EVIDENCE CASES - FULLTEXT CASES: WEEK ONE Rule 128

G.R. No. 150224 May 19, 2004 PEOPLE OF THE PHILIPPINES, appellee, vs. JOEL YATAR alias "KAWIT", appellant. D E C I S I O N PER CURIAM: On automatic review is a Decision of the Regional Trial Court of Bulanao, Tabuk, Kalinga, Branch 25, sentencing appellant Joel Yatar alias "Kawit" to Death for the special complex crime of Rape with Homicide, and ordering him to pay the heirs of the victim, Kathylyn D. Uba, civil indemnity in the amount of P75,000.00, moral damages in the amount of P200,000.00, exemplary damages in the amount of P50,000.00, actual damages in the amount of P186,410.00, or total damages amounting to P511,410.00, and costs of litigation.1 Appellant was charged with Rape with Homicide under the following Information: That on or about the afternoon of June 30, 1998 at Liwan West, Rizal, Kalinga, and within the jurisdiction of this Honorable Court, the accused, in order to have carnal knowledge of a certain KATHYLYN D. UBA, did then and there wilfully, unlawfully, and feloniously, and with use of a bladed weapon stab the latter inflicting upon her fatal injuries resulting in the death of the victim, and on the occasion or by reason thereof, accused, wilfully, unlawfully and feloniously, and by means of force and violence had carnal knowledge of said Kathlyn D. Uba against her will. CONTRARY TO LAW.2 The facts are: On June 30, 1998, at 8:30 a.m., Judilyn Pas-a and her first cousin, seventeen year old Kathylyn Uba, were on the ground floor of the house of their grandmother, Isabel Dawang, in Liwan West, Rizal, Kalinga. They were talking about the letter sent by their aunt, Luz Yatar, to her husband, appellant Joel Yatar, through Kathylyns friend, Cecil Casingan. Kathylyn handed the letter to appellant earlier that morning.3 At 9:00 a.m. of the same day, Judilyn and her husband, together with Isabel Dawang, left for their farm in Nagbitayan some two kilometers away. Before Judilyn and her husband departed, Kathylyn told Judilyn that she intended to go to Tuguegarao, but in the event she would not be able to leave, she would just stay home and wash her clothes or go to the house of their aunt, Anita Wania. Kathylyn was left alone in the house.4 Later, at 10:00 a.m., Anita Wania and fifteen year old Beverly Deneng stopped by the house of Isabel. They saw appellant at the back of the house. They went inside the house through the back door of the kitchen to have a drink of water. Anita asked appellant what he was doing there, and he replied that he was getting lumber to bring to the house of his mother.5 At 12:30 p.m., while Judilyn was on her way home from Nagbitayan, she saw appellant descend the ladder from the second floor of the house of Isabel Dawang and run towards the back of the house.6 She later noticed appellant, who was wearing a white shirt with collar and black pants, pacing back and forth at the back of the house. She did not find this unusual as appellant and his wife used to live in the house of Isabel Dawang.7 At 1:30 p.m., Judilyn again saw appellant when he called her near her house. This time, he was wearing a black shirt without collar and blue pants. Appellant told her that he would not be getting the lumber he had stacked, and that Isabel could use it. She noticed that appellants eyes were "reddish and sharp." Appellant asked her where her husband was as he had something important to tell him. Judilyns husband then arrived and appellant immediately left and went towards the back of the house of Isabel.8 In the evening of the same day, Isabel Dawang arrived home and found that the lights in her house were off. She called out for her granddaughter, Kathylyn Uba. The door to the ground floor was open. She noticed that the water container she asked Kathylyn to fill up earlier that day was still empty. She went up the ladder to the second floor of the house to see if Kathylyn was upstairs. She found that the door was tied with a rope, so she went down to get a knife. While she groped in the dark, she felt a lifeless body that was cold and rigid.9 Isabel moved her hand throughout the entire body. She found out that it was the naked body of her granddaughter, Kathylyn. She called for help. Judilyn and her husband arrived. Isabel was given a flashlight by Judilyn. She focused the beam and saw Kathylyn sprawled on the floor naked, with her intestines protruding out of her stomach. Meanwhile, neighbors had arrived to offer assistance. A daughter of Isabel, Cion, called the police.10 At 9:00 that evening, SP04 Melchor Faniswa received a report that a dead woman was found in Isabel Dawangs house. Together with fellow police officers, Faniswa went to the house and found the naked body of Kathylyn Uba with multiple stab wounds. The people in the vicinity informed the police officers that appellant was seen going down the ladder of the house of Isabel Dawang at approximately 12:30 p.m. The police discovered the victims panties, brassiere, denim pants, bag and sandals beside her naked cadaver at the scene of the crime, and they found a dirty white shirt splattered with blood within 50 meters from the house of Isabel. When questioned by the police authorities, appellant denied any knowledge of Kathylynss death,11 however, he was placed under police custody. On July 3, 1998, appellant asked the police officers if he could relieve himself. Police Officer Cesar Abagan accompanied him to the toilet around seven to ten meters away from the police station. They suddenly heard someone shout in the Ilocano dialect, "Nagtaray!" (Hes running away!). Police Officer Orlando Manuel exited through the gate of the Police Station and saw appellant running away. Appellant was approximately 70 meters away from the station when Police Officer Abagan recaptured him.12 He was charged with Rape with Homicide. When he was arraigned on July 21, 1998, appellant pleaded "not guilty." After trial, appellant was convicted of the crime of Rape with Homicide, defined and penalized under Article 266-A of the Revised Penal Code, as amended by R.A. 8353, otherwise known as the Anti-Rape Law of 1997, and was accordingly, sentenced to Death. Hence, this automatic review pursuant to Article 47 of the Revised Penal Code, as amended. In his Brief, appellant assigns the following errors: I.THE TRIAL COURT GRAVELY ERRED IN GIVING MUCH WEIGHT TO THE EVIDENCE PRESENTED BY THE PROSECUTION NOTWITHSTANDING THEIR DOUBTFULNESS. II THE TRIAL COURT SERIOUSLY ERRED IN NOT ACQUITTING THE ACCUSED-APPELLANT OF THE SERIOUS CRIME CHARGED DUE TO REASONABLE DOUBT. Appellants contentions are unmeritorious. The issue regarding the credibility of the prosecution witnesses should be resolved against appellant. This Court will not interfere with the judgment of the trial court in determining the credibility of witnesses unless there appears in the record some fact or circumstance of weight and influence which has been overlooked or the significance of which has been misinterpreted.13 Wellentrenched is the rule that the findings of the trial court on credibility of witnesses are entitled to great weight on appeal unless cogent reasons are presented necessitating a reexamination if not the disturbance of the same; the reason being that the former is in a better and unique position of hearing first hand the witnesses and observing their deportment, conduct and attitude.14 Absent any showing that the trial judge overlooked, misunderstood, or misapplied some facts or circumstances of weight which would affect the result of the case, the trial judges assessment of credibility deserves the appellate courts highest respect.15 Where there is nothing to show that the witnesses for the prosecution were actuated by improper motive, their testimonies are entitled to full faith and credit.16 The weight of the prosecutions evidence must be appreciated in light of the well-settled rule which provides that an accused can be convicted even if no eyewitness is available, as long as sufficient circumstantial evidence is presented by the prosecution to prove beyond doubt that the accused committed the crime.17 Reference to the records will show that a total of eleven (11) wounds, six (6) stab and five (5) incised, were found on the victims abdomen and back, causing a portion of her small intestines to spill out of her body.18 Rigor mortis of the vicitms body was complete when Dr. Bartolo examined the victim at 9:00 a.m. on July 1, 1998. According to him, the time of death may be approximated from between nine (9) to twelve (12) hours prior to the completion of rigor mortis.19 In other words, the estimated time of death was sometime between 9:00 a.m. to 12:00 p.m. on June 30, 1998. This was within the timeframe within which the lone presence of appellant lurking in the house of Isabel Dawang was testified to by witnesses. It should also be noted that, although the Postmortem Report by the attending physician, Dr. Pej Evan C. Bartolo, indicates that no hymenal lacerations, contusions or hematoma were noted on the victim,20 Dr. Bartolo discovered the presence of semen in the vaginal canal of the victim. During his testimony, Dr. Bartolo stated that the introduction of semen into the vaginal canal could

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only be done through sexual intercourse with the victim.21 In addition, it is apparent from the pictures submitted by the prosecution that the sexual violation of the victim was manifested by a bruise and some swelling in her right forearm indicating resistance to the appellants assault on her virtue.22 Significantly, subsequent testing showed that the Deoxyribonucleic acid (DNA) of the sperm specimen from the vagina of the victim was identical the semen to be that of appellants gene type. DNA is a molecule that encodes the genetic information in all living organisms.23 A persons DNA is the same in each cell and it does not change throughout a persons lifetime; the DNA in a persons blood is the same as the DNA found in his saliva, sweat, bone, the root and shaft of hair, earwax, mucus, urine, skin tissue, and vaginal and rectal cells.24 Most importantly, because of polymorphisms in human genetic structure, no two individuals have the same DNA, with the notable exception of identical twins.25 DNA print or identification technology has been advanced as a uniquely effective means to link a suspect to a crime, or to exonerate a wrongly accused suspect, where biological evidence has been left. For purposes of criminal investigation, DNA identification is a fertile source of both inculpatory and exculpatory evidence. It can assist immensely in effecting a more accurate account of the crime committed, efficiently facilitating the conviction of the guilty, securing the acquittal of the innocent, and ensuring the proper administration of justice in every case. DNA evidence collected from a crime scene can link a suspect to a crime or eliminate one from suspicion in the same principle as fingerprints are used.26 Incidents involving sexual assault would leave biological evidence such as hair, skin tissue, semen, blood, or saliva which can be left on the victims body or at the crime scene. Hair and fiber from clothing, carpets, bedding, or furniture could also be transferred to the victims body during the assault.27 Forensic DNA evidence is helpful in proving that there was physical contact between an assailant and a victim. If properly collected from the victim, crime scene or assailant, DNA can be compared with known samples to place the suspect at the scene of the crime.28 The U.P. National Science Research Institute (NSRI), which conducted the DNA tests in this case, used the Polymerase chain reaction (PCR) amplification method by Short Tandem Repeat (STR) analysis. With PCR testing, tiny amounts of a specific DNA sequence can be copied exponentially within hours. Thus, getting sufficient DNA for analysis has become much easier since it became possible to reliably amplify small samples using the PCR method. In assessing the probative value of DNA evidence, courts should consider, inter alia, the following factors: how the samples were collected, how they were handled, the possibility of contamination of the samples, the procedure followed in analyzing the samples, whether the proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who conducted the tests.29 In the case at bar, Dr. Maria Corazon Abogado de Ungria was duly qualified by the prosecution as an expert witness on DNA print or identification techniques.30 Based on Dr. de Ungrias testimony, it was determined that the gene type and DNA profile of appellant are identical to that of the extracts subject of examination.31 The blood sample taken from the appellant showed that he was of the following gene types: vWA 15/19, TH01 7/8, DHFRP2 9/10 and CSF1PO 10/11, which are identical with semen taken from the victims vaginal canal.32 Verily, a DNA match exists between the semen found in the victim and the blood sample given by the appellant in open court during the course of the trial. Admittedly, we are just beginning to integrate these advances in science and technology in the Philippine criminal justice system, so we must be cautious as we traverse these relatively uncharted waters. Fortunately, we can benefit from the wealth of persuasive jurisprudence that has developed in other jurisdictions. Specifically, the prevailing doctrine in the U.S. has proven instructive. In Daubert v. Merrell Dow,33 it was ruled that pertinent evidence based on scientifically valid principles could be used as long as it was relevant and reliable. Judges, under Daubert, were allowed greater discretion over which testimony they would allow at trial, including the introduction of new kinds of scientific techniques. DNA typing is one such novel procedure. Under Philippine law, evidence is relevant when it relates directly to a fact in issue as to induce belief in its existence or nonexistence.34 Applying the Daubert test to the case at bar, the DNA evidence obtained through PCR testing and utilizing STR analysis, and which was appreciated by the court a quo is relevant and reliable since it is reasonably based on scientifically valid principles of human genetics and molecular biology. Independently of the physical evidence of appellants semen found in the victims vaginal canal, the trial court appreciated the following circumstantial evidence as being sufficient to sustain a conviction beyond reasonable doubt: (1) Appellant and his wife were living in the house of Isabel Dawang together with the victim, Kathylyn Uba; (2) In June 1998, appellants wife left the house because of their frequent quarrels; (3) Appellant received from the victim, Kathylyn Uba, a letter from his estranged wife in the early morning on June 30, 1998; (4) Appellant was seen by Apolonia Wania and Beverly Denneng at 1:00 p.m. of June 30, 1998 near the kitchen of the house of Isabel Dawang, acting strangely and wearing a dirty white shirt with collar; (5) Judilyn Pas-a saw appellant going down the ladder of the house of Isabel at 12:30 p.m., wearing a dirty white shirt, and again at 1:30 p.m., this time wearing a black shirt; (6) Appellant hurriedly left when the husband of Judilyn Pas-a was approaching; (7) Salmalina Tandagan saw appellant in a dirty white shirt coming down the ladder of the house of Isabel on the day Kathylyn Uba was found dead; (8) The door leading to the second floor of the house of Isabel Dawang was tied by a rope; (9) The victim, Kathylyn Uba, lay naked in a pool of blood with her intestines protruding from her body on the second floor of the house of Isabel Dawang, with her stained pants, bra, underwear and shoes scattered along the periphery; (10) Laboratory examination revealed sperm in the victims vagina (Exhibit "H" and "J"); (11) The stained or dirty white shirt found in the crime scene was found to be positive with blood; (12) DNA of slide, Exhibit "J" and "H", compared with the DNA profile of the appellant are identical; and (13) Appellant escaped two days after he was detained but was subsequently apprehended, such flight being indicative of guilt.35 Circumstantial evidence, to be sufficient to warrant a conviction, must form an unbroken chain which leads to a fair and reasonable conclusion that the accused, to the exclusion of others, is the perpetrator of the crime. To determine whether there is sufficient circumstantial evidence, three requisites must concur: (1) there is more than one circumstance; (2) facts on which the inferences are derived are proven; and (3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.36 In an attempt to exclude the DNA evidence, the appellant contends that the blood sample taken from him as well as the DNA tests were conducted in violation of his right to remain silent as well as his right against self-incrimination under Secs. 12 and 17 of Art. III of the Constitution. This contention is untenable. The kernel of the right is not against all compulsion, but against testimonial compulsion.37 The right against self- incrimination is simply against the legal process of extracting from the lips of the accused an admission of guilt. It does not apply where the evidence sought to be excluded is not an incrimination but as part of object evidence. We ruled in People v. Rondero38 that although accused-appellant insisted that hair samples were forcibly taken from him and submitted to the National Bureau of Investigation for forensic examination, the hair samples may be admitted in evidence against him, for what is proscribed is the use of testimonial compulsion or any evidence communicative in nature acquired from the accused under duress. Hence, a person may be compelled to submit to fingerprinting, photographing, paraffin, blood and DNA, as there is no testimonial compulsion involved. Under People v. Gallarde,39 where immediately after the incident, the police authorities took pictures of the accused without the presence of counsel, we ruled that there was no violation of the right against self-incrimination. The accused may be compelled to submit to a physical examination to determine his involvement in an offense of which he is accused. It must also be noted that appellant in this case submitted himself for blood sampling which was conducted in open court on March 30, 2000, in the presence of counsel. Appellant further argues that the DNA tests conducted by the prosecution against him are unconstitutional on the ground that resort thereto is tantamount to the application of an ex-post facto law. This argument is specious. No ex-post facto law is involved in the case at bar. The science of DNA typing involves the admissibility, relevance and reliability of the evidence obtained under the Rules of Court. Whereas an ex-post facto law refers primarily to a question of law, DNA profiling requires a factual determination of the probative weight of the evidence presented.

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Appellants twin defense of denial and alibi cannot be sustained. The forensic DNA evidence and bloodied shirt, notwithstanding the eyewitness accounts of his presence at Isabel Dawangs house during the time when the crime was committed, undeniably link him to the June 30, 1998 incident. Appellant did not demonstrate with clear and convincing evidence an impossibility to be in two places at the same time, especially in this case where the two places are located in the same barangay.40 He lives within a one hundred (100) meter radius from the scene of the crime, and requires a mere five minute walk to reach one house from the other. This fact severely weakens his alibi. As to the second assignment of error, appellant asserts that the court a quo committed reversible error in convicting him of the crime charged. He alleges that he should be acquitted on reasonable doubt. Appellants assertion cannot be sustained. Generally, courts should only consider and rely upon duly established evidence and never on mere conjectures or suppositions. The legal relevancy of evidence denotes "something more than a minimum of probative value," suggesting that such evidentiary relevance must contain a "plus value."41 This may be necessary to preclude the trial court from being satisfied by matters of slight value, capable of being exaggerated by prejudice and hasty conclusions. Evidence without "plus value" may be logically relevant but not legally sufficient to convict. It is incumbent upon the trial court to balance the probative value of such evidence against the likely harm that would result from its admission. The judgment in a criminal case can be upheld only when there is relevant evidence from which the court can properly find or infer that the accused is guilty beyond reasonable doubt. Proof beyond reasonable doubt requires moral certainty of guilt in order to sustain a conviction. Moral certainty is that degree of certainty that convinces and directs the understanding and satisfies the reason and judgment of those who are bound to act conscientiously upon it. It is certainty beyond reasonable doubt.42 This requires that the circumstances, taken together, should be of a conclusive nature and tendency; leading, on the whole, to a satisfactory conclusion that the accused, and no one else, committed the offense charged.43 In view of the totality of evidence appreciated thus far, we rule that the present case passes the test of moral certainty. However, as a matter of procedure, and for the purpose of meeting the requirement of proof beyond reasonable doubt, motive is essential for conviction when there is doubt as to the identity of the culprit.44 Pertinently, it must be noted that Judilyn Pas-a, first cousin of the victim, testified that she last saw the victim alive in the morning of June 30, 1998 at the house of Isabel Dawang.45 She witnessed the appellant running down the stairs of Isabels house and proceeding to the back of the same house.46 She also testified that a few days before the victim was raped and killed, the latter revealed to her that "Joel Yatar attempted to rape her after she came from the school."47 The victim told Judilyn about the incident or attempt of the appellant to rape her five days before her naked and violated body was found dead in her grandmothers house on June 25, 1998.48 In addition, Judilyn also testified that when her auntie Luz Dawang Yatar, wife of appellant, separated from her husband, "this Joel Yatar threatened to kill our family."49 According to Judilyn, who was personally present during an argument between her aunt and the appellant, the exact words uttered by appellant to his wife in the Ilocano dialect was, "If you leave me, I will kill all your family and your relatives x x x."50 These statements were not contradicted by appellant. Thus, appellants motive to sexually assault and kill the victim was evident in the instant case. It is a rule in criminal law that motive, being a state of mind, is established by the testimony of witnesses on the acts or statements of the accused before or immediately after the commission of the offense, deeds or words that may express it or from which his motive or reason for committing it may be inferred.51 Accordingly, we are convinced that the appellant is guilty beyond reasonable doubt of the special complex crime of rape with homicide. Appellant sexually assaulted Kathylyn Uba, and by reason or on the occasion thereof, in order to conceal his lustful deed, permanently sealed the victims lips by stabbing her repeatedly, thereby causing her untimely demise. The following are the elements constitutive of rape with homicide: (1) the appellant had carnal knowledge of a woman; (2) carnal knowledge of a woman was achieved by means of force, threat or intimidation; and (3) by reason or on the occasion of such carnal knowledge by means of force, threat or intimidation, appellant killed the woman.52 However, in rape committed by close kin, such as the victims father, step-father, uncle, or the common-law spouse of her mother, it is not necessary that actual force or intimidation be employed.53 Moral influence or ascendancy takes the place of violence and intimidation.54 The fact that the victims hymen is intact does not negate a finding that rape was committed as mere entry by the penis into the lips of the female genital organ, even without rupture or laceration of the hymen, suffices for conviction of rape.55 The strength and dilatability of the hymen are invariable; it may be so elastic as to stretch without laceration during intercourse. Absence of hymenal lacerations does not disprove sexual abuse especially when the victim is of tender age.56 In the case at bar, appellant is the husband of the victims aunt. He is seven years older than the victim Kathylyn Uba. Before he and his wife separated, appellant lived in the house of his motherin-law, together with the victim and his wife. After the separation, appellant moved to the house of his parents, approximately one hundred (100) meters from his mother-in-laws house. Being a relative by affinity within the third civil degree, he is deemed in legal contemplation to have moral ascendancy over the victim. Under Article 266-B of the Revised Penal Code, the penalty of death is imposed when by reason or on the occasion of the rape, homicide is committed. Although three (3) Justices of this Court maintain their position that R.A. 7659 is unconstitutional insofar as it prescribes the death penalty, they nevertheless submit to the ruling of the majority that the law is not unconstitutional, and that the death penalty can be lawfully imposed in the case at bar. As to damages, civil indemnity ex delicto of P100,000.00,57 actual damages incurred by the family of the victim that have been proved at the trial amounting to P93,190.00,58 and moral damages of P75,000.0059 should be awarded in the light of prevailing law and jurisprudence. Exemplary damages cannot be awarded as part of the civil liability since the crime was not committed with one or more aggravating circumstances.60 WHEREFORE, in view of the foregoing, the Decision of the RTC of Bulanao, Tabuk, Kalinga, Branch 25 in Criminal Case No. 3598, sentencing appellant Joel Yatar alias "Kawit" to Death for the special complex crime of Rape with Homicide is AFFIRMED with the MODIFICATION that he be ORDERED to pay the family of the victim Kathylyn Uba civil indemnity ex delicto in the amount of P100,000.00, P93,190.00 in actual damages and P75,000.00 in moral damages. The award of exemplary damages is DELETED. Upon the finality of this Decision and in accordance with Art. 83 of the Revised Penal Code, as amended by Sec. 25 of Rep. Act No. 7659, let the records of this case be forthwith forwarded to the President of the Philippines for the possible exercise of the pardoning power. Costs de oficio. SO ORDERED. G.R. No. 176527 October 9, 2009 PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. SAMSON VILLASAN y BANATI, Accused-Appellant.D E C I SION BRION, J.: We review in this appeal the May 25, 2006 decision of the Court of Appeals (CA) in CA-G.R. CR H.C. No. 00250.1 The appellate court affirmed the May 29, 2001 decision of the Regional Trial Court (RTC), Branch 18, Cebu City,2 that in turn found appellant Samson Villasan (appellant) guilty beyond reasonable doubt of the crime of murder and imposed on him the penalty of reclusion perpetua. ANTECEDENT FACTS The prosecution charged the appellant before the RTC with the crime of murder under the following Information:3 That on or about the 1st day of June, 2000, at about 6:30 in the evening, in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, armed with a .357 caliber Magnum revolver S&W (Homemade), with treachery and evident premeditation, with deliberate intent, with intent to kill, did then and there attack, assault and shot one Jacinto T. Bayron, hitting him on his [sic] vital parts of his body, thereby inflicting upon him physical injuries, as a consequence of which said Jacinto T. Bayron died instantaneously. CONTRARY TO LAW. The appellant pleaded not guilty to the charge upon arraignment.4 The prosecution presented the following witnesses in the trial on the merits that followed: Jose Secula (Jose); Gaudioso Quilaton (Gaudioso); Sergio Bayron (Sergio); and Dr. Rene Enriquez Cam (Dr. Cam). The appellant, Carlito Moalong (Carlito), and Police Senior Inspector Mutchit Salinas (P/Sr. Insp. Salinas) took the witness stand for the defense.

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Jose, a security guard of PROBE Security Agency, testified that he was outside his employers branch office at the Ayala Business Center, Siquijor Road, Cebu City at around 6:15 p.m. of June 1, 2000, when he heard three successive gunshots.5 He mounted his motorcycle to go and investigate but before he could start it, he saw the appellant "walking fast" and carrying a gun. He ordered the appellant to stop and to drop his weapon. The latter obeyed and dropped his gun. He then approached the appellant, conducted a body search on him,6 and turned him over to his (Joses) supervisor who, in turn, contacted the police. The police forthwith brought the suspect to the police station. Jose recalled that he executed an affidavit on the shooting incident before the police.7 On cross examination, Jose clarified that he did not see the actual shooting; he only saw the victims lifeless body after the appellant had been arrested.8 On re-direct, Jose stated that before the appellant was brought to the police station, the latter told him that he had shot a fellow driver.9 Gaudioso, a store assistant at Healthy Options, narrated that he boarded a jeep at the waiting shed at the Ayala Business Center at around 6:30 p.m. of June 1, 2000.10 He occupied the jeeps front seat, beside the driver Jacinto Bayron (Bayron). While so seated, he heard the appellant briefly converse with Bayron, requesting the latter to be allowed to ride the jeep because his own jeep conked out.11 Soon after the appellant got into Bayrons jeep, Gaudioso heard a gunshot. He looked back and saw the appellant shoot Bayron twice in the head.12 Gaudioso immediately jumped off but later returned to assist in bringing Bayron to the hospital.13 It was then that he learned of Bayrons name. Thereafter, the police invited him to the police station for his statement regarding the shooting.14 On cross examination, Gaudioso recalled that there were three other passengers at that time inside the jeep. He immediately turned his head towards the passengers side when he heard the first shot; two more shots followed. He got scared and jumped off the jeep together with the other passengers. He later returned and found that the driver was already dead.15 On re-direct, he reiterated that he was the only passenger at the jeeps front seat, and that the appellant was seated at the jeeps rear seats. He maintained that the appellant shot Bayron.16 Sergio, the victims brother, testified that Bayron was a jeep driver earning more or less P500.00 daily. He further stated that the funeral and burial expenses for his brother amounted to P100,000.00. He also added that Bayron had a common-law wife and had a 1 year-old son with her.17 Dr. Cam, the Medico-Legal Officer of the National Bureau of Investigation (NBI), Cebu City, testified that he conducted a postmortem examination on the victims body on June 2, 2000,18 and made the following findings: NECROPSY REPORT xxxx GUNSHOT WOUNDS: 1) ENTRANCE: 1.0 x 1.3 cms., ovaloid edges, with an area of tattooing around the wound, 8.0 x 10.0 cms., contusion collar widest supero-laterally, located at the right side of the face, below the right eye, 3.5 cms. x x x 2) ENTRANCE: 0.9 x 1.0 cm., ovaloid, edges inverted, contusion collar widest infero-posteriorly, located at the right side of the head, just in front of the right ear x x x 3) ENTRANCE: 0.6 x 0.8 cm. ovaloid, edges inverted, contusion collar widest, supero-medially, located at the right side of the head, occipital area, 4.0 cms., above 13.0 cms., behind the right external auditory meatus, x x x POSTMORTEM FINDINGS Hematoma, scalp, frontal area and right parietal. Hemorrhage, intracranial, intracerebral, subdural, subarachnoidal, massive, generalized Internal Organs, congested Stomach, empty CAUSE OF DEATH: GUNSHOT WOUNDS OF THE HEAD Remarks: Two (2) bullets were recovered and submitted to Firearm Investigation Section for Ballistic Examination.19 On cross-examination, Dr. Cam stated that the distance between the muzzle of the gun and the entrance wounds was two feet, more or less.20 The defense presented a different version of events. Carlito testified that he was with the appellant at the parking lot of the Ayala Business Park at past 5:00 p.m. of June 1, 2000, when Bayron and another person approached the appellant. Bayron pointed to the appellant and said: "Pre, pagtarong sa imong pagkatawo, basig magkaaway ta" (Behave like a good man, otherwise we will become enemies). The appellant replied, "pre tell me who was the person who told you about that"?21 Bayrons companion then accused the appellant of being a traitor.22 The jeepney dispatcher soon after called Bayron as it was his jeeps turn to load passengers.23 Bayron and his companion boarded the jeep; Bayron sat at the drivers seat while his companion proceeded to the passengers seats at the rear. The appellant followed them into the jeep and sat behind Bayron. There were 5-7 passengers on board the jeep, one of them at the front seat beside Bayron. Bayron then drove away, leaving the parking area.24 According to Carlito, he learned of Bayrons death at 6:30 p.m. of that day.25 On cross examination, Carlito testified that he went to Ayala on June 1, 2000 to meet the appellant to ask for help on his application as a driver.26 He saw the appellant and Bayron talking to each other when he arrived, and overheard Bayron warning the appellant to be careful. Bayron thereafter got into his jeep, followed by the appellant who sat behind him (Bayron). While inside the jeep, Bayron pointed his finger at the appellant and continued to argue with the appellant as he drove away.27 He heard gunshots 15 minutes after the jeep left the parking area. Carlito later saw the appellant being apprehended by security guards.28 The appellant stated that he was a driver plying the Ayala-Colon route. At around 5:00-6:00 p.m. of June 1, 2000, he talked to "Lito" at the parking area of the Ayala Business Center. Lito was a friend of his son who had been asking for his assistance in applying as a driver.29 He read a newspaper after talking to Lito. Not long after, Bayron and a certain Roel came and pointed their fingers at him. Roel uttered, "Even if you are double your body [sic], I am not afraid."30 The appellant suspected that Roel was mad at him for an incident in 1999 when he reprimanded Roel for indiscriminately firing a gun.31 The appellant further narrated that Bayron went to the jeeps drivers seat after the dispatcher called him. Roel followed Bayron but sat on the rear passenger seat. The appellant also got into the jeep and sat across Roel because he was bothered by what was happening between Bayron and Roel.32 He asked Roel to get off the jeep so they could settle their differences, but Roel instead drew a gun from his waist.33 The appellant and Roel wrestled for the gun which discharged while they were grappling for its possession. Thereafter, Roel immediately alighted from the jeep. The appellant followed but was unable to catch up with Roel.34 On cross examination, the appellant recalled that he read a newspaper at the parking lot after conversing with Lito. At that point, Bayron and Roel came; Roel pointed a finger at him and blamed him for his (Roels) arrest for illegal possession of firearms.35 Bayron went to board his jeep when the dispatcher called him; Roel followed him inside the jeep. The appellant then also boarded the jeep, sitting across Roel to "clear the matter" with him.36 When the jeep was already on its way, Roel suddenly drew a gun from his waist. The appellant held Roels hand, but the gun went off while they were grappling for its possession. He did not notice if anyone had been hit. The passengers, including Roel, ran out of the jeep.37 The appellant saw the gun on the ground and picked it up. The appellant tried to follow Roel, but the latter was able to board another jeep. Thereafter, the security guards arrested appellant and then turned him over to the police.38 P/Sr. Insp. Salinas testified that he conducted a paraffin test on the appellant at the PNP Regional Crime Laboratory on June 2, 2000 to determine the presence of gunpowder nitrates. The appellant tested negative for the presence of gunpowder nitrates.39 On cross examination, P/Sr. Insp. Salinas explained that the absence of gunpowder nitrates was not conclusive proof that person did not fire a gun. According to him, a person could remove traces gunpowder nitrates by washing his hands.40 The RTC convicted the appellant of the crime of murder in its decision of May 29, 2001, as follows: WHEREFORE, in view of the foregoing facts and circumstances, accused Samsom B. Villasan is found guilty beyond reasonable doubt of the crime of Murder and is hereby imposed the penalty of RECLUSION PERPETUA, with the accessory penalties of the law; to indemnify the heirs of the deceased Jacinto Bayron in the sum of P50,000.00 and to pay the costs. The accused is, however, credited in full during the whole period of his detention provided that he will signify in writing that he will abide by all the rules and regulations of the penitentiary. SO ORDERED.41 The appellant directly appealed to this Court in view of the penalty of reclusion perpetua that the RTC imposed. We referred the case to the Court of Appeals for intermediate review pursuant to our ruling in People v. Mateo.42

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The CA affirmed the RTC Decision in toto in its May 25, 2006 Decision.43 In his brief,44 the appellant argued that the prosecution failed to prove his guilt beyond reasonable doubt. THE COURTS RULING We deny the appeal but modify the awarded indemnities. Sufficiency of Prosecution Evidence An established rule in appellate review is that the trial courts 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 factual findings and conclusions assume greater weight if they are affirmed by the CA. Despite the RTC and the CAs unanimity in the findings of fact, we nevertheless carefully scrutinized the records of this case, as the penalty of reclusion perpetua demands no less than this kind of scrutiny.45 Gaudioso, in his July 25, 2000 testimony, positively identified the appellant as the person who shot Bayron inside the latters own jeepney on June 1, 2000; he never wavered in pointing to the appellant as the assailant. To directly quote from the records: FISCAL VICTOR LABORTE: Q: At about 6:30 in the evening of June 1, 2000, can you recall where you were? GAUDIOSO QUILATON: A: Yes, I can remember. Q: Please tell the Court where you were at that particular date and time. A: When I went out of my work place, I boarded a jeep. Q: In what place did you board the jeep? A: At the waiting shed at the Ayala, where the jeepney stop is located. Q: Where is this Ayala situated, in what city? A: Cebu City. Q: Were you the only one who boarded that jeepney? A: We were four (4), sir. Q: I see. In what particular seat of the jeepney were you seated? A: Front seat, sir. Q: While you were on board that jeepney, what happened? A: First, the driver had conversation. Q: With whom did that driver have conversation? A: The one who shot. [sic] Q: So, what happened afterwards, while that man and the jeepney driver were talking with each other? A: First, I heard there was a request that he would be boarding a jeepney because his jeep conked up. [sic] Q: Who made that request? A: That one person who shot. [sic] Q: And what happened afterwards, after that request was made by the person to the driver? A: He was able to board. Q: And then what happened next? A: Then I heard one (1) gunshot. Q: And what did you do when you heard that gunshot? A: I turned towards my back. Q: And what did you see, if any, when you turned your head? A: When I turned back, there were two (2) gunshots I heard, two (2) gunshots. [sic] Q: You only heard two (2) gunshots? A: Three (3), sir: the first one, and then followed by two (2) gunshots. Q: Who caused that gunshot? A: That person who shot the driver. Q: Did you actually see that person shot the driver? A: Yes. Q: How far were you to that person who shot the driver? A: Very near. Q: How near? A: Two (2) "dangaw" only, which may be loosely translated as thumb and forefinger extended, is less than, from the thumb to the forefinger, because he was sitting at my back. [sic] Q: Was the driver hit? A: Yes, he was hit. Q: In what portion of his body was the driver hit? A: On his head. Q: Now, if that person, whom you said you saw shot the driver, is in the courtroom now, can you point to him? A: Yes, I can. Q: Please point to that person. A: That man, third (3rd) from the left. (Witness pointed to the person who stood up and identified himself as Samson Villasan) xxxx Q: Now you told the Court Mr. Witness that you were the only one seated at the front of the jeepney, Right? A: Yes. Q: And three other passengers were at the back of the jeepney? A: Yes. Q: And one of the three passengers at the back shot the driver? A: Thats right, sir. Q: Is that person whom you saw shot the driver inside the courtroom now? A: He is around. Q: Can you point to him again? A: Yes. Q: Please do. A: That person. (Witness pointing to the person who stood up and identified himself as Samson Villasan). 46 x x x x [Emphasis supplied] Time and again, we have ruled that the credibility of witnesses is a matter best left to the determination of the trial court as this tribunal had the actual opportunity to observe the witnesses firsthand and to note their demeanor, conduct, and attitude. The trial courts assessment of the credibility of witnesses is binding on this Court, except when that tribunal overlooked facts and circumstances of weight and influence that can alter the result.47 We carefully scrutinized the records of this case and found no reason to disbelieve Gaudiosos straightforward narration of the events surrounding Bayrons death. Nor did we see anything on record indicating any improper motive that could have led Gaudioso to falsely testify against the appellant. In fact, the appellant never imputed any ill motive on Gaudioso. To reiterate, Gaudioso and the appellant were in the same jeep during the shooting incident; there was light inside the jeep. More importantly, Gaudioso saw the actual shooting because he was "very near" the appellant when the latter shot Bayron. To Gaudioso, what he witnessed must have been a shocking and startling event he would not forget in a long, long time. Under these circumstances, we entertain no doubt on the positive identification of the appellant as the assailant. The Appellants Defenses The appellant sought to exculpate himself by claiming that the shooting of Bayron was accidental; and that he (appellant) was not sure who pulled the trigger because the gun went off when he and Roel were grappling for its possession. We do not find the appellants claim of accidental shooting believable as it contradicts the available physical evidence provided by Dr. Cam that the victim suffered three gunshot wounds on the face and head. Dr. Cams Necropsy Report corroborated by the Autopsy Report of the Cosmopolitan Funeral Homes showing that the victim suffered a total of three gunshot wounds, supported the testimony of Gaudioso that the appellant shot the victim thrice. Jose notably also testified that he heard three successive gunshots. These pieces of evidence are clearly inconsistent with the appellants claim that the victims shooting was accidental and that only one shot was fired. The nature, number and location of the victims gunshot wounds also belie the appellants claim of accidental shooting. The three wounds, all sustained in the head and the face from shots coming from the rear, are clearly indicative of a determined effort to end the victims life. The appellant nonetheless claims that his identity as the assailant was not proven with certainty as no trace of gunpowder nitrates was found in his hand. We do not find the appellants claim persuasive. While the appellant tested negative for gunpowder nitrates, Forensic Chemist Salinas testified that a paraffin test is not conclusive proof that one has not fired a gun. This view is fully in accord with past findings and observations of this Court that paraffin tests, in general, are inconclusive; the negative findings in paraffin tests do not conclusively show that a person did not discharge a firearm.48 Our ruling in People v. Teehankee, Jr.49 on this point is particularly instructive: Scientific experts concur in the view that the paraffin test has " proved extremely unreliable in use. The only thing that it can definitely establish is the presence or absence of nitrates or nitrites on the hand. It cannot be established from this test alone

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that the source of the nitrates or nitrites was the discharge of a firearm. The person may have handled one or more of a number of substances which give the same positive reaction for nitrates or nitrites, such as explosives, fireworks, fertilizers, pharmaceuticals, and leguminous plants such as peas, beans, and alfalfa. A person who uses tobacco may also have nitrate or nitrite deposits on his hands since these substances are present in the products of combustion of tobacco." In numerous rulings, we have also recognized several factors which may bring about the absence of gunpowder nitrates on the hands of a gunman, viz: when the assailant washes his hands after firing the gun, wears gloves at the time of the shooting, or if the direction of a strong wind is against the gunman at the time of firing. x x x x [Emphasis ours] In sum, the positive, clear and categorical testimonies of the prosecution witnesses deserve full merit in both probative weight and credibility over the negative results of the paraffin test conducted on the appellant. The Crime Committed Article 248 of the Revised Penal Code defines the crime of murder as follows: 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 perpetua to death if committed with any of the following attendant circumstances: 1. With treachery, x x x In convicting the appellant of murder, the courts a quo appreciated treachery. This circumstance exists when the offender commits any of the crimes against persons, employing means, method or forms which tend directly and especially to ensure its execution, without risk to the offender, arising from the defense that the offended party might make. This definition sets out what must be shown by evidence to conclude that treachery existed, namely: (1) the employment of means of execution that gives the person attacked no opportunity for self-defense or retaliation; and (2) the deliberate and conscious adoption of this means of execution.50 The essence of this qualifying circumstance is in the elements of suddenness and surprise, and the lack of expectation that the attack would take place, thus depriving the victim of any real opportunity for self-defense while ensuring the commission of the crime without risk to the offender.51 The evidence in this case showed that the appellant briefly talked with Bayron as the latter sat on the jeeps drivers seat preparatory to driving off. Thereafter, the appellant entered the jeep through its rear entrance, and sat behind Bayron. Not long after Bayron started his jeep, the appellant shot him three times, hitting him in the head and at the side of the face. This manner and mode of attack by the appellant, to our mind, indicate treachery. The appellants attack came without warning, and was swift and sudden. The appellant attacked Bayron from behind; the unsuspecting victim had no expectation of the coming attack and was totally defenseless against it. From these facts, the appellant clearly and purposely DENIED the victim of any real chance to defend himself and secured the commission of the crime without risk to himself.52 In People v. Vallespin,53 we explained: The essence of treachery is the sudden and unexpected attack by the aggressor on the unsuspecting victim, depriving the latter of any real chance to defend himself, thereby ensuring its commission without risk to the aggressor and without the slightest provocation on the part of the victim. It can exist even if the attack is frontal, if it is sudden and unexpected, giving the victim no opportunity to defend himself against such attack. In essence, it means that the offended party was not given an opportunity to make a defense. No Evident Premeditation The Information alleged that the crime was committed with evident premeditation. We do not find any evidentiary support for this allegation. Evident premeditation, like other qualifying circumstances, must be established by clear and positive evidence showing that planning and preparation took place prior to the killing. For evident premeditation to be appreciated, the prosecution must show the following: (1) the time the accused determined to commit the crime; (2) an act manifestly indicating that the accused clung to this determination; and (3) a sufficient lapse of time between the resolve to kill and its execution that would have allowed the killer to reflect on the consequences of his act.54 Significantly, the prosecution did not even attempt to prove the presence of these elements. In People v. Sison,55 we held that evident premeditation should not be appreciated where there is neither evidence of planning or preparation to kill nor of the time when the plot was conceived. The Proper Penalty The crime of murder qualified by treachery is penalized under Article 248 of the Revised Penal Code (as amended by Republic Act No. 7659) with reclusion perpetua to death. While evident premeditation was alleged in the Information, this circumstance was not adequately proven. Hence, in the absence of mitigating and aggravating circumstances in the commission of the felony, the courts a quo correctly sentenced the appellant to reclusion perpetua, conformably with Article 63(2) of the Revised Penal Code.1avvphi1 Civil Liability The grant of civil indemnity as a consequence of the crime of murder requires no proof other than the fact of death as a result of the crime and proof of the appellants responsibility therefor. While the RTC and the CA commonly awarded P50,000.00 as death indemnity to the murder victims heirs, prevailing jurisprudence dictates an award of P75,000.00.56 Hence, we modify the award of civil indemnity to this extent, to be paid by the appellant to the victims heirs. Moral damages are likewise mandatory in cases of murder and homicide. We award P50,000.00 as moral damages to the victims heirs in accordance with prevailing rules.57 The heirs of the victim are likewise entitled to exemplary damages since the qualifying circumstance of treachery was firmly established. When a crime is committed with an aggravating circumstance, either qualifying or generic, an award of P25,000.00 as exemplary damages is justified under Article 2230 of the New Civil Code.581avvphi1 The lower courts were correct in not awarding actual damages to the victims heirs because they failed to present any supporting evidence for their claim. To be entitled to actual damages, it is necessary to prove the actual amount of loss with reasonable certainty, based on competent proof and the best evidence obtainable by the injured party. In the absence of proof, jurisprudence dictates an award of P25,000.00 as temperate damages for the victims heirs on the reasonable assumption that when death occurs, the family of the victim incurred expenses for the wake and the funeral.59 We cannot award indemnity for loss of earning capacity to the victims heirs because no documentary evidence was presented to substantiate this claim. As a rule, documentary evidence should be presented to substantiate a claim for this type of damages. While there are exceptions to the rule, these exceptions do not apply; although self-employed, Bayron did not earn less than the current minimum wage under current labor laws.60 WHEREFORE, in light of all the foregoing, we hereby AFFIRM the May 25, 2006 Decision of the Court of Appeals in CA-G.R. CR H.C. No. 00250 with the following MODIFICATIONS: (1) the awarded civil indemnity is INCREASED to P75,000.00; (2) the appellant is ORDERED to PAY the heirs of the victim P50,000.00 as moral damages; (3) the appellant is ORDERED to PAY the heirs of the victim P25,000.00 as exemplary damages; and (4) the appellant is ORDERED to PAY the heirs of the victim P25,000.00 as temperate damages. SO ORDERED.

