph 31 above).
67. The Court, like the Commission, thus reaches the conclusion
that the safeguards contained in the Swedish personnel control
system meet the requirements of paragraph 2 of Article 8 (art. 8-2).
Having regard to the wide margin of appreciation available to it, the
respondent State was entitled to consider that in the present case
the interests of national security prevailed over the individual
interests of the applicant (see paragraph 59 above). The
interference to which Mr. Leander was subjected cannot therefore
be said to have been disproportionate to the legitimate aim
pursued. (Emphases supplied)
Leander illustrates how the right to informational privacy, as a
specific component of the right to privacy, may yield to an
overriding legitimate state interest. In similar fashion, the
determination of whether the privilege of the writ of habeas data,
being an extraordinary remedy, may be granted in this case entails
a delicate balancing of the alleged intrusion upon the private life of
Gamboa and the relevant state interest involved.
The collection and forwarding of information by the PNP vis-à-vis
the interest of the state to dismantle private armies.
The Constitution explicitly mandates the dismantling of private
armies and other armed groups not recognized by the duly
constituted authority.60 It also provides for the establishment of one
police force that is national in scope and civilian in character, and
is controlled and administered by a national police commission. 61
Taking into account these constitutional fiats, it is clear that the
issuance of A.O. 275 articulates a legitimate state aim, which is to
investigate the existence of PAGs with the ultimate objective of
dismantling them permanently.
To enable the Zeñarosa Commission to achieve its goals, A.O.
275 clothed it with the powers of an investigative body, including
the power to summon witnesses, administer oaths, take testimony
or evidence relevant to the investigation and use compulsory
processes to produce documents, books, and records.62 A.O. 275
likewise authorized the Zeñarosa Commission to deputize the
Armed Forces of the Philippines, the National Bureau of
Investigation, the Department of Justice, the PNP, and any other
law enforcement agency to assist the commission in the
performance of its functions.63
Meanwhile, the PNP, as the national police force, is empowered by
law to (a) enforce all laws and ordinances relative to the protection
of lives and properties; (b) maintain peace and order and take all
necessary steps to ensure public safety; and (c) investigate and
prevent crimes.64
Pursuant to the state interest of dismantling PAGs, as well as the
foregoing powers and functions accorded to the Zeñarosa
Commission and the PNP, the latter collected information on
individuals suspected of maintaining PAGs, monitored them and
counteracted their activities.65 One of those individuals is herein
petitioner Gamboa.
This Court holds that Gamboa was able to sufficiently establish
that the data contained in the Report listing her as a PAG coddler
came from the PNP. Contrary to the ruling of the trial court,
however, the forwarding of information by the PNP to the Zeñarosa
Commission was not an unlawful act that violated or threatened
her right to privacy in life, liberty or security.
The PNP was rationally expected to forward and share intelligence
regarding PAGs with the body specifically created for the purpose
of investigating the existence of these notorious groups. Moreover,
the Zeñarosa Commission was explicitly authorized to deputize the
police force in the fulfillment of the former’s mandate, and thus had
the power to request assistance from the latter.
Following the pronouncements of the ECHR in Leander, the fact
that the PNP released information to the Zeñarosa Commission
without prior communication to Gamboa and without affording her
the opportunity to refute the same cannot be interpreted as a
violation or threat to her right to privacy since that act is an
inherent and crucial component of intelligence-gathering and
investigation.1âwphi1 Additionally, Gamboa herself admitted that
the PNP had a validation system, which was used to update
information on individuals associated with PAGs and to ensure that
the data mirrored the situation on the field. 66 Thus, safeguards
were put in place to make sure that the information collected
maintained its integrity and accuracy.
Pending the enactment of legislation on data protection, this Court
declines to make any further determination as to the propriety of
sharing information during specific stages of intelligence gathering.
To do otherwise would supplant the discretion of investigative
bodies in the accomplishment of their functions, resulting in an
undue encroachment on their competence.
However, to accord the right to privacy with the kind of protection
established in existing law and jurisprudence, this Court
nonetheless deems it necessary to caution these investigating
entities that information-sharing must observe strict confidentiality.
Intelligence gathered must be released exclusively to the
authorities empowered to receive the relevant information. After
all, inherent to the right to privacy is the freedom from
"unwarranted exploitation of one’s person or from intrusion into
one’s private activities in such a way as to cause humiliation to a
person’s ordinary sensibilities."67
In this case, respondents admitted the existence of the Report, but
emphasized its confidential nature.1âwphi1 That it was leaked to
third parties and the media was regrettable, even warranting
reproach. But it must be stressed that Gamboa failed to establish
that respondents were responsible for this unintended disclosure.
In any event, there are other reliefs available to her to address the
purported damage to her reputation, making a resort to the
extraordinary remedy of the writ of habeas data unnecessary and
improper.
Finally, this Court rules that Gamboa was unable to prove through
substantial evidence that her inclusion in the list of individuals
maintaining PAGs made her and her supporters susceptible to
harassment and to increased police surveillance. In this regard,
respondents sufficiently explained that the investigations
conducted against her were in relation to the criminal cases in
which she was implicated. As public officials, they enjoy the
presumption of regularity, which she failed to overcome.
It is clear from the foregoing discussion that the state interest of
dismantling PAGs far outweighs the alleged intrusion on the
private life of Gamboa, especially when the collection and
forwarding by the PNP of information against her was pursuant to
a lawful mandate. Therefore, the privilege of the writ of habeas
data must be denied.
WHEREFORE, the instant petition for review is DENIED. The
assailed Decision in Special Proc. No. 14979 dated 9 September
2010 of the Regional Trial Court, Laoag City, Br. 13, insofar as it
denies Gamboa the privilege of the writ of habeas data, is
AFFIRMED.