[G.R. Nos. 116196-97. June 23, 1999] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PABLO ADOVISO, defendant-appellant. DECISION KAPUNAN, J.: Pablo Adoviso appeals from the Joint Judgment of the Regional Trial Court of Camarines Sur declaring him guilty beyond reasonable doubt for two counts of Murder. Appellant, allegedly a member of the Citizens Armed Forces Geographical Unit (CAFGU), was originally charged with four unidentified persons who have, however, remained at large. The information charging appellant with the Murder of Rufino Agunos under Criminal Case No. P-2079 alleges: That on or about the 18th day of February 1990 at about 8:00 oclock [sic] in the evening at Sitio Tan-agan, Barangay Casugad, Municipality of Bula, Province of Camarines Sur, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, while armed with assorted long firearms, conspiring, confederating and mutually helping one another, with intent to kill and with treachery and evident premeditation, did then and there willfully, unlawfully and feloniously shoot one Rufino Agunos several times with said firearms hitting the latter on the different parts of his body which were the direct and immediate cause of his death, to the damage and prejudice of the heirs of said Rufino Agunos.

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That the crime complained of against the accused is not service connected. ACTS CONTRARY TO LAW. Except for the name of the victim, the information in Criminal Case No. P-2080 with respect to the killing of Emeterio Vasquez, contains the same allegations. Appellant pleaded not guilty to both charges. At the joint trial of Criminal Case Nos. P-2079 and P-2080, the prosecution presented their version of the events that transpired on the evening of February18, 1990, as follows: The spouses Emeterio and Anastacia Vasquez had two adjacent houses in Sitio Tan-agan, Barangay Casugad, Bula, Camarines Sur. One of the houses was actually a camalig where they stored harvested rice. The spouses preferred to live there because it was cooler. The living area of the camalig had walls of bamboo called salsag. This area was elevated from the ground. Three steps led down to an awning (suyab) walled with bamboo slats. These slats were placed horizontally approximately four to six inches apart. A portion of the awning was used as a kitchen but another portion had a papag where the Vasquez grandson, Rufino Agunos, son of their daughter Virginia, would sleep whenever he tended the irrigation pump. The spouses son Bonifacio occupied the other house eight (8) meters from the camalig with his own son Elmer. At around 8:00 in the evening of February 18, 1990, Emeterio Vazquez was preparing coffee as his wife was about to retire for the night. Their grandson Rufino had already gone to sleep in the papag. Anastacia had just finished spreading the sleeping mat when she heard three or four gunshots. Emeterio then uttered that he had been shot. Seeing Emeterio, Anastacia exclaimed, Why should you not be hit when in fact there are guns in front of you. Anastacia saw the protruding edge of the gun on the wall near the stairs where Emeterio went down. A lamp near the stairs where Emeterio drank coffee illuminated the camalig but Anastacia failed to recognize the persons who fired their guns at her husband. The Vasquez son Bonifacio was in the bigger house when he heard the gunshots. Earlier that evening, Bonifacio was talking to Rufino regarding the engine of the irrigation pump. Bonifacio was still talking when he noticed that Rufino had fallen asleep, the latters back against the bamboo wall. Bonifacio left Rufino snoring in the papag and went to the other house. Only a minute had passed after he had gone up when Bonifacio heard the gunshots. He and his 16-year-old son Elmer immediately went down the front yard to investigate. Bonifacio hid himself in the dark portion of the yard, behind a coconut tree. From a distance of eight (8) meters, Bonifacio saw Rufino, who was inside the camalig, being shot by several persons from the outside. Looking through the bamboo slats of the camalig wall, Bonifacio recognized one of the assailants, with a large built and long hair, as appellant Pablo Adoviso because of the gas lamp that was lighted inside the camalig. Of Rufinos assailants, only appellant was not wearing a mask. Appellant was holding a long firearm wrapped inside a sack with its muzzle protruding and directed where Rufino was sleeping. Appellant then fired hitting Rufino. At that moment, Bonifacio heard his father Emeterio shout Pino, (referring to his grandson Rufino) and saw his father go down the stairs carrying a gas lamp. Appellant fired again, hitting Emeterio at the stomach. For his part, Elmer, who rushed towards the camalig with his father Bonifacio, saw five (5) persons aiming their firearms at the camalig. Except for appellant, each of these persons had a cover over their faces. Three (3) of them were positioned in a ditch near the camalig while two (2) others were near its door. Elmer saw these five (5) persons shoot his cousin Rufino who was lying down on the papag. Although his back was hit, Rufino was able to crawl under the papag. Elmers grandfather was also hit on the stomach but he managed to go up the camalig. When appellant and his companion by the camalig door saw Elmer, they fired at him then, with the three others at the ditch, escaped to the banana plantation. Elmer, on the other hand, fled towards the coconut plantation. Upon returning to the camalig, Elmer saw his father carrying his grandfather Emeterio. He also found Rufino at the foot of a coconut tree near the river, lying on his side with his body curled. Rufino told Elmer that he had been hit and, when Elmer failed to locate his wound, Rufino took Elmers hand and put it on his back. Elmer then moved Rufino sidewise. Upon returning to the camalig, Elmer carried his grandfather and bandaged his stomach with diapers. In the meantime, Bonifacio went to the municipal building of Bula to fetch the police. Inspector Antonio Lopez and Senior Police Officer 1 Claro Ballevar returned to the scene of the crime with him. The police brought Emeterio and Rufino to the municipal hall of Bula and then to the Bicol Regional Hospital. Both Emeterio and Rufino died early the next morning. The certification dated March 7, 1990 and signed by Dr. Janice Nanette Estrada, resident physician of the Bicol Regional Hospital in Naga City, states that 35-year-old Rufino Agunos died of four (4) gunshot wounds: at the inguinal area, the sacral area, the thigh and the abdomen. The wounds at the inguinal area and the thigh bore contusion collars. The same physician certified that Emeterio Vasquez, 88 years of age, sustained seven (7) gunshot wounds at the paraumbilical area, lumbar area, hypogastrium, anterior aspect of the right forearm, anteromedial aspect of the right forearm, anteromedial aspect left arm and anterolateral aspect of the left arm. Four (4) of these gunshot wounds had contusion collars at the paraumbilical area, the hypogastrium, the right forearm and the left arm. Appellant Adoviso interposed alibi and denial as his defense. Appellant claimed that he was a member of the CAFGU whose headquarters was located in Barangay Palsong, Bula, Camarines Sur. At around 7:00 in the evening of February 18, 1990, he was in Sitio Burabod, Palsong, about a kilometer away from the CAFGU headquarters. He, together with Francisco Bislombre, Benjamin Alina, Jr. and PFC Antero Esteron, had some drinks in the store of Honoria Tragante until around 11:00 p.m. Honoria Tragante and Francisco Bislombre corroborated appellants alibi. Antero Esteron likewise testified that from 7:00 until past 11:00 that night of February 18, 1990, he and appellant had a drinking spree at the Tragante store. He distinctly remembered that date because it was the fiesta of Balatan. To support his denial, appellant presented Lt. Antonio Lopez, the deputy chief of police and SPO2 Claro Ballebar of the PNP Bula Police Station. Lopez identified a police certification prepared by Pfc. Ramon N. Canabe to the effect that the shooting incident was perpetrated by unidentified armed men. Lopez said that he (Lopez) was one of those who brought the victims to the hospital who were then still conscious. The victims told him that they did not know who shot them or why they were shot. SPO2 Claro Ballebar, however testified that in the follow-up investigation he conducted several days after the incident, Bonifacio Vasquez revealed to him that he (Bonifacio) vividly saw the incident and recognized appellant as one of the perpetrators of the crime and that the killings had some something to do with land dispute between Bonifacios parents and the Galicia family. The defense also offered in evidence the testimony of Ernesto A. Lucena, Polygraph Examiner II of the National Bureau of Investigation (NBI) in Manila, who conducted a polygraph test on appellant. In Polygraph Report No. 900175, Lucena opined that appellants polygrams revealed that there were no specific reactions indicative of deception to pertinent questions relevant to the investigation of the crimes. In rebuttal, Bonifacio Vasquez revealed that when he reported the incident to the police, he did not identify appellant as one of the culprits because he was afraid of appellant who was a member of the CAFGU. Nevertheless, Bonifacio did mention to the police that he recognized appellant as one of the perpetrators of the crime although he told them that he did not recognize appellants four (4) companions. He did not mention to Lopez and Canabe appellants identity because he was confused about what had happened in their house. On March 25, 1994, the trial court rendered a Joint Judgment finding appellant guilty beyond reasonable doubt for two (2) counts of murder and disposing of Criminal Case Nos. P-2079 and P-2080 as follows: WHEREFORE, in view of all the foregoing, joint judgment is hereby rendered: In Criminal Case No. P-2079, finding the accused PABLO ADOVISO guilty beyond reasonable doubt of the crime of MURDER and imposing upon him the penalty of RECLUSION PERPETUA and to pay the legal heirs of Rufino Agunos, consisting of the widow, Evelyn T. Agunos and their four (4) children the sum of FIFTY THOUSAND PESOS (P50,000.00) Philippine Currency; In Criminal Case No. P-2080, likewise finding said accused PABLO ADOVISO guilty beyond reasonable doubt of the crime of MURDER and imposing upon him another penalty of RECLUSION PERPETUA and to pay the legal heirs of the late EMETERIO VASQUEZ, consisting of Anastacia Vasquez and Bonifacio Vasquez, another sum of FIFTY THOUSAND PESOS (P50,000.00) Philippine Currency with all the accessory penalties provided therefore in both cases and to pay the costs in both instances. SO ORDERED.

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Appellant hinges his bid for exoneration on whether he was properly identified by the two (2) eyewitnesses as one of the killers of the victims. He contends that eyewitnesses Bonifacio and Elmer Vasquez presented an incredible story because it is highly improbable that they could have distinctly and positively recognized accused-appellant as one of the perpetrators of the crimes." According to appellant, Bonifacio, who was in the dark portion of the yard hiding behind a coconut tree, could not have identified appellant by the light emanating from gas lamp inside the camalig where Emeterio Vasquez and Rufino Agunos were staying at the time of the incident. Neither could Elmer Vasquez, who declared that he saw his grandfather shot by appellant, could have identified appellant because of the poor lighting coming from the gas lamp being carried by his grandfather. Appellant claims that the gas lamp carried by Elmer's grandfather was a small can about two (2) inches tall and the wick is smaller than a cigarette and the lamp inside the camalig was placed inside a bigger can so that the direction of the light emanating therefrom was upwards and not sidewise. Visibility is indeed a vital factor in the determination of whether or not an eyewitness could have identified the perpetrator of a crime. However, it is settled that when conditions of visibility are favorable, and the witnesses do not appear to be biased, their assertion as to the identity of the malefactor should normally be accepted. Illumination produced by kerosene lamp or a flashlight is sufficient to allow identification of persons. Wicklamps, flashlights, even moonlight or starlight may, in proper situations be considered sufficient illumination, making the attack on the credibility of witnesses solely on that ground unmeritorious. In this case, not one (1) but two (2) gas lamps illuminated the place the one placed inside the camalig and that held by Emeterio as he descended from the stairs after the first volley of gunfire. Appellants contention therefore that one particular gas lamp could not have lighted the place because it was placed inside a can is puerile. Besides, Elmer was not describing either of the gas lamps during the incident. The defense counsel at the trial and appellants counsel misunderstood the testimonies of Elmer and his grandmother on that matter. Thus, Elmer testified: ATTY. CORTES: Q Is it not that the lamp you said placed along the door, which is already marked as lamp, is that not this lamp was placed inside a kerosene can as testified to by your grandmother so that the cat could not cause it to fall? A It was placed just on the floor not inside the can. (Underlining supplied.) For her part, Anastacia testified as follows: ATTY. CORTES: xxx. Q Because you were already about to retire, the doors and windows were already closed, is that correct? A Yes, sir. Q That you also shut down or closed the light, is that correct? A No, sir, we even placed the kerosene lamp inside a can. Q You said, you placed the lamp inside a can so that the light is going up, is that correct? A Yes, sir. Q So, the light was not illuminating sidewise because it was inside a can? A When we left, I got the kerosene lamp and brought it with me. ATTY. CORTES: I think, the witness did not get the question right, Your Honor. COURT: Repeat the question. ATTY. CORTES: Q My question Madam Witness is, when you were about to retire? A The lamp was placed on the floor where my husband was drinking coffee. COURT: Q Who are the persons you are referring to as having left when you placed the light inside the can? A My son, Bonifacio, and the policemen, Your Honor, when the(y) brought Emeterio and Rufino to the hospital. (underlining supplied). Clearly then, the lamp inside the camalig was placed on the floor and a can was placed over it only after the incident when Anastacia left with her son and the police to bring the victims to the hospital. The bamboo slats of the camalig could not have effectively obstructed the eyewitnesses' view of appellant, considering that the slats were built four (4) meters apart. Besides, it is the natural reaction of relatives of victims to strive to observe the faces and appearance of the assailants, if not ascertain their identities, and the manner in which the crime is committed. A relative will naturally be interested in identifying the malefactor to secure his conviction to obtain justice for the death of his relative(s). It must remembered that appellant was not a complete stranger to the eyewitnesses. Bonifacio had known him for ten (10) years while Elmer had been acquainted with him for four (4) years. Elmer recalled that appellant used to join the rabuz at the barracks. Familiarity with appellants face and appearance minimized if not erased the possibility that they could have been mistaken as to his identity. Appellants allegation that it was improbable for him to have committed the crimes without a mask, unlike the other participants, deserves scant consideration. It is not contrary to human experience for a person to commit a crime before the very eyes of people who are familiar to them. Indeed, some may even take pride in their identification as the perpetrator of a criminal act. Appellant also considers as a positive sign, Bonifacios failure to immediately identify him as the perpetrator of the crime to the police. The delay in reporting his participation to the police was however sufficiently explained by Bonifacio. Bonifacio was afraid of appellant since the latter was a member of the CAFGU and, as such, was provided with a gun. He was also hesitant in identifying appellant immediately lest he got wind of his impending arrest and posthaste escaped the clutches of the law. The failure of a witness to reveal at once the identity of the accused as one of the perpetrators of the crime does not affect, much less, impair his credibility as a witness. The general or common rule is that witnesses react to a crime in different ways. There is no standard form of human behavioral response to a strange, startling and frightful event, and there is no standard rule by which witnesses to a crime must react. There is no merit in appellants contention that Bonifacio had a motive in implicating him. According to appellant, Bonifacio suspected that he was hired by the Galicia family to kill Bonifacio's father who had earlier won in a land dispute with the Galicias. It is irrelevant here to talk of motive on the part of Bonifacio inasmuch as to credible witnesses had positively identified appellant as one of the participants in the killing of Emeterio Vasquez and Rufino Agunos. Appellants alibi thus crumbles in the face of his positive identification as one of the perpetrators of the crimes. For an alibi to prosper, moreover, there must be proof that the defendant was not only somewhere else when the crime was committed but that he could not be physically present at the place of the crime or its immediate vicinity at the time of its commission.26 Appellant did not prove the physical impossibility of his being in Sitio Tan-agan which is not exactly remote from Sitio Palsong where he claimed to be when the incident happened. Both places are within the Municipality of Bula. Appellant admitted that the distance between the two sitios could be negotiated in three hours even without any means of transportation. On the other hand, his alleged companion in Sitio Palsong, Antero Esteron, testified that the distance could be traveled in thirty-five (35) minutes by trimobile or private vehicle. Apart from the fact that appellant's alibi was inherently weak, he was not even sure where he was and who were his companions at the time the crimes were committed. We quote the observation of the trial court on this point: On the premise that the trial court rendered the judgment of conviction on the basis of mere conjectures and speculations, appellant argues that the negative result of the polygraph test should be given weight to tilt the scales of justice in his favor. A polygraph is an electromechanical instrument that simultaneously measures and records certain physiological changes in the human body that are believed to be involuntarily caused by an examinees conscious attempt to deceive the questioner. The theory behind a polygraph or lie detector test is that a person who lies deliberately will have a rising blood pressure and a subconscious block in breathing, which will be recorded on the graph. However, American courts almost uniformly reject the results of polygraph tests when offered in evidence for the purpose of establishing the guilt or innocence of one accused of a crime, whether the accused or the prosecution seeks its introduction, for the reason that polygraph has not as yet attained scientific acceptance as a reliable and accurate means of ascertaining truth or deception. The rule is no different in this jurisdiction. Thus, in People v. Daniel, stating that much faith and credit should not be vested upon a lie detector test as it is not conclusive. Appellant, in this case, has not advanced any reason why this rule should not apply to him. Appellant was therefore correctly adjudged guilty of two counts of Murder. Treachery qualified the killings to murder. There is

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treachery when the offender commits any of the crimes against the person, employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make. In other words, there is treachery when the attack on an unarmed victim who has not given the slightest provocation is sudden, unexpected and without warning. The victims in this case were totally unaware of an impending assault Rufino was sleeping and Emeterio was going down the stairs when they were shot. WHEREFORE, the Joint Judgment of the trial court is hereby AFFIRMED. SO ORDERED. G.R. No. 109144 August 19, 1994 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.MORENO L. TUMIMPAD, accused-appellant. KAPUNAN, J.:Accused-appellant Constable Moreno L. Tumimpad and co-accused Constable Ruel C. Prieto were charged with the crime of rape committed against a 15-year old Mongoloid child in a complaint dated on May 24, 1991, signed by her mother, Mrs. Pastora L. Salcedo, which reads: That during the period between the last week of March 1989 and the first week of April 1989, in Barangay Lower Lamac, Oroquieta City, Philippines, and within the jurisdiction of this Honorable Court, the said accused did then and there, wilfully, unlawfully and feloniously, have (sic) carnal knowledge with Sandra Salcedo, complainant's daughter, a woman who is a mongoloid and so weak of mind and in intellect as to be capable of giving rational and legal consent. 1 Upon arraignment, accused-appellant pleaded not guilty to the crime charged and due trial ensued. The facts as established by evidence are as follows: Sandra Salcedo at the time of the incident was a 15-year old Mongoloid and daughter of Lt. Col. Teofisto Salcedo and Pastora Salcedo. She had a mind of a five-year old child, who still needed to be fed and dressed up. Her vocabulary was limited and most of the time she expressed herself by motions. Col. Teofisto Salcedo was then Provincial Commander of Misamis Occidental. Four security men were assigned to him, two of whom were accused Constable Ruel Prieto and accused-appellant Moreno Tumimpad. The Salcedo family, composed of Col. Salcedo, his wife Pastora, his son Alexander and wife and daughter Sandra, lived in a twostorey officers' quarters inside Camp Lucas Naranjo, Provincial Headquarters, in Oroquieta City. The upper storey of the house was occupied by Col. Salcedo, his wife and Sandra while the lower storey had two (2) rooms, one of which was occupied by the four security men and the other by Alexander Salcedo and his wife. It was on August 7, 1989, when Sandra complained of constipation. Mrs. Salcedo then brought her to a doctor in Oroquieta City for a checkup. Medication was given to Sandra but her condition did not improve. Sandra became irritable and moody. She felt sick and unhappy. The following day, August 8, 1989, Sandra saw Moreno Tumimpad coming out from the kitchen and told her mother, "Mama, patayin mo 'yan, bastos." 2 Mrs. Pastora Salcedo, worried of her daughter's condition, brought her to Regina Hospital. Sandra was able to relieve herself the following day but still remained moody and irritable. She refused to take a bath in spite of scoldings from her mother. She did not want to eat and whenever she did, she would vomit. Sandra was brought to a doctor in Oroquieta City for a second checkup. Dr. Conol, the examining physician, ordered a urinalysis. Jose C. Lim, a Medical Technologist, conducted the urinalysis. The result revealed that Sandra was pregnant. 3 Mrs. Pastora Salcedo could not believe that her daughter was pregnant and so she brought Sandra to Madonna and Child Hospital in Cagayan de Oro City. Dr. Kho, and OB-GYNE Specialist, examined Sandra and subjected her to a pelvic ultra-sound examination. The results were positive. The fetus' gestational age was equivalent to 17.1 weeks. 4 Another ultra-sound examination at the United Doctors Medical Center (UDMC) at Quezon City on September 11, 1989 confirmed that she was indeed pregnant. 5 On January 11, 1990, Sandra gave birth to a baby boy who was named Jacob Salcedo. Hence, the filing of the complaint 6 by Mrs. Pastora Salcedo. During the investigation conducted by the CIS, about thirty (30) pictures of different persons were laid on the table and Sandra was asked to pick up the pictures of her assailants. Sandra singled out the pictures of Moreno Tumimpad and Ruel Prieto. 7 Later, Sandra was brought out of the investigation room to a police line-up of ten people, including Moreno Tumimpad and Ruel Prieto. She was again asked to point to her assailants. Without hesitation, Sandra fingered Moreno Tumimpad and Ruel Prieto. 8 Mrs. Pastora Salcedo testified that she requested her two daughters-in-law, Joy Salcedo and Celsa Salcedo, to ask Sandra the identity of the persons who sexually molested her. 9 Joy confirmed in her testimony that she asked Sandra who sexually molested her. Sandra revealed that Moreno Tumimpad and Ruel Prieto were the ones who raped her. Sandra demonstrated how she was raped. First, her thighs were touched, then she was hugged and her panty was taken off. A push and pull movement followed. 10 Celsa testified that she was present when the victim demonstrated how she was sexually abused by the two accused, including the way her nipples were touched saying "dito hawak," and holding her breasts to emphasize. She likewise went through the motion of removing her panty, uttering at the same time "hubad panty." Sandra identified in open court accused Moreno Tumimpad and Ruel Prieto as the persons who raped her and said she wished them dead, as they did something bad to her. 11 She once again demonstrated how she was sexually abused. She held her two thighs with her two hands next to her sexual organ saying, "panty" and then placed her hand on her breast and gestured as if she were sucking. She also touched her private organ and made a push and pull movement. 12 During the trial, the accused moved that a blood test, both "Major Blood Grouping Test" and "Pheno Blood Typing" be conducted on the offended party, her child Jacob and the two accused. The result of the test conducted by the Makati Medical Center showed that Jacob Salcedo has a type "O" blood, Sandra Salcedo type "B", accused Ruel Prieto type "A" and accused-appellant type "O". Both accused anchored their defense on mere denial contending that it was impossible for them to have committed the crime of rape. After trial on the merits, the trial court convicted Moreno Tumimpad of the crime charged but acquitted the other accused, Ruel Prieto, on reasonable doubt, stating that he "has a different type of blood with (sic) the child Jacob Salcedo as his type of blood is "A", while that of child Jacob Salcedo is type "O". The dispositive portion of the decision reads: WHEREFORE, premises considered, the Court finds the accused, PO1 Moreno Tumimpad, guilty beyond reasonable doubt of the crime of Rape, as charged in the information, and pursuant to the provisions of Article 335 of the Revised Penal Code, as amended, there being no aggravating nor mitigating circumstance attendant in the commission of the crime, said accused Moreno Tumimpad is hereby sentenced to suffer the penalty of RECLUSION PERPETUA; to indemnify the offended girl, Sandra Salcedo, in the amount of P20,000.00; and to suffer the other accessory penalties provided for by laws; and to pay the costs of the proceedings. On reasonable doubt, accused Ruel Prieto is hereby declared ACQUITTED from the charge. SO ORDERED. 13 Accused-appellant assigns the following as errors of the lower court: 1. The lower court erred in not appreciating the impossibility of committing the offense charged without detection. 2. The lower court erred in convicting the accused-appellant base on major blood grouping test known as ABO and RHS test, not a paternal test known as chromosomes or HLA test. The appeal is devoid of merit. Accused-appellant argues that it was impossible for him to have committed the crime of rape because most of the time he and his co-accused Ruel Prieto were together with Col. Salcedo on inspection tours while the victim was always in the company of her mother. He further contends that it was likewise impossible for Sandra, if she had really been molested, not to have shouted out of pain, she being a virgin. As if adding insult to injury, accusedappellant suggests that it was Sandra's brother, Cristopher Salcedo, allegedly a drug user, who could have raped her. We are not convinced. It is true that the accused usually went with Col. Salcedo during inspection tours but sometimes they were left behind and would play pingpong or card games with Sandra at the ground floor of the house. While Sandra was always with her mother, there were times when she was left alone in the house with the accused. 14

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Mrs. Pastora Salcedo testified: Q How many security men remain if you can recall when your husband reported for work? A Two (2). Q Who were these security men who remained? A Moreno Tumimpad and Ruel Prieto. Q How about the 2 other security men Tanggan and Colaljo? A My husband sent (sic) them for an errand and sometime they used to go with my husband to the office. Q Every time when your husband is out what they do while they were (sic) at the headquarter? A I saw them sleeping and sometime they were playing at the porch with my daughter Sandra playing pingpong and sometime they were listening music. Q Where did they play usually take place? A Living room. 15 xxx xxx xxx Q By the say, (sic) Mrs. Salcedo, you said a while ago when you were at the headquarters you were able to do your choirs, (sic) doing laundry jobs in the second storey of your house. Do you know where is your daughter Sandra at that time? A Yes, she spent her time at the second floor. Q What part of the ground floor she used (sic) to stay? A Because she is found (sic) of music she stay in the living room. Q Did she has (sic) any playmates? A Moreno and Prieto. Q Have you seen actually the 2 accused playing with your daughter? A Yes, playing pingpong and playing cards. 16 The victim more than once positively identified accused-appellant Moreno Tumimpad as one of the perpetrators of the crime. First, during the investigation conducted by the CIS, Sandra singled out accused-appellant and his co-accused from among the thirty (30) pictures of different persons shown to her. Second, at the police lineup of several persons, likewise conducted by the CIS, Sandra once again unerringly pointed accused-appellant and his coaccused as the ones who raped her. Third, in open court, Sandra without hesitation, pointed to accused- appellant as the perpetrator of the crime. The following is the victim's own testimony: PROS. RAMOS: Will you please demonstrate before this Honorable Court what Moreno and Ruel did to you? RECORD: The witness when she stood up held both her thighs (sic) with her two hand (sic) down to her sexual organ saying a word "panty" and she placed her hand on her breast and did something as if sucking and held her private part (sic) and did a push and pull movement and she cried. Q When you said that there was a push and pull movement of the body and when this was being done did you feel pain? A Yes pain. Q What part of your body is painful? RECORD: The witness touching her private parts. Q Did you also see blood on your sexual organ? A Yes. Q Where did you see these blood? RECORD: The witness touching her private parts. Q When this push and pull movement was being made, did you see a man's organ? A Yes sir. Q Where did you see this male organ? A Witness touching her private part. Q Who did this to you, who removed your panty? A Moreno and Ruel. Q Did you see Moreno taking off his pants? A Yes. Q Did you see his sex organ? A The witness touching her private parts. Q How about this Ruel, did you see if he taken (sic) off his pants? A Yes. Q Did you see his sex organ? A Yes, witness again touching her private part. Q Both of them? A Yes. Q Where did Moreno and Ruel removed (sic) your panty? A Moreno. Q In your house? A Yes. Q What part of your house did Moreno and Ruel remove your panty? A Downstairs Moreno and Ruel remove panty. Q What part of the ground floor, was it outside or inside the room? A In the room. Q When (sic) Moreno and Ruel are inside the courtroom now, can you point to them? A Yes. Q Will you please point to them? PROS. RAMOS: May we request the accused to stand up your honor? RECORD: Both accused stood up from where they were sitting inside the courtroom. PROS. RAMOS: Who is that person (prosecutor Ramos point to accused Moreno Tumimpad)? A Moreno. RECORD: The witness pointing to a certain person who is standing and when asked what is his name, he readily answered that he is Moreno Tumimpad. PROS. RAMOS: Who is that person standing besides Moreno? A Joel. PROS. RAMOS: If your honor please, she could not pronounced (sic) well the word Ruel but the way she called this name is Joel which refers to the same person who is one of the accused in this case. 17 Melinda Joy Salcedo, the victim's sister-in-law, testified that Sandra demonstrated to her how she was ravished by the two accused, thus: Q Now, will you please tell us what did Sandra Salcedo told (sic) you as to how she was abused? A By what she had stated there were also actions that she made. Q Will you please demonstrate to this Honorable Court how did Sandra Salcedo was abused as narrated or demonstrated to you by Sandra Salcedo? A According to her she was held in her thigh and then she was hugged and then the panty was taken off and making a push and pull movement (witness demonstration by holding her thigh)? Q Now, after Sandra Salcedo told you and demonstrated to you how she was abused. What else did Sandra Salcedo tell you if she had told you any more matter? A She did not say anything more. Q Now, when Sandra Salcedo refused to talk or say anything else. What happened next? A Then it was Celsa who asked her. Q Where were you when Celsa asked Sandra Salcedo? A I was just beside her. Q You said that after Sandra Salcedo refused to talk, Celsa did the questioning, did you hear the question being asked by Celsa to Sandra Salcedo? A Yes. Q And what was the question being asked by Celsa to Sandra Salcedo? A Celsa asked Sandra Salcedo as to what other things that these two had done to her? Q And what if any did Sandra Salcedo tell you as to what was done to her? A By way of talking and action. Q And what was the answer of Sandra Salcedo? A He (sic) answered it by action and talking. Q And what was the answer of Sandra Salcedo as related by her to Celsa through words and action? RECORD: The witness demonstrated by holding his (sic) nipple going down to her thigh. Q What else had transpired next? A No more. Q Now, whenever Sandra Salcedo mentioned the names of accused Moreno Tumimpad and Ruel Prieto, have you observed whose names was usually mentioned first by Sandra Salcedo? A She mentioned first the name of Moreno Tumimpad and Ruel. Q And what happened after that? A I informed my mother-in-law of what Sandra Salcedo had told us. Q When did you tell your mother-in- law about what Sandra Salcedo told you and Celsa? A That very evening sir. 18 Accused-appellant simplistically and quite erroneously argues that his conviction was based on the medical finding that he and the victim have the same blood type "O".

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Accused-appellants' culpability was established mainly by testimonial evidence given by the victim herself and her relatives. The blood test was adduced as evidence only to show that the alleged father or any one of many others of the same blood type may have been the father of the child. As held by this Court in Janice Marie Jao vs. Court of Appeals 19: Paternity Science has demonstrated that by the analysis of blood samples of the mother, the child, and the alleged father, it can be established conclusively that the man is not the father of a particular child. But group blood testing cannot show only a possibility that he is. Statutes in many states, and courts in others, have recognized the value and the limitations of such tests. Some of the decisions have recognized the conclusive presumption of non-paternity where the results of the test, made in the prescribed manner, show the impossibility of the alleged paternity. This is one of the few cases in which the judgment of the Court may scientifically be completely accurate, and intolerable results avoided, such as have occurred where the finding is allowed to turn on oral testimony conflicting with the results of the test. The findings of such blood tests are not admissible to prove the fact of paternity as they show only a possibility that the alleged father or any one of many others with the same blood type may have been the father of the child. WHEREFORE, accused-appellant's guilt of the crime of rape having been proven beyond reasonable doubt, the decision appealed from is hereby AFFIRMED. SO ORDERED. Additional Case for Rule 128 G.R. No. 182498 December 3, 2009 GEN. AVELINO I. RAZON, JR., Chief, Philippine National Police (PNP); Police Chief Superintendent RAUL CASTAEDA, Chief, Criminal Investigation and Detection Group (CIDG); Police Senior Superintendent LEONARDO A. ESPINA, Chief, Police Anti-Crime and Emergency Response (PACER); and GEN. JOEL R. GOLTIAO, Regional Director of ARMM, PNP, Petitioners, vs. MARY JEAN B. TAGITIS, herein represented by ATTY. FELIPE P. ARCILLA, JR., Attorney-in-Fact, Respondent. DECISION BRION, J.: We review in this petition for review on certiorari1 the decision dated March 7, 2008 of the Court of Appeals (CA) in C.A-G.R. AMPARO No. 00009.2 This CA decision confirmed the enforced disappearance of Engineer Morced N. Tagitis (Tagitis) and granted the Writ of Amparo at the petition of his wife, Mary Jean B. Tagitis (respondent). The dispositive portion of the CA decision reads: WHEREFORE, premises considered, petition is hereby GRANTED. The Court hereby FINDS that this is an "enforced disappearance" within the meaning of the United Nations instruments, as used in the Amparo Rules. The privileges of the writ of amparo are hereby extended to Engr. Morced Tagitis. Consequently: (1) respondent GEN. EDGARDO M. DOROMAL, Chief, Criminal Investigation and Detention Group (CIDG) who should order COL. JOSE VOLPANE PANTE, CIDG-9 Chief, Zamboanga City, to aid him; (2) respondent GEN. AVELINO I. RAZON, Chief, PNP, who should order his men, namely: (a) respondent GEN. JOEL GOLTIAO, Regional Director of ARMM PNP, (b) COL. AHIRON AJIRIM, both head of TASK FORCE TAGITIS, and (c) respondent SR. SUPERINTENDENT LEONARDO A. ESPINA, Chief, Police Anti-Crime and Emergency Response, to aid him as their superior- are hereby DIRECTED to exert extraordinary diligence and efforts, not only to protect the life, liberty and security of Engr. Morced Tagitis, but also to extend the privileges of the writ of amparo to Engr. Morced Tagitis and his family, and to submit a monthly report of their actions to this Court, as a way of PERIODIC REVIEW to enable this Court to monitor the action of respondents. This amparo case is hereby DISMISSED as to respondent LT. GEN. ALEXANDER YANO, Commanding General, Philippine Army, and as to respondent GEN. RUBEN RAFAEL, Chief AntiTerror Task Force Comet, Zamboanga City, both being with the military, which is a separate and distinct organization from the police and the CIDG, in terms of operations, chain of command and budget. This Decision reflects the nature of the Writ of Amparo a protective remedy against violations or threats of violation against the rights to life, liberty and security.3 It embodies, as a remedy, the courts directive to police agencies to undertake specified courses of action to address the disappearance of an individual, in this case, Engr. Morced N. Tagitis. It does not determine guilt nor pinpoint criminal culpability for the disappearance; rather, it determines responsibility, or at least accountability, for the enforced disappearance for purposes of imposing the appropriate remedies to address the disappearance. Responsibility refers to the extent the actors have been established by substantial evidence to have participated in whatever way, by action or omission, in an enforced disappearance, as a measure of the remedies this Court shall craft, among them, the directive to file the appropriate criminal and civil cases against the responsible parties in the proper courts. Accountability, on the other hand, refers to the measure of remedies that should be addressed to those who exhibited involvement in the enforced disappearance without bringing the level of their complicity to the level of responsibility defined above; or 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. In all these cases, the issuance of the Writ of Amparo is justified by our primary goal of addressing the disappearance, so that the life of the victim is preserved and his liberty and security are restored. We highlight this nature of a Writ of Amparo case at the outset to stress that the unique situations that call for the issuance of the writ, as well as the considerations and measures necessary to address these situations, may not at all be the same as the standard measures and procedures in ordinary court actions and proceedings. In this sense, the Rule on the Writ of Amparo4 (Amparo Rule) issued by this Court is unique. The Amparo Rule should be read, too, as a work in progress, as its directions and finer points remain to evolve through time and jurisprudence and through the substantive laws that Congress may promulgate. THE FACTUAL ANTECEDENTS The background facts, based on the petition and the records of the case, are summarized below. The established facts show that Tagitis, a consultant for the World Bank and the Senior Honorary Counselor for the Islamic Development Bank (IDB) Scholarship Programme, was last seen in Jolo, Sulu. Together with Arsimin Kunnong (Kunnong), an IDB scholar, Tagitis arrived in Jolo by boat in the early morning of October 31, 2007 from a seminar in Zamboanga City. They immediately checked-in at ASY Pension House. Tagitis asked Kunnong to buy him a boat ticket for his return trip the following day to Zamboanga. When Kunnong returned from this errand, Tagitis was no longer around.5 The receptionist related that Tagitis went out to buy food at around 12:30 in the afternoon and even left his room key with the desk.6 Kunnong looked for Tagitis and even sent a text message to the latters Manila-based secretary who did not know of Tagitis whereabouts and activities either; she advised Kunnong to simply wait.7 On November 4, 2007, Kunnong and Muhammad Abdulnazeir N. Matli, a UP professor of Muslim studies and Tagitis fellow student counselor at the IDB, reported Tagitis disappearance to the Jolo Police Station.8 On November 7, 2007, Kunnong executed a sworn affidavit attesting to what he knew of the circumstances surrounding Tagitis disappearance.9 More than a month later (on December 28, 2007), the respondent filed a Petition for the Writ of Amparo (petition) with the CA through her Attorney-in-Fact, Atty. Felipe P. Arcilla.10 The petition was directed against Lt. Gen. Alexander Yano, Commanding General, Philippine Army; Gen. Avelino I. Razon, Chief, Philippine National Police (PNP); Gen. Edgardo M. Doromal, Chief, Criminal Investigation and Detention Group (CIDG); Sr. Supt. Leonardo A. Espina, Chief, Police Anti-Crime and Emergency Response; Gen. Joel Goltiao, Regional Director, ARMM-PNP; and Gen. Ruben Rafael, Chief, Anti-Terror Task Force Comet [collectively referred to as petitioners]. After reciting Tagitis personal circumstances and the facts outlined above, the petition went on to state: xxxx 7. Soon after the student left the room, Engr. Tagitis went out of the pension house to take his early lunch but while out on the street, a couple of burly men believed to be police intelligence operatives, forcibly took him and boarded the latter on a motor vehicle then sped away without the knowledge of his student, Arsimin Kunnong; 8. As instructed, in the late afternoon of the same day, Kunnong returned to the pension house, and was surprised to find out that subject Engr. Tagitis cannot [sic] be contacted by phone and was not also around and his room was closed and locked; 9. Kunnong requested for the key from the desk of the pension house who [sic] assisted him to open the room of Engr. Tagitis, where they discovered that the personal belongings of Engr.