SO ORDERED.
G.R. No. 183533 September 25, 2012
IN THE MATTER OF THE PETITION FOR THE WRIT OF
AMPARO AND THE WRIT OF HABEAS DATA IN FAVOR OF
FRANCIS SAEZ, Petitioner,
vs.
GLORIA MACAPAGAL ARROYO, GEN. HERMOGENES
ESPERON, P/DIR. GEN. AVELINO RAZON, 22ND MICO, CAPT.
LAWRENCE BANAAG, SGT. CASTILLO, CAPT. ROMMEL
GUTIERREZ, CAPT. JAKE OBLIGADO, CPL. ROMAN ITO
QUINT ANA, PVT. JERICO DUQUIL, CPL. ARIEL FONTANILLA,
A CERTAIN CAPT. ALCA YDO, A CERTAIN FIRST SERGEANT,
PVT. ZALDY OSlO, A CERTAIN PFC. SONNY, A CERTAIN CPL.
JAMES, A CERTAIN JOEL, RODERICK CLANZA and JEFFREY
GOMEZ, Respondents.
For action by the Court is the Motion for Reconsideration 1 dated
September 26, 2010 filed by petitioner Francis Saez of our
Resolution2 dated August 31, 2010 denying the Petition for
Review3 he filed on July 21, 2008.
The Office of the Solicitor General (OSG) filed its
Comment4 thereon stating that it does not find cogent grounds to
warrant setting aside our decision.
Antecedent Facts
On March 6, 2008, the petitioner filed with the Court a petition to
be granted the privilege of the writs of amparo and habeas data
with prayers for temporary protection order, inspection of place
and production of documents.5 In the petition, he expressed his
fear of being abducted and killed; hence, he sought that he be
placed in a sanctuary appointed by the Court. He likewise prayed
for the military to cease from further conducting surveillance and
monitoring of his activities and for his name to be excluded from
the order of battle and other government records connecting him to
the Communist Party of the Philippines (CPP).
Without necessarily giving due course to the petition, the Court
issued the writ of amparo commanding the respondents to make a
verified return, and referred the case to the Court of Appeals (CA)
for hearing and decision.The case before the CA was docketed as
CA-G.R. SP No. 00024 WOA.
In the Return of the Writ,6 the respondents denied the assignment
in the units of Captains Lawrence Banaag and Rommel Gutierrez
and Corporal Ariel Fontanilla. The respondents also alleged that
the names and descriptions of "Capt. Alcaydo," "a certain First
Sergeant," "Cpl. James," "Pfc. Sonny," and "Joel" were insufficient
to properly identify some of the persons sought to be included as
among the respondents in the petition.
On the other hand, respondents General Hermogenes Esperon, Jr.
(Gen. Esperon), Capt. Jacob Thaddeus Obligado, Pvt. Rizaldy A.
Osio (Pvt. Osio), Pfc. Romanito C. Quintana, Jr. and Pfc. Jerico
Duquil submitted their affidavits.
The CA conducted hearings with an intent to clarify what actually
transpired and to determine specific acts which threatened the
petitioner’s right to life, liberty or security.
During the hearings, the petitioner narrated that starting April 16,
2007, he noticed that he was always being followed by a certain
"Joel," a former colleague at Bayan Muna. "Joel" pretended
peddling pandesal in the vicinity of the petitioner’s store. Three
days before the petitioner was apprehended, "Joel" approached
and informed him of his marital status and current job as a baker in
Calapan, Mindoro Oriental. "Joel" inquired if the petitioner was still
involved with ANAKPAWIS. When asked by the CA justices during
the hearing if the petitioner had gone home to Calapan after
having filed the petition, he answered in the negative explaining
that he was afraid of Pvt. Osio who was always at the pier.
CA-G.R. SP No. 00024 WOA
On July 9, 2008, the CA rendered its Decision,7 denying on formal
and substantial grounds the reliefs prayed for in the petition and
dropping former President Gloria Macapagal Arroyo as a
respondent. The CA ratiocinated:
There was no attempt at all to clarify how petitioner came to know
about Zaldy Osio’s presence at their pier if the former had not
gone home since the petition was filed and what Zaldy Osio was
doing there to constitute violation or threat to violate petitioner’s
right to life, liberty or security. This Court cannot just grant the
privilege of the writs without substantial evidence to establish
petitioner’s entitlement thereto. This Court cannot grant the
privilege of the writs applied for on mere speculation or conjecture.
This Court is convinced that the Supreme Court did not intend it to
be so when the rules on the writs of Amparo and Habeas Data
were adopted. It is the impression of this Court that the privilege of
the writs herein prayed for should be considered as extraordinary
remedies available to address the specific situations enumerated
in the rules and no other.
xxxx
Not only did the petition and the supporting affidavit x x x fail to
allege how the supposed threat or violation of petitioner’s [right to]
life, liberty and security is committed. Neither is there any narration
of any circumstances attendant to said supposed violation or threat
to violatepetitioner’s right to life, liberty or security to warrant
entitlement to the privilege of the writs prayed for.
xxxx
A reading of the petition will show that the allegations therein do
not comply with the aforestated requirements of Section 6 Rule on
the Writ of Habeas Data of the pertinent rule. The petition is bereft
of any allegation stating with specific definiteness as to how
petitioner’s right to privacy was violated or threatened to be
violated. He did not include any allegation as to what recourses he
availed of to obtain the alleged documents from respondents.