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Tagitis, including cell phones, documents and other personal belongings were all intact inside the room; 10. When Kunnong could not locate Engr. Tagitis, the former sought the help of another IDB scholar and reported the matter to the local police agency; 11. Arsimin Kunnong including his friends and companions in Jolo, exerted efforts in trying to locate the whereabouts of Engr. Tagitis and when he reported the matter to the police authorities in Jolo, he was immediately given a ready answer that Engr. Tagitis could have been abducted by the Abu Sayyaf group and other groups known to be fighting against the government; 12. Being scared with [sic] these suggestions and insinuations of the police officers, Kunnong reported the matter to the [respondent, wife of Engr. Tagitis] by phone and other responsible officers and coordinators of the IDB Scholarship Programme in the Philippines, who alerted the office of the Governor of ARMM who was then preparing to attend the OIC meeting in Jeddah, Saudi Arabia; 13. [Respondent], on the other hand, approached some of her coemployees with the Land Bank in Digos branch, Digos City, Davao del Sur who likewise sought help from some of their friends in the military who could help them find/locate the whereabouts of her husband; 14. All of these efforts of the [respondent] did not produce any positive results except the information from persons in the military who do not want to be identified that Engr. Tagitis is in the hands of the uniformed men; 15. According to reliable information received by the [respondent], subject Engr. Tagitis is in the custody of police intelligence operatives, specifically with the CIDG, PNP Zamboanga City, being held against his will in an earnest attempt of the police to involve and connect Engr. Tagitis with the different terrorist groups; xxxx 17. [Respondent] filed her complaint with the PNP Police Station in the ARMM in Cotobato and in Jolo, as suggested by her friends, seeking their help to find her husband, but [respondents] request and pleadings failed to produce any positive results; 18. Instead of helping the [respondent], she [sic] was told of an intriguing tale by the police that her husband, subject of the petition, was not missing but was with another woman having good time somewhere, which is a clear indication of the [petitioners] refusal to help and provide police assistance in locating her missing husband; 19. The continued failure and refusal of the [petitioners] to release and/or turn-over subject Engr. Tagitis to his family or even to provide truthful information to [the respondent] of the subjects whereabouts, and/or allow [the respondent] to visit her husband Engr. Morced Tagitis, caused so much sleepless nights and serious anxieties; 20. Lately, [the respondent] was again advised by one of the [petitioners] to go to the ARMM Police Headquarters again in Cotobato City and also to the different Police Headquarters including [those] in Davao City, in Zamboanga City, in Jolo, and in Camp Crame, Quezon City, and all these places have been visited by the [respondent] in search for her husband, which entailed expenses for her trips to these places thereby resorting her to borrowings and beggings [sic] for financial help from friends and relatives only to try complying [sic] to the different suggestions of these police officers, despite of which, her efforts produced no positive results up to the present time; 21. In fact at times, some police officers, who [sympathized with] the sufferings undergone by the [respondent], informed her that they are not the proper persons that she should approach, but assured her not to worry because her husband is [sic] in good hands; 22. The unexplained uncooperative behavior of the [petitioners] to the [respondents] request for help and failure and refusal of the [petitioners] to extend the needed help, support and assistance in locating the whereabouts of Engr. Tagitis who had been declared missing since October 30, 2007 which is almost two (2) months now, clearly indicates that the [petitioners] are actually in physical possession and custody of [respondents] husband, Engr. Tagitis; xxxx 25. [The respondent] has exhausted all administrative avenues and remedies but to no avail, and under the circumstances, [the respondent] has no other plain, speedy and adequate remedy to protect and get the release of subject Engr. Morced Tagitis from the illegal clutches of the [petitioners], their intelligence operatives and the like which are in total violation of the subjects human and constitutional rights, except the issuance of a WRIT OF AMPARO. [Emphasis supplied] On the same day the petition was filed, the CA immediately issued the Writ of Amparo, set the case for hearing on January 7, 2008, and directed the petitioners to file their verified return within seventy-two (72) hours from service of the writ.11 In their verified Return filed during the hearing of January 27, 2008, the petitioners denied any involvement in or knowledge of Tagitis alleged abduction. They argued that the allegations of the petition were incomplete and did not constitute a cause of action against them; were baseless, or at best speculative; and were merely based on hearsay evidence. 12 The affidavit of PNP Chief Gen. Avelino I. Razon, attached to the Return, stated that: he did not have any personal knowledge of, or any participation in, the alleged disappearance; that he had been designated by President Gloria Macapagal Arroyo as the head of a special body called TASK FORCE USIG, to address concerns about extralegal killings and enforced disappearances; the Task Force, inter alia, coordinated with the investigators and local police, held case conferences, rendered legal advice in connection to these cases; and gave the following summary:13 xxxx 4. a) On November 5, 2007, the Regional Director, Police Regional Office ARMM submitted a report on the alleged disappearance of one Engr. Morced Tagitis. According to the said report, the victim checked-in at ASY Pension House on October 30, 2007 at about 6:00 in the morning and then roamed around Jolo, Sulu with an unidentified companion. It was only after a few days when the said victim did not return that the matter was reported to Jolo MPS. Afterwards, elements of Sulu PPO conducted a thorough investigation to trace and locate the whereabouts of the said missing person, but to no avail. The said PPO is still conducting investigation that will lead to the immediate findings of the whereabouts of the person. b) Likewise, the Regional Chief, 9RCIDU submitted a Progress Report to the Director, CIDG. The said report stated among others that: subject person attended an Education Development Seminar set on October 28, 2007 conducted at Ateneo de Zamboanga, Zamboanga City together with a Prof. Matli. On October 30, 2007, at around 5:00 oclock in the morning, Engr. Tagitis reportedly arrived at Jolo Sulu wharf aboard M/V Bounty Cruise, he was then billeted at ASY Pension House. At about 6:15 oclock in the morning of the same date, he instructed his student to purchase a fast craft ticket bound for Zamboanga City and will depart from Jolo, Sulu on October 31, 2007. That on or about 10:00 oclock in the morning, Engr. Tagitis left the premises of ASY Pension House as stated by the cashier of the said pension house. Later in the afternoon, the student instructed to purchase the ticket arrived at the pension house and waited for Engr. Tagitis, but the latter did not return. On its part, the elements of 9RCIDU is now conducting a continuous case build up and information gathering to locate the whereabouts of Engr. Tagitis. c) That the Director, CIDG directed the conduct of the search in all divisions of the CIDG to find Engr. Tagitis who was allegedly abducted or illegally detained by covert CIDG-PNP Intelligence Operatives since October 30, 2007, but after diligent and thorough search, records show that no such person is being detained in CIDG or any of its department or divisions. 5. On this particular case, the Philippine National Police exhausted all possible efforts, steps and actions available under the circumstances and continuously search and investigate [sic] the instant case. This immense mandate, however, necessitates the indispensable role of the citizenry, as the PNP cannot stand alone without the cooperation of the victims and witnesses to identify the perpetrators to bring them before the bar of justice and secure their conviction in court. The petitioner PNP-CIDG Chief, Gen. Edgardo M. Doromal, submitted as well his affidavit, also attached to the Return of the Writ, attesting that upon receipt of the Writ of Amparo, he caused the following:14 xxxx That immediately upon receipt on December 29, 2007 of the Resolution of the Honorable Special Fourth Division of the Court of Appeals, I immediately directed the Investigation Division of this Group [CIDG] to conduct urgent investigation on the alleged enforced disappearance of Engineer Morced Tagitis.

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EVIDENCE CASES - FULLTEXT CASES:

That based on record, Engr. Morced N. Tagitis attended an Education Development Seminar on October 28, 2007 at Ateneo de Zamboanga at Zamboanga City together with Prof. Abdulnasser Matli. On October 30, 2007, at around six oclock in the morning he arrived at Jolo, Sulu. He was assisted by his student identified as Arsimin Kunnong of the Islamic Development Bank who was also one of the participants of the said seminar. He checked in at ASY pension house located [sic] Kakuyagan, Patikul, Sulu on October 30, 2007 with [sic] unidentified companion. At around six oclock in the morning of even date, Engr. Tagitis instructed his student to purchase a fast craft ticket for Zamboanga City. In the afternoon of the same date, Kunnong arrived at the pension house carrying the ticket he purchased for Engr. Tagitis, but the latter was nowhere to be found anymore. Kunnong immediately informed Prof. Abdulnasser Matli who reported the incident to the police. The CIDG is not involved in the disappearance of Engr. Morced Tagitis to make out a case of an enforced disappearance which presupposes a direct or indirect involvement of the government. That herein [petitioner] searched all divisions and departments for a person named Engr. Morced N. Tagitis, who was allegedly abducted or illegally detained by covert CIDG-PNP Intelligence Operatives since October 30, 2007 and after a diligent and thorough research records show that no such person is being detained in CIDG or any of its department or divisions. That nevertheless, in order to determine the circumstances surrounding Engr. Morced Tagitis [sic] alleged enforced disappearance, the undersigned had undertaken immediate investigation and will pursue investigations up to its full completion in order to aid in the prosecution of the person or persons responsible therefore. Likewise attached to the Return of the Writ was PNP-PACER15 Chief PS Supt. Leonardo A. Espinas affidavit which alleged that:16 xxxx That, I and our men and women in PACER vehemently deny any participation in the alleged abduction or illegally [sic] detention of ENGR. MORCED N. TAGITS on October 30, 2007. As a matter of fact, nowhere in the writ was mentioned that the alleged abduction was perpetrated by elements of PACER nor was there any indication that the alleged abduction or illegal detention of ENGR. TAGITIS was undertaken jointly by our men and by the alleged covert CIDG-PNP intelligence operatives alleged to have abducted or illegally detained ENGR. TAGITIS. That I was shocked when I learned that I was implicated in the alleged disappearance of ENGR. MORCED in my capacity as the chief PACER [sic] considering that our office, the Police AntiCrime and Emergency Response (PACER), a special task force created for the purpose of neutralizing or eradicating kidnap-forransom groups which until now continue to be one of the menace of our society is a respondent in kidnapping or illegal detention case. Simply put, our task is to go after kidnappers and charge them in court and to abduct or illegally detain or kidnap anyone is anathema to our mission. That right after I learned of the receipt of the WRIT OF AMPARO, I directed the Chief of PACER Mindanao Oriental (PACER-MOR) to conduct pro-active measures to investigate, locate/search the subject, identify and apprehend the persons responsible, to recover and preserve evidence related to the disappearance of ENGR. MORCED TAGITIS, which may aid in the prosecution of the person or persons responsible, to identify witnesses and obtain statements from them concerning the disappearance and to determine the cause, manner, location and time of disappearance as well as any pattern or practice that may have brought about the disappearance. That I further directed the chief of PACER-MOR, Police Superintendent JOSE ARNALDO BRIONES JR., to submit a written report regarding the disappearance of ENGR. MORCED. That in compliance with my directive, the chief of PACER-MOR sent through fax his written report. That the investigation and measures being undertaken to locate/search the subject in coordination with Police Regional Office, Autonomous Region of Muslim Mindanao (PRO-ARMM) and Jolo Police Provincial Office (PPO) and other AFP and PNP units/agencies in the area are ongoing with the instruction not to leave any stone unturned so to speak in the investigation until the perpetrators in the instant case are brought to the bar of justice. That I have exercised EXTRAORDINARY DILIGENCE in dealing with the WRIT OF AMPARO just issued. Finally, the PNP PRO ARMM Regional Director PC Supt. Joel R. Goltiao (Gen. Goltiao), also submitted his affidavit detailing the actions that he had taken upon receipt of the report on Tagitis disappearance, viz:17 xxxx 3) For the record: 1. I am the Regional Director of Police Regional Office ARMM now and during the time of the incident; xxxx 4. It is my duty to look into and take appropriate measures on any cases of reported enforced disappearances and when they are being alluded to my office; 5. On November 5, 2007, the Provincial Director of Sulu Police Provincial Office reported to me through Radio Message Cite No. SPNP3-1105-07-2007 that on November 4, 2007 at around 3:30 p.m., a certain Abdulnasser Matli, an employee of Islamic Development Bank, appeared before the Office of the Chief of Police, Jolo Police Station, and reported the disappearance of Engr. Morced Tagitis, scholarship coordinator of Islamic Development Bank, Manila; 6. There was no report that Engr. Tagibis was last seen in the company of or taken by any member of the Philippine National Police but rather he just disappeared from ASY Pension House situated at Kakuyagan Village, Village, Patikul, Sulu, on October 30, 2007, without any trace of forcible abduction or arrest; 7. The last known instance of communication with him was when Arsimin Kunnong, a student scholar, was requested by him to purchase a vessel ticket at the Office of Weezam Express, however, when the student returned back to ASY Pension House, he no longer found Engr. Tagitis there and when he immediately inquired at the information counter regarding his whereabouts [sic], the person in charge in the counter informed him that Engr. Tagitis had left the premises on October 30, 2007 around 1 oclock p.m. and never returned back to his room; 8. Immediately after learning the incident, I called and directed the Provincial Director of Sulu Police Provincial Office and other units through phone call and text messages to conduct investigation [sic] to determine the whereabouts of the aggrieved party and the person or persons responsible for the threat, act or omission, to recover and preserve evidence related to the disappearance of Engr. Tagitis, to identify witnesses and obtain statements from them concerning his disappearance, to determine the cause and manner of his disappearance, to identify and apprehend the person or persons involved in the disappearance so that they shall be brought before a competent court; 9. Thereafter, through my Chief of the Regional Investigation and Detection Management Division, I have caused the following directives: a) Radio Message Cite No. RIDMD-1122-07-358 dated November 22, 2007 directing PD Sulu PPO to conduct joint investigation with CIDG and CIDU ARMM on the matter; b) Radio Message Cite No. RIDMD-1128-07-361 dated November 28, 2007 directing PD Sulu PPO to expedite compliance to my previous directive; c) Memorandum dated December 14, 2007 addressed to PD Sulu PPO reiterating our series of directives for investigation and directing him to undertake exhaustive coordination efforts with the owner of ASY Pension House and student scholars of IDB in order to secure corroborative statements regarding the disappearance and whereabouts of said personality; d) Memorandum dated December 24, 2007 addressed to PD Sulu PPO directing him to maximize efforts to establish clues on the whereabouts of Engr. Tagitis by seeking the cooperation of Prof. Abdulnasser Matli and Arsimin Kunnong and/or whenever necessary, for them to voluntarily submit for polygraph examination with the NBI so as to expunge all clouds of doubt that they may somehow have knowledge or idea to his disappearance; e) Memorandum dated December 27, 2007 addressed to the Regional Chief, Criminal Investigation and Detection Group, Police Regional Office 9, Zamboanga City, requesting assistance to investigate the cause and unknown disappearance of Engr. Tagitis considering that it is within their area of operational jurisdiction; f) Memorandum from Chief, Intelligence Division, PRO ARMM dated December 30, 2007 addressed to PD Sulu PPO requiring them to submit complete investigation report regarding the case of Engr. Tagitis; 10. In compliance to our directives, PD Sulu PPO has exerted his [sic] efforts to conduct investigation [sic] on the matter to determine the whereabouts of Engr. Tagitis and the circumstances related to his disappearance and submitted the following:

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a) Progress Report dated November 6, 2007 through Radio Message Cite No. SPNP3-1106-10-2007; b) Radio Message Cite No. SPIDMS-1205-47-07 informing this office that they are still monitoring the whereabouts of Engr. Tagitis; c) Investigation Report dated December 31, 2007 from the Chief of Police, Jolo Police Station, Sulu PPO; 11. This incident was properly reported to the PNP Higher Headquarters as shown in the following: a) Memorandum dated November 6, 2007 addressed to the Chief, PNP informing him of the facts of the disappearance and the action being taken by our office; b) Memorandum dated November 6, 2007 addressed to the Director, Directorate for Investigation and Detection Management, NHQ PNP; c) Memorandum dated December 30, 2007 addressed to the Director, DIDM; 4) In spite of our exhaustive efforts, the whereabouts of Engr. Tagitis cannot be determined but our office is continuously intensifying the conduct of information gathering, monitoring and coordination for the immediate solution of the case. Since the disappearance of Tagistis was practically admitted and taking note of favorable actions so far taken on the disappearance, the CA directed Gen. Goltiao as the officer in command of the area of disappearance to form TASK FORCE TAGITIS.18 Task Force Tagitis On January 11, 2008, Gen. Goltiao designated PS Supt. Ahiron Ajirim (PS Supt. Ajirim) to head TASK FORCE TAGITIS.19 The CA subsequently set three hearings to monitor whether TASK FORCE TAGITIS was exerting "extraordinary efforts" in handling the disappearance of Tagitis.20 As planned, (1) the first hearing would be to mobilize the CIDG, Zamboanga City; (2) the second hearing would be to mobilize intelligence with Abu Sayyaf and ARMM; and (3) the third hearing would be to mobilize the Chief of Police of Jolo, Sulu and the Chief of Police of Zamboanga City and other police operatives.21 In the hearing on January 17, 2008, TASK FORCE TAGITIS submitted to the CA an intelligence report from PSL Usman S. Pingay, the Chief of Police of the Jolo Police Station, stating a possible motive for Tagitis disappearance.22 The intelligence report was apparently based on the sworn affidavit dated January 4, 2008 of Muhammad Abdulnazeir N. Matli (Prof. Matli), Professor of Islamic Studies at the University of the Philippines and an Honorary Student Counselor of the IDB Scholarship Program in the Philippines, who told the Provincial Governor of Sulu that:23 [Based] on reliable information from the Office of Muslim Affairs in Manila, Tagitis has reportedly taken and carried away more or less Five Million Pesos (P5,000,000.00) deposited and entrusted to his [personal] bank accounts by the Central Office of IDB, Jeddah, Kingdom of Saudi Arabia, which [was] intended for the IDB Scholarship Fund. In the same hearing, PS Supt. Ajirim testified that since the CIDG was alleged to be responsible, he personally went to the CIDG office in Zamboanga City to conduct an ocular inspection/investigation, particularly of their detention cells.24 PS Supt. Ajirim stated that the CIDG, while helping TASK FORCE TAGITIS investigate the disappearance of Tagitis, persistently denied any knowledge or complicity in any abduction.25 He further testified that prior to the hearing, he had already mobilized and given specific instructions to their supporting units to perform their respective tasks; that they even talked to, but failed to get any lead from the respondent in Jolo.26 In his submitted investigation report dated January 16, 2008, PS Supt. Ajirim concluded:27 9. Gleaned from the undersigned inspection and observation at the Headquarters 9 RCIDU and the documents at hand, it is my own initial conclusion that the 9RCIDU and other PNP units in the area had no participation neither [sic] something to do with [sic] mysterious disappearance of Engr. Morced Tagitis last October 30, 2007. Since doubt has been raised regarding the emolument on the Islamic Development Bank Scholar program of IDB that was reportedly deposited in the personal account of Engr. Tagitis by the IDB central office in Jeddah, Kingdom of Saudi Arabia. Secondly, it could might [sic] be done by resentment or sour grape among students who are applying for the scholar [sic] and were denied which was allegedly conducted/screened by the subject being the coordinator of said program. 20. It is also premature to conclude but it does or it may and [sic] presumed that the motive behind the disappearance of the subject might be due to the funds he maliciously spent for his personal interest and wanted to elude responsibilities from the institution where he belong as well as to the Islamic student scholars should the statement of Prof. Matli be true or there might be a professional jealousy among them. xxxx It is recommended that the Writ of Amparo filed against the respondents be dropped and dismissed considering on [sic] the police and military actions in the area particularly the CIDG are exerting their efforts and religiously doing their tasked [sic] in the conduct of its intelligence monitoring and investigation for the early resolution of this instant case. But rest assured, our office, in coordination with other law-enforcement agencies in the area, are continuously and religiously conducting our investigation for the resolution of this case. On February 4, 2008, the CA issued an ALARM WARNING that Task Force Tagitis did not appear to be exerting extraordinary efforts in resolving Tagitis disappearance on the following grounds:28 (1) This Court FOUND that it was only as late as January 28, 2008, after the hearing, that GEN. JOEL GOLTIAO and COL. AHIRON AJIRIM had requested for clear photographs when it should have been standard operating procedure in kidnappings or disappearances that the first agenda was for the police to secure clear pictures of the missing person, Engr. Morced Tagitis, for dissemination to all parts of the country and to neighboring countries. It had been three (3) months since GEN. JOEL GOLTIAO admitted having been informed on November 5, 2007 of the alleged abduction of Engr. Morced Tagitis by alleged bad elements of the CIDG. It had been more than one (1) month since the Writ of Amparo had been issued on December 28, 2007. It had been three (3) weeks when battle formation was ordered through Task Force Tagitis, on January 17, 2008. It was only on January 28, 2008 when the Task Force Tagitis requested for clear and recent photographs of the missing person, Engr. Morced Tagitis, despite the Task Force Tagitis claim that they already had an "all points bulletin", since November 5, 2007, on the missing person, Engr. Morced Tagitis. How could the police look for someone who disappeared if no clear photograph had been disseminated? (2) Furthermore, Task Force Tagitis COL. AHIROM AJIRIM informed this Court that P/Supt KASIM was designated as Col. Ahirom Ajirims replacement in the latters official designated post. Yet, P/Supt KASIMs subpoena was returned to this Court unserved. Since this Court was made to understand that it was P/Supt KASIM who was the petitioners unofficial source of the military intelligence information that Engr. Morced Tagitis was abducted by bad elements of the CIDG (par. 15 of the Petition), the close contact between P/Supt KASIM and Col. Ahirom Ajirim of TASK FORCE TAGITIS should have ensured the appearance of Col. KASIM in response to this courts subpoena and COL. KASIM could have confirmed the military intelligence information that bad elements of the CIDG had abducted Engr. Morced Tagitis. Testimonies for the Respondent On January 7, 2008, the respondent, Mary Jean B. Tagitis, testified on direct examination that she went to Jolo and Zamboanga in her efforts to locate her husband. She said that a friend from Zamboanga holding a high position in the military (whom she did not then identify) gave her information that allowed her to "specify" her allegations, "particularly paragraph 15 of the petition."29 This friend also told her that her husband "[was] in good hands."30 The respondent also testified that she sought the assistance of her former boss in Davao City, Land Bank Bajada Branch Manager Rudy Salvador, who told her that "PNP CIDG is holding [her husband], Engineer Morced Tagitis."31 The respondent recounted that she went to Camp Katitipan in Davao City where she met Col. Julasirim Ahadin Kasim (Col. Kasim/Sr. Supt Kasim) who read to her and her friends (who were then with her) a "highly confidential report" that contained the "alleged activities of Engineer Tagitis" and informed her that her husband was abducted because "he is under custodial investigation" for being a liaison for "J.I. or Jemaah Islamiah."32 On January 17, 2008, the respondent on cross-examination testified that she is Tagitis second wife, and they have been married for thirteen years; Tagitis was divorced from his first wife.33 She last communicated with her husband on October 29, 2007 at around 7:31 p.m. through text messaging; Tagitis was then on his way to Jolo, Sulu, from Zamboanga City.34

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EVIDENCE CASES - FULLTEXT CASES:

The respondent narrated that she learned of her husbands disappearance on October 30, 2007 when her stepdaughter, Zaynah Tagitis (Zaynah), informed her that she had not heard from her father since the time they arranged to meet in Manila on October 31, 2007.35 The respondent explained that it took her a few days (or on November 5, 2007) to personally ask Kunnong to report her husbands disappearance to the Jolo Police Station, since she had the impression that her husband could not communicate with her because his cellular phones battery did not have enough power, and that he would call her when he had fullycharged his cellular phones battery.36 The respondent also identified the high-ranking military friend, who gave her the information found in paragraph 15 of her petition, as Lt. Col. Pedro L. Ancanan, Jr (Col. Ancanan). She met him in Camp Karingal, Zamboanga through her boss.37 She also testified that she was with three other people, namely, Mrs. Marydel Martin Talbin and her two friends from Mati City, Davao Oriental, when Col. Kasim read to them the contents of the "highly confidential report" at Camp Katitipan, Davao City. The respondent further narrated that the report indicated that her husband met with people belonging to a terrorist group and that he was under custodial investigation. She then told Col. Kasim that her husband was a diabetic taking maintenance medication, and asked that the Colonel relay to the persons holding him the need to give him his medication.38 On February 11, 2008, TASK FORCE TAGITIS submitted two narrative reports,39 signed by the respondent, detailing her efforts to locate her husband which led to her meetings with Col. Ancanan of the Philippine Army and Col. Kasim of the PNP. In her narrative report concerning her meeting with Col. Ancanan, the respondent recounted, viz:40 On November 11, 2007, we went to Zamboanga City with my friend Mrs. Marydel Talbin. Our flight from Davao City is 9:00 oclock in the morning; we arrived at Zamboanga Airport at around 10:00 oclock. We [were] fetched by the two staffs of Col. Ancanan. We immediately proceed [sic] to West Mindanao Command (WESTMINCOM). On that same day, we had private conversation with Col. Ancanan. He interviewed me and got information about the personal background of Engr. Morced N. Tagitis. After he gathered all information, he revealed to us the contents of text messages they got from the cellular phone of the subject Engr. Tagitis. One of the very important text messages of Engr. Tagitis sent to his daughter Zaynah Tagitis was that she was not allowed to answer any telephone calls in his condominium unit. While we were there he did not tell us any information of the whereabouts of Engr. Tagitis. After the said meeting with Col. Ancanan, he treated us as guests to the city. His two staffs accompanied us to the mall to purchase our plane ticket going back to Davao City on November 12, 2007. When we arrived in Davao City on November 12, 2007 at 9:00 in the morning, Col. Ancanan and I were discussing some points through phone calls. He assured me that my husband is alive and hes last looked [sic] in Talipapao, Jolo, Sulu. Yet I did not believe his given statements of the whereabouts of my husband, because I contacted some of my friends who have access to the groups of MILF, MNLF and ASG. I called up Col. Ancanan several times begging to tell me the exact location of my husband and who held him but he refused. While I was in Jolo, Sulu on November 30, 2007, I called him up again because the PNP, Jolo did not give me any information of the whereabouts of my husband. Col. Ancanan told me that "Sana ngayon alam mo na kung saan ang kinalalagyan ng asawa mo." When I was in Zamboanga, I was thinking of dropping by the office of Col. Ancanan, but I was hesitant to pay him a visit for the reason that the Chief of Police of Jolo told me not to contact any AFP officials and he promised me that he can solve the case of my husband (Engr. Tagitis) within nine days. I appreciate the effort of Col. Ancanan on trying to solve the case of my husband Engr. Morced Tagitis, yet failed to do so. The respondent also narrated her encounter with Col. Kasim, as follows:41 On November 7, 2007, I went to Land Bank of the Philippines, Bajada Branch, Davao City to meet Mr. Rudy Salvador. I told him that my husband, Engineer Morced Tagitis was presumed to be abducted in Jolo, Sulu on October 30, 2007. I asked him a favor to contact his connections in the military in Jolo, Sulu where the abduction of Engr. Tagitis took place. Mr. Salvador immediately called up Camp Katitipan located in Davao City looking for highranking official who can help me gather reliable information behind the abduction of subject Engineer Tagitis. On that same day, Mr. Salvador and my friend, Anna Mendoza, Executive Secretary, accompanied me to Camp Katitipan to meet Col. Kasim. Mr. Salvador introduced me to Col. Kasim and we had a short conversation. And he assured me that hell do the best he can to help me find my husband. After a few weeks, Mr. Salvador called me up informing me up informing me that I am to go to Camp Katitipan to meet Col. Kasim for he has an urgent, confidential information to reveal. On November 24, 2007, we went back to Camp Katitipan with my three friends. That was the time that Col. Kasim read to us the confidential report that Engr. Tagitis was allegedly connected [with] different terrorist [groups], one of which he mentioned in the report was OMAR PATIK and a certain SANTOS - a Balik Islam. It is also said that Engr. Tagitis is carrying boxes of medicines for the injured terrorists as a supplier. These are the two information that I can still remember. It was written in a long bond paper with PNP Letterhead. It was not shown to us, yet Col. Kasim was the one who read it for us. He asked a favor to me that "Please dont quote my Name! Because this is a raw report." He assured me that my husband is alive and he is in the custody of the military for custodial investigation. I told him to please take care of my husband because he has aliments and he recently took insulin for he is a diabetic patient. In my petition for writ of amparo, I emphasized the information that I got from Kasim. On February 11, 2008, the respondent presented Mrs. Marydel Martin Talbin (Mrs. Talbin) to corroborate her testimony regarding her efforts to locate her husband, in relation particularly with the information she received from Col. Kasim. Mrs. Talbin testified that she was with the respondent when she went to Zamboanga to see Col. Ancanan, and to Davao City at Camp Katitipan to meet Col. Kasim.42 In Zamboanga, Mrs. Talbin recounted that they met with Col. Ancanan, who told them that there was a report and that he showed them a series of text messages from Tagitis cellular phone, which showed that Tagitis and his daughter would meet in Manila on October 30, 2007.43 She further narrated that sometime on November 24, 2007, she went with the respondent together with two other companions, namely, Salvacion Serrano and Mini Leong, to Camp Katitipan to talk to Col. Kasim.44 The respondent asked Col. Kasim if he knew the exact location of Engr. Tagitis. Col. Kasim told them that Tagitis was in good hands, although he was not certain whether he was with the PNP or with the Armed Forces of the Philippines (AFP). She further recounted that based on the report Col. Kasim read in their presence, Tagitis was under custodial investigation because he was being charged with terrorism; Tagitis in fact had been under surveillance since January 2007 up to the time he was abducted when he was seen talking to Omar Patik and a certain Santos of Bulacan, a "Balik Islam" charged with terrorism. Col. Kasim also told them that he could not give a copy of the report because it was a "raw report."45 She also related that the Col. Kasim did not tell them exactly where Tagitis was being kept, although he mentioned Talipapao, Sulu.Prof., lalabas din yan."50 Prof. Matli also emphasized that despite what his January 4, 2008 affidavit indicated,51 he never told PS Supt. Pingay, or made any accusation, that Tagitis took away money entrusted to him.52 Prof. Matli confirmed, however, that that he had received an e-mail report53 from Nuraya Lackian of the Office of Muslim Affairs in Manila that the IDB was seeking assistance of the office in locating the funds of IDB scholars deposited in Tagitis personal account.54 On cross-examination by the respondents counsel, Prof. Matli testified that his January 4, 2008 affidavit was already prepared when PS Supt. Pingay asked him to sign it.55 Prof Matli clarified that although he read the affidavit before signing it, he "was not so much aware of [its] contents."56 On February 11, 2008, the petitioners presented Col. Kasim to rebut material portions of the respondents testimony, particularly the allegation that he had stated that Tagitis was in the custody of either the military or the PNP.57 Col. Kasim categorically denied the statements made by the respondent in her narrative report, specifically: (1) that Tagitis was seen carrying boxes of medicines as supplier for the injured terrorists; (2) that Tagitis was under the custody of the military, since he merely said to the respondent that "your husband is in good hands" and is "probably taken cared of by his armed abductors;" and (3) that Tagitis was under custodial investigation by the military, the PNP or the CIDG Zamboanga City.58 Col. Kasim emphasized that the "informal letter" he received from his informant in Sulu did not indicate that Tagitis was in the custody of the CIDG.59 He also stressed that the information he provided to the respondent was merely a "raw

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report" sourced from "barangay intelligence" that still needed confirmation and "follow-up" as to its veracity.60 On cross-examination, Col. Kasim testified that the information he gave the respondent was given to him by his informant, who was a "civilian asset," through a letter which he considered as "unofficial."61 Col. Kasim stressed that the letter was only meant for his "consumption" and not for reading by others.62 He testified further that he destroyed the letter right after he read it to the respondent and her companions because "it was not important to him" and also because the information it contained had no importance in relation with the abduction of Tagitis.63 He explained that he did not keep the letter because it did not contain any information regarding the whereabouts of Tagitis and the person(s) responsible for his abduction.64 In the same hearing on February 11, 2008, the petitioners also presented Police Senior Superintendent Jose Volpane Pante (Col. Pante), Chief of the CIDG-9, to disprove the respondents allegation that Tagitis was in the custody of CIDG-Zamboanga City.65 Col. Pante clarified that the CIDG was the "investigative arm" of the PNP, and that the CIDG "investigates and prosecutes all cases involving violations in the Revised Penal Code particularly those considered as heinous crimes."66 Col. Pante further testified that the allegation that 9 RCIDU personnel were involved in the disappearance of Tagitis was baseless, since they did not conduct any operation in Jolo, Sulu before or after Tagitis reported disappearance.67 Col. Pante added that the four (4) personnel assigned to the Sulu CIDT had no capability to conduct any "operation," since they were only assigned to investigate matters and to monitor the terrorism situation.68 He denied that his office conducted any surveillance on Tagitis prior to the latters disappearance.69 Col. Pante further testified that his investigation of Tagitis disappearance was unsuccessful; the investigation was "still facing a blank wall" on the whereabouts of Tagitis.70 THE CA RULING On March 7, 2008, the CA issued its decision71 confirming that the disappearance of Tagitis was an "enforced disappearance" under the United Nations (UN) Declaration on the Protection of All Persons from Enforced Disappearances.72 The CA ruled that when military intelligence pinpointed the investigative arm of the PNP (CIDG) to be involved in the abduction, the missing-person case qualified as an enforced disappearance. The conclusion that the CIDG was involved was based on the respondents testimony, corroborated by her companion, Mrs. Talbin. The CA noted that the information that the CIDG, as the police intelligence arm, was involved in Tagitis abduction came from no less than the military an independent agency of government. The CA thus greatly relied on the "raw report" from Col. Kasims asset, pointing to the CIDGs involvement in Tagitis abduction. The CA held that "raw reports" from an "asset" carried "great weight" in the intelligence world. It also labeled as "suspect" Col. Kasims subsequent and belated retraction of his statement that the military, the police, or the CIDG was involved in the abduction of Tagitis. The CA characterized as "too farfetched and unbelievable" and "a bedlam of speculation" police theories painting the disappearance as "intentional" on the part of Tagitis. He had no previous brushes with the law or any record of overstepping the bounds of any trust regarding money entrusted to him; no student of the IDB scholarship program ever came forward to complain that he or she did not get his or her stipend. The CA also found no basis for the police theory that Tagitis was "trying to escape from the clutches of his second wife," on the basis of the respondents testimony that Tagitis was a Muslim who could have many wives under the Muslim faith, and that there was "no issue" at all when the latter divorced his first wife in order to marry the second. Finally, the CA also ruled out kidnapping for ransom by the Abu Sayyaf or by the ARMM paramilitary as the cause for Tagitis disappearance, since the respondent, the police and the military noted that there was no acknowledgement of Tagitis abduction or demand for payment of ransom the usual modus operandi of these terrorist groups. Based on these considerations, the CA thus extended the privilege of the writ to Tagitis and his family, and directed the CIDG Chief, Col. Jose Volpane Pante, PNP Chief Avelino I. Razon, Task Force Tagitis heads Gen. Joel Goltiao and Col. Ahiron Ajirim, and PACER Chief Sr. Supt. Leonardo A. Espina to exert extraordinary diligence and efforts to protect the life, liberty and security of Tagitis, with the obligation to provide monthly reports of their actions to the CA. At the same time, the CA dismissed the petition against the then respondents from the military, Lt. Gen Alexander Yano and Gen. Ruben Rafael, based on the finding that it was PNP-CIDG, not the military, that was involved. On March 31, 2008, the petitioners moved to reconsider the CA decision, but the CA denied the motion in its Resolution of April 9, 2008.73 THE PETITION In this Rule 45 appeal questioning the CAs March 7, 2008 decision, the petitioners mainly dispute the sufficiency in form and substance of the Amparo petition filed before the CA; the sufficiency of the legal remedies the respondent took before petitioning for the writ; the finding that the rights to life, liberty and security of Tagitis had been violated; the sufficiency of evidence supporting the conclusion that Tagitis was abducted; the conclusion that the CIDG Zamboanga was responsible for the abduction; and, generally, the ruling that the respondent discharged the burden of proving the allegations of the petition by substantial evidence.74 THE COURTS RULING We do not find the petition meritorious. Sufficiency in Form and Substance In questioning the sufficiency in form and substance of the respondents Amparo petition, the petitioners contend that the petition violated Section 5(c), (d), and (e) of the Amparo Rule. Specifically, the petitioners allege that the respondent failed to: 1) allege any act or omission the petitioners committed in violation of Tagitis rights to life, liberty and security; 2) allege in a complete manner how Tagitis was abducted, the persons responsible for his disappearance, and the respondents source of information; 3) allege that the abduction was committed at the petitioners instructions or with their consent; 4) implead the members of CIDG regional office in Zamboanga alleged to have custody over her husband; 5) attach the affidavits of witnesses to support her accusations; 6) allege any action or inaction attributable to the petitioners in the performance of their duties in the investigation of Tagitis disappearance; and 7) specify what legally available efforts she took to determine the fate or whereabouts of her husband. A petition for the Writ of Amparo shall be signed and verified and shall allege, among others (in terms of the portions the petitioners cite):75 (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 The framers of the Amparo Rule never intended Section 5(c) to be complete in every detail in stating the threatened or actual violation of a victims rights. As in any other initiatory pleading, the pleader must of course state the ultimate facts constituting the cause of action, omitting the evidentiary details.76 In an Amparo petition, however, this requirement must be read in light of the nature and purpose of the proceeding, which addresses a situation of uncertainty; the petitioner may not be able to describe with certainty how the victim exactly disappeared, or who actually acted to kidnap, abduct or arrest him or her, or where the victim is detained, because these information may purposely be hidden or covered up by those who caused the disappearance. In this type of situation, to require the level of specificity, detail and precision that the petitioners apparently want to read into the Amparo Rule is to make this Rule a token gesture of judicial concern for violations of the constitutional rights to life, liberty and security. To read the Rules of Court requirement on pleadings while addressing the unique Amparo situation, the test in reading the petition should be to determine whether it contains the details available to the petitioner under the circumstances, while presenting a cause of action showing a violation of the victims rights to life, liberty and security through State or private party action. The petition should likewise be read in its totality, rather than in terms of its isolated component parts, to determine if the required elements namely, of the disappearance, the State or private action, and the actual or threatened violations of the rights to life, liberty or security are present. In the present case, the petition amply recites in its paragraphs 4 to 11 the circumstances under which Tagitis suddenly dropped

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out of sight after engaging in normal activities, and thereafter was nowhere to be found despite efforts to locate him. The petition alleged, too, under its paragraph 7, in relation to paragraphs 15 and 16, that according to reliable information, police operatives were the perpetrators of the abduction. It also clearly alleged how Tagitis rights to life, liberty and security were violated when he was "forcibly taken and boarded on a motor vehicle by a couple of burly men believed to be police intelligence operatives," and then taken "into custody by the respondents police intelligence operatives since October 30, 2007, specifically by the CIDG, PNP Zamboanga City, x x x held against his will in an earnest attempt of the police to involve and connect [him] with different terrorist groups."77 These allegations, in our view, properly pleaded ultimate facts within the pleaders knowledge about Tagitis disappearance, the participation by agents of the State in this disappearance, the failure of the State to release Tagitis or to provide sufficient information about his whereabouts, as well as the actual violation of his right to liberty. Thus, the petition cannot be faulted for any failure in its statement of a cause of action. If a defect can at all be attributed to the petition, this defect is its lack of supporting affidavit, as required by Section 5(c) of the Amparo Rule. Owing to the summary nature of the proceedings for the writ and to facilitate the resolution of the petition, the Amparo Rule incorporated the requirement for supporting affidavits, with the annotation that these can be used as the affiants direct testimony.78 This requirement, however, should not be read as an absolute one that necessarily leads to the dismissal of the petition if not strictly followed. Where, as in this case, the petitioner has substantially complied with the requirement by submitting a verified petition sufficiently detailing the facts relied upon, the strict need for the sworn statement that an affidavit represents is essentially fulfilled. We note that the failure to attach the required affidavits was fully cured when the respondent and her witness (Mrs. Talbin) personally testified in the CA hearings held on January 7 and 17 and February 18, 2008 to swear to and flesh out the allegations of the petition. Thus, even on this point, the petition cannot be faulted. Section 5(d) of the Amparo Rule requires that prior investigation of an alleged disappearance must have been made, specifying the manner and results of the investigation. Effectively, this requirement seeks to establish at the earliest opportunity the level of diligence the public authorities undertook in relation with the reported disappearance.79 We reject the petitioners argument that the respondents petition did not comply with the Section 5(d) requirements of the Amparo Rule, as the petition specifies in its paragraph 11 that Kunnong and his companions immediately reported Tagitis disappearance to the police authorities in Jolo, Sulu as soon as they were relatively certain that he indeed had disappeared. The police, however, gave them the "ready answer" that Tagitis could have been abducted by the Abu Sayyaf group or other anti-government groups. The respondent also alleged in paragraphs 17 and 18 of her petition that she filed a "complaint" with the PNP Police Station in Cotobato and in Jolo, but she was told of "an intriguing tale" by the police that her husband was having "a good time with another woman." The disappearance was alleged to have been reported, too, to no less than the Governor of the ARMM, followed by the respondents personal inquiries that yielded the factual bases for her petition.80 These allegations, to our mind, sufficiently specify that reports have been made to the police authorities, and that investigations should have followed. That the petition did not state the manner and results of the investigation that the Amparo Rule requires, but rather generally stated the inaction of the police, their failure to perform their duty to investigate, or at the very least, their reported failed efforts, should not be a reflection on the completeness of the petition. To require the respondent to elaborately specify the names, personal circumstances, and addresses of the investigating authority, as well the manner and conduct of the investigation is an overly strict interpretation of Section 5(d), given the respondents frustrations in securing an investigation with meaningful results. Under these circumstances, we are more than satisfied that the allegations of the petition on the investigations undertaken are sufficiently complete for purposes of bringing the petition forward. Section 5(e) is in the Amparo Rule to prevent the use of a petition that otherwise is not supported by sufficient allegations to constitute a proper cause of action as a means to "fish" for evidence.81 The petitioners contend that the respondents petition did not specify what "legally available efforts were taken by the respondent," and that there was an "undue haste" in the filing of the petition when, instead of cooperating with authorities, the respondent immediately invoked the Courts intervention. We do not see the respondents petition as the petitioners view it. Section 5(e) merely requires that the Amparo petitioner (the respondent in the present case) allege "the actions and recourses taken to determine the fate or whereabouts of the aggrieved party and the identity of the person responsible for the threat, act or omission." The following allegations of the respondents petition duly outlined the actions she had taken and the frustrations she encountered, thus compelling her to file her petition. xxxx 7. Soon after the student left the room, Engr. Tagitis went out of the pension house to take his early lunch but while out on the street, a couple of burly men believed to be police intelligence operatives, forcibly took him and boarded the latter on a motor vehicle then sped away without the knowledge of his student, Arsimin Kunnong; xxxx 10. When Kunnong could not locate Engr. Tagitis, the former sought the help of another IDB scholar and reported the matter to the local police agency; 11. Arsimin Kunnong, including his friends and companions in Jolo, exerted efforts in trying to locate the whereabouts of Engr. Tagitis and when he reported the matter to the police authorities in Jolo, he was immediately given a ready answer that Engr. Tagitis could [have been] abducted by the Abu Sayyaf group and other groups known to be fighting against the government; 12. Being scared with these suggestions and insinuations of the police officers, Kunnong reported the matter to the [respondent] (wife of Engr. Tagitis) by phone and other responsible officers and coordinators of the IDB Scholarship Programme in the Philippines who alerted the office of the Governor of ARMM who was then preparing to attend the OIC meeting in Jeddah, Saudi Arabia; 13. [The respondent], on the other hand, approached some of her co-employees with the Land Bank in Digos branch, Digos City, Davao del Sur, who likewise sought help from some of their friends in the military who could help them find/locate the whereabouts of her husband; xxxx 15. According to reliable information received by the [respondent], subject Engr. Tagitis is in the custody of police intelligence operatives, specifically with the CIDG, PNP Zamboanga City, being held against his will in an earnest attempt of the police to involve and connect Engr. Tagitis with the different terrorist groups; xxxx 17. [The respondent] filed her complaint with the PNP Police Station at the ARMM in Cotobato and in Jolo, as suggested by her friends, seeking their help to find her husband, but [the respondents] request and pleadings failed to produce any positive results xxxx 20. Lately, [respondent] was again advised by one of the [petitioners] to go to the ARMM Police Headquarters again in Cotobato City and also to the different Police Headquarters including the police headquarters in Davao City, in Zamboanga City, in Jolo, and in Camp Crame, Quezon City, and all these places have been visited by the [respondent] in search for her husband, which entailed expenses for her trips to these places thereby resorting her to borrowings and beggings [sic] for financial help from friends and relatives only to try complying to the different suggestions of these police officers, despite of which, her efforts produced no positive results up to the present time; xxxx 25. [The respondent] has exhausted all administrative avenues and remedies but to no avail, and under the circumstances, [respondent] has no other plain, speedy and adequate remedy to protect and get the release of subject Engr. Morced Tagitis from the illegal clutches of [the petitioners], their intelligence operatives and the like which are in total violation of the subjects human and constitutional rights, except the issuance of a WRIT OF AMPARO. Based on these considerations, we rule that the respondents petition for the Writ of Amparo is sufficient in form and substance and that the Court of Appeals had every reason to proceed with its consideration of the case. The Desaparecidos The present case is one of first impression in the use and application of the Rule on the Writ of Amparo in an enforced disappearance situation. For a deeper appreciation of the application of this Rule to an enforced disappearance situation, a brief look at the historical context of the writ and enforced disappearances would be very helpful.

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The phenomenon of enforced disappearance arising from State action first attracted notice in Adolf Hitlers Nact und Nebel Erlass or Night and Fog Decree of December 7, 1941.82 The Third Reichs Night and Fog Program, a State policy, was directed at persons in occupied territories "endangering German security"; they were transported secretly to Germany where they disappeared without a trace. In order to maximize the desired intimidating effect, the policy prohibited government officials from providing information about the fate of these targeted persons.83 In the mid-1970s, the phenomenon of enforced disappearances resurfaced, shocking and outraging the world when individuals, numbering anywhere from 6,000 to 24,000, were reported to have "disappeared" during the military regime in Argentina. Enforced disappearances spread in Latin America, and the issue became an international concern when the world noted its widespread and systematic use by State security forces in that continent under Operation Condor84 and during the Dirty War85 in the 1970s and 1980s. The escalation of the practice saw political activists secretly arrested, tortured, and killed as part of governments counter-insurgency campaigns. As this form of political brutality became routine elsewhere in the continent, the Latin American media standardized the term "disappearance" to describe the phenomenon. The victims of enforced disappearances were called the "desaparecidos,"86 which literally means the "disappeared ones."87 In general, there are three different kinds of "disappearance" cases: 1) those of people arrested without witnesses or without positive identification of the arresting agents and are never found again; 2) those of prisoners who are usually arrested without an appropriate warrant and held in complete isolation for weeks or months while their families are unable to discover their whereabouts and the military authorities deny having them in custody until they eventually reappear in one detention center or another; and 3) those of victims of "salvaging" who have disappeared until their lifeless bodies are later discovered.88 In the Philippines, enforced disappearances generally fall within the first two categories,89 and 855 cases were recorded during the period of martial law from 1972 until 1986. Of this number, 595 remained missing, 132 surfaced alive and 127 were found dead. During former President Corazon C. Aquinos term, 820 people were reported to have disappeared and of these, 612 cases were documented. Of this number, 407 remain missing, 108 surfaced alive and 97 were found dead. The number of enforced disappearances dropped during former President Fidel V. Ramos term when only 87 cases were reported, while the three-year term of former President Joseph E. Estrada yielded 58 reported cases. KARAPATAN, a local non-governmental organization, reports that as of March 31, 2008, the records show that there were a total of 193 victims of enforced disappearance under incumbent President Gloria M. Arroyos administration. The Commission on Human Rights records show a total of 636 verified cases of enforced disappearances from 1985 to 1993. Of this number, 406 remained missing, 92 surfaced alive, 62 were found dead, and 76 still have undetermined status.90 Currently, the United Nations Working Group on Enforced or Involuntary Disappearance91 reports 619 outstanding cases of enforced or involuntary disappearances covering the period December 1, 2007 to November 30, 2008.92 Enforced Disappearances Under Philippine Law The Amparo Rule expressly provides that the "writ shall cover extralegal killings and enforced disappearances or threats thereof."93 We note that although the writ specifically covers "enforced disappearances," this concept is neither defined nor penalized in this jurisdiction. The records of the Supreme Court Committee on the Revision of Rules (Committee) reveal that the drafters of the Amparo Rule initially considered providing an elemental definition of the concept of enforced disappearance:94 JUSTICE MARTINEZ: I believe that first and foremost we should come up or formulate a specific definition [for] extrajudicial killings and enforced disappearances. From that definition, then we can proceed to formulate the rules, definite rules concerning the same. CHIEF JUSTICE PUNO: As things stand, there is no law penalizing extrajudicial killings and enforced disappearances so initially also we have to [come up with] the nature of these extrajudicial killings and enforced disappearances [to be covered by the Rule] because our concept of killings and disappearances will define the jurisdiction of the courts. So well have to agree among ourselves about the nature of killings and disappearances for instance, in other jurisdictions, the rules only cover state actors. That is an element incorporated in their concept of extrajudicial killings and enforced disappearances. In other jurisdictions, the concept includes acts and omissions not only of state actors but also of non state actors. Well, more specifically in the case of the Philippines for instance, should these rules include the killings, the disappearances which may be authored by let us say, the NPAs or the leftist organizations and others. So, again we need to define the nature of the extrajudicial killings and enforced disappearances that will be covered by these rules. [Emphasis supplied] 95 In the end, the Committee took cognizance of several bills filed in the House of Representatives96 and in the Senate97 on extrajudicial killings and enforced disappearances, and resolved to do away with a clear textual definition of these terms in the Rule. The Committee instead focused on the nature and scope of the concerns within its power to address and provided the appropriate remedy therefor, mindful that an elemental definition may intrude into the ongoing legislative efforts.98 As the law now stands, extra-judicial killings and enforced disappearances in this jurisdiction are not crimes penalized separately from the component criminal acts undertaken to carry out these killings and enforced disappearances and are now penalized under the Revised Penal Code and special laws.99 The simple reason is that the Legislature has not spoken on the matter; the determination of what acts are criminal and what the corresponding penalty these criminal acts should carry are matters of substantive law that only the Legislature has the power to enact under the countrys constitutional scheme and power structure. Even without the benefit of directly applicable substantive laws on extra-judicial killings and enforced disappearances, however, the Supreme Court is not powerless to act under its own constitutional mandate to promulgate "rules concerning the protection and enforcement of constitutional rights, pleading, practice and procedure in all courts,"100 since extrajudicial killings and enforced disappearances, by their nature and purpose, constitute State or private party violation of the constitutional rights of individuals to life, liberty and security. Although the Courts power is strictly procedural and as such does not diminish, increase or modify substantive rights, the legal protection that the Court can provide can be very meaningful through the procedures it sets in addressing extrajudicial killings and enforced disappearances. The Court, through its procedural rules, can set the procedural standards and thereby directly compel the public authorities to act on actual or threatened violations of constitutional rights. To state the obvious, judicial intervention can make a difference even if only procedurally in a situation when the very same investigating public authorities may have had a hand in the threatened or actual violations of constitutional rights. Lest this Court intervention be misunderstood, we clarify once again that we do not rule on any issue of criminal culpability for the extrajudicial killing or enforced disappearance. This is an issue that requires criminal action before our criminal courts based on our existing penal laws. Our intervention is in determining whether an enforced disappearance has taken place and who is responsible or accountable for this disappearance, and to define and impose the appropriate remedies to address it. The burden for the public authorities to discharge in these situations, under the Rule on the Writ of Amparo, is twofold. The first is to ensure that all efforts at disclosure and investigation are undertaken under pain of indirect contempt from this Court when governmental efforts are less than what the individual situations require. The second is to address the disappearance, so that the life of the victim is preserved and his or her liberty and security restored. In these senses, our orders and directives relative to the writ are continuing efforts that are not truly terminated until the extrajudicial killing or enforced disappearance is fully addressed by the complete determination of the fate and the whereabouts of the victim, by the production of the disappeared person and the restoration of his or her liberty and security, and, in the proper case, by the commencement of criminal action against the guilty parties. Enforced Disappearance Under International Law From the International Law perspective, involuntary or enforced disappearance is considered a flagrant violation of human rights.101 It does not only violate the right to life, liberty and security of the desaparecido; it affects their families as well through the denial of their right to information regarding the circumstances of the disappeared family member. Thus, enforced disappearances have been said to be "a double form of torture,"

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with "doubly paralyzing impact for the victims," as they "are kept ignorant of their own fates, while family members are deprived of knowing the whereabouts of their detained loved ones" and suffer as well the serious economic hardship and poverty that in most cases follow the disappearance of the household breadwinner.102 The UN General Assembly first considered the issue of "Disappeared Persons" in December 1978 under Resolution 33/173. The Resolution expressed the General Assemblys deep concern arising from "reports from various parts of the world relating to enforced or involuntary disappearances," and requested the "UN Commission on Human Rights to consider the issue of enforced disappearances with a view to making appropriate recommendations."103 In 1992, in response to the reality that the insidious practice of enforced disappearance had become a global phenomenon, the UN General Assembly adopted the Declaration on the Protection of All Persons from Enforced Disappearance (Declaration).104 This Declaration, for the first time, provided in its third preambular clause a working description of enforced disappearance, as follows: Deeply concerned that in many countries, often in a persistent manner, enforced disappearances occur, in the sense that persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of Government, or by organized groups or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the Government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law. [Emphasis supplied] Fourteen years after (or on December 20, 2006), the UN General Assembly adopted the International Convention for the Protection of All Persons from Enforced Disappearance (Convention).105 The Convention was opened for signature in Paris, France on February 6, 2007.106 Article 2 of the Convention defined enforced disappearance as follows: For the purposes of this Convention, "enforced disappearance" is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by 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. [Emphasis supplied] The Convention is the first universal human rights instrument to assert that there is a right not to be subject to enforced disappearance107 and that this right is non-derogable.108 It provides that no one shall be subjected to enforced disappearance under any circumstances, be it a state of war, internal political instability, or any other public emergency. It obliges State Parties to codify enforced disappearance as an offense punishable with appropriate penalties under their criminal law.109 It also recognizes the right of relatives of the disappeared persons and of the society as a whole to know the truth on the fate and whereabouts of the disappeared and on the progress and results of the investigation.110 Lastly, it classifies enforced disappearance as a continuing offense, such that statutes of limitations shall not apply until the fate and whereabouts of the victim are established.111 Binding Effect of UN Action on the Philippines To date, the Philippines has neither signed nor ratified the Convention, so that the country is not yet committed to enact any law penalizing enforced disappearance as a crime. The absence of a specific penal law, however, is not a stumbling block for action from this Court, as heretofore mentioned; underlying every enforced disappearance is a violation of the constitutional rights to life, liberty and security that the Supreme Court is mandated by the Constitution to protect through its rule-making powers. Separately from the Constitution (but still pursuant to its terms), the Court is guided, in acting on Amparo cases, by the reality that the Philippines is a member of the UN, bound by its Charter and by the various conventions we signed and ratified, particularly the conventions touching on humans rights. Under the UN Charter, the Philippines pledged to "promote universal respect for, and observance of, human rights and fundamental freedoms for all without distinctions as to race, sex, language or religion."112 Although no universal agreement has been reached on the precise extent of the "human rights and fundamental freedoms" guaranteed to all by the Charter,113 it was the UN itself that issued the Declaration on enforced disappearance, and this Declaration states:114 Any act of enforced disappearance is an offence to dignity. It is condemned as a denial of the purposes of the Charter of the United Nations and as a grave and flagrant violation of human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and reaffirmed and developed in international instruments in this field. [Emphasis supplied] As a matter of human right and fundamental freedom and as a policy matter made in a UN Declaration, the ban on enforced disappearance cannot but have its effects on the country, given our own adherence to "generally accepted principles of international law as part of the law of the land."115 In the recent case of Pharmaceutical and Health Care Association of the Philippines v. Duque III,116 we held that: Under the 1987 Constitution, international law can become part of the sphere of domestic law either by transformation or incorporation. The transformation method requires that an international law be transformed into a domestic law through a constitutional mechanism such as local legislation. The incorporation method applies when, by mere constitutional declaration, international law is deemed to have the force of domestic law. [Emphasis supplied] We characterized "generally accepted principles of international law" as norms of general or customary international law that are binding on all states. We held further:117 [G]enerally accepted principles of international law, by virtue of the incorporation clause of the Constitution, form part of the laws of the land even if they do not derive from treaty obligations. The classical formulation in international law sees those customary rules accepted as binding result from the combination [of] two elements: the established, widespread, and consistent practice on the part of States; and a psychological element known as the opinion juris sive necessitates (opinion as to law or necessity). Implicit in the latter element is a belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it. [Emphasis in the original] The most widely accepted statement of sources of international law today is Article 38(1) of the Statute of the International Court of Justice, which provides that the Court shall apply "international custom, as evidence of a general practice accepted as law."118 The material sources of custom include State practice, State legislation, international and national judicial decisions, recitals in treaties and other international instruments, a pattern of treaties in the same form, the practice of international organs, and resolutions relating to legal questions in the UN General Assembly.119 Sometimes referred to as "evidence" of international law,120 these sources identify the substance and content of the obligations of States and are indicative of the "State practice" and "opinio juris" requirements of international law.121 We note the following in these respects: First, barely two years from the adoption of the Declaration, the Organization of American States (OAS) General Assembly adopted the Inter-American Convention on Enforced Disappearance of Persons in June 1994.122 State parties undertook under this Convention "not to practice, permit, or tolerate the forced disappearance of persons, even in states of emergency or suspension of individual guarantees."123 One of the key provisions includes the States obligation to enact the crime of forced disappearance in their respective national criminal laws and to establish jurisdiction over such cases when the crime was committed within their jurisdiction, when the victim is a national of that State, and "when the alleged criminal is within its territory and it does not proceed to extradite him," which can be interpreted as establishing universal jurisdiction among the parties to the InterAmerican Convention.124 At present, Colombia, Guatemala, Paraguay, Peru and Venezuela have enacted separate laws in accordance with the Inter-American Convention and have defined activities involving enforced disappearance to be criminal.1251avvphi1 Second, in Europe, the European Convention on Human Rights has no explicit provision dealing with the protection against enforced disappearance. The European Court of Human Rights (ECHR), however, has applied the Convention in a way that provides ample protection for the underlying rights affected by enforced disappearance through the Conventions Article 2 on the right to life; Article 3 on the prohibition of torture; Article 5 on the right to liberty and security; Article 6, paragraph 1 on the right to a fair trial; and Article 13 on the right to an effective remedy. A leading example demonstrating the protection afforded by the European Convention is Kurt v. Turkey,126 where the ECHR found a violation of the right to liberty and security of the disappeared person when the applicants son disappeared after being taken into custody by Turkish forces in the Kurdish village of Agilli in

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November 1993. It further found the applicant (the disappeared persons mother) to be a victim of a violation of Article 3, as a result of the silence of the authorities and the inadequate character of the investigations undertaken. The ECHR also saw the lack of any meaningful investigation by the State as a violation of Article 13.127 Third, in the United States, the status of the prohibition on enforced disappearance as part of customary international law is recognized in the most recent edition of Restatement of the Law: The Third,128 which provides that "[a] State violates international law if, as a matter of State policy, it practices, encourages, or condones (3) the murder or causing the disappearance of individuals."129 We significantly note that in a related matter that finds close identification with enforced disappearance the matter of torture the United States Court of Appeals for the Second Circuit Court held in Filartiga v. Pena-Irala130 that the prohibition on torture had attained the status of customary international law. The court further elaborated on the significance of UN declarations, as follows: These U.N. declarations are significant because they specify with great precision the obligations of member nations under the Charter. Since their adoption, "(m)embers can no longer contend that they do not know what human rights they promised in the Charter to promote." Moreover, a U.N. Declaration is, according to one authoritative definition, "a formal and solemn instrument, suitable for rare occasions when principles of great and lasting importance are being enunciated." Accordingly, it has been observed that the Universal Declaration of Human Rights "no longer fits into the dichotomy of binding treaty against nonbinding pronouncement,' but is rather an authoritative statement of the international community." Thus, a Declaration creates an expectation of adherence, and "insofar as the expectation is gradually justified by State practice, a declaration may by custom become recognized as laying down rules binding upon the States." Indeed, several commentators have concluded that the Universal Declaration has become, in toto, a part of binding, customary international law. [Citations omitted] Fourth, in interpreting Article 2 (right to an effective domestic remedy) of the International Convention on Civil and Political Rights (ICCPR), to which the Philippines is both a signatory and a State Party, the UN Human Rights Committee, under the Office of the High Commissioner for Human Rights, has stated that the act of enforced disappearance violates Articles 6 (right to life), 7 (prohibition on torture, cruel, inhuman or degrading treatment or punishment) and 9 (right to liberty and security of the person) of the ICCPR, and the act may also amount to a crime against humanity.131 Fifth, Article 7, paragraph 1 of the 1998 Rome Statute establishing the International Criminal Court (ICC) also covers enforced disappearances insofar as they are defined as crimes against humanity,132 i.e., crimes "committed as part of a widespread or systematic attack against any civilian population, with knowledge of the attack." While more than 100 countries have ratified the Rome Statute,133 the Philippines is still merely a signatory and has not yet ratified it. We note that Article 7(1) of the Rome Statute has been incorporated in the statutes of other international and hybrid tribunals, including Sierra Leone Special Court, the Special Panels for Serious Crimes in Timor-Leste, and the Extraordinary Chambers in the Courts of Cambodia.134 In addition, the implementing legislation of State Parties to the Rome Statute of the ICC has given rise to a number of national criminal provisions also covering enforced disappearance.135 While the Philippines is not yet formally bound by the terms of the Convention on enforced disappearance (or by the specific terms of the Rome Statute) and has not formally declared enforced disappearance as a specific crime, the above recital shows that enforced disappearance as a State practice has been repudiated by the international community, so that the ban on it is now a generally accepted principle of international law, which we should consider a part of the law of the land, and which we should act upon to the extent already allowed under our laws and the international conventions that bind us. The following civil or political rights under the Universal Declaration of Human Rights, the ICCPR and the International Convention on Economic, Social and Cultural Rights (ICESR) may be infringed in the course of a disappearance:136 1) the right to recognition as a person before the law; 2) the right to liberty and security of the person; 3) the right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment; 4) the right to life, when the disappeared person is killed; 5) the right to an identity; 6) the right to a fair trial and to judicial guarantees; 7) the right to an effective remedy, including reparation and compensation; 8) the right to know the truth regarding the circumstances of a disappearance. 9) the right to protection and assistance to the family; 10) the right to an adequate standard of living; 11) the right to health; and 12) the right to education [Emphasis supplied] Article 2 of the ICCPR, which binds the Philippines as a state party, provides: Article 2 3. Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted. [Emphasis supplied] In General Comment No. 31, the UN Human Rights Committee opined that the right to an effective remedy under Article 2 of the ICCPR includes the obligation of the State to investigate ICCPR violations promptly, thoroughly, and effectively, viz:137 15. Article 2, paragraph 3, requires that in addition to effective protection of Covenant rights, States Parties must ensure that individuals also have accessible and effective remedies to vindicate those rights The Committee attaches importance to States Parties' establishing appropriate judicial and administrative mechanisms for addressing claims of rights violations under domestic law Administrative mechanisms are particularly required to give effect to the general obligation to investigate allegations of violations promptly, thoroughly and effectively through independent and impartial bodies. A failure by a State Party to investigate allegations of violations could in and of itself give rise to a separate breach of the Covenant. Cessation of an ongoing violation is an essential element of the right to an effective remedy. [Emphasis supplied] The UN Human Rights Committee further stated in the same General Comment No. 31 that failure to investigate as well as failure to bring to justice the perpetrators of ICCPR violations could in and of itself give rise to a separate breach of the Covenant, thus:138 18. Where the investigations referred to in paragraph 15 reveal violations of certain Covenant rights, States Parties must ensure that those responsible are brought to justice. As with failure to investigate, failure to bring to justice perpetrators of such violations could in and of itself give rise to a separate breach of the Covenant. These obligations arise notably in respect of those violations recognized as criminal under either domestic or international law, such as torture and similar cruel, inhuman and degrading treatment (article 7), summary and arbitrary killing (article 6) and enforced disappearance (articles 7 and 9 and, frequently, 6). Indeed, the problem of impunity for these violations, a matter of sustained concern by the Committee, may well be an important contributing element in the recurrence of the violations. When committed as part of a widespread or systematic attack on a civilian population, these violations of the Covenant are crimes against humanity (see Rome Statute of the International Criminal Court, article 7). [Emphasis supplied] In Secretary of National Defense v. Manalo,139 this Court, in ruling that the right to security of persons is a guarantee of the protection of ones right by the government, held that: 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 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

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Court of Human Rights stressed the importance of investigation in the Velasquez Rodriguez Case, 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. [Emphasis supplied] Manalo significantly cited Kurt v. Turkey,140 where the ECHR interpreted the "right to security" not only as a prohibition on the State against arbitrary deprivation of liberty, but also as the imposition of a positive duty to afford protection to the right to liberty. The Court notably quoted the following ECHR ruling: [A]ny 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. [Emphasis supplied] These rulings effectively serve as the backdrop for the Rule on the Writ of Amparo, which the Court made effective on October 24, 2007. Although the Amparo Rule still has gaps waiting to be filled through substantive law, as evidenced primarily by the lack of a concrete definition of "enforced disappearance," the materials cited above, among others, provide ample guidance and standards on how, through the medium of the Amparo Rule, the Court can provide remedies and protect the constitutional rights to life, liberty and security that underlie every enforced disappearance. Evidentiary Difficulties Posed by the Unique Nature of an Enforced Disappearance Before going into the issue of whether the respondent has discharged the burden of proving the allegations of the petition for the Writ of Amparo by the degree of proof required by the Amparo Rule, we shall discuss briefly the unique evidentiary difficulties presented by enforced disappearance cases; these difficulties form part of the setting that the implementation of the Amparo Rule shall encounter. These difficulties largely arise because the State itself the party whose involvement is alleged investigates enforced disappearances. Past experiences in other jurisdictions show that the evidentiary difficulties are generally threefold. First, there may be a deliberate concealment of the identities of the direct perpetrators.141 Experts note that abductors are well organized, armed and usually members of the military or police forces, thus: The victim is generally arrested by the security forces or by persons acting under some form of governmental authority. In many countries the units that plan, implement and execute the program are generally specialized, highly-secret bodies within the armed or security forces. They are generally directed through a separate, clandestine chain of command, but they have the necessary credentials to avoid or prevent any interference by the "legal" police forces. These authorities take their victims to secret detention centers where they subject them to interrogation and torture without fear of judicial or other controls.142 In addition, there are usually no witnesses to the crime; if there are, these witnesses are usually afraid to speak out publicly or to testify on the disappearance out of fear for their own lives.143 We have had occasion to note this difficulty in Secretary of Defense v. Manalo144 when we acknowledged that "where powerful military officers are implicated, the hesitation of witnesses to surface and testify against them comes as no surprise." Second, deliberate concealment of pertinent evidence of the disappearance is a distinct possibility; the central piece of evidence in an enforced disappearance i.e., the corpus delicti or the victims body is usually concealed to effectively thwart the start of any investigation or the progress of one that may have begun.145 The problem for the victims family is the States virtual monopoly of access to pertinent evidence. The Inter-American Court of Human Rights (IACHR) observed in the landmark case of Velasquez Rodriguez146 that inherent to the practice of enforced disappearance is the deliberate use of the States power to destroy the pertinent evidence. The IACHR described the concealment as a clear attempt by the State to commit the perfect crime.147 Third is the element of denial; in many cases, the State authorities deliberately deny that the enforced disappearance ever occurred.148 "Deniability" is central to the policy of enforced disappearances, as the absence of any proven disappearance makes it easier to escape the application of legal standards ensuring the victims human rights.149 Experience shows that government officials typically respond to requests for information about desaparecidos by saying that they are not aware of any disappearance, that the missing people may have fled the country, or that their names have merely been invented.150 These considerations are alive in our minds, as these are the difficulties we confront, in one form or another, in our consideration of this case. Evidence and Burden of Proof in Enforced Disappearances Cases Sections 13, 17 and 18 of the Amparo Rule define the nature of an Amparo proceeding and the degree and burden of proof the parties to the case carry, as follows: Section 13. Summary Hearing. The hearing on the petition shall be summary. However, the court, justice or judge may call for a preliminary conference to simplify the issues and determine the possibility of obtaining stipulations and admissions from the parties. xxxx Section 17. Burden of Proof and Standard of Diligence Required. The parties shall establish their claims by substantial evidence. The respondent who is a private individual must prove that ordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. The respondent who is a public official or employee must prove that extraordinary diligence as required by applicable laws, rules and regulations was observed in the performance of duty. The respondent public official or employee cannot invoke the presumption that official duty has been regularly performed or evade responsibility or liability. Section 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. [Emphasis supplied] These characteristics namely, of being summary and the use of substantial evidence as the required level of proof (in contrast to the usual preponderance of evidence or proof beyond reasonable doubt in court proceedings) reveal the clear intent of the framers of the Amparo Rule to have the equivalent of an administrative proceeding, albeit judicially conducted, in addressing Amparo situations. The standard of diligence required the duty of public officials and employees to observe extraordinary diligence point, too, to the extraordinary measures expected in the protection of constitutional rights and in the consequent handling and investigation of extra-judicial killings and enforced disappearance cases. Thus, in these proceedings, the Amparo petitioner needs only to properly comply with the substance and form requirements of a Writ of Amparo petition, as discussed above, and prove the allegations by substantial evidence. Once a rebuttable case has been proven, the respondents must then respond and prove their defenses based on the standard of diligence required. The rebuttable case, of course, must show that an enforced disappearance took place under circumstances showing a violation of the victims constitutional rights to life, liberty or security, and the failure on the part of the investigating authorities to appropriately respond. The landmark case of Ang Tibay v. Court of Industrial Relations151 provided the Court its first opportunity to define the substantial evidence required to arrive at a valid decision in administrative proceedings. To directly quote Ang Tibay: Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. [citations omitted] The statute provides that the rules of evidence prevailing in courts of law and equity shall not be controlling. The obvious purpose of this and similar provisions is to free administrative boards from the compulsion of technical rules so that the mere admission of matter which would be deemed incompetent in judicial proceedings would not invalidate the administrative order. [citations omitted] But this assurance of a desirable flexibility in administrative procedure does not go so far as to justify orders without a basis in evidence having rational probative force. [Emphasis supplied]

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In Secretary of Defense v. Manalo,152 which was the Courts first petition for a Writ of Amparo, we recognized that the full and exhaustive proceedings that the substantial evidence standard regularly requires do not need to apply due to the summary nature of Amparo proceedings. We said: The remedy [of the writ of amparo] 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. [Emphasis supplied] Not to be forgotten in considering the evidentiary aspects of Amparo petitions are the unique difficulties presented by the nature of enforced disappearances, heretofore discussed, which difficulties this Court must frontally meet if the Amparo Rule is to be given a chance to achieve its objectives. These evidentiary difficulties compel the Court to adopt standards appropriate and responsive to the circumstances, without transgressing the due process requirements that underlie every proceeding. In the seminal case of Velasquez Rodriguez,153 the IACHR faced with a lack of direct evidence that the government of Honduras was involved in Velasquez Rodriguez disappearance adopted a relaxed and informal evidentiary standard, and established the rule that presumes governmental responsibility for a disappearance if it can be proven that the government carries out a general practice of enforced disappearances and the specific case can be linked to that practice.154 The IACHR took note of the realistic fact that enforced disappearances could be proven only through circumstantial or indirect evidence or by logical inference; otherwise, it was impossible to prove that an individual had been made to disappear. It held: 130. The practice of international and domestic courts shows that direct evidence, whether testimonial or documentary, is not the only type of evidence that may be legitimately considered in reaching a decision. Circumstantial evidence, indicia, and presumptions may be considered, so long as they lead to conclusions consistent with the facts. 131. Circumstantial or presumptive evidence is especially important in allegations of disappearances, because this type of repression is characterized by an attempt to suppress all information about the kidnapping or the whereabouts and fate of the victim. [Emphasis supplied] In concluding that the disappearance of Manfredo Velsquez (Manfredo) was carried out by agents who acted under cover of public authority, the IACHR relied on circumstantial evidence including the hearsay testimony of Zenaida Velsquez, the victims sister, who described Manfredos kidnapping on the basis of conversations she had with witnesses who saw Manfredo kidnapped by men in civilian clothes in broad daylight. She also told the Court that a former Honduran military official had announced that Manfredo was kidnapped by a special military squadron acting under orders of the Chief of the Armed Forces.155 The IACHR likewise considered the hearsay testimony of a second witness who asserted that he had been told by a Honduran military officer about the disappearance, and a third witness who testified that he had spoken in prison to a man who identified himself as Manfredo.156 Velasquez stresses the lesson that flexibility is necessary under the unique circumstances that enforced disappearance cases pose to the courts; to have an effective remedy, the standard of evidence must be responsive to the evidentiary difficulties faced. On the one hand, we cannot be arbitrary in the admission and appreciation of evidence, as arbitrariness entails violation of rights and cannot be used as an effective counter-measure; we only compound the problem if a wrong is addressed by the commission of another wrong. On the other hand, we cannot be very strict in our evidentiary rules and cannot consider evidence the way we do in the usual criminal and civil cases; precisely, the proceedings before us are administrative in nature where, as a rule, technical rules of evidence are not strictly observed. Thus, while we must follow the substantial evidence rule, we must observe flexibility in considering the evidence we shall take into account. 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. We note in this regard that the use of flexibility in the consideration of evidence is not at all novel in the Philippine legal system. In child abuse cases, Section 28 of the Rule on Examination of a Child Witness157 is expressly recognized as an exception to the hearsay rule. This Rule allows the admission of the hearsay testimony of a child describing any act or attempted act of sexual abuse in any criminal or non-criminal proceeding, subject to certain prerequisites and the right of cross-examination by the adverse party. The admission of the statement is determined by the court in light of specified subjective and objective considerations that provide sufficient indicia of reliability of the child witness.158 These requisites for admission find their counterpart in the present case under the above-described conditions for the exercise of flexibility in the consideration of evidence, including hearsay evidence, in extrajudicial killings and enforced disappearance cases. Assessment of the Evidence The threshold question for our resolution is: was there an enforced disappearance within the meaning of this term under the UN Declaration we have cited? The Convention defines enforced disappearance as "the arrest, detention, abduction or any other form of deprivation of liberty by 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."159 Under this definition, the elements that constitute enforced disappearance are essentially fourfold:160 (a) arrest, detention, abduction or any form of deprivation of liberty; (b) carried out by agents of the State or persons or groups of persons acting with the authorization, support or acquiescence of the State; (c) followed by a refusal to acknowledge the detention, or a concealment of the fate of the disappeared person; and (d) placement of the disappeared person outside the protection of the law. [Emphasis supplied] We find no direct evidence indicating how the victim actually disappeared. The direct evidence at hand only shows that Tagitis went out of the ASY Pension House after depositing his room key with the hotel desk and was never seen nor heard of again. The undisputed conclusion, however, from all concerned the petitioner, Tagitis colleagues and even the police authorities is that Tagistis disappeared under mysterious circumstances and was never seen again. The respondent injected the causal element in her petition and testimony, as we shall discuss below. We likewise find no direct evidence showing that operatives of PNP CIDG Zamboanga abducted or arrested Tagitis. If at all, only the respondents allegation that Tagistis was under CIDG Zamboanga custody stands on record, but it is not supported by any other evidence, direct or circumstantial. In her direct testimony, the respondent pointed to two sources of information as her bases for her allegation that Tagistis had been placed under government custody (in contrast with CIDG Zamboanga custody). The first was an unnamed friend in Zamboanga (later identified as Col. Ancanan), who occupied a high position in the military and who allegedly mentioned that Tagitis was in good hands. Nothing came out of this claim, as both the respondent herself and her witness, Mrs. Talbin, failed to establish that Col. Ancanan gave them any information that Tagitis was in government custody. Col. Ancanan, for his part, admitted the meeting with the respondent but denied giving her any information about the disappearance. The more specific and productive source of information was Col. Kasim, whom the respondent, together with her witness Mrs. Talbin, met in Camp Katitipan in Davao City. To quote the relevant portions of the respondents testimony: Q: Were you able to speak to other military officials regarding the whereabouts of your husband particularly those in charge of any records or investigation? A: I went to Camp Katitipan in Davao City. Then one military officer, Col. Casim, told me that my husband is being abducted [sic] because he is under custodial investigation because he is allegedly "parang liason ng J.I.", sir. Q: What is J.I.? A: Jemaah Islamiah, sir. Q: Was there any information that was read to you during one of those visits of yours in that Camp?