Neither did petitioner allege what specific documents he prays for
and from whom or [sic] from what particular office of the
government he prays to obtain them. The petition prays "to order
respondents to produce any documents submitted to any of them
in the matter of any report on the case of FRANCIS SAEZ,
including all military intelligence reports."
xxxx
Both the rules on the writs of Amparo and Habeas Data (Section
17, A.M. No. 07-9-12-SC and Section 16, A.M. No. 08-1-16-SC)
provide that the parties shall establish their claims by substantial
evidence. Not only was petitioner unable to establish his
entitlement to the privilege of the writs applied for, the exigency
thereof was negated by his own admission that nothing happened
between him and Joel after July 21, 2007. The filing of the petition
appears to have been precipitated by his fear that something might
happen to him, not because of any apparent violation or visible
threat to violate his right to life, liberty or security. Petitioner was, in
fact, unable to establish likewise who among the respondents
committed specific acts defined under the rules on both writs to
constitute violation or threat to violate petitioner’s rights to life,
liberty or security or his right to privacy thereof.
xxxx
x x x The ruling in David, et al. vs. Gloria Macapagal Arroyo, et al.
(G.R. No. 171396, May 3, 2006, 489 SCRA 160, 224) is aptly
instructive:
"Settled is the doctrine that the President, during his tenure of
office or actual incumbency, may not be sued in any civil or
criminal case, and there is no need to provide for it in the
Constitution or law. It will degrade the dignity of the high office of
the President, the Head of State, if he can be dragged into court
litigations while serving as such. Furthermore, it is important that
he be freed from any form of harassment, hindrance or distraction
to enable him to fully attend to the performance of his official duties
and functions. x x x."
xxxx
IV. The petition lacks proper verification in violation of Section 12,
2004 Rules on Notarial Practice.8
On July 21, 2008, Petition for Review was filed assailing the
foregoing CA decision with the following issues submitted for
resolution:
WHETHER OR NOT THE CA COMMITTED REVERSIBLE
ERROR IN DISMISSING THE PETITION AND DROPPING
GLORIA MACAPAGAL ARROYO AS PARTY RESPONDENT.
WHETHER OR NOT THE NOTARIAL OFFICER’S OMISSION OF
REQUIRING FROM THE PETITIONER IDENTIFICATION CARDS
RELATIVE TO THE LATTER’S EXECUTION OF THE
VERIFICATION AND CERTIFICATION OF NON-FORUM
SHOPPING JUSTIFIES THE DENIAL OF THE PETITION.
WHETHER OR NOT THE CA COMMITTED GROSS ABUSE OF
DISCRETION WHEN IT FAILED TO CONCLUDE FROM THE
EVIDENCE OFFERED BY THE PETITIONER THE FACT THAT
BY BEING PLACED IN THE ORDER OF BATTLE LIST,
THREATS AND VIOLATIONS TO THE LATTER’S LIFE, LIBERTY
AND SECURITY WERE ACTUALLY COMMITTED BY THE
RESPONDENTS.9
Court’s Resolution dated August 31, 2010
On August 31, 2010, the Court issued the Resolution10 denying the
petition for review for the following reasons, viz:
A careful perusal of the subject petition shows that the CA
correctly found that the petition was bereft of any allegation as to
what particular acts or omission of respondents violated or
threatened petitioner’s right to life, liberty and security. His claim
that he was incommunicado lacks credibility as he was given a
cellular phone and allowed to go back to Oriental Mindoro. The CA
also correctly held that petitioner failed to present substantial
evidence that his right to life, liberty and security were violated, or
how his right to privacy was threatened by respondents. He did not
specify the particular documents to be secured, their location or
what particular government office had custody thereof, and who
has possession or control of the same. He merely prayed that the
respondents be ordered "to produce any documents submitted to
any of them in the matter of any report on the case of FRANCIS
SAEZ, including all military intelligence reports."
Petitioner assails the CA in failing to appreciate that in his Affidavit
and Fact Sheet, he had specifically detailed the violation of his
right to privacy as he was placed in the Order of Battle and
promised to have his record cleared if he would cooperate and
become a military asset. However, despite questions propounded
by the CA Associate Justices during the hearing, he still failed to
enlighten the appellate court as to what actually transpired to
enable said court to determine whether his right to life, liberty or
security had actually been violated or threatened. Records bear
out the unsubstantiated claims of petitioner which justified the
appellate court’s dismissal of the petition.
As to petitioner’s argument that the CA erred in deleting the
President as party-respondent, we find the same also to be without
merit. The Court has already made it clear in David v. Macapagal-
Arroyo that the President, during his or her tenure of office or
actual incumbency, may not be sued in any civil or criminal case,
and there is no need to provide for it in the Constitution or law. It
will degrade the dignity of the high office of the President, the
Head of State, if the President can be dragged into court litigations
while serving as such. Furthermore, it is important that the
President be freed from any form of harassment, hindrance or
distraction to enable the President to fully attend to the
performance of official duties and functions. 11 (Citation omitted)
Hence, the petitioner filed the instant motion for reconsideration. 12
Petitioner’s Arguments
Contrary to the CA’s findings, it had been shown by substantial
evidence and even by the respondents’ own admissions that the
petitioner’s life, liberty and security were threatened. Military
personnel, whom the petitioner had named and described, knew
where to get him and they can do so with ease. He also became a
military asset, but under duress, as the respondents had
documents allegedly linking him to the CPP and including him in
the order of battle. The petitioner claims that the foregoing
circumstances were not denied by the respondents.
The petitioner likewise challenges the CA’s finding that he was not
rendered incommunicado as he was even provided with a cellular
phone. The petitioner argues that the phone was only given to him
for the purpose of communicating with the respondents matters
relative to his infiltration activities of target legal organizations.
The petitioner cites Secretary of National Defense v.