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A: Col. Casim did not furnish me a copy of his report because he said those reports are highly confidential, sir. Q: Was it read to you then even though you were not furnished a copy? A: Yes, sir. In front of us, my friends. Q: And what was the content of that highly confidential report? A: Those alleged activities of Engineer Tagitis, sir.161 [Emphasis supplied] She confirmed this testimony in her cross-examination: Q: You also mentioned that you went to Camp Katitipan in Davao City? A: Yes, maam. Q: And a certain Col. Kasim told you that your husband was abducted and under custodial investigation? A: Yes, maam. Q: And you mentioned that he showed you a report? A: Yes, maam. Q: Were you able to read the contents of that report? A: He did not furnish me a copy of those [sic] report because those [sic] were highly confidential. That is a military report, maam. Q: But you were able to read the contents? A: No. But he read it in front of us, my friends, maam. Q: How many were you when you went to see Col. Kasim? A: There were three of us, maam. Q: Who were your companions? A: Mrs. Talbin, tapos yung dalawang friends nya from Mati City, Davao Oriental, maam.162 xxxx Q: When you were told that your husband is in good hands, what was your reaction and what did you do? A: May binasa kasi sya that my husband has a parang meeting with other people na parang mga terorista na mga tao. Tapos at the end of the report is [sic] under custodial investigation. So I told him "Colonel, my husband is sick. He is diabetic at nagmemaintain yun ng gamot. Pakisabi lang sa naghohold sa asawa ko na bigyan siya ng gamot, maam."163 xxxx Q: You mentioned that you received information that Engineer Tagitis is being held by the CIDG in Zamboanga, did you go to CIDG Zamboanga to verify that information? A: I did not go to CIDG Zamboanga. I went to Camp Karingal instead. Enough na yun na effort ko because I know that they would deny it, maam.164 On February 11, 2008, the respondent presented Mrs. Talbin to corroborate her testimony that her husband was abducted and held under custodial investigation by the PNP-CIDG Zamboanga City, viz: Q: You said that you went to Camp Katitipan in Davao City sometime November 24, 2007, who was with you when you went there? A: Mary Jean Tagitis, sir. Q: Only the two of you? A: No. We have some other companions. We were four at that time, sir. Q: Who were they? A: Salvacion Serrano, Mini Leong, Mrs. Tagitis and me, sir. Q: Were you able to talk, see some other officials at Camp Katitipan during that time? A: Col. Kasim (PS Supt. Julasirim Ahadin Kasim) only, sir. Q: Were you able to talk to him? A: Yes, sir. Q: The four of you? A: Yes, sir. Q: What information did you get from Col. Kasim during that time? A: The first time we met with [him] I asked him if he knew of the exact location, if he can furnish us the location of Engr. Tagitis. And he was reading this report. He told us that Engr. Tagitis is in good hands. He is with the military, but he is not certain whether he is with the AFP or PNP. He has this serious case. He was charged of terrorism because he was under surveillance from January 2007 up to the time that he was abducted. He told us that he was under custodial investigation. As Ive said earlier, he was seen under surveillance from January. He was seen talking to Omar Patik, a certain Santos of Bulacan who is also a Balik Islam and charged with terrorism. He was seen carrying boxes of medicines. Then we asked him how long will he be in custodial investigation. He said until we can get some information. But he also told us that he cannot give us that report because it was a raw report. It was not official, sir. Q: You said that he was reading a report, was that report in document form, in a piece of paper or was it in the computer or what? A: As far as I can see it, sir, it is written in white bond paper. I dont know if it was computerized but Im certain that it was typewritten. Im not sure if it used computer, fax or what, sir. Q: When he was reading it to you, was he reading it line by line or he was reading in a summary form? A: Sometimes he was glancing to the report and talking to us, sir.165 xxxx Q: Were you informed as to the place where he was being kept during that time? A: He did not tell us where he [Tagitis] was being kept. But he mentioned this Talipapao, Sulu, sir. Q: After that incident, what did you do if any? A: We just left and as Ive mentioned, we just waited because that raw information that he was reading to us [sic] after the custodial investigation, Engineer Tagitis will be released. [Emphasis supplied]166 Col. Kasim never denied that he met with the respondent and her friends, and that he provided them information based on the input of an unnamed asset. He simply claimed in his testimony that the "informal letter" he received from his informant in Sulu did not indicate that Tagitis was in the custody of the CIDG. He also stressed that the information he provided the respondent was merely a "raw report" from "barangay intelligence" that still needed confirmation and "follow up" as to its veracity.167 To be sure, the respondents and Mrs. Talbins testimonies were far from perfect, as the petitioners pointed out. The respondent mistakenly characterized Col. Kasim as a "military officer" who told her that "her husband is being abducted because he is under custodial investigation because he is allegedly parang liason ng J.I." The petitioners also noted that "Mrs. Talbins testimony imputing certain statements to Sr. Supt. Kasim that Engr. Tagitis is with the military, but he is not certain whether it is the PNP or AFP is not worthy of belief, since Sr. Supt. Kasim is a high ranking police officer who would certainly know that the PNP is not part of the military." Upon deeper consideration of these inconsistencies, however, what appears clear to us is that the petitioners never really steadfastly disputed or presented evidence to refute the credibility of the respondent and her witness, Mrs. Talbin. The inconsistencies the petitioners point out relate, more than anything else, to details that should not affect the credibility of the respondent and Mrs. Talbin; the inconsistencies are not on material points.168 We note, for example, that these witnesses are lay people in so far as military and police matters are concerned, and confusion between the police and the military is not unusual. As a rule, minor inconsistencies such as these indicate truthfulness rather than prevarication169and only tend to strengthen their probative value, in contrast to testimonies from various witnesses dovetailing on every detail; the latter cannot but generate suspicion that the material circumstances they testified to were integral parts of a well thought of and prefabricated story.170 Based on these considerations and the unique evidentiary situation in enforced disappearance cases, we hold it duly established that Col. Kasim informed the respondent and her friends, based on the informants letter, that Tagitis, reputedly a liaison for the JI and who had been under surveillance since January 2007, was "in good hands" and under custodial investigation for complicity with the JI after he was seen talking to one Omar Patik and a certain "Santos" of Bulacan, a "Balik Islam" charged with terrorism. The respondents and Mrs. Talbins testimonies cannot simply be defeated by Col. Kasims plain denial and his claim that he had destroyed his informants letter, the critical piece of evidence that supports or negates the parties conflicting claims. Col. Kasims admitted destruction of this letter effectively, a suppression of this evidence raises the presumption that the letter, if produced, would be proof of what the respondent claimed.171 For brevity, we shall call the evidence of what Col. Kasim reported to the respondent to be the "Kasim evidence." Given this evidence, our next step is to decide whether we can accept this evidence, in lieu of direct evidence, as proof that the disappearance of Tagitis was due to action with government participation, knowledge or consent and that he was held for custodial investigation. We note in this regard that Col. Kasim was never quoted to have said that the custodial investigation was by the CIDG Zamboanga. The Kasim evidence only implies government intervention through the use of the term "custodial investigation," and does not at all point to CIDG Zamboanga as Tagitis custodian.

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Strictly speaking, we are faced here with a classic case of hearsay evidence i.e., evidence whose probative value is not based on the personal knowledge of the witnesses (the respondent, Mrs. Talbin and Col. Kasim himself) but on the knowledge of some other person not on the witness stand (the informant).172 To say that this piece of evidence is incompetent and inadmissible evidence of what it substantively states is to acknowledge as the petitioners effectively suggest that in the absence of any direct evidence, we should simply dismiss the petition. To our mind, an immediate dismissal for this reason is no different from a statement that the Amparo Rule despite its terms is ineffective, as it cannot allow for the special evidentiary difficulties that are unavoidably present in Amparo situations, particularly in extrajudicial killings and enforced disappearances. The Amparo Rule was not promulgated with this intent or with the intent to make it a token gesture of concern for constitutional rights. It was promulgated to provide effective and timely remedies, using and profiting from local and international experiences in extrajudicial killings and enforced disappearances, as the situation may require. Consequently, we have no choice but to meet the evidentiary difficulties inherent in enforced disappearances with the flexibility that these difficulties demand.1avvphi1 To give full meaning to our Constitution and the rights it protects, we hold that, as in Velasquez, we should at least take a close look at the available evidence to determine the correct import of every piece of evidence even of those usually considered inadmissible under the general rules of evidence taking into account the surrounding circumstances and the test of reason that we can use as basic minimum admissibility requirement. In the present case, we should at least determine whether the Kasim evidence before us is relevant and meaningful to the disappearance of Tagistis and reasonably consistent with other evidence in the case. The evidence about Tagitis personal circumstances surrounded him with an air of mystery. He was reputedly a consultant of the World Bank and a Senior Honorary Counselor for the IDB who attended a seminar in Zamboanga and thereafter proceded to Jolo for an overnight stay, indicated by his request to Kunnong for the purchase of a return ticket to Zamboanga the day after he arrived in Jolo. Nothing in the records indicates the purpose of his overnight sojourn in Jolo. A colleague in the IDB, Prof. Matli, early on informed the Jolo police that Tagitis may have taken funds given to him in trust for IDB scholars. Prof Matli later on stated that he never accused Tagitis of taking away money held in trust, although he confirmed that the IDB was seeking assistance in locating funds of IDB scholars deposited in Tagitis personal account. Other than these pieces of evidence, no other information exists in the records relating to the personal circumstances of Tagitis. The actual disappearance of Tagitis is as murky as his personal circumstances. While the Amparo petition recited that he was taken away by "burly men believed to be police intelligence operatives," no evidence whatsoever was introduced to support this allegation. Thus, the available direct evidence is that Tagitis was last seen at 12.30 p.m. of October 30, 2007 the day he arrived in Jolo and was never seen again. The Kasim evidence assumes critical materiality given the dearth of direct evidence on the above aspects of the case, as it supplies the gaps that were never looked into and clarified by police investigation. It is the evidence, too, that colors a simple missing person report into an enforced disappearance case, as it injects the element of participation by agents of the State and thus brings into question how the State reacted to the disappearance. Denials on the part of the police authorities, and frustration on the part of the respondent, characterize the attempts to locate Tagitis. Initially in Jolo, the police informed Kunnong that Tagitis could have been taken by the Abu Sayyaf or other groups fighting the government. No evidence was ever offered on whether there was active Jolo police investigation and how and why the Jolo police arrived at this conclusion. The respondents own inquiry in Jolo yielded the answer that he was not missing but was with another woman somewhere. Again, no evidence exists that this explanation was arrived at based on an investigation. As already related above, the inquiry with Col. Ancanan in Zamboanga yielded ambivalent results not useful for evidentiary purposes. Thus, it was only the inquiry from Col. Kasim that yielded positive results. Col. Kasims story, however, confirmed only the fact of his custodial investigation (and, impliedly, his arrest or abduction), without identifying his abductor/s or the party holding him in custody. The more significant part of Col. Kasims story is that the abduction came after Tagitis was seen talking with Omar Patik and a certain Santos of Bulacan, a "Balik Islam" charged with terrorism. Mrs. Talbin mentioned, too, that Tagitis was being held at Talipapao, Sulu. None of the police agencies participating in the investigation ever pursued these leads. Notably, Task Force Tagitis to which this information was relayed did not appear to have lifted a finger to pursue these aspects of the case. More denials were manifested in the Returns on the writ to the CA made by the petitioners. Then PNP Chief Gen. Avelino I. Razon merely reported the directives he sent to the ARMM Regional Director and the Regional Chief of the CIDG on Tagitis, and these reports merely reiterated the open-ended initial report of the disappearance. The CIDG directed a search in all of its divisions with negative results. These, to the PNP Chief, constituted the exhaustion "of all possible efforts." PNP-CIDG Chief General Edgardo M. Doromal, for his part, also reported negative results after searching "all divisions and departments [of the CIDG] for a person named Engr. Morced N. Tagitis . . . and after a diligent and thorough research, records show that no such person is being detained in the CIDG or any of its department or divisions." PNPPACER Chief PS Supt. Leonardo A. Espina and PNP PRO ARMM Regional Director PC Superintendent Joel R. Goltiao did no better in their affidavits-returns, as they essentially reported the results of their directives to their units to search for Tagitis. The extent to which the police authorities acted was fully tested when the CA constituted Task Force Tagitis, with specific directives on what to do. The negative results reflected in the Returns on the writ were again replicated during the three hearings the CA scheduled. Aside from the previously mentioned "retraction" that Prof. Matli made to correct his accusation that Tagitis took money held in trust for students, PS Supt. Ajirim reiterated in his testimony that the CIDG consistently denied any knowledge or complicity in any abduction and said that there was no basis to conclude that the CIDG or any police unit had anything to do with the disappearance of Tagitis; he likewise considered it premature to conclude that Tagitis simply ran away with the money in his custody. As already noted above, the Task Force notably did not pursue any investigation about the personal circumstances of Tagitis, his background in relation to the IDB and the background and activities of this Bank itself, and the reported sighting of Tagistis with terrorists and his alleged custody in Talipapao, Sulu. No attempt appears to have ever been made to look into the alleged IDB funds that Tagitis held in trust, or to tap any of the "assets" who are indispensable in investigations of this nature. These omissions and negative results were aggravated by the CA findings that it was only as late as January 28, 2008 or three months after the disappearance that the police authorities requested for clear pictures of Tagitis. Col. Kasim could not attend the trial because his subpoena was not served, despite the fact that he was designated as Ajirims replacement in the latters last post. Thus, Col. Kasim was not then questioned. No investigation even an internal one appeared to have been made to inquire into the identity of Col. Kasims "asset" and what he indeed wrote. We glean from all these pieces of evidence and developments a consistency in the governments denial of any complicity in the disappearance of Tagitis, disrupted only by the report made by Col. Kasim to the respondent at Camp Katitipan. Even Col. Kasim, however, eventually denied that he ever made the disclosure that Tagitis was under custodial investigation for complicity in terrorism. Another distinctive trait that runs through these developments is the governments dismissive approach to the disappearance, starting from the initial response by the Jolo police to Kunnongs initial reports of the disappearance, to the responses made to the respondent when she herself reported and inquired about her husbands disappearance, and even at Task Force Tagitis itself. As the CA found through Task Force Tagitis, the investigation was at best haphazard since the authorities were looking for a man whose picture they initially did not even secure. The returns and reports made to the CA fared no better, as the CIDG efforts themselves were confined to searching for custodial records of Tagitis in their various departments and divisions. To point out the obvious, if the abduction of Tagitis was a "black" operation because it was unrecorded or officially unauthorized, no record of custody would ever appear in the CIDG records; Tagitis, too, would not be detained in the usual police or CIDG detention places. In sum, none of the reports on record contains any meaningful results or details on the depth and extent of the investigation made. To be sure, reports of top police officials indicating the personnel and units they directed to investigate can never constitute exhaustive and meaningful investigation, or equal detailed investigative reports of the activities undertaken to search for Tagitis. Indisputably, the police authorities from the very

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beginning failed to come up to the extraordinary diligence that the Amparo Rule requires. CONCLUSIONS AND THE AMPARO REMEDY Based on these considerations, we conclude that Col. Kasims disclosure, made in an unguarded moment, unequivocally point to some government complicity in the disappearance. The consistent but unfounded denials and the haphazard investigations cannot but point to this conclusion. For why would the government and its officials engage in their chorus of concealment if the intent had not been to deny what they already knew of the disappearance? Would not an in-depth and thorough investigation that at least credibly determined the fate of Tagitis be a feather in the governments cap under the circumstances of the disappearance? From this perspective, the evidence and developments, particularly the Kasim evidence, already establish a concrete case of enforced disappearance that the Amparo Rule covers. From the prism of the UN Declaration, heretofore cited and quoted,173 the evidence at hand and the developments in this case confirm the fact of the enforced disappearance and government complicity, under a background of consistent and unfounded government denials and haphazard handling. The disappearance as well effectively placed Tagitis outside the protection of the law a situation that will subsist unless this Court acts. This kind of fact situation and the conclusion reached are not without precedent in international enforced disappearance rulings. While the facts are not exactly the same, the facts of this case run very close to those of Timurtas v. Turkey,174 a case decided by ECHR. The European tribunal in that case acted on the basis of the photocopy of a "post-operation report" in finding that Abdulvahap Timurtas (Abdulvahap) was abducted and later detained by agents (gendarmes) of the government of Turkey. The victim's father in this case brought a claim against Turkey for numerous violations of the European Convention, including the right to life (Article 2) and the rights to liberty and security of a person (Article 5). The applicant contended that on August 14, 1993, gendarmes apprehended his son, Abdulvahap for being a leader of the Kurdish Workers Party (PKK) in the Silopi region. The petition was filed in southeast Turkey nearly six and one half years after the apprehension. According to the father, gendarmes first detained Abdulvahap and then transferred him to another detainment facility. Although there was no eyewitness evidence of the apprehension or subsequent detainment, the applicant presented evidence corroborating his version of events, including a photocopy of a post-operation report signed by the commander of gendarme operations in Silopi, Turkey. The report included a description of Abdulvahap's arrest and the result of a subsequent interrogation during detention where he was accused of being a leader of the PKK in the Silopi region. On this basis, Turkey was held responsible for Abdulvahaps enforced disappearance. Following the lead of this Turkish experience - adjusted to the Philippine legal setting and the Amparo remedy this Court has established, as applied to the unique facts and developments of this case we believe and so hold that the government in general, through the PNP and the PNP-CIDG, and in particular, the Chiefs of these organizations together with Col. Kasim, should be held fully accountable for the enforced disappearance of Tagitis. The PNP and CIDG are accountable because Section 24 of Republic Act No. 6975, otherwise known as the "PNP Law,"175 specifies the PNP as the governmental office with the mandate "to investigate and prevent crimes, effect the arrest of criminal offenders, bring offenders to justice and assist in their prosecution." The PNP-CIDG, as Col. Jose Volpane Pante (then Chief of CIDG Region 9) testified, is the "investigative arm" of the PNP and is mandated to "investigate and prosecute all cases involving violations of the Revised Penal Code, particularly those considered as heinous crimes."176 Under the PNP organizational structure, the PNP-CIDG is tasked to investigate all major crimes involving violations of the Revised Penal Code and operates against organized crime groups, unless the President assigns the case exclusively to the National Bureau of Investigation (NBI).177 No indication exists in this case showing that the President ever directly intervened by assigning the investigation of Tagitis disappearance exclusively to the NBI. Given their mandates, the PNP and PNP-CIDG officials and members were the ones who were remiss in their duties when the government completely failed to exercise the extral'>To fully enforce the Amparo remedy, we refer this case back to the CA for appropriate proceedings directed at the monitoring of the PNP and the PNP-CIDG investigations and actions, and the validation of their results through hearings the CA may deem appropriate to conduct. For purposes of these investigations, the PNP/PNPCIDG shall initially present to the CA a plan of action for further investigation, periodically reporting the detailed results of its investigation to the CA for its consideration and action. On behalf of this Court, the CA shall pass upon: the need for the PNP and the PNP-CIDG to make disclosures of matters known to them as indicated in this Decision and as further CA hearings may indicate; the petitioners submissions; the sufficiency of their investigative efforts; and submit to this Court a quarterly report containing its actions and recommendations, copy furnished the petitioners and the respondent, with the first report due at the end of the first quarter counted from the finality of this Decision. The PNP and the PNP-CIDG shall have one (1) full year to undertake their investigation. The CA shall submit its full report for the consideration of this Court at the end of the 4th quarter counted from the finality of this Decision. WHEREFORE, premises considered, we DENY the petitioners petition for review on certiorari for lack of merit, and AFFIRM the decision of the Court of Appeals dated March 7, 2008 under the following terms: a. Recognition that the disappearance of Engineer Morced N. Tagitis is an enforced disappearance covered by the Rule on the Writ of Amparo; b. Without any specific pronouncement on exact authorship and responsibility, declaring the government (through the PNP and the PNP-CIDG) and Colonel Julasirim Ahadin Kasim accountable for the enforced disappearance of Engineer Morced N. Tagitis; c. Confirmation of the validity of the Writ of Amparo the Court of Appeals issued; d. Holding the PNP, through the PNP Chief, and the PNP-CIDG, through its Chief, directly responsible for the disclosure of material facts known to the government and to their offices regarding the disappearance of Engineer Morced N. Tagitis, and for the conduct of proper investigations using extraordinary diligence, with the obligation to show investigation results acceptable to this Court; e. Ordering Colonel Julasirim Ahadin Kasim impleaded in this case and holding him accountable with the obligation to disclose information known to him and to his "assets" in relation with the enforced disappearance of Engineer Morced N. Tagitis; f. Referring this case back to the Court of Appeals for appropriate proceedings directed at the monitoring of the PNP and PNP-CIDG investigations, actions and the validation of their results; the PNP and the PNP-CIDG shall initially present to the Court of Appeals a plan of action for further investigation, periodically reporting their results to the Court of Appeals for consideration and action; g. Requiring the Court of Appeals to submit to this Court a quarterly report with its recommendations, copy furnished the incumbent PNP and PNP-CIDG Chiefs as petitioners and the respondent, with the first report due at the end of the first quarter counted from the finality of this Decision; h. The PNP and the PNP-CIDG shall have one (1) full year to undertake their investigations; the Court of Appeals shall submit its full report for the consideration of this Court at the end of the 4th quarter counted from the finality of this Decision; These directives and those of the Court of Appeals made pursuant to this Decision shall be given to, and shall be directly enforceable against, whoever may be the incumbent Chiefs of the Philippine National Police and its Criminal Investigation and Detection Group, under pain of contempt from this Court when the initiatives and efforts at disclosure and investigation constitute less than the extraordinary diligence that the Rule on the Writ of Amparo and the circumstances of this case demand. Given the unique nature of Amparo cases and their varying attendant circumstances, these directives particularly, the referral back to and monitoring by the CA are specific to this case and are not standard remedies that can be applied to every Amparo situation. The dismissal of the Amparo petition with respect to General Alexander Yano, Commanding General, Philippine Army, and General Ruben Rafael, Chief, Anti-Terrorism Task Force Comet, Zamboanga City, is hereby AFFIRMED. SO ORDERED. [G.R. No. 148220. June 15, 2005] ROSENDO HERRERA, petitioner, vs. ROSENDO ALBA, minor, represented by his mother ARMI A. ALBA, and HON.

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NIMFA CUESTA-VILCHES, Presiding Judge, Branch 48, Regional Trial Court, Manila, respondents. DECISION CARPIO, J.: The Case This is a petition for review[1] to set aside the Decision[2] dated 29 November 2000 of the Court of Appeals (appellate court) in CA-G.R. SP No. 59766. The appellate court affirmed two Orders[3] issued by Branch 48 of the Regional Trial Court of Manila (trial court) in SP No. 98-88759. The Order dated 3 February 2000 directed Rosendo Herrera (petitioner) to submit to deoxyribonucleic acid (DNA) paternity testing, while the Order dated 8 June 2000 denied petitioners motion for reconsideration. The Facts On 14 May 1998, then thirteen-year-old Rosendo Alba (respondent), represented by his mother Armi Alba, filed before the trial court a petition for compulsory recognition, support and damages against petitioner. On 7 August 1998, petitioner filed his answer with counterclaim where he denied that he is the biological father of respondent. Petitioner also denied physical contact with respondents mother. Respondent filed a motion to direct the taking of DNA paternity testing to abbreviate the proceedings. To support the motion, respondent presented the testimony of Saturnina C. Halos, Ph.D. When she testified, Dr. Halos was an Associate Professor at De La Salle University where she taught Cell Biology. She was also head of the University of the Philippines Natural Sciences Research Institute (UP-NSRI), a DNA analysis laboratory. She was a former professor at the University of the Philippines in Diliman, Quezon City, where she developed the Molecular Biology Program and taught Molecular Biology. In her testimony, Dr. Halos described the process for DNA paternity testing and asserted that the test had an accuracy rate of 99.9999% in establishing paternity.[4] Petitioner opposed DNA paternity testing and contended that it has not gained acceptability. Petitioner further argued that DNA paternity testing violates his right against self-incrimination. The Ruling of the Trial Court In an Order dated 3 February 2000, the trial court granted respondents motion to conduct DNA paternity testing on petitioner, respondent and Armi Alba. Thus: In view of the foregoing, the motion of the petitioner is GRANTED and the relevant individuals, namely: the petitioner, the minor child, and respondent are directed to undergo DNA paternity testing in a laboratory of their common choice within a period of thirty (30) days from receipt of the Order, and to submit the results thereof within a period of ninety (90) days from completion. The parties are further reminded of the hearing set on 24 February 2000 for the reception of other evidence in support of the petition. IT IS SO ORDERED.[5] (Emphasis in the original) Petitioner filed a motion for reconsideration of the 3 February 2000 Order. He asserted that under the present circumstances, the DNA test [he] is compelled to take would be inconclusive, irrelevant and the coercive process to obtain the requisite specimen, unconstitutional. In an Order dated 8 June 2000, the trial court denied petitioners motion for reconsideration.[6] On 18 July 2000, petitioner filed before the appellate court a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure. He asserted that the trial court rendered the Orders dated 3 February 2000 and 8 June 2000 in excess of, or without jurisdiction and/or with grave abuse of discretion amounting to lack or excess of jurisdiction. Petitioner further contended that there is no appeal nor any [other] plain, adequate and speedy remedy in the ordinary course of law. Petitioner maintained his previous objections to the taking of DNA paternity testing. He submitted the following grounds to support his objection: 1. Public respondent misread and misapplied the ruling in Lim vs. Court of Appeals (270 SCRA 2). 2. Public respondent ruled to accept DNA test without considering the limitations on, and conditions precedent for the admissibility of DNA testing and ignoring the serious constraints affecting the reliability of the test as admitted by private respondents expert witness. 3. Subject Orders lack legal and factual support, with public respondent relying on scientific findings and conclusions unfit for judicial notice and unsupported by experts in the field and scientific treatises. 4. Under the present circumstances the DNA testing petitioner [is] compelled to take will be inconclusive, irrelevant and the coercive process to obtain the requisite specimen from the petitioner, unconstitutional.[7] The Ruling of the Court of Appeals On 29 November 2000, the appellate court issued a decision denying the petition and affirming the questioned Orders of the trial court. The appellate court stated that petitioner merely desires to correct the trial courts evaluation of evidence. Thus, appeal is an available remedy for an error of judgment that the court may commit in the exercise of its jurisdiction. The appellate court also stated that the proposed DNA paternity testing does not violate his right against self-incrimination because the right applies only to testimonial compulsion. Finally, the appellate court pointed out that petitioner can still refute a possible adverse result of the DNA paternity testing. The dispositive portion of the appellate courts decision reads: WHEREFORE, foregoing premises considered, the Petition is hereby DENIED DUE COURSE, and ordered dismissed, and the challenged orders of the Trial Court AFFIRMED, with costs to Petitioner. SO ORDERED.[8] Petitioner moved for reconsideration, which the appellate court denied in its Resolution dated 23 May 2001.[9] Issues Petitioner raises the issue of whether a DNA test is a valid probative tool in this jurisdiction to determine filiation. Petitioner asks for the conditions under which DNA technology may be integrated into our judicial system and the prerequisites for the admissibility of DNA test results in a paternity suit.[10] Petitioner further submits that the appellate court gravely abused its discretion when it authorized the trial court to embark in [sic] a new procedure xxx to determine filiation despite the absence of legislation to ensure its reliability and integrity, want of official recognition as made clear in Lim vs. Court of Appeals and the presence of technical and legal constraints in respect of [sic] its implementation.[11] Petitioner maintains that the proposed DNA paternity testing violates his right against self-incrimination.[12] The Ruling of the Court The petition has no merit. Before discussing the issues on DNA paternity testing, we deem it appropriate to give an overview of a paternity suit and apply it to the facts of this case. We shall consider the requirements of the Family Code and of the Rules of Evidence to establish paternity and filiation. An Overview of the Paternity and Filiation Suit Filiation proceedings are usually filed not just to adjudicate paternity but also to secure a legal right associated with paternity, such as citizenship,[13] support (as in the present case), or inheritance. The burden of proving paternity is on the person who alleges that the putative father is the biological father of the child. There are four significant procedural aspects of a traditional paternity action which parties have to face: a prima facie case, affirmative defenses, presumption of legitimacy, and physical resemblance between the putative father and child.[14] A prima facie case exists if a woman declares that she had sexual relations with the putative father. In our jurisdiction, corroborative proof is required to carry the burden forward and shift it to the putative father.[15] There are two affirmative defenses available to the putative father. The putative father may show incapability of sexual relations with the mother, because of either physical absence or impotency.[16] The putative father may also show that the mother had sexual relations with other men at the time of conception. A child born to a husband and wife during a valid marriage is presumed legitimate.[17] The childs legitimacy may be impugned only under the strict standards provided by law.[18] Finally, physical resemblance between the putative father and child may be offered as part of evidence of paternity. Resemblance is a trial technique unique to a paternity proceeding. However, although likeness is a function of heredity, there is no mathematical formula that could quantify how much a child must or must not look like his biological father.[19] This kind of evidence appeals to the emotions of the trier of fact. In the present case, the trial court encountered three of the four aspects. Armi Alba, respondents mother, put forward a prima facie case when she asserted that petitioner is respondents biological father. Aware that her assertion is not enough to convince the trial court, she offered corroborative proof in the form of letters and pictures. Petitioner, on the other hand, denied Armi Albas assertion. He denied ever having sexual relations with Armi Alba and stated that respondent is Armi Albas child with another man. Armi Alba countered petitioners denial by

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submitting pictures of respondent and petitioner side by side, to show how much they resemble each other. Paternity and filiation disputes can easily become credibility contests. We now look to the law, rules, and governing jurisprudence to help us determine what evidence of incriminating acts on paternity and filiation are allowed in this jurisdiction. Laws, Rules, and Jurisprudence Establishing Filiation The relevant provisions of the Family Code provide as follows: ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. xxx ART. 172. The filiation of legitimate children is established by any of the following: (1) The record of birth appearing in the civil register or a final judgment; or (2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by: (1) The open and continuous possession of the status of a legitimate child; or (2) Any other means allowed by the Rules of Court and special laws. The Rules on Evidence include provisions on pedigree. The relevant sections of Rule 130 provide: SEC. 39. Act or declaration about pedigree.The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word pedigree includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree. SEC. 40. Family reputation or tradition regarding pedigree.The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity. Entries in family bibles or other family books or charts, engraving on rings, family portraits and the like, may be received as evidence of pedigree. This Courts rulings further specify what incriminating acts are acceptable as evidence to establish filiation. In Pe Lim v. CA, [20] a case petitioner often cites, we stated that the issue of paternity still has to be resolved by such conventional evidence as the relevant incriminating verbal and written acts by the putative father. Under Article 278 of the New Civil Code, voluntary recognition by a parent shall be made in the record of birth, a will, a statement before a court of record, or in any authentic writing. To be effective, the claim of filiation must be made by the putative father himself and the writing must be the writing of the putative father.[21] A notarial agreement to support a child whose filiation is admitted by the putative father was considered acceptable evidence.[22] Letters to the mother vowing to be a good father to the child and pictures of the putative father cuddling the child on various occasions, together with the certificate of live birth, proved filiation.[23] However, a student permanent record, a written consent to a fathers operation, or a marriage contract where the putative father gave consent, cannot be taken as authentic writing.[24] Standing alone, neither a certificate of baptism[25] nor family pictures[26] are sufficient to establish filiation. So far, the laws, rules, and jurisprudence seemingly limit evidence of paternity and filiation to incriminating acts alone. However, advances in science show that sources of evidence of paternity and filiation need not be limited to incriminating acts. There is now almost universal scientific agreement that blood grouping tests are conclusive on non-paternity, although inconclusive on paternity.[27] In Co Tao v. Court of Appeals,[28] the result of the blood grouping test showed that the putative father was a possible father of the child. Paternity was imputed to the putative father after the possibility of paternity was proven on presentation during trial of facts and circumstances other than the results of the blood grouping test. In Jao v. Court of Appeals,[29] the child, the mother, and the putative father agreed to submit themselves to a blood grouping test. The National Bureau of Investigation (NBI) conducted the test, which indicated that the child could not have been the possible offspring of the mother and the putative father. We held that the result of the blood grouping test was conclusive on the non-paternity of the putative father. The present case asks us to go one step further. We are now asked whether DNA analysis may be admitted as evidence to prove paternity. DNA Analysis as Evidence DNA is the fundamental building block of a persons entire genetic make-up. DNA is found in all human cells and is the same in every cell of the same person. Genetic identity is unique. Hence, a persons DNA profile can determine his identity.[30] DNA analysis is a procedure in which DNA extracted from a biological sample obtained from an individual is examined. The DNA is processed to generate a pattern, or a DNA profile, for the individual from whom the sample is taken. This DNA profile is unique for each person, except for identical twins.[31] We quote relevant portions of the trial courts 3 February 2000 Order with approval: Everyone is born with a distinct genetic blueprint called DNA (deoxyribonucleic acid). It is exclusive to an individual (except in the rare occurrence of identical twins that share a single, fertilized egg), and DNA is unchanging throughout life. Being a component of every cell in the human body, the DNA of an individuals blood is the very DNA in his or her skin cells, hair follicles, muscles, semen, samples from buccal swabs, saliva, or other body parts. The chemical structure of DNA has four bases. They are known as A (adenine), G (guanine), C (cystosine) and T (thymine). The order in which the four bases appear in an individuals DNA determines his or her physical makeup. And since DNA is a double-stranded molecule, it is composed of two specific paired bases, A-T or T-A and G-C or C-G. These are called genes. Every gene has a certain number of the above base pairs distributed in a particular sequence. This gives a person his or her genetic code. Somewhere in the DNA framework, nonetheless, are sections that differ. They are known as polymorphic loci, which are the areas analyzed in DNA typing (profiling, tests, fingerprinting, or analysis/DNA fingerprinting/genetic tests or fingerprinting). In other words, DNA typing simply means determining the polymorphic loci. How is DNA typing performed? From a DNA sample obtained or extracted, a molecular biologist may proceed to analyze it in several ways. There are five (5) techniques to conduct DNA typing. They are: the RFLP (restriction fragment length polymorphism); reverse dot blot or HLA DQ a/Pm loci which was used in 287 cases that were admitted as evidence by 37 courts in the U.S. as of November 1994; mtDNA process; VNTR (variable number tandem repeats); and the most recent which is known as the PCR-([polymerase] chain reaction) based STR (short tandem repeats) method which, as of 1996, was availed of by most forensic laboratories in the world. PCR is the process of replicating or copying DNA in an evidence sample a million times through repeated cycling of a reaction involving the so-called DNA polymerize enzyme. STR, on the other hand, takes measurements in 13 separate places and can match two (2) samples with a reported theoretical error rate of less than one (1) in a trillion. Just like in fingerprint analysis, in DNA typing, matches are determined. To illustrate, when DNA or fingerprint tests are done to identify a suspect in a criminal case, the evidence collected from the crime scene is compared with the known print. If a substantial amount of the identifying features are the same, the DNA or fingerprint is deemed to be a match. But then, even if only one feature of the DNA or fingerprint is different, it is deemed not to have come from the suspect. As earlier stated, certain regions of human DNA show variations between people. In each of these regions, a person possesses two genetic types called allele, one inherited from each parent. In [a] paternity test, the forensic scientist looks at a number of these variable regions in an individual to produce a DNA profile. Comparing next the DNA profiles of the mother and child, it is possible to determine which half of the childs DNA was inherited from the mother. The other half must have been inherited from the biological father. The alleged fathers profile is then examined to ascertain whether he has the DNA types in his profile, which match the paternal types in the child. If the mans DNA types do not match that of the child, the man is excluded as the father. If the DNA types match, then he is not excluded as the father.[32] (Emphasis in the original) Although the term DNA testing was mentioned in the 1995 case of People v. Teehankee, Jr.,[33] it was only in the 2001 case of

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Tijing v. Court of Appeals[34] that more than a passing mention was given to DNA analysis. In Tijing, we issued a writ of habeas corpus against respondent who abducted petitioners youngest son. Testimonial and documentary evidence and physical resemblance were used to establish parentage. However, we observed that: Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways available. Fortunately, we have now the facility and expertise in using DNA test for identification and parentage testing. The University of the Philippines Natural Science Research Institute (UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using short tandem repeat (STR) analysis. xxx For it was said, that courts should apply the results of science when completely obtained in aid of situations presented, since to reject said result is to deny progress. Though it is not necessary in this case to resort to DNA testing, in [the] future it would be useful to all concerned in the prompt resolution of parentage and identity issues. Admissibility of DNA Analysis as Evidence The 2002 case of People v. Vallejo[35] discussed DNA analysis as evidence. This may be considered a 180 degree turn from the Courts wary attitude towards DNA testing in the 1997 Pe Lim case,[36] where we stated that DNA, being a relatively new science, xxx has not yet been accorded official recognition by our courts. In Vallejo, the DNA profile from the vaginal swabs taken from the rape victim matched the accuseds DNA profile. We affirmed the accuseds conviction of rape with homicide and sentenced him to death. We declared: In assessing the probative value of DNA evidence, therefore, courts should consider, among other things, the following data: how the samples were collected, how they were handled, the possibility of contamination of the samples, the procedure followed in analyzing the samples, whether the proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who conducted the tests.[37] Vallejo discussed the probative value, not admissibility, of DNA evidence. By 2002, there was no longer any question on the validity of the use of DNA analysis as evidence. The Court moved from the issue of according official recognition to DNA analysis as evidence to the issue of observance of procedures in conducting DNA analysis. In 2004, there were two other cases that had a significant impact on jurisprudence on DNA testing: People v. Yatar[38] and In re: The Writ of Habeas Corpus for Reynaldo de Villa.[39] In Yatar, a match existed between the DNA profile of the semen found in the victim and the DNA profile of the blood sample given by appellant in open court. The Court, following Vallejos footsteps, affirmed the conviction of appellant because the physical evidence, corroborated by circumstantial evidence, showed appellant guilty of rape with homicide. In De Villa, the convict-petitioner presented DNA test results to prove that he is not the father of the child conceived at the time of commission of the rape. The Court ruled that a difference between the DNA profile of the convict-petitioner and the DNA profile of the victims child does not preclude the convict-petitioners commission of rape. In the present case, the various pleadings filed by petitioner and respondent refer to two United States cases to support their respective positions on the admissibility of DNA analysis as evidence: Frye v. U.S.[40] and Daubert v. Merrell Dow Pharmaceuticals.[41] In Frye v. U.S., the trial court convicted Frye of murder. Frye appealed his conviction to the Supreme Court of the District of Columbia. During trial, Fryes counsel offered an expert witness to testify on the result of a systolic blood pressure deception test[42] made on defendant. The state Supreme Court affirmed Fryes conviction and ruled that the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made. The Frye standard of general acceptance states as follows: Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. In 1989, State v. Schwartz[43] modified the Frye standard. Schwartz was charged with stabbing and murder. Bloodstained articles and blood samples of the accused and the victim were submitted for DNA testing to a government facility and a private facility. The prosecution introduced the private testing facilitys results over Schwartzs objection. One of the issues brought before the state Supreme Court included the admissibility of DNA test results in a criminal proceeding. The state Supreme Court concluded that: While we agree with the trial court that forensic DNA typing has gained general acceptance in the scientific community, we hold that admissibility of specific test results in a particular case hinges on the laboratorys compliance with appropriate standards and controls, and the availability of their testing data and results.[44] In 1993, Daubert v. Merrell Dow Pharmaceuticals, Inc.[45] further modified the Frye-Schwartz standard. Daubert was a product liability case where both the trial and appellate courts denied the admissibility of an experts testimony because it failed to meet the Frye standard of general acceptance. The United States Supreme Court ruled that in federal trials, the Federal Rules of Evidence have superseded the Frye standard. Rule 401 defines relevant evidence, while Rule 402 provides the foundation for admissibility of evidence. Thus: Rule 401. Relevant evidence is defined as that which has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Rule 402. All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible. Rule 702 of the Federal Rules of Evidence governing expert testimony provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. Daubert cautions that departure from the Frye standard of general acceptance does not mean that the Federal Rules do not place limits on the admissibility of scientific evidence. Rather, the judge must ensure that the testimonys reasoning or method is scientifically valid and is relevant to the issue. Admissibility would depend on factors such as (1) whether the theory or technique can be or has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the techniques operation; and (5) whether the theory or technique is generally accepted in the scientific community. Another product liability case, Kumho Tires Co. v. Carmichael, [46] further modified the Daubert standard. This led to the amendment of Rule 702 in 2000 and which now reads as follows: If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. We now determine the applicability in this jurisdiction of these American cases. Obviously, neither the Frye-Schwartz standard nor the Daubert-Kumho standard is controlling in the Philippines. [47] At best, American jurisprudence merely has a persuasive effect on our decisions. Here, evidence is admissible when it is relevant to the fact in issue and is not otherwise excluded by statute or the Rules of Court.[48] Evidence is relevant when it has such a relation to the fact in issue as to induce belief in its existence or non-existence.[49] Section 49 of Rule 130, which governs the admissibility of expert testimony, provides as follows: The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he is shown to possess may be received in evidence. This Rule does not pose any legal obstacle to the admissibility of DNA analysis as evidence. Indeed, even evidence on collateral matters is allowed when it tends in any reasonable degree to establish the probability or improbability of the fact in issue.[50] Indeed, it would have been convenient to merely refer petitioner to our decisions in Tijing, Vallejo and Yatar to illustrate that DNA analysis is admissible as evidence. In our jurisdiction, the

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restrictive tests for admissibility established by Frye-Schwartz and Daubert-Kumho go into the weight of the evidence. Probative Value of DNA Analysis as Evidence Despite our relatively liberal rules on admissibility, trial courts should be cautious in giving credence to DNA analysis as evidence. We reiterate our statement in Vallejo: In assessing the probative value of DNA evidence, therefore, courts should consider, among other things, the following data: how the samples were collected, how they were handled, the possibility of contamination of the samples, the procedure followed in analyzing the samples, whether the proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who conducted the tests.[51] We also repeat the trial courts explanation of DNA analysis used in paternity cases: In [a] paternity test, the forensic scientist looks at a number of these variable regions in an individual to produce a DNA profile. Comparing next the DNA profiles of the mother and child, it is possible to determine which half of the childs DNA was inherited from the mother. The other half must have been inherited from the biological father. The alleged fathers profile is then examined to ascertain whether he has the DNA types in his profile, which match the paternal types in the child. If the mans DNA types do not match that of the child, the man is excluded as the father. If the DNA types match, then he is not excluded as the father.[52] It is not enough to state that the childs DNA profile matches that of the putative father. A complete match between the DNA profile of the child and the DNA profile of the putative father does not necessarily establish paternity. For this reason, following the highest standard adopted in an American jurisdiction,[53] trial courts should require at least 99.9% as a minimum value of the Probability of Paternity (W) prior to a paternity inclusion. W is a numerical estimate for the likelihood of paternity of a putative father compared to the probability of a random match of two unrelated individuals. An appropriate reference population database, such as the Philippine population database, is required to compute for W. Due to the probabilistic nature of paternity inclusions, W will never equal to 100%. However, the accuracy of W estimates is higher when the putative father, mother and child are subjected to DNA analysis compared to those conducted between the putative father and child alone.[54] DNA analysis that excludes the putative father from paternity should be conclusive proof of non-paternity. If the value of W is less than 99.9%, the results of the DNA analysis should be considered as corroborative evidence. If the value of W is 99.9% or higher, then there is refutable presumption of paternity.[55] This refutable presumption of paternity should be subjected to the Vallejo standards. Right Against Self-Incrimination Section 17, Article 3 of the 1987 Constitution provides that no person shall be compelled to be a witness against himself. Petitioner asserts that obtaining samples from him for DNA testing violates his right against self-incrimination. Petitioner ignores our earlier pronouncements that the privilege is applicable only to testimonial evidence. Again, we quote relevant portions of the trial courts 3 February 2000 Order with approval: Obtaining DNA samples from an accused in a criminal case or from the respondent in a paternity case, contrary to the belief of respondent in this action, will not violate the right against selfincrimination. This privilege applies only to evidence that is communicative in essence taken under duress (People vs. Olvis, 154 SCRA 513, 1987). The Supreme Court has ruled that the right against self-incrimination is just a prohibition on the use of physical or moral compulsion to extort communication (testimonial evidence) from a defendant, not an exclusion of evidence taken from his body when it may be material. As such, a defendant can be required to submit to a test to extract virus from his body (as cited in People vs. Olvis, Supra); the substance emitting from the body of the accused was received as evidence for acts of lasciviousness (US vs. Tan Teng, 23 Phil. 145); morphine forced out of the mouth was received as proof (US vs. Ong Siu Hong, 36 Phil. 735); an order by the judge for the witness to put on pair of pants for size was allowed (People vs. Otadora, 86 Phil. 244); and the court can compel a woman accused of adultery to submit for pregnancy test (Villaflor vs. Summers, 41 Phil. 62), since the gist of the privilege is the restriction on testimonial compulsion.[56] The policy of the Family Code to liberalize the rule on the investigation of the paternity and filiation of children, especially of illegitimate children, is without prejudice to the right of the putative parent to claim his or her own defenses.[57] Where the evidence to aid this investigation is obtainable through the facilities of modern science and technology, such evidence should be considered subject to the limits established by the law, rules, and jurisprudence. WHEREFORE, we DISMISS the petition. We AFFIRM the Decision of the Court of Appeals dated 29 November 2000 in CAG.R. SP No. 59766. We also AFFIRM the Orders dated 3 February 2000 and 8 June 2000 issued by Branch 48 of the Regional Trial Court of Manila in Civil Case No. SP-98-88759. SO ORDERED. learning of the law; is profoundly learned in all the learning of the law; and knows how to use that learning." 1 Obviously, it is the primary duty of a judge, which he owes to the public and to the legal profession, to know the very law he is supposed to apply to a given controversy. He is called upon to exhibit more than just a cursory acquaintance with the statutes and procedural rules. Party litigants will have great faith in the administration of justice if judges cannot justly be accused of apparent deficiency in their grasp of the legal principles. For, service in the judiciary means a continuous study and research on the law from beginning to end. 2 In a letter-complaint 3 dated August 19, 1992, respondent Judge Manuel T. Muro of the Regional Trial Court (RTC) of Manila, Branch 54, was charged by State Prosecutors Nilo C. Mariano, George C. Dee and Paterno V. Tac-an with ignorance of the law, grave misconduct and violations of Rules 2.01, 3.01 and 3.02 of the Code of Judicial Conduct, committed as follows: 1. That on August 13, 1992, respondent judge issued an Order dismissing eleven (11) cases (docketed as Crim. Cases Nos. 92101959 to 92- 101969, inclusive) filed by the undersigned complainant prosecutors (members of the DOJ Panel of Prosecutors) against the accused Mrs. Imelda Romualdez Marcos, for Violation of Central Bank Foreign Exchange Restrictions, as consolidated in CB Circular No. 960, in relation to the penal provisions of Sec. 34 of R.A. 265, as amended, . . .; 2. That respondent Judge issued his Order solely on the basis of newspaper reports (August 11, 1992 issues of the Philippine Daily Inquirer and the Daily Globe) concerning the announcement on August 10, 1992 by the President of the Philippines of the lifting by the government of all foreign exchange restrictions and the arrival at such decision by the Monetary Board as per statement of Central Bank Governor Jose Cuisia; 3. That claiming that the reported announcement of the Executive Department on the lifting of foreign exchange restrictions by two newspapers which are reputable and of national circulation had the effect of repealing Central Bank Circular No. 960, as allegedly supported by Supreme Court decisions . . ., the Court contended that it was deprived of jurisdiction, and, therefore, motu, prop(r)io had to dismiss all the eleven cases aforementioned "for not to do so opens this Court to charges of trying cases over which it has no more jurisdiction;" 4. That in dismissing aforecited cases on August 13, 1992 on the basis of a Central

WEEK TWO Rule 129

A.M. No. RTJ-92-876 September 19, 1994 STATE PROSECUTORS, complainants, vs. JUDGE MANUEL T. MURO, Regional Trial Court, Branch 54, Manila, respondent. PER CURIAM: In assaying the requisite norms for qualifications and eminence of a magistrate, legal authorities place a premium on how he has complied with his continuing duty to know the law. A quality thus considered essential to the judicial character is that of "a man of learning who spends tirelessly the weary hours after midnight acquainting himself with the great body of traditions and the

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Bank Circular or Monetary Board Resolution which as of date hereof, has not even been officially issued, and basing his Order/decision on a mere newspaper account of the advance announcement made by the President of the said fact of lifting or liberalizing foreign exchange controls, respondent judge acted prematurely and in indecent haste, as he had no way of determining the full intent of the new CB Circular or Monetary Board resolution, and whether the same provided for exception, as in the case of persons who had pending criminal cases before the courts for violations of Central Bank Circulars and/or regulations previously issued on the matter; 5. That respondent Judge's arrogant and cavalier posture in taking judicial notice purportedly as a matter of public knowledge a mere newspaper account that the President had announced the lifting of foreign exchange restrictions as basis for his assailed order of dismissal is highly irregular, erroneous and misplaced. For the respondent judge to take judicial notice thereof even before it is officially released by the Central Bank and its full text published as required by law to be effective shows his precipitate action in utter disregard of the fundamental precept of due process which the People is also entitled to and exposes his gross ignorance of the law, thereby tarnishing public confidence in the integrity of the judiciary. How can the Honorable Judge take judicial notice of something which has not yet come into force and the contents, shape and tenor of which have not yet been published and ascertained to be the basis of judicial action? The Honorable Judge had miserably failed to "endeavor diligently to ascertain the facts" in the case at bar contrary to Rule 3.02 of the Code of Judicial Conduct constituting Grave Misconduct; 6. That respondent Judge did not even ha(ve) the prudence of requiring first the comment of the prosecution on the effect of aforesaid Central Bank Circular/Monetary Board resolution on the pending cases before dismissing the same, thereby denying the Government of its right to due process; 7. That the lightning speed with which respondent Judge acted to dismiss the cases may be gleaned from the fact that such precipitate action was undertaken despite already scheduled continuation of trial dates set in the order of the court (the prosecution having started presenting its evidence . . .) dated August 11, 1992 to wit: August 31, September 3, 10, 21, & 23 and October 1, 1992, all at 9:30 o'clock in the morning, in brazen disregard of all notions of fair play, thereby depriving the Government of its right to be heard, and clearly exposing his bias and partiality; and 8. That, in fact, the motive of respondent Judge in dismissing the case without even waiting for a motion to quash filed by the counsel for accused has even placed his dismissal Order suspect. Pursuant to a resolution of this Court dated September 8, 1992, respondent judge filed his comment, 4 contending, inter alia, that there was no need to await publication of the Central Bank (CB) circular repealing the existing law on foreign exchange controls for the simple reason that the public announcement made by the President in several newspapers of general circulation lifting foreign exchange controls was total, absolute, without qualification, and was immediately effective; that having acted only on the basis of such announcement, he cannot be blamed for relying on the erroneous statement of the President that the new foreign exchange rules rendered moot and academic the cases filed against Mrs. Marcos, and which was corrected only on August 17, 1992 but published in the newspapers on August 18, 1992, and only after respondent judge had issued his order of dismissal dated August 13, 1992; that the President was illadvised by his advisers and, instead of rescuing the Chief Executive from embarrassment by assuming responsibility for errors in the latter's announcement, they chose to toss the blame for the consequence of their failures to respondent judge who merely acted on the basis of the announcements of the President which had become of public knowledge; that the "saving clause" under CB Circular No. 1353 specifically refers only to pending actions or investigations involving violations of CB Circular No. 1318, whereas the eleven cases dismissed involved charges for violations of CB Circular No. 960, hence the accused cannot be tried and convicted under a law different from that under which she was charged; that assuming that respondent judge erred in issuing the order of dismissal, the proper remedy should have been an appeal therefrom but definitely not an administrative complaint for his dismissal; that a mistake committed by a judge should not necessarily be imputed as ignorance of the law; and that a "court can reverse or modify a doctrine but it does not show ignorance of the justices or judges whose decisions were reversed or modified" because "even doctrines initiated by the Supreme Court are later reversed, so how much more for the lower courts?" He further argued that no hearing was necessary since the prosecution had nothing to explain because, as he theorized, "What explanation could have been given? That the President was talking 'through his hat' (to use a colloquialism) and should not be believed? That I should wait for the publication (as now alleged by complainants), of a still then non-existent CB circular? . . . As it turned out, CB Circular No. 3153 (sic) does not affect my dismissal order because the said circular's so-called saving clause does not refer to CB Circular 960 under which the charges in the dismissed cases were based;" that it was discretionary on him to take judicial notice of the facts which are of public knowledge, pursuant to Section 2 of Rule 129; that the contention of complainants that he acted prematurely and in indecent haste for basing his order of dismissal on a mere newspaper account is contrary to the wordings of the newspaper report wherein the President announced the lifting of controls as an accomplished fact, not as an intention to be effected in the future, because of the use of the present perfect tense or past tense "has lifted," not that he "intends to lift," foreign exchange controls. Finally, respondent judge asseverates that complainants who are officers of the Department of Justice, violated Section 6, Rule 140 of the Rules of Court which provides that "proceedings against judges of first instance shall be private and confidential" when they caused to be published in the newspapers the filing of the present administrative case against him; and he emphasizes the fact that he had to immediately resolve a simple and pure legal matter in consonance with the admonition of the Supreme Court for speedy disposition of cases. In their reply 5 and supplemental reply, 6 complainants aver that although the saving clause under Section 16 of CB Circular No. 1353 made specific reference to CB Circular No. 1318, it will be noted that Section 111 of Circular No. 1318, which contains a saving clause substantially similar to that of the new circular, in turn refers to and includes Circular No. 960. Hence, whether under Circular No. 1318 or Circular No. 1353, pending cases involving violations of Circular No. 960 are excepted from the coverage thereof. Further, it is alleged that the precipitate dismissal of the eleven cases, without according the prosecution the opportunity to file a motion to quash or a comment, or even to show cause why the cases against accused Imelda R. Marcos should not be dismissed, is clearly reflective of respondent's partiality and bad faith. In effect, respondent judge acted as if he were the advocate of the accused. On December 9, 1993, this Court issued a resolution referring the complaint to the Office of the Court Administrator for evaluation, report and recommendation, pursuant to Section 7, Rule 140 of the Rules of Court, as revised, there being no factual issues involved. The corresponding report and recommendation, 7 dated February 14, 1994, was submitted by Deputy Court Administrator Juanito A. Bernad, with the approval of Court Administrator Ernani Cruz-Pao. The questioned order 8 of respondent judge reads as follows: These eleven (11) cases are for Violation of Central Bank Foreign Exchange Restrictions as consolidated in CB Circular No. 960 in relation to the penal provision of Sec. 34 of R.A. 265, as amended. The accused Mrs. Imelda R. Marcos pleaded not guilty to all these cases; apparently the other accused in some of these cases,

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Roberto S. Benedicto, was not arrested and therefore the Court did not acquire jurisdiction over his person; trial was commenced as against Mrs. Marcos. His Excellency, the President of the Philippines, announced on August 10, 1992 that the government has lifted all foreign exchange restrictions and it is also reported that Central Bank Governor Jose Cuisia said that the Monetary Board arrived at such decision (issue of the Philippine Daily Inquirer, August 11, 1992 and issue of the Daily Globe of the same date). The Court has to give full confidence and credit to the reported announcement of the Executive Department, specially from the highest official of that department; the Courts are charged with judicial notice of matters which are of public knowledge, without introduction of proof, the announcement published in at least the two newspapers cited above which are reputable and of national circulation. Per several cases decided by the Supreme Court (People vs. Alcaras, 56 Phil. 520, People vs. Francisco, 56 Phil. 572, People vs. Pastor, 77 Phil. 1000, People vs. Crisanto Tamayo, 61 Phil. 225), among others, it was held that the repeal of a penal law without reenactment extinguishes the right to prosecute or punish the offense committed under the old law and if the law repealing the prior penal law fails to penalize the acts which constituted the offense defined and penalized in the repealed law, the repealed law carries with it the deprivation of the courts of jurisdiction to try, convict and sentence persons charged with violations of the old law prior to its repeal. Under the aforecited decisions this doctrine applies to special laws and not only to the crimes punishable in the Revised Penal Code, such as the Import Control Law. The Central Bank Circular No. 960 under which the accused Mrs. Marcos is charged is considered as a penal law because violation thereof is penalized with specific reference to the provision of Section 34 of Republic Act 265, which penalizes violations of Central Bank Circular No. 960, produces the effect cited in the Supreme Court decisions and since according to the decisions that repeal deprives the Court of jurisdiction, this Court motu proprio dismisses all the eleven (11) cases as a forestated in the caption, for not to do so opens this Court to charges of trying cases over which it has no more jurisdiction. This order was subsequently assailed in a petition for certiorari filed with the Court of Appeals, entitled "People of the Philippines vs. Hon. Manuel T. Muro, Judge, RTC of Manila, Br. 54 and Imelda R. Marcos," docketed as CA-G.R. SP No. 29349. When required to file her comment, private respondent Marcos failed to file any. Likewise, after the appellate court gave due course to the petition, private respondent was ordered, but again failed despite notice, to file an answer to the petition and to show cause why no writ of preliminary injunction should issue. Eventually, on April 29, 1993, the Court of Appeals rendered a decision 9 setting aside the order of August 13, 1992, and reinstating Criminal Cases Nos. 92101959 to 92-101969. In finding that respondent judge acted in excess of jurisdiction and with grave abuse of discretion in issuing the order of dismissal, the appellate court held that: The order was issued motu proprio, i.e., without any motion to dismiss filed by counsel for the accused, without giving an opportunity for the prosecution to be heard, and solely on the basis of newspaper reports announcing that the President has lifted all foreign exchange restrictions. The newspaper report is not the publication required by law in order that the enactment can become effective and binding. Laws take effect after fifteen days following the completion of their publication in the Official Gazette or in a newspaper of general circulation unless it is otherwise provided (Section 1, Executive Order No. 200). The full text of CB Circular 1353, series of 1992, entitled "Further Liberalizing Foreign Exchange Regulation" was published in the August 27, 1992 issue of the Manila Chronicle, the Philippine Star and the Manila Bulletin. Per certification of the CB Corporate Affairs Office, CB Circular No. 1353 took effect on September 2 . . . . Considering that respondent judge admittedly had not seen the official text of CB Circular No. 1353, he was in no position to rule judiciously on whether CB Circular No. 960, under which the accused Mrs. Marcos is charged, was already repealed by CB Circular No. 1353. . . . xxx xxx xxx A cursory reading of the . . . provision would have readily shown that the repeal of the regulations on non-trade foreign exchange transactions is not absolute, as there is a provision that with respect to violations of former regulations that are the subject of pending actions or investigations, they shall be governed by the regulations existing at the time the cause of action (arose). Thus his conclusion that he has lost jurisdiction over the criminal cases is precipitate and hasty. Had he awaited the filing of a motion to dismiss by the accused, and given opportunity for the prosecution to comment/oppose the same, his resolution would have been the result of deliberation, not speculation. I. The doctrine of judicial notice rests on the wisdom and discretion of the courts. The power to take judicial notice is to be exercised by courts with caution; care must be taken that the requisite notoriety exists; and every reasonable doubt on the subject should be promptly resolved in the negative. 10 Generally speaking, matters of judicial notice have three material requisites: (1) the matter must be one of common and general knowledge; (2) it must be well and authoritatively settled and not doubtful or uncertain; and (3) it must be known to be within the limits of the jurisdiction of the court. 11 The provincial guide in determining what facts may be assumed to be judicially known is that of notoriety. 12 Hence, it can be said that judicial notice is limited to facts evidenced by public records and facts of general notoriety. 13 To say that a court will take judicial notice of a fact is merely another way of saying that the usual form of evidence will be dispensed with if knowledge of the fact can be otherwise acquired. 14 This is because the court assumes that the matter is so notorious that it will not be disputed. 15 But judicial notice is not judicial knowledge. The mere personal knowledge of the judge is not the judicial knowledge of the court, and he is not authorized to make his individual knowledge of a fact, not generally or professionally known, the basis of his action. Judicial cognizance is taken only of those matters which are "commonly" known. 16 Things of "common knowledge," of which courts take judicial notice, may be matters coming to the knowledge of men generally in the course of the ordinary experiences of life, or they may be matters which are generally accepted by mankind as true and are capable of ready and unquestioned demonstration. 17 Thus, facts which are universally known, and which may be found in encyclopedias, dictionaries or other publications, are judicially noticed, provided they are of such universal notoriety and so generally understood that they may be regarded as forming part of the common knowledge of every person. 18 Respondent judge, in the guise of exercising discretion and on the basis of a mere newspaper account which is sometimes even referred to as hearsay evidence twice removed, took judicial notice of the supposed lifting of foreign exchange controls, a matter which was not and cannot be considered of common knowledge or of general notoriety. Worse, he took cognizance of an administrative regulation which was not yet in force when the order of dismissal was issued. Jurisprudence dictates that judicial notice cannot be taken of a statute before it becomes effective. 19 The reason is simple. A law which is not yet in force and hence, still inexistent, cannot be of common knowledge capable of ready

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and unquestionable demonstration, which is one of the requirements before a court can take judicial notice of a fact. Evidently, it was impossible for respondent judge, and it was definitely not proper for him, to have taken cognizance of CB Circular No. 1353, when the same was not yet in force at the time the improvident order of dismissal was issued. II. Central Bank Circular No. 1353, which took effect on September 1, 1992, further liberalized the foreign exchange regulations on receipts and disbursements of residents arising from non-trade and trade transactions. Section 16 thereof provides for a saving clause, thus: Sec. 16. Final Provisions of CB Circular No. 1318. - All the provisions in Chapter X of CB Circular No. 1318 insofar as they are not inconsistent with, or contrary to the provisions of this Circular, shall remain in full force and effect: Provided, however, that any regulation on non-trade foreign exchange transactions which has been repealed, amended or modified by this Circular, violations of which are the subject of pending actions or investigations, shall not be considered repealed insofar as such pending actions or investigations are concerned, it being understood that as to such pending actions or investigations, the regulations existing at the time the cause of action accrued shall govern. Respondent judge contends that the saving clause refers only to the provisions of Circular No. 1318, whereas the eleven criminal cases he dismissed involve a violation of CB Circular No. 960. Hence, he insists, Circular No. 960 is deemed repealed by the new circular and since the former is not covered by the saving clause in the latter, there is no more basis for the charges involved in the criminal cases which therefore warrant a dismissal of the same. The contention is patently unmeritorious. Firstly, the second part of the saving clause in Circular No. 1353 explicitly provides that "any regulation on non-trade foreign transactions which has been repealed, amended or modified by this Circular, violations of which are the subject of pending actions or investigations, shall not be considered repealed insofar as such pending actions or investigations are concerned, it being understood that as to such pending actions or investigations, the regulations existing at the time the cause of action accrued shall govern." The terms of the circular are clear and unambiguous and leave no room for interpretation. In the case at bar, the accused in the eleven cases had already been arraigned, had pleaded not guilty to the charges of violations of Circular No. 960, and said cases had already been set for trial when Circular No. 1353 took effect. Consequently, the trial court was and is supposed to proceed with the hearing of the cases in spite of the existence of Circular No. 1353. Secondly, had respondent judge only bothered to read a little more carefully the texts of the circulars involved, he would have readily perceived and known that Circular No. 1318 also contains a substantially similar saving clause as that found in Circular No. 1353, since Section 111 of the former provides: Sec. 111. Repealing clause. - All existing provisions of Circulars 365, 960 and 1028, including amendments thereto, with the exception of the second paragraph of Section 68 of Circular 1028, as well as all other existing Central Bank rules and regulations or parts thereof, which are inconsistent with or contrary to the provisions of this Circular, are hereby repealed or modified accordingly: Provided, however, that regulations, violations of which are the subject of pending actions or investigations, shall be considered repealed insofar as such pending actions or investigations are concerned, it being understood that as to such pending actions or investigations, the regulations existing at the time the cause of action accrued shall govern. It unequivocally appears from the section above quoted that although Circular No. 1318 repealed Circular No. 960, the former specifically excepted from its purview all cases covered by the old regulations which were then pending at the time of the passage of the new regulations. Thus, any reference made to Circular No. 1318 necessarily involves and affects Circular No. 960. III. It has been said that next in importance to the duty of rendering a righteous judgment is that of doing it in such a manner as will beget no suspicion of the fairness and integrity of the judge. 20 This means that a judge should not only render a just, correct and impartial decision but should do so in such a manner as to be free from any suspicion as to its fairness and impartiality and as to his integrity. While a judge should possess proficiency in law in order that he can competently construe and enforce the law, it is more important that he should act and behave in such a manner that the parties before him should have confidence in his impartiality. Thus, it is not enough that he decides cases without bias and favoritism. Nor is it sufficient that he in fact rids himself of prepossessions. His actuations should moreover inspire that belief. Like Caesar's wife, a judge must not only be pure but beyond suspicion. 21 Moreover, it has always heretofore been the rule that in disposing of controverted cases, judges should show their full understanding of the case, avoid the suspicion of arbitrary conclusion, promote confidence in their intellectual integrity and contribute useful precedents to the growth of the law. 22 A judge should be mindful that his duty is the application of general law to particular instances, that ours is a government of laws and not of men, and that he violates his duty as a minister of justice under such a system if he seeks to do what he may personally consider substantial justice in a particular case and disregards the general law as he knows it to be binding on him. Such action may have detrimental consequences beyond the immediate controversy. He should administer his office with due regard to the integrity of the system of the law itself, remembering that he is not a depository of arbitrary power, but a judge under the sanction of the law. 23 These are immutable principles that go into the very essence of the task of dispensing justice and we see no reason why they should not be duly considered in the present case. The assertion of respondent judge that there was no need to await publication of Circular No. 1353 for the reason that the public announcement made by the President in several newspapers of general circulation lifting foreign exchange controls is total, absolute, without qualification, and immediately effective, is beyond comprehension. As a judge of the Regional Trial Court of Manila, respondent is supposed to be well-versed in the elementary legal mandates on the publication of laws before they take effect. It is inconceivable that respondent should insist on an altogether different and illogical interpretation of an established and well-entrenched rule if only to suit his own personal opinion and, as it were, to defend his indefensible action. It was not for him to indulge or even to give the appearance of catering to the at-times human failing of yielding to first impressions. 24 He having done so, in the face of the foregoing premises, this Court is hard put to believe that he indeed acted in good faith. IV. This is not a simple case of a misapplication or erroneous interpretation of the law. The very act of respondent judge in altogether dismissing sua sponte the eleven criminal cases without even a motion to quash having been filed by the accused, and without at least giving the prosecution the basic opportunity to be heard on the matter by way of a written comment or on oral argument, is not only a blatant denial of elementary due process to the Government but is palpably indicative of bad faith and partiality. The avowed desire of respondent judge to speedily dispose of the cases as early as possible is no license for abuse of judicial power and discretion, 25 nor does such professed objective, even if true, justify a deprivation of the prosecution's right to be heard and a violation of its right to due process of law. 26 The lightning speed, to borrow the words of complainants, with which respondent judge resolved to dismiss the cases without the benefit of a hearing and without reasonable notice to the prosecution inevitably opened him to suspicion of having acted out of partiality for the accused. Regardless of how carefully he may have evaluated changes in the factual situation and legal standing of the cases, as a result of the newspaper report, the fact remains that he gave the prosecution no chance whatsoever to show or prove that it had strong evidence of the guilt of the accused. To repeat, he thereby effectively deprived the prosecution of its right to due process. 27 More importantly, notwithstanding the fact that respondent was not sure of the effects and implications of the President's announcement, as by his own admission he was in doubt whether or not he should dismiss the cases, 28 he nonetheless deliberately refrained from requiring the prosecution to comment thereon. In a puerile defense of his action, respondent judge can but rhetorically ask: "What explanation could have been given? That the President was talking 'through his hat' and should not be believed? That I should wait for the publication of a still then non- existent CB

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Circular?" The pretended cogency of this ratiocination cannot stand even the minutest legal scrutiny. In order that bias may not be imputed to a judge, he should have the patience and circumspection to give the opposing party a chance to present his evidence even if he thinks that the oppositor's proofs might not be adequate to overthrow the case for the other party. A display of petulance and impatience in the conduct of the trial is a norm of conduct which is inconsistent with the "cold neutrality of an impartial judge." 29 At the very least, respondent judge acted injudiciously and with unjustified haste in the outright dismissal of the eleven cases, and thereby rendered his actuation highly dubious. V. It bears stressing that the questioned order of respondent judge could have seriously and substantially affected the rights of the prosecution had the accused invoked the defense of double jeopardy, considering that the dismissal was ordered after arraignment and without the consent of said accused. This could have spawned legal complications and inevitable delay in the criminal proceedings, were it not for the holding of the Court of Appeals that respondent judge acted with grave abuse of discretion amounting to lack of jurisdiction. This saved the day for the People since in the absence of jurisdiction, double jeopardy will not set in. To stress this point, and as a caveat to trial courts against falling into the same judicial error, we reiterate what we have heretofore declared: It is settled doctrine that double jeopardy cannot be invoked against this Court's setting aside of the trial court's judgment of dismissal or acquittal where the prosecution which represents the sovereign people in criminal cases is denied due process. . . . . Where the prosecution is deprived of a fair opportunity to prosecute and prove its case, its right to due process is thereby violated. The cardinal precept is that where there is a violation of basic constitutional rights, courts are ousted of their jurisdiction. Thus, the violation of the State's right to due process raises a serious jurisdictional issue . . . which cannot be glossed over or disregarded at will. Where the denial of the fundamental right of due process is apparent, a decision rendered in disregard of that right is void for lack of jurisdiction . . . . 30 It is also significant that accused Marcos, despite due notice, never submitted either her comment on or an answer to the petition for certiorari as required by the Court of Appeals, nor was double jeopardy invoked in her defense. This serves to further underscore the fact that the order of dismissal was clearly unjustified and erroneous. Furthermore, considering that the accused is a prominent public figure with a record of influence and power, it is not easy to allay public skepticism and suspicions on how said dismissal order came to be, to the consequent although undeserved discredit of the entire judiciary. VI. To hold a judge liable for rendering a manifestly unjust order through inexcusable negligence or ignorance, it must be clearly shown that although he has acted without malice, he failed to observe in the performance of his duty that diligence, prudence and care which the law is entitled to exact in the rendering of any public service. Negligence and ignorance are inexcusable if they imply a manifest injustice which cannot be explained by a reasonable interpretation, and even though there is a misunderstanding or error of the law applied, it nevertheless results logically and reasonably, and in a very clear and indisputable manner, in the notorious violation of the legal precept. 31 In the present case, a cursory perusal of the comment filed by respondent judge reveals that no substantial argument has been advanced in plausible justification of his act. He utterly failed to show any legal, factual, or even equitable justification for the dismissal of the eleven criminal cases. The explanation given is no explanation at all. The strained and fallacious submissions therein do not speak well of respondent and cannot but further depreciate his probity as a judge. On this point, it is best that pertinent unedited excerpts from his comment 32 be quoted by way of graphic illustration and emphasis: On the alleged ignorance of the law imputed to me, it is said that I issued the Order dismissing the eleven (11) cases against Mrs. Imelda R. Marcos on the basis of newspaper reports referred to in paragraph 2 of the letter complaint without awaiting the official publication of the Central Bank Circular. Ordinarily a Central Bank Circular/Resolution must be published in the Official Gazette or in a newspaper of general circulation, but the lifting of "all foreign exchange controls" was announced by the President of the Philippines WITHOUT QUALIFICATIONS; as published in the Daily Globe, August 11, 1992" the government has lifted ALL foreign exchange controls," and in the words of the Philippine Daily Inquirer report of the same date "The government yesterday LIFTED the LAST remaining restrictions on foreign exchange transactions, . . ." (emphasis in both quotations supplied) not only the President made the announcement but also the Central Bank Governor Jose Cuisia joined in the announcement by saying that "the Monetary Board arrived at the decision after noting how the "partial liberalization" initiated early this year worked." Therefore, because of the ABSOLUTE lifting of ALL restrictions on foreign exchange transactions, there was no need to await the publication of the repealing circular of the Central Bank. The purpose of requiring publication of laws and administrative rules affecting the public is to inform the latter as to how they will conduct their affairs and how they will conform to the laws or the rules. In this particular case, with the total lifting of the controls, there is no need to await publication. It would have been different if the circular that in effect repealed Central Bank Circular No. 960, under which the accused was charged in the cases dismissed by me, had provided for penalties and/or modified the provisions of said Circular No. 960. The Complainants state that the lifting of controls was not yet in force when I dismissed the cases but it should be noted that in the report of the two (2) newspapers aforequoted, the President's announcement of the lifting of controls was stated in the present perfect tense (Globe) or past tense (Inquirer). In other words, it has already been lifted; the announcement did not say that the government INTENDS to lift all foreign exchange restrictions but instead says that the government "has LIFTED all foreign exchange controls," and in the other newspaper cited above, that "The government yesterday lifted the last remaining restrictions on foreign exchange transactions". The lifting of the last remaining exchange regulations effectively cancelled or repealed Circular No. 960. The President, who is the Chief Executive, publicly announced the lifting of all foreign exchange regulations. The President has within his control directly or indirectly the Central Bank of the Philippines, the Secretary of Finance being the Chairman of the Monetary Board which decides the policies of the Central Bank. No official bothered to correct or qualify the President's announcement of August 10, published the following day, nor made an announcement that the lifting of the controls do not apply to cases already pending, not until August 17 (the fourth day after my Order, and the third day after report of said order was published) and after the President said on August 17, reported in the INQUIRER's issue of August 18, 1992, that the "new foreign exchange rules have nullified government cases against Imelda R. Marcos, telling reporters that the charges against the widow of former President Marcos "have become moot and academic" because of new ruling(s) which allow free

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flow of currency in and out of the country" (Note, parenthetically, the reference to "new rules" not to "rules still to be drafted"). The INQUIRER report continues: "A few hours later, presidential spokeswoman Annabelle Abaya said, RAMOS (sic) had "corrected himself'." "He had been belatedly advised by the Central Bank Governor Jose Cuisia and Justice Secretary Franklin Drilon that the Monetary Board Regulation excluded from its coverage all criminal cases pending in court and such a position shall stand legal scrutiny', Mrs. Abaya, said." I will elaborate on two points: 1. If the President was wrong in making the August 10 announcement (published in August 11, 1992, newspapers) and in the August 17 announcement, SUPRA, and thus I should have relied on the Presidential announcements, and there is basis to conclude that the President was at the very least ILL-SERVED by his financial and legal advisers, because no one bothered to advise the President to correct his announcements, not until August 17, 1992, a few hours after the President had made another announcement as to the charges against Imelda Marcos having been rendered moot and academic. The President has a lot of work to do, and is not, to my knowledge, a financier, economist, banker or lawyer. It therefore behooved his subalterns to give him timely (not "belated") advice, and brief him on matters of immediate and farreaching concerns (such as the lifting of foreign exchange controls, designed, among others to encourage the entry of foreign investments). Instead of rescuing the Chief Executive from embarrassment by assuming responsibility for errors in the latter's announcement, these advisers have chosen to toss the blame for the consequence of their failing to me, who only acted on the basis of announcements of their Chief, which had become of public knowledge. xxx xxx xxx The Court strongly feels that it has every right to assume and expect that respondent judge is possessed with more than ordinary credentials and qualifications to merit his appointment as a presiding judge in the Regional Trial Court of the National Capital Judicial Region, stationed in the City of Manila itself. It is, accordingly, disheartening and regrettable to note the nature of the arguments and the kind of logic that respondent judge would want to impose on this Court notwithstanding the manifest lack of cogency thereof. This calls to mind similar scenarios and how this Court reacted thereto. In one case, an RTC Judge was administratively charged for acquitting the accused of a violation of CB Circular No. 960 despite the fact that the accused was apprehended with US$355,349.00 while boarding a plane for Hongkong, erroneously ruling that the State must first prove criminal intent to violate the law and benefit from the illegal act, and further ordering the return of US$3,000.00 out of the total amount seized, on the mistaken interpretation that the CB circular exempts such amount from seizure. Respondent judge therein was ordered dismissed from the government service for gross incompetence and ignorance of the law. 33 Subsequently, the Court dismissed another RTC judge, with forfeiture of retirement benefits, for gross ignorance of the law and for knowingly rendering an unjust order or judgment when he granted bail to an accused charged with raping an 11-year old girl, despite the contrary recommendation of the investigating judge, and thereafter granted the motion to dismiss the case allegedly executed by the complainant. 34 Similarly, an RTC judge who was described by this Court as one "who is ignorant of fairly elementary and quite familiar legal principles and administrative regulations, has a marked penchant for applying unorthodox, even strange theories and concepts in the adjudication of controversies, exhibits indifference to and even disdain for due process and the rule of law, applies the law whimsically, capriciously and oppressively, and displays bias and impartiality," was dismissed from the service with forfeiture of all retirement benefits and with prejudice to reinstatement in any branch of the government or any of its agencies or instrumentalities. 35 Still in another administrative case, an RTJ judge was also dismissed by this Court for gross ignorance of the law after she ordered, in a probate proceeding, the cancellation of the certificates of title issued in the name of the complainant, without affording due process to the latter and other interested parties. 36 Only recently, an RTC judge who had been reinstated in the service was dismissed after he acquitted all the accused in four criminal cases for illegal possession of firearms, on the ground that there was no proof of malice or deliberate intent on the part of the accused to violate the law. The Court found him guilty of gross ignorance of the law, his error of judgment being almost deliberate and tantamount to knowingly rendering an incorrect and unjust judgment. 37 ACCORDINGLY, on the foregoing premises and considerations, the Court finds respondent Judge Manuel T. Muro guilty of gross ignorance of the law. He is hereby DISMISSED from the service, such dismissal to carry with it cancellation of eligibility, forfeiture of leave credits and retirement benefits, and disqualification from reemployment in the government service. 38 Respondent is hereby ordered to CEASE and DESIST immediately from rendering any judgment or order, or continuing any judicial action or proceeding whatsoever, effective upon receipt of this decision. SO ORDERED. G.R. No. 156052 March 7, 2007 SOCIAL JUSTICE SOCIETY (SJS), VLADIMIR ALARIQUE T. CABIGAO, and BONIFACIO S. TUMBOKON, Petitioners, vs. HON. JOSE L. ATIENZA, JR., in his capacity as Mayor of the City of Manila, Respondent. DECISION CORONA, J.: In this original petition for mandamus,1 petitioners Social Justice Society (SJS), Vladimir Alarique T. Cabigao and Bonifacio S. Tumbokon seek to compel respondent Hon. Jose L. Atienza, Jr., mayor of the City of Manila, to enforce Ordinance No. 8027. The antecedents are as follows. On November 20, 2001, the Sangguniang Panlungsod of Manila enacted Ordinance No. 8027.2 Respondent mayor approved the ordinance on November 28, 2001.3 It became effective on December 28, 2001, after its publication.4 Ordinance No. 8027 was enacted pursuant to the police power delegated to local government units, a principle described as the power inherent in a government to enact laws, within constitutional limits, to promote the order, safety, health, morals and general welfare of the society.5 This is evident from Sections 1 and 3 thereof which state: SECTION 1. For the purpose of promoting sound urban planning and ensuring health, public safety, and general welfare of the residents of Pandacan and Sta. Ana as well as its adjoining areas, the land use of [those] portions of land bounded by the Pasig River in the north, PNR Railroad Track in the east, Beata St. in the south, Palumpong St. in the southwest, and Estero de Pancacan in the west[,] PNR Railroad in the northwest area, Estero de Pandacan in the [n]ortheast, Pasig River in the southeast and Dr. M.L. Carreon in the southwest. The area of Punta, Sta. Ana bounded by the Pasig River, Marcelino Obrero St., Mayo 28 St., and F. Manalo Street, are hereby reclassified from Industrial II to Commercial I. xxx xxx xxx SEC. 3. Owners or operators of industries and other businesses, the operation of which are no longer permitted under Section 1 hereof, are hereby given a period of six (6) months from the date of effectivity of this Ordinance within which to cease and desist from the operation of businesses which are hereby in consequence, disallowed. Ordinance No. 8027 reclassified the area described therein from industrial to commercial and directed the owners and operators of businesses disallowed under Section 1 to cease and desist from operating their businesses within six months from the date of effectivity of the ordinance. Among the businesses situated in the area are the so-called "Pandacan Terminals" of the oil companies Caltex (Philippines), Inc., Petron Corporation and Pilipinas Shell Petroleum Corporation. However, on June 26, 2002, the City of Manila and the Department of Energy (DOE) entered into a memorandum of understanding (MOU)6 with the oil companies in which they agreed that "the scaling down of the Pandacan Terminals [was]