Manalo,13 which pronounced that "in the amparo context, it is more
correct to say that the ‘right to security’ is actually the ‘freedom
from threat’".14 According to the petitioner, his freedom from fear
was undoubtedly violated, hence, to him pertains a cause of
action. Anent the quantum of proof required in a petition for the
issuance of the writ of amparo, mere substantial evidence is
sufficient. The petition "is not an action to determine criminal guilt
requiring proof beyond reasonable doubt, or liability for damages
requiring preponderance of evidence, or administrative
responsibility requiring substantial evidence that will require full
and exhaustive proceedings".15
Sadly, in the petitioner’s case, the court not only demanded a
greater quantum of proof than what the rules require, but it also
accorded special preference for the respondents’ evidence.
The petitioner also cites a speech delivered in Siliman University
by former Chief Justice Reynato Puno who expressed that "the
remedy of habeas data can be used by any citizen against any
governmental agency or register to find out what information is
held about his or her person." The person can likewise "request
the rectification or even the destruction of erroneous data gathered
and kept against him or her." In the petitioner’s case, he
specifically sought the production of the order of battle, which
allegedly included his name, and other records which supposedly
contain erroneous data relative to his involvement with the CPP.
OSG’s Comment
In the respondents’ comment16 filed by the OSG, it is generally
claimed that the petitioner advances no cogent grounds to justify
the reversal of the Court’s Resolution dated August 31, 2010.
The Court’s Disquisition
While the issuance of the writs sought by the petitioner cannot be
granted, the Court nevertheless finds ample grounds to modify the
Resolution dated August 31, 2010.
The petition conforms to the
requirements of the Rules on the
Writs of Amparo and Habeas Data
Section 517 of A.M. No. 07-9-12-SC (Rule on the Writ of Amparo)
and Section 618 of A.M. 08-1-16-SC (Rule on the Writ of Habeas
Data) provide for what the said petitions should contain.
In the present case, the Court notes that the petition for the
issuance of the privilege of the writs of amparo and habeas data is
sufficient as to its contents. The petitioner made specific
allegations relative to his personal circumstances and those of the
respondents. The petitioner likewise indicated particular acts,
which are allegedly violative of his rights and the participation of
some of the respondents in their commission. As to the pre-
requisite conduct and result of an investigation prior to the filing of
the petition, it was explained that the petitioner expected no relief
from the military, which he perceived as his oppressors, hence, his
request for assistance from a human rights organization, then a
direct resort to the court. Anent the documents sought to be the
subject of the writ of habeas data prayed for, the Court finds the
requirement of specificity to have been satisfied. The documents
subject of the petition include the order of battle, those linking the
petitioner to the CPP and those he signed involuntarily, and
military intelligence reports making references to him. Although the
exact locations and the custodians of the documents were not
identified, this does not render the petition insufficient. Section 6(d)
of the Rule on the Writ of Habeas Data is clear that the
requirement of specificity arises only when the exact locations and
identities of the custodians are known. The Amparo Rule was not
promulgated with the intent to make it a token gesture of concern
for constitutional rights.19 Thus, despite the lack of certain
contents, which the Rules on the Writs of Amparo and Habeas
Data generally require, for as long as their absence under
exceptional circumstances can be reasonably justified, a petition
should not be susceptible to outright dismissal.
From the foregoing, the Court holds that the allegations stated in
the petition for the privilege of the writs of amparo and habeas data
filed conform to the rules. However, they are mere allegations,
which the Court cannot accept "hook, line and sinker", so to speak,
and whether substantial evidence exist to warrant the granting of
the petition is a different matter altogether.
No substantial evidence exists to
prove the petitioner’s claims
The Court has ruled that in view of the recognition of the
evidentiary difficulties attendant to the filing of a petition for the
privilege of the writs of amparo and habeas data, not only direct
evidence, but circumstantial evidence, indicia, and presumptions
may be considered, so long as they lead to conclusions consistent
with the admissible evidence adduced.20
With the foregoing in mind, the Court still finds that the CA did not
commit a reversible error in declaring that no substantial evidence
exist to compel the grant of the reliefs prayed for by the petitioner.
The Court took a second look on the evidence on record and finds
no reason to reconsider the denial of the issuance of the writs
prayed for.
In the hearing before the CA, it was claimed that "Joel" once
inquired from the petitioner if the latter was still involved with
ANAKPAWIS. By itself, such claim cannot establish with certainty
that the petitioner was being monitored. The encounter happened
once and the petitioner, in his pleadings, nowhere stated that
subsequent to the time he was asked about his involvement with
ANAKPAWIS, he still noticed "Joel" conducting surveillance
operations on him. He alleged that he was brought to the camp of
the 204th Infantry Brigade in Naujan, Oriental Mindoro but was
sent home at 5:00 p.m. The petitioner and the respondents have
conflicting claims about what transpired thereafter. The petitioner
insisted that he was brought against his will and was asked to stay
by the respondents in places under the latter’s control. The
respondents, on the other hand, averred that it was the petitioner
who voluntarily offered his service to be a military asset, but was
rejected as the former still doubted his motives and affiliations.
Section 19 of both the Rules on the Writ of Amparo and Habeas
Data is explicit that questions of fact and law can be raised before
the Court in a petition for review on certiorari under Rule 45. As a
rule then, the Court is not bound by the factual findings made by
the appellate court which rendered the judgment in a petition for
the issuance of the writs of amparo and habeas data. Be that as it
may, in the instant case, the Court agrees with the CA that the
petitioner failed to discharge the burden of proof imposed upon
him by the rules to establish his claims. It cannot be
overemphasized that Section 1 of both the Rules on the Writ of
Amparo and Habeas Data expressly include in their coverage even
threatened violations against a person’s right to life, liberty or
security. Further, threat and intimidation that vitiate the free will –
although not involving invasion of bodily integrity – nevertheless
constitute a violation of the right to security in the sense of
"freedom from threat".21
It must be stressed, however, that such "threat" must find rational
basis on the surrounding circumstances of the case. In this case,
the petition was mainly anchored on the alleged threats against his
life, liberty and security by reason of his inclusion in the military’s
order of battle, the surveillance and monitoring activities made on
him, and the intimidation exerted upon him to compel him to be a
military asset. While as stated earlier, mere threats fall within the
mantle of protection of the writs of amparo and habeas data, in the
petitioner’s case, the restraints and threats allegedly made
allegations lack corroborations, are not supported by independent
and credible evidence, and thus stand on nebulous grounds.
The Court is cognizant of the evidentiary difficulties attendant to a
petition for the issuance of the writs. Unlike, however, the unique
nature of cases involving enforced disappearances or extra-judicial
killings that calls for flexibility in considering the gamut of evidence
presented by the parties, this case sets a different scenario and a
significant portion of the petitioner’s testimony could have been
easily corroborated. In his Sinumpaang Salaysay22dated March 5,
2008 and the Fact Sheet dated December 9, 200723 executed
before the Alliance for the Advancement of People’s Rights-
Southern Tagalog (KARAPATAN-ST), the petitioner stated that
when he was invited and interrogated at the military camp in
Naujan, Oriental Mindoro, he brought with him his uncle Norberto
Roxas, Barangay Captain Mario Ilagan and two of his bodyguards,
and Edwardo Estabillo – five witnesses who can attest and easily
corroborate his statement – but curiously, the petitioner did not
present any piece of evidence, whether documentary or
testimonial, to buttress such claim nor did he give any reason for
their non-presentation.This could have made a difference in light of
the denials made by the respondents as regards the petitioner’s
claims.
The existence of an order of battle and inclusion of the petitioner’s
name in it is another allegation by the petitioner that does not find
support on the evidence adduced. The Court notes that such
allegation was categorically denied by respondent Gen. Avelino I.
Razon, Jr. who, in his Affidavit dated March 31, 2008, stated that
he "does not have knowledge about any Armed Forces of the
Philippines (AFP) ‘order of battle’ which allegedly lists the
petitioner as a member of the CPP."24 This was also denied by Pvt.
Osio, who the petitioner identified as the one who told him that he
was included in the order of battle.25 The 2nd Infantry (Jungle
Fighter) Division of the Philippine Army also conducted an
investigation pursuant to the directive of AFP Chief of Staff Gen.
Esperon,26 and it was shown that the persons identified by the
petitioners who allegedly committed the acts complained of were
not connected or assigned to the 2nd Infantry Division. 27
Moreover, the evidence showed that the petitioner’s mobility was
never curtailed. From the time he was allegedly brought to
Batangas in August of 2007 until the time he sought the assistance
of KARAPATAN-ST, there was no restraint upon the petitioner to
go home, as in fact, he went home to Mindoro on several
instances. And while he may have been wary of Pvt. Osio’s
presence at the pier, there was no claim by the petitioner that he
was threatened or prevented by Pvt. Osio from boarding any
vehicle that may transport him back home. The petitioner also
admitted that he had a mobile phone; hence, he had unhampered
access to communication and can readily seek assistance from
non-governmental organizations and even government agencies.
The respondents also belied the petitioner’s claim that they forced
him to become a military informant and instead, alleged that it was
the petitioner who volunteered to be one. Thus, in his Sinumpaang
Salaysay28 executed on March 25, 2008, Pvt. Osio admitted that
he actually knew the petitioner way back in 1998 when they were
still students. He also stated that when he saw the petitioner again
in 2007, the latter manifested his intention to become a military
informant in exchange for financial and other forms of assistance.
The petitioner also harps on the alleged "monitoring" activities
being conducted by a certain "Joel", e.g., the latter’s alleged act of
following him, pretending to peddle pandesal and asking him about
his personal circumstances. Such allegation by the petitioner,
however, is, at best, a conclusion on his part, a mere impression
that the petitioner had, based on his personal assessment of the
circumstances. The petitioner even admitted in his testimony
before the CA that when he had a conversation with "Joel"
sometime in July 2007, the latter merely asked him whether he
was still connected with ANAKPAWIS, but he was not threatened
"with anything" and no other incident occurred between them since
then.29 There is clearly nothing on record which shows that "Joel"
committed overt acts that will unequivocally lead to the conclusion
arrived at by the petitioner, especially since the alleged acts
committed by "Joel" are susceptible of different interpretations.
Given that the totality of the evidence presented by the petitioner
failed to support his claims, the reliefs prayed for, therefore, cannot
be granted. The liberality accorded to amparo and habeas data
cases does not mean that a claimant is dispensed with the onus of
proving his case. "Indeed, even the liberal standard of substantial
evidence demands some adequate evidence."30
The President cannot be
automatically dropped as a
respondent pursuant to the doctrine
of command responsibility
In Noriel Rodriguez v. Gloria Macapagal Arroyo, et al., 31 the Court
stated:
a. Command responsibility of the President
Having established the applicability of the doctrine of command
responsibility in amparo proceedings, it must now be resolved
whether the president, as commander-in-chief of the military, can
be held responsible or accountable for extrajudicial killings and
enforced disappearances. We rule in the affirmative.
To hold someone liable under the doctrine of command
responsibility, the following elements must obtain:
a. the existence of a superior-subordinate relationship
between the accused as superior and the perpetrator of
the crime as his subordinate;
b. the superior knew or had reason to know that the
crime was about to be or had been committed; and
c. the superior failed to take the necessary and
reasonable measures to prevent the criminal acts or
punish the perpetrators thereof.