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the most viable and practicable option." Under the MOU, the oil companies agreed to perform the following: Section 1. - Consistent with the objectives stated above, the OIL COMPANIES shall, upon signing of this MOU, undertake a program to scale down the Pandacan Terminals which shall include, among others, the immediate removal/decommissioning process of TWENTY EIGHT (28) tanks starting with the LPG spheres and the commencing of works for the creation of safety buffer and green zones surrounding the Pandacan Terminals. xxx Section 2. Consistent with the scale-down program mentioned above, the OIL COMPANIES shall establish joint operations and management, including the operation of common, integrated and/or shared facilities, consistent with international and domestic technical, safety, environmental and economic considerations and standards. Consequently, the joint operations of the OIL COMPANIES in the Pandacan Terminals shall be limited to the common and integrated areas/facilities. A separate agreement covering the commercial and operational terms and conditions of the joint operations, shall be entered into by the OIL COMPANIES. Section 3. - The development and maintenance of the safety and green buffer zones mentioned therein, which shall be taken from the properties of the OIL COMPANIES and not from the surrounding communities, shall be the sole responsibility of the OIL COMPANIES. The City of Manila and the DOE, on the other hand, committed to do the following: Section 1. - The City Mayor shall endorse to the City Council this MOU for its appropriate action with the view of implementing the spirit and intent thereof. Section 2. - The City Mayor and the DOE shall, consistent with the spirit and intent of this MOU, enable the OIL COMPANIES to continuously operate in compliance with legal requirements, within the limited area resulting from the joint operations and the scale down program. Section 3. - The DOE and the City Mayor shall monitor the OIL COMPANIES compliance with the provisions of this MOU. Section 4. - The CITY OF MANILA and the national government shall protect the safety buffer and green zones and shall exert all efforts at preventing future occupation or encroachment into these areas by illegal settlers and other unauthorized parties. The Sangguniang Panlungsod ratified the MOU in Resolution No. 97.7 In the same resolution, the Sanggunian declared that the MOU was effective only for a period of six months starting July 25, 2002.8 Thereafter, on January 30, 2003, the Sanggunian adopted Resolution No. 139 extending the validity of Resolution No. 97 to April 30, 2003 and authorizing Mayor Atienza to issue special business permits to the oil companies. Resolution No. 13, s. 2003 also called for a reassessment of the ordinance.10 Meanwhile, petitioners filed this original action for mandamus on December 4, 2002 praying that Mayor Atienza be compelled to enforce Ordinance No. 8027 and order the immediate removal of the terminals of the oil companies.11 The issues raised by petitioners are as follows: 1. whether respondent has the mandatory legal duty to enforce Ordinance No. 8027 and order the removal of the Pandacan Terminals, and 2. whether the June 26, 2002 MOU and the resolutions ratifying it can amend or repeal Ordinance No. 8027.12 Petitioners contend that respondent has the mandatory legal duty, under Section 455 (b) (2) of the Local Government Code (RA 7160),13 to enforce Ordinance No. 8027 and order the removal of the Pandacan Terminals of the oil companies. Instead, he has allowed them to stay. Respondents defense is that Ordinance No. 8027 has been superseded by the MOU and the resolutions.14 However, he also confusingly argues that the ordinance and MOU are not inconsistent with each other and that the latter has not amended the former. He insists that the ordinance remains valid and in full force and effect and that the MOU did not in any way prevent him from enforcing and implementing it. He maintains that the MOU should be considered as a mere guideline for its full implementation.15 Under Rule 65, Section 316 of the Rules of Court, a petition for mandamus may be filed when any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station. Mandamus is an extraordinary writ that is employed to compel the performance, when refused, of a ministerial duty that is already imposed on the respondent and there is no other plain, speedy and adequate remedy in the ordinary course of law. The petitioner should have a well-defined, clear and certain legal right to the performance of the act and it must be the clear and imperative duty of respondent to do the act required to be done.17 Mandamus will not issue to enforce a right, or to compel compliance with a duty, which is questionable or over which a substantial doubt exists. The principal function of the writ of mandamus is to command and to expedite, not to inquire and to adjudicate; thus, it is neither the office nor the aim of the writ to secure a legal right but to implement that which is already established. Unless the right to the relief sought is unclouded, mandamus will not issue.18 To support the assertion that petitioners have a clear legal right to the enforcement of the ordinance, petitioner SJS states that it is a political party registered with the Commission on Elections and has its offices in Manila. It claims to have many members who are residents of Manila. The other petitioners, Cabigao and Tumbokon, are allegedly residents of Manila. We need not belabor this point. We have ruled in previous cases that when a mandamus proceeding concerns a public right and its object is to compel a public duty, the people who are interested in the execution of the laws are regarded as the real parties in interest and they need not show any specific interest.19 Besides, as residents of Manila, petitioners have a direct interest in the enforcement of the citys ordinances. Respondent never questioned the right of petitioners to institute this proceeding. On the other hand, the Local Government Code imposes upon respondent the duty, as city mayor, to "enforce all laws and ordinances relative to the governance of the city.">20 One of these is Ordinance No. 8027. As the chief executive of the city, he has the duty to enforce Ordinance No. 8027 as long as it has not been repealed by the Sanggunian or annulled by the courts.21 He has no other choice. It is his ministerial duty to do so. In Dimaporo v. Mitra, Jr.,22 we stated the reason for this: These officers cannot refuse to perform their duty on the ground of an alleged invalidity of the statute imposing the duty. The reason for this is obvious. It might seriously hinder the transaction of public business if these officers were to be permitted in all cases to question the constitutionality of statutes and ordinances imposing duties upon them and which have not judicially been declared unconstitutional. Officers of the government from the highest to the lowest are creatures of the law and are bound to obey it.23 The question now is whether the MOU entered into by respondent with the oil companies and the subsequent resolutions passed by the Sanggunian have made the respondents duty to enforce Ordinance No. 8027 doubtful, unclear or uncertain. This is also connected to the second issue raised by petitioners, that is, whether the MOU and Resolution Nos. 97, s. 2002 and 13, s. 2003 of the Sanggunian can amend or repeal Ordinance No. 8027. We need not resolve this issue. Assuming that the terms of the MOU were inconsistent with Ordinance No. 8027, the resolutions which ratified it and made it binding on the City of Manila expressly gave it full force and effect only until April 30, 2003. Thus, at present, there is nothing that legally hinders respondent from enforcing Ordinance No. 8027.24 Ordinance No. 8027 was enacted right after the Philippines, along with the rest of the world, witnessed the horror of the September 11, 2001 attack on the Twin Towers of the World Trade Center in New York City. The objective of the ordinance is to protect the residents of Manila from the catastrophic devastation that will surely occur in case of a terrorist attack25 on the Pandacan Terminals. No reason exists why such a protective measure should be delayed. WHEREFORE, the petition is hereby GRANTED. Respondent Hon. Jose L. Atienza, Jr., as mayor of the City of Manila, is directed to immediately enforce Ordinance No. 8027. SO ORDERED. G.R. No. L-31408 April 22, 1991 THE DIRECTOR OF LANDS, petitioner, -versusTHE COURT OF APPEALS and BORROMEO BROS. ESTATE, INC., respondents. NARVASA, J.:p Whether the land in dispute was formed by the action of the sea or by deposits of soil and sedimentary matter carried by river currents is the main issue in this case, which was elevated to the Court by petition for review of a decision of the Court of Appeals. 1

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In October 1956 the corporation R. Borromeo Bros. Estate, Inc. instituted in the Court of First Instance of Leyte original proceedings 2 for confirmation and registration of title in its favor of a parcel of land fronting the sea in the coastal town of San Isidro, Leyte with an area of 130,537 square meters. The application 3 alleged that the land was bounded on the North, East and South by property of the applicant and on the West by San Isidro Bay; that it had been formed by accretion of sediments carried from the highlands by the natural action of the Si-ong and Sinubdan Rivers when these overflowed their banks during the rainy season; 4 that it had been publicly, openly, continuously and adversely possessed by the applicant for 20 years prior to the filing of the application; and that to the applicant's knowledge there existed no mortgage, lien or other adverse claim on the land. 5 Two oppositions to the application were filed. One, filed by the Director of Lands, asserted that the land applied for was part of the public domain, and that the applicant or its predecessors-ininterest had no sufficient title to the land, by way of either composition of possessory information, or by virtue of open, public, adverse and continuous possession under claim of ownership since July 26, 1894. 6 The other opposition, filed by the Municipality of San Isidro, echoed the contention of the Director of Lands that the land formed part of the public domain, alleging that it was classified as Timber Block-J, Leyte Project No. 40; denied the applicant's claim of open, adverse, continuous and exclusive possession and averred that the land was occupied by other parties who had waived their claims in favor of said oppositor; and alleged, further, that it (oppositor) needed the land for municipal expansion, having in fact adopted resolutions requesting the Government to reserve the land for that purpose, and that the applicant had applied for, but had been denied, a lease of the land after it had been released for private occupation by the Bureau of Forestry. 7 The case was then heard. It would appear that after the applicant had presented its evidence, it sought and was allowed to amend its application, which originally alleged that the land applied for had been formed of alluvium deposited by the action of the sea, 8 in order to allege, as said appellant's evidence had tended to establish, that said land had been formed instead from accretions of soil and sediment carried from higher places by the currents of the Si-ong and Sinubdan Creeks. Thereafter, evidence for the oppositors also having been presented, the Trial Court rendered judgment denying the application and declaring the land applied for public land formed by the action of the sea and not of any river. 9 The applicant then appealed to the Court of Appeals, which reversed the decision of the Trial Court, sustained the applicant's contention as to the origin of the land, on that basis declared the land to be private land of said applicant and decreed its registration in the applicant's name. 10 The Appellate Court's judgment was in turn appealed to this Court by the Director of Lands who, in the main, argues that the Appellate Court erred in concluding that the evidence showed the land to have been formed by the action of rivers and in not holding the applicant bound by the averment in its original application that the land was formed by the natural action of the sea. 11 The first assignment of error may be disposed of by the simple expedient of pointing out that the assailed "conclusion" of the Court of Appeals is one of fact, not of law, and is, therefore, beyond the province of this Court to review, 12 save in certain exceptional circumstances. 13 To dispel any doubts, however, and not to rely solely on what might appear to some to be a fine distinction, particularly considering that the finding of the Court of Appeals on the crucial factual question of how the land in dispute came into existence conflicts with that of the Trial Court, this Court has reviewed the available record 14 and finds no sound basis for ascribing any error to the Appellate Court in its appreciation of the evidence. The petitioner's case is anchored on evidence tending to establish that the Sinubdan and Si-ong Rivers whose currents, according to the private respondent, formed the land in question from the sediments they carried were not natural streams, but mere canals dug as part of an irrigation system; that they had no intrinsic water sources and in fact dried up during the summer season; that a survey commissioned by the petitioner itself in 1949 did not indicate their existence on the plan; and that part of the land is swampy with mangrove trees growing thereon. 15 More persuasive, however, is the countervailing evidence of the private respondent which consists, principally, of the testimony of Felix Sablado, a bridge foreman of the Bureau of Public Highways, and Teofilo Pacana, overseer of the petitioner's lands. According to the petitioner's uncontradicted summary of Sablado's testimony, said witness had undertaken studies of the Sinubdan and Si-ong Rivers, measuring their depth and width, the volume of water that they carried, and the size of the bridges spanning them. He had declared the Si-ong was more than seven meters deep, while the Sinubdan had a depth of more than three meters, that the Filemon Bridge crossing the Si-ong was seven meters long and four meters wide and the Sinubdan Bridge had the same dimensions. And under cross-examination, he had maintained that there is a source of water under the Filemon Bridge. 16 Pacana, for his part, testified that there is a continuous flow of water in both rivers throughout the year, and not merely during the rainy season, as claimed by one of the oppositors' witnesses, and that while a few mangrove trees grow in the salvage zone which is far from the land, none are found within the boundaries of the land itself. 17 This is at least partly confirmed by photographs received in evidence 18 showing rice, coconut trees and bamboo groves growing on the land, and which apparently persuaded the Trial Court that at least a part of the land had been . . . transformed (through cultivation by the private respondent) into a veritable first class rice land. 19 The petitioner's argument that accretion, by definition imperceptible, could hardly account for such an area of land (more than thirteen hectares) being built up within a period of six years, hinges upon an unwarrantedly literal advertence to the testimony of one of the private respondent's witnesses who declared that the process took place from 1930 to 1936. 20 Assuming that the witness attested to what he sincerely believed to be the truth, the possibility of his being mistaken cannot be discounted because, the age of the rivers in question never having been established, the process of accretion through the action of their currents could have started much earlier than 1930. It is also entirely possible and reasonably presumable, lacking any proof to the contrary even granting that accretion started only in 1930, for the land to have grown to thirteen hectares in the twenty years that followed until 1956 when the application for registration was filed. The Court therefore finds no error in the ruling of the Court of Appeals that the land was formed by accretion through the action of river currents and belonged to the private respondent as riparian owner pursuant to Art. 457 of the Civil Code. The Court of Appeals also correctly overruled the petitioner's contention that the averment in the original application for registration attributing the origin of the land to the action of the sea, which averment, with leave of court, was later superseded by an amendment to the effect that the land was formed by the action of rivers, was binding on the private respondent as a judicial admission. Pleadings that have been amended disappear from the record, lose their status as pleadings and cease to be judicial admissions. While they may nonetheless be utilized against the pleader as extra-judicial admissions, they must, in order to have such effect, be formally offered in evidence. 21 It does not appear that the original application for registration containing the averment in question, or that particular averment itself, was offered or received in evidence for the petitioner in the Trial Court. WHEREFORE, the Decision of the Court of Appeals subject of the petition for review is AFFIRMED, without pronouncement as to costs. SO ORDERED. PEOPLE OF PHILIPPINES, Appellee, - versus SATURNINO VILLANUEVA, Appellant. Promulgated: September 1, 2010 THE G.R. No. 181829

x----------------------------------------------------------x DEL CASTILLO, J.: On appeal is the November 5, 2007 Decision of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 02210 which affirmed with modification the November 28, 2003 Decision of the Regional Trial Court (RTC) of Tayug, Pangasinan, Branch 51. The CA found appellant Saturnino Villanueva guilty beyond reasonable doubt of three counts of qualified rape and sentenced him to suffer the penalty of reclusion perpetua and to pay his victim the amounts of P75,000.00 as civil

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indemnity, P75,000.00 as moral damages, and P25,000.00 as exemplary damages, for each count. Factual Antecedents: On November 6, 2002, three Informations were filed against appellant for the crime of rape. The accusatory portions of the Informations read: Crim. Case No. T-3157: That on or about the 9th day of June, 2002, at dawn, x x x, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused who is the father of complainant, armed with a bladed weapon, by means of force, threat and intimidation, did then and there willfully, unlawfully and feloniously have sexual intercourse with one AAA, a minor 12 years of age, against her will and consent, to the damage and prejudice of said AAA. CONTRARY to Article 335 of the Revised Penal Code, as amended by Republic Act 8353. Crim. Case No. T-3158: That on or about the 27th day of September, 1999, in the evening, at x x x, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused who is the father of complainant, armed with a bladed weapon, by means of force, threat and intimidation, did then and there willfully, unlawfully and feloniously have sexual intercourse with one AAA, a minor 9 years of age, against her will and consent, to the damage and prejudicie of said AAA. CONTRARY to Article 335 of the Revised Penal Code, as amended by Republic Act 8353. Crim. Case No. T-3159: That on or about the 28th day of September, 1999, at dawn, at x x x, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused who is the father of complainant, armed with a bladed weapon, by means of force, threat and intimidation, did then and there willfully, unlawfully and feloniously have sexual intercourse with one AAA, a minor 9 years of age, against her will and consent, to the damage and prejudice of said AAA. CONTRARY to Article 335 of the Revised Penal Code, as amended by Republic Act 8353. When arraigned on November 14, 2002, appellant pleaded not guilty to all charges. During pre-trial, the parties stipulated that the appellant is the father of AAA. It was likewise agreed that AAA was below 12 years of age when the rape incidents happened. AAAs birth and medical certificates were likewise marked as Exhibits A and C, respectively. Thereafter, the cases were tried jointly. Version of the Prosecution xxxx The prosecution presented AAA as its witness. AAA narrated that when she was about 4 years old, her mother left her in the care of her father, herein appellant. Since then, she had been living with her father. AAA claimed that appellant sexually abused her on September 27 and 28, 1999 and on June 9, 2002. During her testimony, AAA narrated that: PROS. ULANDAY: Q Will you please state your name, age and other personal circumstances? WITNESS: A I am AAA, 13 years old, out-of-school youth, presently residing at x x x xxxx PROS. ULANDAY: Q Madam Witness, do you still remember September 27, 1999? A Yes, sir. Q Why do you remember that particular date? A That was the birthday of my father and the date when he touched me, sir. xxxx Q Who rape[d] you? A My papa, sir. Witness pointed to the accused. xxxx Q A Now, after your father tied you on September 27, 1999, what did he do, if theres any? He raped me, sir. PROS. ULANDAY: Q You claimed that your father touched and used you. How did he begin in touching you? A He tied me, sir. xxxx Q A Q A What part of your body was x x x tied by your father? My mouth, sir. What other parts of your body, if there [are] any? My hands and my feet, sir.

PROS. ULANDAY: My witness is crying, your Honor.

COURT: Q What do you mean by x x x saying he raped you? xxxx A xxxx COURT: And we make of record that [witness is now] in tears. xxxx PROS. ULANDAY: Q Madam Witness, during the last hearing you uttered the word incua na. What do you mean by that? A He inserted his penis into my vagina, sir. Q How long a time did your father [insert] his penis into your vagina? A About two minutes, sir. He undressed me, sir.

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Q A At early dawn of September 28, 1999, what happened if any, between you and your father? The same, sir. Q A Q A Q A Q A Q A Q A Q A Q A While he was undressing you what were you doing, if any? I failed to do any, sir. Why did you fail to do any? Because I was afraid, sir. Version of the Defense Why were you afraid at the time? Because he threatened me, sir. How did he [threaten] you? That if I would report the matter to anyone he would kill the person to whom I will report, sir. Do you remember June 9, 2002 at 3:00 oclock dawn? Yes, sir. Why do you remember that particular date? Because he again raped me, sir. A Q A Q A xxxx Q A Q A You claimed that you were raped by your father, how did he rape you? He undressed me, sir. What else did he do aside from undressing you? He poked a knife at me, sir. Who raped you? My father, sir. In what particular place [were] you raped? In our house, sir. The defense next presented Marcelino Villanueva (Marcelino) who testified that he is the father of the appellant. He claimed that AAA filed the rape cases against appellant because the latter forbade her to entertain suitors. Marcelino also alleged that after appellant was incarcerated, AAA eloped with her 20-year old boyfriend and that AAA only separated from her boyfriend when she was brought under the care of the Department of Social Welfare and Development. When asked how old AAA was when she allegedly eloped with her boyfriend, Marcelino answered that AAA was only 13 years old. Ruling of the Regional Trial Court The trial court lent credence to the testimony of AAA. However, it noted that although it was agreed upon during the pre-trial that AAA was a minor below 12 years of age, the fact remains that AAA was 12 years, six months and 19 days when she was ravished by the appellant On the other hand, appellee maintained that AAAs credibility was beyond doubt and that it was unnecessary to offer proof of resistance where the assailant exercised moral ascendancy against his victim, as in this case. Appellee insisted that the crimes committed were three counts of qualified, and not simple, rape considering that AAA was a minor and SO ORDERED. The defense presented appellant as its first witness. In his testimony, appellant admitted that AAA is his daughter. He also admitted that on September 27 and 28, 1999 and June 9, 2002, he was living in the same house as AAA. However, when asked regarding the rape charges filed against him by his daughter, appellant denied the same. Thus: Q And this daughter of your[s] now charge you [with] rape in Crim. Case Nos. T3157/3158/3159 for allegedly having sexual intercourse with her against her will and consent. What can you say against these charges by your daughter? [Those are] not true, sir. Ruling of the Court of Appeals In his brief filed before the appellate court, appellant claimed that the prosecution failed to present evidence that would overcome the presumption of his innocence. Appellant also alleged that the trial court erred in lending credence to the unrealistic and unnatural testimony of AAA. He claimed that it was unusual for AAA not to offer any resistance to the advances allegedly made by him considering that he was unarmed. According to the appellant, AAA should have struggled or at least offered some resistance because she was not completely helpless. Appellant also suggested that AAA must have been coached because initially, she did not know the acts which constitute rape. However, during the succeeding hearings, AAA allegedly testified in detail the bestial acts committed against her. Moreover, appellant argued that the prosecution failed to formally offer in evidence the medical certificate and to present the doctor who conducted the medical examination to testify on his findings. Likewise, AAAs birth certificate was not formally offered. Neither did the Municipal Civil Registrar who allegedly prepared the same take the witness stand. Thus appellant claimed that assuming he was indeed guilty of the crimes charged, he should only be held liable for simple rape and not qualified rape because the minority of the victim was not duly established. Further, with the passage of Republic Act No. 9346, appellant should not be sentenced to death. And after poking a knife at you, what happened next, if any? Then he touched (kinuti) me, sir. What part of your body was touched by your father? My vagina, sir. How did he touch your vagina? He inserted his penis into my vagina, sir. What happened when he inserted his penis into your vagina? I cried, sir. on June 9, 2002. The court below also observed that AAA has always been a pathetic child of oppression, abuse and neglect and that [h]er innocence, tender age, dependence [on appellant] for survival, and her virtual orphanhood sufficed to qualify every sexual molestation perpetrated by her father as rape x x x. The dispositive portion of the Decision reads: WHEREFORE, finding the accused SATURNINO VILLANUEVA guilty beyond reasonable doubt of three counts of rape, defined and penalized by Article 266-A of the Revised Penal Code, perpetrated against [his] daughter on September 27, 1999, September 28, 1999 and June 9, 2002, x x x and as mandated by Article 266-B, same Code, the Court hereby sentences him to suffer the penalty of DEATH for each offense, to indemnify the complainant AAA for damages in the amount of P50,000.00 per [count], and to pay the costs.

Q What do you mean by the same? A That he inserted his penis into my vagina, sir. Q A Before your father inserted his penis into your vagina, what did he do, if there was any? He first undressed me, sir.

After the presentation of AAAs testimony, the prosecution rested its case.

Q A Q A

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the offender was her father, and that the parties had already stipulated during pre-trial as regards the age of the victim. On November 5, 2007, the appellate court rendered its Decision disposing thus: WHEREFORE, premises considered, the Decision dated 28 November 2003 of the Regional Trial Court of Tayug, Pangasinan, Branch 51 in Crim. Case Nos. T-3157, T-3158 and T-3159 finding accused-appellant Saturnino Villanueva guilty beyond reasonable doubt of three (3) counts of qualified rape under Articles 266-A and 266-B is AFFIRMED with the MODIFICATION that pursuant to Republic Act No. 9346, the penalty of death imposed on appellant is reduced to reclusion perpetua for each count of qualified rape, without eligibility for parole under Act No. 4103, as amended. Further, accusedappellant is ordered to pay the private complainant/victim [AAA], for each count of qualified rape, the amounts of Php 75,000.00 as civil indemnity, Php 75,000.00 as moral damages and Php 25,000.00 as exemplary damages. SO ORDERED. The appellate court found no reason to reverse the findings of the trial court on the credibility of AAA. Although there were occasions when AAA would not immediately answer the questions propounded to her, the CA opined that it was because she was either distressed in recounting her horrible experiences or in tears. The appellate court likewise considered the fact that AAA was only 13 years old when she testified on her harrowing experiences. The appellate court likewise brushed aside appellants contention that AAA did not offer any resistance. According to the CA, appellants moral ascendancy over AAA substitutes for violence or intimidation. The CA also concluded that even without the medical certificate, appellant could still be held liable for three counts of rape. His conviction could rest exclusively on the credible testimony of AAA and the medical certificate would only be corroborative evidence. Anent the birth certificate, the CA recalled that during pre-trial, the minority of the victim and her relationship with the appellant had already been stipulated upon. Hence, the said elements have been sufficiently alleged in the Informations and proven during trial. Finally, the CA held that appellants denial is intrinsically weak and self-serving especially considering AAAs credible and straightforward testimony. Our Ruling Both the appellant and the appellee opted not to file their supplemental briefs. The appeal is partly meritorious. At the outset, we must state that we entertain no doubt that appellant thrice raped his daughter, AAA. We examined the records and we find AAAs testimony convincing and straightforward. We therefore have no reason to reverse or modify the findings of the trial court on the credibility of the victims testimony, more so in this case where the said findings were affirmed by the CA. We also agree with the ruling of the appellate court that appellant could be convicted of rape even without the medical certificate. In rape cases, the accused may be convicted solely on the testimony of the victim, provided the testimony is credible, natural, convincing, and consistent with human nature and the normal course of things. As stated above, AAAs testimony was credible and convincing. As such, appellants conviction could rest solely on it. The medical certificate would only serve as corroborative evidence. We, however, agree with the appellant that both the medical certificate and AAAs birth certificate, although marked as exhibits during the pre-trial, should not have been considered by the trial court and the CA because they were not formally offered in evidence. Section 34, Rule 132 of the Rules of Court explicitly provides: The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified. In this case, we note that after the marking of the exhibits during pre-trial, the prosecution did not formally offer the said medical certificate or birth certificate in evidence. In fact, the prosecution rested its case after presenting the testimony of AAA without formally offering any documentary exhibit at all. Our ruling in Heirs of Pedro Pasag v. Parocha is instructive, thus: The rule on formal offer of evidence is not a trivial matter. Failure to make a formal offer within a considerable period of time shall be deemed a waiver to submit it. Consequently, as in this case, any evidence that has not been offered shall be excluded and rejected. xxxx The Rules of Court [provide] that the court shall consider no evidence which has not been formally offered. A formal offer is necessary because judges are mandated to rest their findings of facts and their judgment only and strictly upon the evidence offered by the parties at the trial. Its function is to enable the trial judge to know the purpose or purposes for which the proponent is presenting the evidence. On the other hand, this allows opposing parties to examine the evidence and object to its admissibility. Moreover, it facilitates review as the appellate court will not be required to review documents not previously scrutinized by the trial court. xxxx Thus, the trial court is bound to consider only the testimonial evidence presented and exclude the documents not offered. Documents which may have been identified and marked as exhibits during pre-trial or trial but which were not formally offered in evidence cannot in any manner be treated as evidence. Neither can such unrecognized proof be assigned any evidentiary weight and value. It must be stressed that there is a significant distinction between identification of documentary evidence and its formal offer. The former is done in the course of the pre-trial, and trial is accompanied by the marking of the evidence as an exhibit; while the latter is done only when the party rests its case. The mere fact that a particular document is identified and marked as an exhibit does not mean that it has already been offered as part of the evidence. It must be emphasized that any evidence which a party desires to submit for the consideration of the court must formally be offered by the party; otherwise, it is excluded and rejected. We reiterated the above ruling in Dizon v. Court of Tax Appeals where one of the issues presented was whether the Court of Tax Appeals and the CA gravely abused their discretion in allowing the admission of the pieces of evidence which were not formally offered by the Bureau of Internal Revenue. In finding the case impressed with merit, the Court held that: Under Section 8 of RA 1125, the CTA is categorically described as a court of record. As cases filed before it are litigated de novo, partylitigants shall prove every minute aspect of their cases. Indubitably, no evidentiary value can be given the pieces of evidence submitted by the BIR, as the rules on documentary evidence require that these documents must be formally offered before the CTA. x x x xxxx x x x [T]he presentation of the BIRs evidence is not a mere procedural technicality which may be disregarded considering that it is the only means by which the CTA may ascertain and

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verify the truth of BIRs claims against the Estate. The BIRs failure to formally offer these pieces of evidence, despite CTAs directives, is fatal to its cause. Such failure is aggravated by the fact that not even a single reason was advanced by the BIR to justify such fatal omission. This, we take against the BIR. We are not unaware that there is an exception to the abovestated rule. In People v. Mate, Silvestre Mate (Mate) was charged with the crime of Kidnapping for Ransom with Murder and Frustrated Murder. During arraignment, he entered a plea of guilty. The court then propounded clarificatory questions to determine whether the accused understood the consequences of his plea. Immediately thereafter, the trial court promulgated its decision finding the accused guilty as charged and sentenced him to death. It was only after the rendition of the judgment that the trial court conducted hearings for the reception of the prosecutions evidence. From the prosecutions evidence, it would appear that during the investigation, Mate voluntarily made extra-judicial statements as contained in Exhibits A, B, and J. Also, after his conviction, he appeared as witness for the prosecution against his co-accused where he affirmed his extra-judicial statements in Exhibits A, B, and J. However, the state prosecutor failed to formally offer said exhibits. In debunking the defenses contentions that the trial court erred in rendering a judgment of conviction on Mate even before the prosecution could present its evidence, and in considering the exhibits which were not formally offered, the Court held thus: The defense contends that the trial court committed a serious error in rendering judgment of conviction immediately after Mate had pleaded guilty to the crime charged on the basis of his plea of guilty and before receiving any evidence. While the trial court committed an error in rendering judgment immediately after the accused had pleaded guilty, and, thereafter, conducted hearings for the reception of the evidence for the prosecution, such an irregularity, is insufficient to justify the setting aside of the judgment of conviction, considering that it is supported by the judicial and extra-judicial confessions of the accused and by other evidence. x x x xxxx The defense questions also the failure of the state prosecutor Cornelio Melendres to make a formal offer of his exhibits, although they have been marked and identified. Such an oversight appears trivial because the entire evidence for the prosecution is recorded. Even without the exhibits which have been incorporated into the records of the case, the prosecution can still establish the case because the witnesses properly identified those exhibits and their testimonies are recorded. Exhibits A, B, and J are all admissible against Mate because it appears with clarity that he voluntarily and spontaneously gave those narrations without compulsion from anybody. In fact, . . . when he testified against Ben Bohol he affirmed those narrations again. In Mato v. Court of Appeals, we concretized the above ruling by holding that evidence, although not formally offered in evidence, may be admitted and considered by the trial court provided the following requirements are present, viz: first, the same must have been duly identified by testimony duly recorded and, second, the same must have been incorporated in the records of the case. In Ramos v. Dizon, we deemed the exhibits to have been incorporated into the records because they had been presented and marked during the pre-trial of the case. Likewise, the first requisite was deemed satisfied because one of the parties therein explained the contents of the exhibits when interrogated by the respondents counsel. In the instant case, we find the rulings espoused in People v. Mate, Mato v. Court of Appeals, and Ramos v. Dizon not applicable. Thus, we find that both the trial court and the CA erred in allowing the admission of AAAs medical certificate and birth certificate. The records would show that the lone witness for the prosecution did not identify the said exhibits or explain their contents. When AAA was placed on the witness stand, she merely stated that she was 13 years old. No reference was ever made to her birth certificate. The same is true with the medical certificate. After the marking during the pre-trial, the prosecution did not refer to it in any stage of the proceedings. Neither did it present the doctor who prepared the same. Moreover, appellants admission during the pre-trial that AAA was a minor below 12 years of age would not help the prosecutions case. First, the trial court found this admission inaccurate as in fact, AAA was already above 12 years of age when the rape incident transpired on June 9, 2002. Second and more important, appellants admission during pre-trial is not admissible as it violates Section 2, Rule 118 of the Rules of Court which explicitly provides that: All agreements or admissions made or entered during the pre-trial conference shall be reduced in writing and signed by the accused and his counsel, otherwise they cannot be used against the accused. x x x. In People v. Chua Uy, we held that: Even granting for the sake of argument that RAMON admitted during the pre-trial that Exhibits D to D-4, inclusive, and Exhibit E contained methamphetamine hydrochloride, the admission cannot be used in evidence against him because the Joint Order was not signed by RAMON and his counsel. Section 4 of Rule 118 of the Rules of Court expressly provides: SEC. 4. Pretrial agreements must be signed. No agreement or admission made or entered during the pre-trial conference shall be used in evidence against the accused unless reduced to writing and signed by his counsel. Put in another way, to bind the accused the pre-trial order must be signed not only by him but his counsel as well. The purpose of this requirement is to further safeguard the rights of the accused against improvident or unauthorized agreements or admissions which his counsel may have entered into without his knowledge, as he may have waived his presence at the pre-trial conference; eliminate any doubt on the conformity of the accused of the facts agreed upon. In this case, records would show that the Pre-trial Order was not signed by both appellant and his counsel. In view of the foregoing, we find that the prosecution did not present any satisfactory evidence to prove AAAs minority. In the prosecution of criminal cases, x x x, nothing but proof beyond reasonable doubt of every fact necessary to constitute the crime with which an accused is charged must be established. Qualifying circumstances or special qualifying circumstances must be proved with equal certainty and clearness as the crime itself; otherwise, there can be no conviction of the crime in its qualified form. As a qualifying circumstance of the crime of rape, the concurrence of the victims minority and her relationship to the accused-appellant must be both alleged and proven beyond reasonable doubt. In view of the foregoing, we find appellant guilty only of three counts of simple rape the penalty for which is reclusion perpetua for each count. Accordingly, the awards of civil indemnity must be reduced to P50,000.00 and moral damages to P50,000.00. Finally, the award of exemplary damages is proper. Exemplary damages may be awarded in criminal cases as part of civil liability if the crime was committed with one or more aggravating circumstances. Relationship as an alternative circumstance under Article 15 of the Revised Penal Code is considered aggravating in the crime of rape. In this case, the aggravating circumstance of relationship was duly established. Appellant himself admitted when he testified in open court that he is AAAs father. However, the award of P25,000.00 as exemplary damages must be increased to P30,000.00 in line with prevailing jurisprudence.

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WHEREFORE, we find appellant Saturnino Villanueva GUILTY of three counts of simple rape and accordingly sentence him to suffer the penalty of reclusion perpetua and to indemnify his victim AAA the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral damages, and P30,000.00 as exemplary damages, for each count. SO ORDERED. SECOND DIVISION [G.R. No. 114776. February 2, 2000] MENANDRO B. LAUREANO, petitioner, vs. COURT OF APPEALS AND SINGAPORE AIRLINES LIMITED, respondents. DECISION QUISUMBING, J.: This petition for review on certiorari under Rule 45 of the Rules of Court seeks to reverse the Decision of the Court of Appeals, dated October 29, 1993, in C.A. G.R. No. CV 34476, as well as its Resolution dated February 28, 1994, which denied the motion for reconsideration. The facts of the case as summarized by the respondent appellate court are as follows: "Sometime in 1978, plaintiff [Menandro B. Laureano, herein petitioner], then Director of Flight Operations and Chief Pilot of Air Manila, applied for employment with defendant company [herein private respondent] through its Area Manager in Manila. On September 30, 1978, after the usual personal interview, defendant wrote to plaintiff, offering a contract of employment as an expatriate B-707 captain for an original period of two (2) years commencing on January 21, 1978, Plaintiff accepted the offer and commenced working on January 20, 1979. After passing the six-month probation period, plaintiff's appointment was confirmed effective July 21, 1979. (Annex "B", p. 30, Rollo). On July 21, 1979, defendant offered plaintiff an extension of his two-year contract to five (5) years effective January 21, 1979 to January 20, 1984 subject to the terms and conditions set forth in the contract of employment, which the latter accepted (Annex "C", p. 31, Rec.). During his service as B-707 captain, plaintiff on August 24, 1980, while in command of a flight, committed a noise violation offense at the Zurich Airport, for which plaintiff apologized. (Exh. "3", p. 307, Rec.). Sometime in 1980, plaintiff featured in a tail scraping incident wherein the tail of the aircraft scraped or touched the runway during landing. He was suspended for a few days until he was investigated by a board headed by Capt. Choy. He was reprimanded. Scjuris On September 25, 1981, plaintiff was invited to take a course of A-300 conversion training at Aeroformacion, Toulouse, France at defendant's expense. Having successfully completed and passed the training course, plaintiff was cleared on April 7, 1981 for solo duty as captain of the Airbus A-300 and subsequently appointed as captain of the A300 fleet commanding an Airbus A-300 in flights over Southeast Asia. (Annexes "D", "E" and "F", pp. 34-38, Rec.). Sometime in 1982, defendant, hit by a recession, initiated cost-cutting measures. Seventeen (17) expatriate captains in the Airbus fleet were found in excess of the defendant's requirement (t.s.n., July 6, 1988. p. 11). Consequently, defendant informed its expatriate pilots including plaintiff of the situation and advised them to take advance leaves. (Exh. "15", p. 466, Rec.). Realizing that the recession would not be for a short time, defendant decided to terminate its excess personnel (t.s.n., July 6, 1988, p. 17). It did not, however, immediately terminate it's A-300 pilots. It reviewed their qualifications for possible promotion to the B747 fleet. Among the 17 excess Airbus pilots reviewed, twelve were found qualified. Unfortunately, plaintiff was not one of the twelve. Jurissc On October 5, 1982, defendant informed plaintiff of his termination effective November 1, 1982 and that he will be paid three (3) months salary in lieu of three months notice (Annex "I", pp. 41-42, Rec.). Because he could not uproot his family on such short notice, plaintiff requested a three-month notice to afford him time to exhaust all possible avenues for reconsideration and retention. Defendant gave only two (2) months notice and one (1) month salary. (t.s.n., Nov. 12, 1987. p. 25). Aggrieved, plaintiff on June 29, 1983, instituted a case for illegal dismissal before the Labor Arbiter. Defendant moved to dismiss on jurisdictional grounds. Before said motion was resolved, the complaint was withdrawn. Thereafter, plaintiff filed the instant case for damages due to illegal termination of contract of services before the court a quo (Complaint, pp. 1-10, Rec.). Again, defendant on February 11, 1987 filed a motion to dismiss alleging inter alia: (1) that the court has no jurisdiction over the subject matter of the case, and (2) that Philippine courts have no jurisdiction over the instant case. Defendant contends that the complaint is for illegal dismissal together with a money claim arising out of and in the course of plaintiff's employment "thus it is the Labor Arbiter and the NLRC who have the jurisdiction pursuant to Article 217 of the Labor Code" and that, since plaintiff was employed in Singapore, all other aspects of his employment contract and/or documents executed in Singapore. Thus, defendant postulates that Singapore laws should apply and courts thereat shall have jurisdiction. (pp. 50-69, Rec.). Misjuris In traversing defendant's arguments, plaintiff claimed that: (1) where the items demanded in a complaint are the natural consequences flowing from a breach of an obligation and not labor benefits, the case is intrinsically a civil dispute; (2) the case involves a question that is beyond the field of specialization of labor arbiters; and (3) if the complaint is grounded not on the employee's dismissal per se but on the manner of said dismissal and the consequence thereof, the case falls under the jurisdiction of the civil courts. (pp. 70-73, Rec.) On March 23, 1987, the court a quo denied defendant's motion to dismiss (pp. 82-84, Ibid). The motion for reconsideration was likewise denied. (p. 95 ibid) On September 16, 1987, defendant filed its answer reiterating the grounds relied upon in its motion to dismiss and further arguing that plaintiff is barred by laches, waiver, and estoppel from instituting the complaint and that he has no cause of action. (pp. 102115)" On April 10, 1991, the trial court handed down its decision in favor of plaintiff. The dispositive portion of which reads: "WHEREFORE, judgment is hereby rendered in favor of plaintiff Menandro Laureano and against defendant Singapore Airlines Limited, ordering defendant to pay plaintiff the amounts of SIN$396,104.00, or its equivalent in Philippine currency at the current rate of exchange at the time of payment, as and for unearned compensation with legal interest

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from the filing of the complaint until fully paid; Jjlex SIN$154,742.00, or its equivalent in Philippine currency at the current rate of exchange at the time of payment; and the further amounts of P67,500.00 as consequential damages with legal interest from the filing of the complaint until fully paid; P1,000,000.00 as and for moral damages; P1,000,000.00 as and for exemplary damages; and P100,000.00 as and for attorney's fees. Costs against defendant. SO ORDERED." Singapore Airlines timely appealed before the respondent court and raised the issues of jurisdiction, validity of termination, estoppel, and damages. On October 29, 1993, the appellate court set aside the decision of the trial court, thus, "...In the instant case, the action for damages due to illegal termination was filed by plaintiff-appellee only on January 8, 1987 or more than four (4) years after the effectivity date of his dismissal on November 1, 1982. Clearly, plaintiff-appellee's action has already prescribed. WHEREFORE, the appealed decision is hereby REVERSED and SET ASIDE. The complaint is hereby dismissed. SO ORDERED." Newmiso Petitioner's and Singapore Airlines' respective motions for reconsideration were denied. Now, before the Court, petitioner poses the following queries: 1. IS THE PRESENT ACTION ONE BASED ON CONTRACT WHICH PRESCRIBES IN TEN YEARS UNDER ARTICLE 1144 OF THE NEW CIVIL CODE OR ONE FOR DAMAGES ARISING FROM AN INJURY TO THE RIGHTS OF THE PLAINTIFF WHICH PRESCRIBES IN FOUR YEARS UNDER ARTICLE 1146 OF THE NEW CIVIL CODE? 2. CAN AN EMPLOYEE WITH A FIXED PERIOD OF EMPLOYMENT BE RETRENCHED BY HIS EMPLOYER? 3. CAN THERE BE VALID RETRENCHMENT IF AN EMPLOYER MERELY FAILS TO REALIZE THE EXPECTED PROFITS EVEN IF IT WERE NOT, IN FACT, INCURRING LOSSES? At the outset, we find it necessary to state our concurrence on the assumption of jurisdiction by the Regional Trial Court of Manila, Branch 9. The trial court rightly ruled on the application of Philippine law, thus: Acctmis "Neither can the Court determine whether the termination of the plaintiff is legal under the Singapore Laws because of the defendant's failure to show which specific laws of Singapore Laws apply to this case. As substantially discussed in the preceding paragraphs, the Philippine Courts do not take judicial notice of the laws of Singapore. The defendant that claims the applicability of the Singapore Laws to this case has the burden of proof. The defendant has failed to do so. Therefore, the Philippine law should be applied." Respondent Court of Appeals acquired jurisdiction when defendant filed its appeal before said court. On this matter, respondent court was correct when it barred defendant-appellant below from raising further the issue of jurisdiction. Petitioner now raises the issue of whether his action is one based on Article 1144 or on Article 1146 of the Civil Code. According to him, his termination of employment effective November 1, 1982, was based on an employment contract which is under Article 1144, so his action should prescribe in 10 years as provided for in said article. Thus he claims the ruling of the appellate court based on Article 1146 where prescription is only four (4) years, is an error. The appellate court concluded that the action for illegal dismissal originally filed before the Labor Arbiter on June 29, 1983, but which was withdrawn, then filed again in 1987 before the Regional Trial Court, had already prescribed. In our view, neither Article 1144 nor Article 1146 of the Civil Code is here pertinent. What is applicable is Article 291 of the Labor Code, viz: "Article 291. Money claims. - All money claims arising from employee-employer relations accruing during the effectivity of this Code shall be filed within three (3) years from the time the cause of action accrued; otherwise they shall be forever barred. x x x" Misact What rules on prescription should apply in cases like this one has long been decided by this Court. In illegal dismissal, it is settled, that the ten-year prescriptive period fixed in Article 1144 of the Civil Code may not be invoked by petitioners, for the Civil Code is a law of general application, while the prescriptive period fixed in Article 292 of the Labor Code [now Article 291] is a SPECIAL LAW applicable to claims arising from employee-employer relations. More recently in De Guzman. vs. Court of Appeals, where the money claim was based on a written contract, the Collective Bargaining Agreement, the Court held: "...The language of Art. 291 of the Labor Code does not limit its application only to 'money claims specifically recoverable under said Code' but covers all money claims arising from an employee-employer relations" (Citing Cadalin v. POEA Administrator, 238 SCRA 721, 764 [1994]; and Uy v. National Labor Relations Commission, 261 SCRA 505, 515 [1996]). ... It should be noted further that Article 291 of the Labor Code is a special law applicable to money claims arising from employeremployee relations; thus, it necessarily prevails over Article 1144 of the Civil Code, a general law. Basic is the rule in statutory construction that 'where two statutes are of equal theoretical application to a particular case, the one designed therefore should prevail.' (Citing Leveriza v. Intermediate Appellate Court, 157 SCRA 282, 294.) Generalia specialibus non derogant." In the light of Article 291, aforecited, we agree with the appellate court's conclusion that petitioner's action for damages due to illegal termination filed again on January 8, 1987 or more than four (4) years after the effective date of his dismissal on November 1, 1982 has already prescribed. "In the instant case, the action for damages due to illegal termination was filed by plaintiffappellee only on January 8, 1987 or more than four (4) years after the effectivity date of his dismissal on November 1, 1982. Clearly, plaintiff-appellee's action has already prescribed." We base our conclusion not on Article 1144 of the Civil Code but on Article 291 of the Labor Code, which sets the prescription period at three (3) years and which governs under this jurisdiction. Petitioner claims that the running of the prescriptive period was tolled when he filed his complaint for illegal dismissal before the Labor Arbiter of the National Labor Relations Commission. However, this claim deserves scant consideration; it has no legal leg to stand on. In Olympia International, Inc. vs. Court of Appeals, we held that "although the commencement of a civil action stops the running of the statute of prescription or limitations, its dismissal or voluntary abandonment by plaintiff leaves the parties in exactly the same position as though no action had been commenced at all." Now, as to whether petitioner's separation from the company due to retrenchment was valid, the appellate court found that the employment contract of petitioner allowed for pre-termination of employment. We agree with the Court of Appeals when it said, Sdjad "It is a settled rule that contracts have the force of law between the parties. From the moment the same is perfected, the parties are bound not only to the fulfillment of what has been expressly stipulated but also to all consequences which, according to their nature, may be in keeping with good faith, usage and law. Thus, when plaintiff-appellee accepted the offer of employment, he was bound by the terms and conditions set forth