The president, being the commander-in-chief of all armed forces,
necessarily possesses control over the military that qualifies him
as a superior within the purview of the command responsibility
doctrine.
On the issue of knowledge, it must be pointed out that although
international tribunals apply a strict standard of knowledge, i.e.,
actual knowledge, such may nonetheless be established through
circumstantial evidence. In the Philippines, a more liberal view is
adopted and superiors may be charged with constructive
knowledge. This view is buttressed by the enactment of Executive
Order No. 226, otherwise known as the Institutionalization of the
Doctrine of ‘Command Responsibility’ in all Government Offices,
particularly at all Levels of Command in the
Philippine National Police and other Law Enforcement Agencies
(E.O. 226). Under E.O. 226, a government official may be held
liable for neglect of duty under the doctrine of command
responsibility if he has knowledge that a crime or offense shall be
committed, is being committed, or has been committed by his
subordinates, or by others within his area of responsibility and,
despite such knowledge, he did not take preventive or corrective
action either before, during, or immediately after its commission.
Knowledge of the commission of irregularities, crimes or offenses
is presumed when (a) the acts are widespread within the
government official’s area of jurisdiction; (b) the acts have been
repeatedly or regularly committed within his area of responsibility;
or (c) members of his immediate staff or office personnel are
involved.
Meanwhile, as to the issue of failure to prevent or punish, it is
important to note that as the commander-in-chief of the armed
forces, the president has the power to effectively command,
control and discipline the military. (Citations omitted)
Pursuant to the doctrine of command responsibility, the President,
as the Commander-in-Chief of the AFP, can be held liable for
affront against the petitioner’s rights to life, liberty and security as
long as substantial evidence exist to show that he or she had
exhibited involvement in or can be imputed with knowledge of the
violations, or had failed to exercise necessary and reasonable
diligence in conducting the necessary investigations required
under the rules.1âwphi1
The Court also stresses that rule that the presidential immunity
from suit exists only in concurrence with the president’s
incumbency.32
Conversely, this presidential privilege of immunity cannot be
invoked by a non-sitting president even for acts committed during
his or her tenure.33 Courts look with disfavor upon the presidential
privilege of immunity, especially when it impedes the search for
truth or impairs the vindication of a right.34
The petitioner, however, is not exempted from the burden of
proving by substantial evidence his allegations against the
President to make the latter liable for either acts or omissions
violative of rights against life, liberty and security. In the instant
case, the petitioner merely included the President’s name as a
party respondent without any attempt at all to show the latter’s
actual involvement in, or knowledge of the alleged violations.
Further, prior to the filing of the petition, there was no request or
demand for any investigation that was brought to the President’s
attention. Thus, while the President cannot be completely dropped
as a respondent in a petition for the privilege of the writs of amparo
and habeas data merely on the basis of the presidential immunity
from suit, the petitioner in this case failed to establish
accountability of the President, as commander-in-chief, under the
doctrine of command responsibility.
Compliance with technical rules of
procedure is ideal but it cannot be
accorded primacy
Among the grounds cited by the CA in denying the petition for the
issuance of the writs of amparo and habeas data was the defective
verification which was attached to the petition. In
Tagitis,35 supporting affidavits required under Section 5(c) of the
Rule on the Writ of Amparo were not submitted together with the
petition and it was ruled that the defect was fully cured when the
petitioner and the witness personally testified to prove the truth of
their allegations in the hearings held before the CA. In the instant
case, the defective verification was not the sole reason for the
CA’s denial of the petition for the issuance of the writs of amparo
and habeas data. Nonetheless, it must be stressed that although
rules of procedure play an important rule in effectively
administering justice, primacy should not be accorded to them
especially in the instant case where there was at least substantial
compliance with the requirements and where petitioner himself
testified in the hearings to attest to the veracity of the claims which
he stated in his petition.
To conclude, compliance with technical rules of procedure is ideal
but it cannot be accorded primacy. In the proceedings before the
CA, the petitioner himself testified to prove the veracity of his
allegations which he stated in the petition. Hence, the defect in the
verification attached to the petition. Hence, the defect in the
verification attached to the petition was deemed cured.
WHEREFORE, premises considered, the petitioner's motion for
reconsideration is DENIED WITH FINALITY.
SO ORDERED.
G.R. No. 191805 April 16, 2013
IN THE MATTER OF THE PETITION FOR THE WRIT OF
AMPARO AND HABEAS DATA IN FAVOR OF NORIEL
RODRIGUEZ, NORIEL RODRIGUEZ, Petitioner,
vs.
GLORIA MACAPAGAL-ARROYO, GEN. VICTOR S. IBRADO,
PDG JESUS AME VERSOZA, LT. GEN. DELFIN BANGIT, MAJ.
GEN. NESTOR Z. OCHOA, P/CSUPT. AMETO G. TOLENTINO,
P/SSUPT. JUDE W. SANTOS, COL. REMIGIO M. DE VERA, an
officer named MATUTINA, LT. COL. MINA, CALOG, GEORGE
PALACPAC under the name "HARRY," ANTONIO CRUZ,
ALDWIN "BONG" PASICOLAN and VINCENT
CALLAGAN,Respondents.
x-----------------------x
G.R. No. 193160
IN THE MATTER OF THE PETITION FOR THE WRIT OF
AMPARO AND HABEAS DATA IN FAVOR OF NORIEL
RODRIGUEZ, POLICE DIR. GEN. JESUS A. VERSOZA,
P/SSUPT. JUDE W. SANTOS, BGEN. REMEGIO M. DE VERA,
1ST LT. RYAN S. MATUTINA, LT. COL. LAURENCE E. MINA,
ANTONIO C. CRUZ, ALDWIN C. PASICOLAN and VICENTE A.
CALLAGAN, Petitioners,
vs.
NORIEL H. RODRIGUEZ, Respondent.
RESOLUTION
SERENO, CJ.:
On 15 November 2011, the Court promulgated its Decision in the
present case, the dispositive portion of which reads:
WHEREFORE, we resolve to GRANT the Petition for Partial
Review in G.R. No. 191805 and DENY the Petition for Review in
G.R. No. 193160. The Decision of the Court of Appeals is hereby
AFFIRMED WITH MODIFICATION.
The case is dismissed with respect to respondents former
President Gloria Macapagal-Arroyo, P/CSupt. Ameto G. Tolentino,
and P/SSupt. Jude W. Santos, Calog, George Palacpac, Antonio
Cruz, Aldwin Pasicolan and Vincent Callagan for lack of merit.
This Court directs the Office of the Ombudsman (Ombudsman)
and the Department of Justice (DOJ) to take the appropriate action
with respect to any possible liability or liabilities, within their
respective legal competence, that may have been incurred by
respondents Gen. Victor lbrado, PDG. Jesus Verzosa, Lt. Gen.
Delfin Bangit, Maj. Gen. Nestor Ochoa, Brig. Gen. Remegio De
Vera, 1st Lt. Ryan Matutina, and Lt. Col. Laurence Mina. The
Ombudsman and the DOJ are ordered to submit to this Court the
results of their action within a period of six months from receipt of
this Decision.
In the event that herein respondents no longer occupy their
respective posts, the directives mandated in this Decision and in
the Court of Appeals are enforceable against the incumbent
officials holding the relevant positions. Failure to comply with the
foregoing shall constitute contempt of court.
SO ORDERED.
After a careful examination of the records, the Court was
convinced that the Court of Appeals correctly found sufficient
evidence proving that the soldiers of the 17th Infantry Battalion, 5th
Infantry Division of the military abducted petitioner Rodriguez on 6
September 2009, and detained and tortured him until 17
September 2009.
Pursuant to the Decision ordering the Office of the Ombudsman to
take further action, Ombudsman Conchita Carpio Morales sent this
Court a letter dated 23 May 2012, requesting an additional two-
month period, or until 24 July 2012, within which to submit a report.
The Ombudsman stated that Noriel Rodriguez (Rodriguez) and his
family refused to cooperate with the investigation for security
reasons.
On 6 January 2012, respondents filed their Motion for
Reconsideration,1 arguing that the soldiers belonging to the 17th
Infantry Battalion, 5th Infantry Division of the military cannot be
held accountable for authoring the abduction and torture of
petitioner. Their arguments revolve solely on the claim that
respondents were never specifically mentioned by name as having
performed, permitted, condoned, authorized, or allowed the
commission of any act or incurrence omission which would violate
or threaten with violation the rights to life, liberty, and security of
petitioner-respondent and his family.2
On 18 January 2013, the Ombudsman submitted the Investigation
Report, as compliance with the Court’s directive to take
appropriate action with respect to possible liabilities respondents
may have incurred. The exhaustive report detailed the steps taken
by the Field Investigation Office (FIO) of the Office of the
Ombudsman, concluding that no criminal, civil, or administrative
liabilities may be imputed to the respondents. It was reflected
therein that the lawyers for the Rodriguezes had manifested to the
FIO that the latter are hesitant to appear before them for security
reasons, viz:
Karapatan (a non-governmental organization that provides legal
assistance to victims of human rights violations and their families)
could not locate Noriel and Rodel. As of this writing, the
Rodriguezes refused to participate in the present fact-finding
investigation ‘for security reasons.’ Atty. Yambot disclosed
(through a Manifestation dated March 30, 2012 that despite efforts
to convince Noriel to participate in the present proceedings, the
latter ‘remains unconvinced and unwilling to this date.’
Recent information, however, revealed that Noriel and his family
are no longer interested in participating in the present case.
Instead of appearing before this Office for a conference under
oath, SPO1 Robert B. Molina submitted an Affidavit dated June 13,
2012 stating that on September 15, 2009, at around 11:00 o’clock
in the morning, Wilma H. Rodriguez appeared before the Gonzaga
Police Station and requested to enter into the blotter that her son,
Noriel, was allegedly missing in Sitio Comunal, Gonzaga,
Cagayan. Thereupon, he gathered information relative to Wilma’s
report "but the community residence failed to reveal anything".3
The other accounts – specifically that of respondent Antonino C.
Cruz, Special Investigator II of the Commission on Human Rights
(CHR), as well as the claims of respondents Mina and De Vera
that they had disclosed to the CHR that Noriel had become an
agent ("asset") of the 17th Infantry Battalion – have been
thoroughly evaluated and ruled upon in our Decision. The OMB
further laments, "If only he (Noriel) could be asked to verify the
circumstances under which he executed these subsequent
affidavits, his inconsistent claims will finally be settled," and that
"(I)f there is one person who can attest on whether detention and
torture were indeed committed by any of the Subjects herein, it is
Noriel Rodriguez himself, the supposed victim."4
The purported unwillingness of the petitioner to appear or
participate at this stage of the proceedings due to security reasons
does not affect the rationale of the writ granted by the CA, as
affirmed by this Court. In any case, the issue of the existence of
criminal, civil, or administrative liability which may be imputed to
the respondents is not the province of amparo proceedings --
rather, the writ serves both preventive and curative roles in
addressing the problem of extrajudicial killings and enforced
disappearances. It is preventive in that it breaks the expectation of
impunity in the commission of these offenses, and it is curative in
that it facilitates the subsequent punishment of perpetrators by
inevitably leading to subsequent investigation and action. 5 In this
case then, the thrust of ensuring that investigations are conducted
and the rights to life, liberty, and security of the petitioner, remains.
We deny the motion for reconsideration.
The writ of amparo partakes of a summary proceeding that
requires only substantial evidence to make the appropriate interim
and permanent reliefs available to the petitioner. As explained in
the Decision, it is not an action to determine criminal guilt requiring
proof beyond reasonable doubt, or liability for damages requiring
preponderance of evidence, or even administrative responsibility
requiring substantial evidence. The totality of evidence as a
standard for the grant of the writ was correctly applied by this
Court, as first laid down in Razon v. Tagitis:
The fair and proper rule, to our mind, is to consider all the pieces
of evidence adduced in their totality, and to consider any evidence
otherwise inadmissible under our usual rules to be admissible if it
is consistent with the admissible evidence adduced. In other
words, we reduce our rules to the most basic test of reason – i.e.,
to the relevance of the evidence to the issue at hand and its
consistency with all other pieces of adduced evidence. Thus, even
hearsay evidence can be admitted if it satisfies this basic minimum
test.6 (Emphasis supplied.)
No reversible error may be attributed to the grant of the privilege of
the writ by the CA, and the present motion for reconsideration
raises no new issues that would convince us otherwise.
Respondents’ claim that they were not competently identified as
the soldiers who abducted and detained the petitioner, or that
there was no mention of their names in the documentary evidence,
is baseless. The CA rightly considered Rodriguez’s Sinumpaang
Salaysay7 as a meticulous and straightforward account of his
horrific ordeal with the military, detailing the manner in which he
was captured and maltreated on account of his suspected
membership in the NPA.8
Petitioner narrated that at dawn on 9 September 2009, he noticed
a soldier with the name tag "Matutina," who appeared to be an
official because the other soldiers addressed him as "sir."9 He saw
Matutina again at 11:00 p.m. on 15 September 2009, when his
abductors took him to a military operation in the mountains. His
narration of his suffering included an exhaustive description of his
physical surroundings, personal circumstances, and perceived
observations. He likewise positively identified respondents 1st Lt.
Matutina and Lt. Col. Mina to be present during his abduction,
detention and torture.10 These facts were further corroborated by
Hermie Antonio Carlos in his Sinumpaang Salaysay dated 16
September 2009,11 wherein he recounted in detail the
circumstances surrounding the victim’s capture.
Respondents’ main contention in their Return of the Writ was
correctly deemed illogical and contradictory by the CA. They claim
that Rodriguez had complained of physical ailments due to
activities in the CPP-NPA, yet nevertheless signified his desire to
become a double-agent for the military. The CA stated:
In the Return of the Writ, respondent AFP members alleged that
petitioner confided to his military handler, Cpl. Navarro, that
petitioner could no longer stand the hardships he experienced in
the wilderness, and that he wanted to become an ordinary citizen
again because of the empty promises of the CPP-NPA. However,
in the same Return, respondents state that petitioner agreed to
become a double agent for the military and wanted to re-enter the
CPP-NPA, so that he could get information regarding the
movement directly from the source. If petitioner was tired of life in
the wilderness and desired to become an ordinary citizen again, it
defies logic that he would agree to become an undercover agent
and work alongside soldiers in the mountains – or the wilderness
he dreads – to locate the hideout of his alleged NPA
comrades.12 (Emphasis supplied.)
Respondents conveniently neglect to address the findings of both
the CA and this Court that aside from the abduction of Rodriguez,
respondents, specifically 1st Lt. Matutina, had violated and
threatened the former’s right to security when they made a visual
recording of his house, as well as the photos of his relatives. The
CA found that the soldiers even went as far as taking videos of the
photos of petitioner’s relatives hung on the wall of the house, and
the innermost portions of the house.13 There is no reasonable
justification for this violation of the right to privacy and security of
petitioner’s abode, which strikes at the very heart and rationale of
the Rule on the Writ of Amparo. More importantly, respondents
also neglect to address our ruling that the failure to conduct a fair
and effective investigation similarly amounted to a violation of, or
threat to Rodriguez’s rights to life, liberty, and security.14
The writ’s curative role is an acknowledgment that the violation of
the right to life, liberty, and security may be caused not only by a
public official’s act, but also by his omission. Accountability may
attach to respondents who are imputed with knowledge relating to
the enforced disappearance and who carry the burden of
disclosure; or those who carry, but have failed to discharge, the
burden of extraordinary diligence in the investigation of the
enforced disappearance.15 The duty to investigate must be
undertaken in a serious manner and not as a mere formality
preordained to be ineffective.16
The CA found that respondents Gen. Ibrado, PDG Verzosa, LT.
Gen. Bangit, Maj. Gen. Ochoa, Col. De Vera, and Lt. Col. Mina
conducted a perfunctory investigation which relied solely on the
accounts of the military. Thus, the CA correctly held that the
investigation was superficial, one-sided, and depended entirely on
the report prepared by 1st Lt. Johnny Calub. No efforts were
undertaken to solicit petitioner’s version of the incident, and no
witnesses were questioned regarding it. 17 The CA also took into
account the palpable lack of effort from respondent Versoza, as
the chief of the Philippine National Police.

WHEREFORE, in view of the foregoing, the Motion for

Reconsideration is hereby DENIED with FINALITY. Let a copy of
this Resolution be furnished the Ombudsman for whatever
appropriate action she may still take under circumstances.

SO ORDERED.