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in the contract, among others, the right of mutual termination by giving three months written notice or by payment of three months salary. Such provision is clear and readily understandable, hence, there is no room for interpretation." xxx Further, plaintiff-appellee's contention that he is not bound by the provisions of the Agreement, as he is not a signatory thereto, deserves no merit. It must be noted that when plaintiff-appellee's employment was confirmed, he applied for membership with the Singapore Airlines Limited (Pilots) Association, the signatory to the aforementioned Agreement. As such, plaintiff-appellee is estopped from questioning the legality of the said agreement or any proviso contained therein." Moreover, the records of the present case clearly show that respondent court's decision is amply supported by evidence and it did not err in its findings, including the reason for the retrenchment: "When defendant-appellant was faced with the world-wide recession of the airline industry resulting in a slow down in the company's growth particularly in the regional operation (Asian Area) where the Airbus 300 operates. It had no choice but to adopt cost cutting measures, such as cutting down services, number of frequencies of flights, and reduction of the number of flying points for the A-300 fleet (t.s.n., July 6, 1988, pp. 17-18). As a result, defendant-appellant had to layoff A-300 pilots, including plaintiffappellee, which it found to be in excess of what is reasonably needed." All these considered, we find sufficient factual and legal basis to conclude that petitioner's termination from employment was for an authorized cause, for which he was given ample notice and opportunity to be heard, by respondent company. No error nor grave abuse of discretion, therefore, could be attributed to respondent appellate court. Sppedsc ACCORDINGLY, the instant petition is DISMISSED. The decision of the Court of Appeals in C.A. CV No. 34476 is AFFIRMED. SO ORDERED. DECISION REYES, R.T., J.: THE law looks forward, never backward. Lex prospicit, non respicit. A new law has a prospective, not retroactive, effect.[1] However, penal laws that favor a guilty person, who is not a habitual criminal, shall be given retroactive effect.1-a These are the rule, the exception and exception to the exception on effectivity of laws. Ang batas ay tumitingin sa hinaharap, hindi sa nakaraan. Gayunpaman, ang parusa ng bagong batas ay iiral kung ito ay pabor sa taong nagkasala na hindi pusakal na kriminal. We apply the exception rather than the rule in this petition for review on certiorari of the decision of the Court of Appeals (CA), affirming with modification that of the Regional Trial Court (RTC) in Quezon City, finding petitioner liable for illegal possession of a firearm. The Facts On July 10, 1996, at around 9:30 a.m., SPO2 Antonio M. Disuanco of the Criminal Investigation Division, Central Police District Command, received a dispatch order[2] from the desk officer.[3] The order directed him and three (3) other policemen to serve a warrant of arrest[4] issued by Judge Ignacio Salvador against petitioner Sr. Insp. Jerry C. Valeroso in a case for kidnapping with ransom.[5] After a briefing, the team conducted the necessary surveillance on petitioner, checking his hideouts in Cavite, Caloocan, and Bulacan.[6] Eventually, the team proceeded to the Integrated National Police (INP) Central Station at Culiat, Quezon City, where they saw petitioner as he was about to board a tricycle.[7] SPO2 Disuanco and his team approached petitioner.[8] They put him under arrest, informed him of his constitutional rights, and bodily searched him.[9] Found tucked in his waist[10] was a Charter Arms, bearing Serial Number 52315[11] with five (5) live ammunition.[12] Petitioner was then brought to the police station for questioning.[13] A verification of the subject firearm at the Firearms and Explosives Division at Camp Crame revealed that it was not issued to petitioner but to a certain Raul Palencia Salvatierra of Sampaloc, Manila.[14] Epifanio Deriquito, the records verifier, presented a certification[15] to that effect signed by Edwin C. Roque, chief records officer of the Firearms and Explosive Division.[16] Petitioner was then charged with illegal possession of firearm and ammunition under Presidential Decree (P.D.) No. 1866,[17] as amended. The Information read: That on or about the 10th day of July, 1996, in Quezon City, Philippines, the said accused without any authority of law, did then and there willfully, unlawfully and knowingly have in his/her possession and under his/her custody and control One (1) cal. 38 Charter Arms revolver bearing Serial No. 52315 with five (5) live ammo. without first having secured the necessary license/permit issued by the proper authorities. CONTRARY TO LAW. Quezon City, Philippines, July 15, 1996. (Sgd.) GLORIA VICTORIA C. YAP Assistant City Prosecutor[18] With the assistance of his counsel de parte, Atty. Oscar Pagulayan, petitioner pleaded not guilty when arraigned on October 9, 1996.[19] Trial on the merits ensued. SPO2 Disuanco and Deriquito testified for the prosecution in the manner stated above. Upon the other hand, the defense version was supplied by the combined testimonies of petitioner Sr. Insp. Jerry C. Valeroso, SPO3 Agustin R. Timbol, Jr. and Adrian Yuson. Petitioner recounted that on July 10, 1996, he was fast asleep in the boarding house of his children located at Sagana Homes, Barangay New Era, Quezon City.[20] He was roused from his slumber when four (4) heavily armed men in civilian clothes bolted the room.[21] They trained their guns at him[22] and pulled him out of the room. They then tied his hands and placed him near the faucet.[23] The raiding team went back inside and searched and ransacked the room.[24] SPO2 Disuanco stood guard outside with him.[25] Moments later, an operative came out of the room and exclaimed, Hoy, may nakuha akong baril sa loob![26] Petitioner was told by SPO2 Disuanco that we are authorized to shoot you because theres a shoot to kill order against you, so if you are planning do so something, do it right now.[27] He was also told that there was a standing warrant for his arrest.[28] However, he was not shown any proof when he asked for it.[29] Neither was the raiding group armed with a valid search warrant.[30] According to petitioner, the search done in the boarding house was illegal. The gun seized from him was duly licensed and covered by necessary permits. He was, however, unable to present the documentation relative to the firearm because it was confiscated by the police. Petitioner further lamented that when he was incarcerated, he was not allowed to engage the services of a counsel. Neither was he allowed to see or talk to his family.[31]

WEEK THREE Rule 130, Sec. 1-8

[G.R. No. 164815, February 22, 2008] SR. INSP. JERRY C. VALEROSO, Petitioner, vs. THE PEOPLE OF THE PHILIPPINES, Respondent.

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Petitioner contended that the police had an axe to grind against him. While still with the Narcotics Command, he turned down a request of Col. Romulo Sales to white-wash a drug-related investigation involving friends of the said police officer. Col. Sales was likewise subject of a complaint filed with the Ombudsman by his wife. Col. Sales was later on appointed as the head of the unit that conducted the search in his boarding house.[32] SPO3 Timbol, Jr. of the Narcotics Command testified that he issued to petitioner a Memorandum Receipt dated July 1, 1993[33] covering the subject firearm and its ammunition. This was upon the verbal instruction of Col. Angelito Moreno. SPO3 Timbol identified his signature[34] on the said receipt.[35] Adrian Yuson, an occupant of the room adjacent to where petitioner was arrested, testified that on July 10, 1996, two (2) policemen suddenly entered his room as he was preparing for school.[36] They grabbed his shoulder and led him out.[37] During all those times, a gun was poked at him.[38] He was asked where petitioner was staying. Fearing for his life, he pointed to petitioners room.[39] Four (4) policemen then entered the room.[40] He witnessed how they pointed a gun at petitioner, who was clad only in his underwear.[41] He also witnessed how they forcibly brought petitioner out of his room.[42] While a policeman remained near the faucet to guard petitioner, three (3) others went back inside the room.[43] They began searching the whole place. They forcibly opened his locker,[44] which yielded the subject firearm.[45] RTC and CA Dispositions On May 6, 1998, the trial court found petitioner guilty as charged, disposing as follows: WHEREFORE, the Court hereby finds the accused guilty beyond reasonable doubt of Violation of Section 1 of Presidential Decree No. 1866 as amended by Republic Act No. 8294 and hereby sentences him to suffer the penalty of prision correccional in its maximum period or from 4 years, 2 months and 1 day as minimum to 6 years as maximum and to pay the fine in the amount of Fifteen Thousand Pesos (P15,000.00). The gun subject of this case is hereby ordered confiscated in favor of the government. Let the same be put in trust in the hands of the Chief of the PNP. SO ORDERED.[46] Petitioner moved to reconsider[47] but his motion was denied on August 27, 1998.[48] He appealed to the CA. On May 4, 2004, the appellate court affirmed with modification the RTC disposition. The fallo of the CA decision reads: Verily, the penalty imposed by the trial court upon the accusedappellant is modified to 4 years and 2 months as minimum up to 6 years as maximum. WHEREFORE, with the foregoing MODIFICATION as to the penalty, the decision appealed from is hereby AFFIRMED in all other respects. SO ORDERED.[49] His motion for reconsideration[50] having been denied through a Resolution dated August 3, 2004,[51] petitioner resorted to the present petition under Rule 45. Issues Petitioner raises the following issues for Our consideration: Raul Palencia Salvatierra of Sampaloc, Manila.[57] As proof, Deriquito presented a certification signed by Roque, the chief records officer of the same office.[58] The Court on several occasions ruled that either the testimony of a representative of, or a certification from, the Philippine National Police (PNP) Firearms and Explosive Office attesting that a person is not a licensee of any firearm would suffice to prove beyond reasonable doubt the second element of possession of illegal firearms.[59] The prosecution more than complied when it presented both. The certification is outside the scope of the hearsay rule. The general rule is that a witness can testify only to those facts which he knows of his personal knowledge; that is, which are derived from his own perception.[60] Otherwise, the testimony is objectionable for being hearsay.[61] On this score, the certification from the Firearms and Explosives Division is an exception to the hearsay rule by virtue of Rule 130, Section 44 of the Rules of Court which provides: Sec. 44. Entries in official records. Entries in official records made in the performance of his official duty by a public officer of the Philippines, or by a person in the performance of a duty specifically enjoined by law, are prima facie evidence of the facts therein stated. It may be true that the contents of said certification are only prima facie evidence of the facts stated there. However, the failure of petitioner to present controverting evidence makes the presumption unrebutted. Thus, the presumption stands. Petitioner, however, raises several points which he says entitles him to no less than an acquittal. The assessment of credibility of witnesses lies with the trial court. First, petitioner says that the seizure of the subject firearm was invalid. The search was conducted after his arrest and after he was taken out of the room he was occupying.[62] This contention deserves scant consideration. Petitioners version of the manner and place of his arrest goes into the factual findings made by the trial court and its calibration of the credibility of witnesses. However, as aptly put by Justice Ynares-Santiago in People v. Rivera:[63] x x x the manner of assigning values to declarations of witnesses on the witness stand is best and most competently performed by the trial judge who had the unmatched opportunity to observe the witnesses and assess their credibility by the various indicia available but not reflected on record. The demeanor of the person on the stand can draw the line between fact and fancy or evince if

I.

THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERRORS OF LAW IN AFFIRMING THE CONVICTION OF PETITIONER DESPITE THE ABSENCE OF PROOF BEYOND REASONABLE DOUBT. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERRORS OF FACT AND LAW IN SUSTAINING THE LEGALITY OF THE SEARCH AND THE VALIDITY AND ADMISSIBILITY OF THE EVIDENCE OBTAINED THEREFROM DESPITE THE OVERWHELMING PROOF THAT THE SAME IS THE FRUIT OF THE POISONOUS TREE. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERRORS OF LAW IN NOT UPHOLDING THE REGULARITY AND VALIDITY SURROUNDING THE ISSUANCE OF THE MEMORANDUM RECEIPTS (SIC) IN FAVOR OF PETITIONER WHICH PROVES HIS INNOCENCE OF THE CRIME CHARGE (SIC).[52] (Underscoring supplied) Our Ruling

II.

III.

In illegal possession of firearm and ammunition, the prosecution has the burden of proving the twin elements of (1) the existence of the subject firearm and ammunition, and (2) the fact that the accused who possessed or owned the same does not have the corresponding license for it.[53] The prosecution was able to discharge its burden. The existence of the subject firearm and its ammunition was established through the testimony of SPO2 Disuanco.[54] Defense witness Yuson also identified the firearm.[55] Its existence was likewise admitted by no less than petitioner himself.[56] As for petitioners lack of authority to possess the firearm, Deriquito testified that a verification of the Charter Arms Caliber . 38 bearing Serial No. 52315 with the Firearms and Explosives Division at Camp Crame revealed that the seized pistol was not issued to petitioner. It was registered in the name of a certain

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the witness is telling the truth or lying through his teeth. We have consistently ruled that when the question arises as to which of the conflicting versions of the prosecution and the defense is worthy of belief, the assessment of the trial courts are generally viewed as correct and entitled to great weight. Furthermore, in an appeal, where the culpability or innocence of the accused depends on the issue of credibility of witnesses and the veracity of their testimonies, findings of the trial court are given the highest degree of respect if not finality.[64] (Underscoring supplied) The trial court found the prosecution version worthy of credence and belief. We find no compelling reason not to accept its observation on this score. Worth noting is the fact that petitioner is a ranking police officer who not only claims to be highly decorated,[65] but have effected a number of successful arrests[66] as well. Common sense would dictate that he must necessarily be authorized to carry a gun. We thus agree with the Office of the Solicitor General that framing up petitioner would have been a very risky proposition. Had the arresting officers really intended to cause the damnation of petitioner by framing him up, they could have easily planted a more incriminating evidence rather than a gun. That would have made their nefarious scheme easier, assuming that there indeed was one. The pieces of evidence show that petitioner is not legally authorized to possess the subject firearm and its five (5) ammunition. Second, petitioner insists that he is legally authorized to possess the subject firearm and its ammunition on the basis of the Memorandum Receipt issued to him by the PNP Narcotics Command.[67] Although petitioner is correct in his submission that public officers like policemen are accorded presumption of regularity in the performance of their official duties,[68] it is only a presumption; it may be overthrown by evidence to the contrary. The prosecution was able to rebut the presumption when it proved that the issuance to petitioner of the Memorandum Receipt was anything but regular. SPO3 Timbol, Jr. testified that he issued the Memorandum Receipt to petitioner based on the verbal instruction of his immediate superior, Col. Moreno.[69] However, a reading of Timbols testimony on cross-examination[70] would reveal that there was an unusual facility by which said receipt was issued to petitioner. Its issuance utterly lacked the usual necessary bureaucratic constraints. Clearly, it was issued to petitioner under questionable circumstances. Failure to offer an unlicensed firearm as evidence is not fatal provided there is competent testimony as to its existence. Third, petitioner claims that the subject firearm and ammunition should have been excluded as evidence because they were not formally offered by the prosecution[71] in violation of Section 34, Rule 132 of the Rules of Court.[72] We note that petitioner contradicted himself when he argued for the validity of the Memorandum Receipt and, at the same time, for the exclusion in evidence of the subject firearm and its ammunition. Petitioners act may result to an absurd situation where the Memorandum Receipt is declared valid, while the subject firearm and its ammunition which are supposedly covered by the Memorandum Receipt are excluded as evidence. That would have made the Memorandum Receipt useless. In any case, petitioners contention has no leg to stand on. Contrary to petitioners claim, the subject firearm[73] and its five (5) live ammunition[74] were offered in evidence by the prosecution.[75] Even assuming arguendo that they were not offered, petitioners stance must still fail. The existence of an unlicensed firearm may be established by testimony, even without its presentation at trial. In People v. Orehuela,[76] the non-presentation of the pistol did not prevent the conviction of the accused. The doctrine was affirmed in the recent case of People v. Malinao.[77] As previously stated, the existence of the subject firearm and its five (5) live ammunition were established through the testimony of SPO2 Disuanco.[78] Yuson also identified said firearm.[79] Petitioner even admitted its existence.[80] We hasten to add that there may also be conviction where an unlicensed firearm is presented during trial but through inadvertence, negligence, or fortuitous event (for example, if it is lost), it is not offered in evidence, as long as there is competent testimony as to its existence. Penal and civil liabilities Petitioner was charged with the crime of illegal possession of firearms and ammunition under the first paragraph of Section 1 of P.D. No. 1866, as amended. It provides that [t]he penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any firearm, part of firearm, ammunition or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition. P.D. No. 1866, as amended, was the governing law at the time petitioner committed the offense on July 10, 1996. However, R.A. No. 8294 amended P.D. No. 1866 on July 6, 1997,[81] during the pendency of the case with the trial court. The present law now states: SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. The penalty of prision correccional in its maximum period and a fine of not less than Fifteen Thousand Pesos (P15,000) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any lowpowered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crime was committed. (Underscoring supplied) As a general rule, penal laws should not have retroactive application, lest they acquire the character of an ex post facto law. [82] An exception to this rule, however, is when the law is advantageous to the accused. According to Mr. Chief Justice Araullo, this is not as a right of the offender, but founded on the very principles on which the right of the State to punish and the commination of the penalty are based, and regards it not as an exception based on political considerations, but as a rule founded on principles of strict justice.[83] Although an additional fine of P15,000.00 is imposed by R.A. No. 8294, the same is still advantageous to the accused, considering that the imprisonment is lowered to prision correccional in its maximum period[84] from reclusion temporal in its maximum period to reclusion perpetua[85] under P.D. No. 1866. Applying the Indeterminate Sentence Law, prision correccional maximum which ranges from four (4) years, two (2) months and one (1) day to six (6) years, is the prescribed penalty and will form the maximum term of the indeterminate sentence. The minimum term shall be one degree lower, which is prision correccional in its medium period (two [2] years, four [4] months and one [1] day to four [4] years and two [2] months).[86] Hence, the penalty imposed by the CA is correct. The penalty of four (4) years and two (2) months of prision correccional medium, as minimum term, to six (6) years of prision correccional maximum, as maximum term, is in consonance with the Courts ruling in Gonzales v. Court of Appeals[87] and Barredo v. Vinarao.[88] As to the subject firearm and its five (5) live ammunition, their proper disposition should be made under Article 45 of the Revised Penal Code[89] which provides, among others, that the proceeds and instruments or tools of the crime shall be confiscated and forfeited in favor of the government. WHEREFORE, the Decision of the Court of Appeals dated May 4, 2004 is AFFIRMED in full. SO ORDERED. G.R. No. 180870

January 22, 2010

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JULIUS CACAO y PRIETO, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION DEL CASTILLO, J.: In order to safeguard its citizenry from the harmful effects of dangerous drugs on their physical and mental well-being, the State pursued an intensive and unrelenting campaign against the trafficking and use of dangerous drugs and other similar substances.1 However, in our desire to totally eradicate this social ill, we must adhere to the constitutional pronouncement that in all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved.2 This case illustrates once more our faithful adherence to said constitutional requirement. Factual Antecedents For review is the Decision3 of the Court of Appeals (CA) in CAG.R. CR No. 29985 dated July 27, 2007 affirming in toto the Decision4 of the Regional Trial Court (RTC) of Laoag City, Branch 13 in Criminal Case No. 11489-13 dated November 25, 2005 finding herein petitioner Julius Cacao y Prieto (Cacao) guilty beyond reasonable doubt of violating Section 11, Article II of Republic Act (RA) No. 9165 (The Comprehensive Dangerous Drugs Act of 2002) and sentencing him to suffer the penalty of imprisonment ranging from 12 years and one day to 15 years and ordering him to pay a fine of P400,000.00. Also assailed is the Resolution5 of the CA dated December 11, 2007 denying the motion for reconsideration. On October 15, 2004, two separate informations were filed against Joseph Canlas y Naguit6 and Cacao7 indicting them for violation of Section 11, Article II of RA 9165 before the RTC of Laoag City. Insofar as pertinent to this petition, we shall quote the information only against Cacao in Criminal Case No. 11489-13 which reads: That on or about the 14th day of October, 2004, at Laoag City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously [sic] have in his possession, control and custody 1 plastic sachet of methamphetamine hydrochloride or shabu containing a total of 1.6 grams including plastic sachets [sic] without any license or authority, in violation of the aforesaid law. CONTRARY TO LAW.8 When arraigned on November 30, 2004, Cacao pleaded not guilty.9 Thereafter trial on the merits followed. The inculpatory facts, as unveiled by the prosecution in its evidence given during the trial, were briefly synthesized by the Office of the Solicitor General, viz: On October 14, 2004, at around 7:45 in the evening, Police Officer 3 (PO3) Celso Pang-ag of the Intelligence and Operation Section of the Laoag City Police Station received a telephone call from an informant about a drug session being held inside Room 5 of the Starlight Hotel located at Barangay 5, Ablan Avenue, Laoag City. Acting on the information, PO3 Pang-ag, together with PO2 Jonel Mangapit, went immediately to the Starlight Hotel to determine the veracity of the report. Upon arrival at the target area, PO3 Pangag and PO2 Mangapit approached the lady clerk manning the information counter of Starlight Hotel and inquired about the alleged drug session at Room 5 of the hotel. The lady clerk informed PO3 Pang-ag and PO2 Mangapit that the roomboy of the hotel was about to deliver a softdrink to Room 5 and they could follow him if they [so wish]. Thus, PO3 Pang-ag and PO2 Mangapit followed the roomboy to Room 5. Upon arrival, the roomboy knocked at the door and a woman, later identified as Mylene, opened the door wide enough to enable the police officers to look inside. PO3 Pang-ag and PO2 Mangapit saw petitioner seated on top of the bed sniffing "shabu" while Joseph Canlas was on the floor assisting petitioner sniffing "shabu". At this juncture, PO3 Pang-ag and PO2 Mangapit arrested petitioner and Joseph and confiscated from them the drug paraphernalia, glass tooter, scissors, lighters and plastic sachets. PO2 Mangapit frisked petitioner and recovered from him one plastic sachet containing "shabu". After informing petitioner and Joseph of their constitutional rights, PO3 Pang-ag and PO2 Mangapit brought them to the Laoag City Police Station and turned them over to the police officer on duty while the confiscated items were turned over to SPO3 Loreto Ancheta. The Philippine National Police (PNP) laboratory conducted an examination on the specimen recovered from appellant and his companion which tested positive for "shabu".10 Cacao professed his innocence and presented his defense in this wise: In the afternoon of 14 October 2004, petitioner was waiting for a ride going home along the National Road at the rotunda of San Nicolas, Ilocos Norte. Joseph Canlas [who was on his way to] Laoag City aboard his motorcycle x x x pulled over and asked the petitioner if the latter could spare a moment to estimate a work he wanted to be done in his house. Admittedly, the petitioner is a contractor. Petitioner agreed and they both boarded Canlas motorcycle for Laoag City. While in Laoag City, petitioner and Canlas stopped at the public market for the latter to collect [loan payment] as he is also a money lender. Petitioner stayed [by] Canlas motorcycle. When Canlas returned, it was then that they decided to have "chicks" (or womanize). They then proceeded to Starlight Hotel located along Ablan Ave., Laoag City on board Canlas motorcycle. x x x at the Starlight Hotel, petitioner asked for a room and [was given] Room 5 x x x. Thereafter, Canlas stayed inside Room 5 while petitioner went out to the hotels counter to wait for the woman they [had] contacted. Present at the counter at the time was the lady cashier [named] Cherry Corpuz. In about thirty (30) minutes, a tricycle-for-hire arrived with a man and a woman on board as passengers. The tricycle went inside the hotel and stopped right in front of the counter where the petitioner and the lady cashier were. After alighting from the tricycle, the woman companion inquired where Room 5 is [and was directed] by the lady cashier. The woman [who] alighted from the tricycle in the company of another male person was later on identified to be Mylene Daquioag. Thereafter, Mylene Daquioag proceeded to Room 5 while the male companion stayed behind with the petitioner at the hotels counter. When petitioner could not wait [any] longer because there was only one woman who arrived, he x x x asked the male companion of Mylene Daquioag if another woman is coming. The male companion answered in the negative. A couple of minutes [later], petitioner followed to Room 5 so he could [sic] go home instead because it was then getting late. Upon entering the room, petitioner saw Mylene Daquioag and Canlas seated at the table inside the room. He also saw Mylene Daquioag offer something contained in plastic x x x to Canlas. The latter refused as he said it is a woman that he was asking [for]. Barely a moment after entering Room 5, the two then heard a knock on the door from the outside. Mylene Daquiaog immediately stood up and told the petitioner and Canlas that "they are (her) companions". As soon as the door was unlocked by Mylene Daquioag, several policemen barged inside the room with their guns drawn out. Petitioner was shoved to the bed by one of the police. He was later bodily searched but nothing was found from [sic] him except his wallet containing cash of about P 7,000.00. The wallet was later turned over to the petitioners wife at the Police Station of Laoag, City. The P7,000.00 was never seen again. As petitioner was made to sit at [sic] the bed, one of the police officers pointed to a plastic sachet on the floor. It was about two (2) meters away from him and about a meter from the police pointing [to] it. The same police then explained that the plastic sachet belongs to the petitioner. Immediately, petitioner cried foul on the assertion. Due to the suddenness of events, the petitioner was not as much as able to notice what the other police did to Canlas.1avvphi1 Without much ado, the petitioner and Canlas were apprehended, handcuffed and brought to the Laoag City Police Station. Charges were later on filed against them.11 Ruling of the Regional Trial Court On November 25, 2005, the trial court rendered its judgment finding Cacao guilty of the offense charged and sentenced him accordingly, viz: WHEREFORE x x x The accused Julius Cacao is likewise found GUILTY beyond reasonable doubt as charged of illegal possession of methamphetamine hydrochloride weighing 1.3987 grams in Criminal Case No. 11489 and is therefore sentenced to suffer the indeterminate penalty of imprisonment from TWELVE (12) YEARS and ONE (1) DAY to FIFTEEN (15) YEARS and to pay the fine of Four hundred thousand (P400,000.00) pesos, Philippine Currency. The sachets of shabu confiscated from the accused are all confiscated in favor of the Government, the same to be disposed as the law prescribes. Cost de oficio. SO ORDERED.12 Ruling of the Court of Appeals Aggrieved by the Decision of the trial court, Cacao interposed an appeal to the CA. On July 27, 2007, the appellate court rendered

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judgment affirming Cacaos conviction. It held that the circumstances obtaining in this case validly cloaked the arresting officers with the authority to search and seize any contraband or prohibited material which may be used as proof of the offense of which Cacao is charged. It also ruled that there is no proof that the police officers compelled Cacao to admit a crime. As to the alleged contradictory statements, the appellate court ruled that they refer only to minor details which are not sufficient to overthrow the probative value accorded them by the trial court. Petitioner moved for reconsideration13 but the motion was denied by the appellate court in its Resolution14 dated on December 11, 2007. Issues In this petition, Cacao ascribes to the trial court the following errors: I. The lower court gravely erred in ruling that the guilt of the accused was proven beyond reasonable doubt considering the myriad material inconsistencies, discrepancies, and incredible statements in the prosecution evidence.15 II. The lower court gravely erred in failing to lend credence to the critical testimony of Benedict Villanueva.16 III. The lower court erred in not finding that the crucial first link in the chain of custody of the specimen subjected for examination was not proven.17 IV. The lower court gravely erred in declaring that the defense of frame-up cannot be given weight.18 V. The lower court gravely erred in relying on the weakness of the defense.19 VI. The lower court gravely erred in failing to find that the presumption of innocence of the petitioner stands unrebutted, hence, his conviction is erroneous.20 Our Ruling We find merit in the petition. As a general rule, factual findings and conclusions of the trial court and the CA are entitled to great weight and respect and will not be disturbed on appeal. However, if there is any indication that the trial court overlooked certain facts or circumstances which would substantially affect the disposition of the case,21 we will not hesitate to review the same. In this case, we find it imperative to review the factual findings of the trial court because of certain inconsistencies in the testimonies of the prosecution witnesses on material points. Jurisprudence holds that in prosecution of cases involving illegal possession of prohibited drugs, the prosecution must establish with moral certainty the elemental act of possession of a prohibited substance coupled with the fact that such possession is not authorized by law. Essential, however, in a drug-related case is that the identity of the dangerous drug be established beyond reasonable doubt.22 Since the dangerous drug constitutes the corpus delicti of the offense and the fact of its existence is vital to a judgment of conviction,23 it behooves upon the prosecution to establish and prove with certainty that the dangerous drug presented in court as evidence against the accused is the same item recovered from his possession. We have scrutinized in detail the testimonies of the prosecution witnesses and found not only glaring inconsistencies on material points but more importantly a failure to identify indubitably the prohibited drug allegedly confiscated from Cacao. The testimonies of the prosecutions principal witnesses are inconsistent as to who delivered the prohibited drug to the evidence custodian. PO3 Celso Pang-ag (Pang-ag) and PO2 Jonel Mangapit (Mangapit) both testified that it was the latter who brought the item confiscated from petitioner to the evidence custodian, SPO3 Loreto Ancheta (Ancheta). Thus: Q: What about the two plastic sachets you confiscated from the possession of the accused Joseph and the one plastic sachet which Jonel Mangapit confiscated from the possession of Julius Cacao as well as the drug paraphernalia you mentioned, what did you do with them? A: We turned over the confiscated drug paraphernalia and the one I confiscated to the evidence custodian, SP03 Loreto Ancheta and the one confiscated by P02 Mangapit was also turned over by him to the evidence custodian, sir. Q: Who was the evidence custodian whom you and Jonel Mangapit turned over the items you said? A: SPO3 Loreto Ancheta, Sir.24 Mangapit corroborated Pang-ags testimony that it was he who delivered to Ancheta the item he seized from Cacao. Thus: Q: How about the one big plastic sachet you were able to seize from the right front pocket of accused Cacao, what did you do? A: I turned it over to the evidence custodian, Sir. Q: Who was that evidence custodian to whom you turned over that plastic sachet? A: SP02 Loreto Ancheta, Sir.25 The foregoing assertions are totally at odds with the testimony of Ancheta, the evidence custodian. The latter denied that it was Mangapit who delivered the item allegedly recovered from Cacao. Instead, he repeatedly and categorically declared that it was SP03 Balolong (Balolong) from whom he received the plastic sachet of shabu. Q: Who delivered to you the specimen allegedly confiscated from the possession of Cacao? A: SP03 Balolong, Sir.26 During his cross-examination, Ancheta confirmed his declaration that it was Balolong and definitely not Mangapit who handed to him the plastic sachet of shabu. Ancheta testified thus: Q: You said that it was officer Balolong who handed to you the plastic sachet of shabu which was allegedly taken from the possession of accused Julius Cacao, did I hear you right? A: Julius Cacao, yes sir. Q: It was not officer Mangapit who handed to you the plastic sachet of shabu? A: Balolong, sir. Q: It was not Mangapit? A: No sir.27 When confronted with the afore-quoted testimony of Ancheta, Mangapit cannot explain the variance. He just gave a sweeping answer "I do not know".28 We cannot understand why the courts below did not doubt or suspect the patently inconsistent and contradictory testimonies of the principal witnesses of the prosecution. Contrary to the findings of the appellate court, we are of the considered view that this contradiction is not so inconsequential or minor but a discrepancy touching on substantial and significant matter which could well affect the credibility of the witnesses. The prosecution failed to satisfactorily establish that the item presented in court was the same item confiscated from Cacao. The patent inconsistency between the testimonies of Mangapit and Pang-ag, on one hand, and the testimony of Ancheta on the other hand, necessarily leads us to doubt that the plastic sachet of shabu identified in court is the same item that was allegedly seized and confiscated from petitioner. If the version of Mangapit is to be believed, then the most lamentable aspect pertains to his failure to identify the seized item with certainty. For sure Mangapit, who is the most competent person to make the proper identification being the officer who confiscated the item from Cacao, never actually identified the same: Q: If shown to you again that one big plastic sachet where you put markings would you be able to recognize and identify the same? A: Yes, sir. Q: Giving to you an already opened brown envelope with several contents, will you please sort out [the] contents and bring out that big plastic sachet you claimed you confiscated from the custody of accused Cacao? A: (Witness sorting out the contents of the plastic bag containing several items). (Witness examining the plastic sachet mounted on the bond paper marked as Exhibit B-1). Q: Are the markings you claimed which were placed in the plastic sachet still visible and readable? A: Yes, sir. Q: Will you please read for record purposes the markings? A: Initial JPC and my signature, sir. (Witness pointing to the initials and signature written on a darker masking tape on the plastic sachet).29 Verily, there was no actual and effective identification of the subject specimen. After sorting out the contents of the plastic bag, witness Mangapit merely pointed to the initial and signature written on a masking tape attached to the plastic sachet. At no instance did he make a categorical and accurate declaration that the sachet contained the shabu allegedly confiscated from Cacao. The only other person who could have identified the subject drug is Pang-ag. However, we cannot lend credence to his supposed identification, the same not being also positive, certain and

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unequivocal. Besides, there is no showing that this witness actually saw the shabu at the time it was allegedly seized from petitioner. In fact, Pang-ag is even incompetent to make the identification since from all indications, he has never been in possession of it.1avvphi1 Be that as it may, any identification made by these witnesses on the item allegedly seized from petitioner is rendered meaningless and bereft of probative value in view of the categorical denial of the evidence custodian that he received the same from Mangapit. It is now clearly evident from the records that the sachet of shabu which the evidence custodian received, marked and submitted for examination and later presented in court is not the same sachet of shabu which Mangapit claimed to have confiscated from petitioner and subsequently transmitted to the evidence custodian. Moreover, considering the testimony of Ancheta, it was Balolong who forwarded the seized item. It is quite strange that Ancheta would point to Balolong as the sender of the seized items if he had no basis in saying so. However, our own scrutiny of the records failed to show the role of Balolong in the operation since admittedly, the only lawmen who participated therein were Mangapit and Pang-ag. In fact, as testified to by Mangapit, Balolong proceeded to the hotel after the operation.30 How then was Balolong able to get hold of the confiscated substance when he was neither a party to nor present during the operation? Who entrusted the substance to him assuming that somebody requested him to submit it for safekeeping? These are only some of the lingering questions which must be answered convincingly and satisfactorily so as to ensure that there had been no substitution, contamination or tampering with the sachet of shabu allegedly taken from petitioner. It must be noted that Balolong was never presented to testify in this case. Thus, there is no evidence to prove that what was turned over to the evidence custodian by Balolong and later presented in court was the same substance recovered from petitioner. The failure to establish the chain of custody is fatal to the prosecutions case. There can be no crime of illegal possession of a prohibited drug when nagging doubts persist on whether the item confiscated was the same specimen examined and established to be the prohibited drug.31 In People v. Casimiro,32 citing People v. Mapa,33 we acquitted the accused for failure of the prosecution to establish the identity of the prohibited drug which constitutes the corpus delicti. Equally true in Zarraga v. People,34 we also acquitted the accused in view of the prosecutions failure to indubitably show the identity of the shabu. At this juncture, it must be stressed that the "corpus delicti in dangerous drugs cases constitutes the drug itself. This means that proof beyond reasonable doubt of the identity of the prohibited drug is essential".35 Likewise, our ruling in People v. Gutierrez36 on chain of custody rule is instructive. Thus: As a mode of authenticating evidence, the chain of custody rule requires the presentation of the seized prohibited drugs as an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. This would ideally cover the testimony about every link in the chain, from seizure of the prohibited drug up to the time it is offered in evidence, in such a way that everyone who touched the exhibit would describe how and from whom it was received, to include, as much as possible, a description of the condition in which it was delivered to the next in the chain. Finally, petitioners defenses of denial and frame-up are concededly inherently weak and commonly used in drug-related cases. However, it must be stressed that conviction of the accused must rest not on the weakness of the defense but on the strength of the evidence of the prosecution. Based on the foregoing, we are of the considered view that the quantum of evidence needed to convict, that is proof beyond reasonable doubt, has not been adequately established by the prosecution. While as a rule we desist from disturbing the findings and conclusions of the trial court especially with respect to the credibility of witnesses, we must bow to the superior and immutable rule that the guilt of the accused must be proved beyond reasonable doubt because the law presumes that the accused is innocent unless and until proven otherwise. Presumption of regularity in the performance of official duty cannot by itself override the constitutional right of the accused to be presumed innocent unless overcome by strong, clear and compelling evidence. WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals in CA-G.R. CR No. 29985 dated July 27, 2007 affirming in toto the Decision of the Regional Trial Court of Laoag City, Branch 13, in Criminal Case No. 11489-13, and its Resolution dated December 11, 2007 denying the motion for reconsideration, are REVERSED and SET ASIDE. Petitioner Julius Cacao y Prieto is ACQUITTED on ground of reasonable doubt. SO ORDERED. RONALD CARINO and ROSANA G.R. No. 178757 ANDES, Petitioners, Present: QUISUMBING, J., DECISION TINGA, J.: In this petition for review on certiorari, petitioners Ronald Carino and Rosana Andes assail the Decision of the Court of Appeals in CA-G.R. CR No. 29867 dated 13 March 2007, which affirmed the joint decision of the Regional Trial Court of Quezon City, Branch 103, finding petitioners Ronald Carino and Rosana Andes guilty beyond reasonable doubt of illegal possession of methamphetamine hydrochloride, a dangerous drug locally known as shabu. Petitioners Carino and Andes were apprehended on two separate but related incidents on 20 June 2003 at the corner of G. Araneta and E. Rodriguez Avenues in Quezon City. The apprehending officers were allegedly members of the Central Police District (CPD)-Galas Police Station 11 and were part of the eight-man team that was dispatched by the police district authorities to conduct the Oplan Sitaan operation which had for its object the suppression of rampant robbery in the vicinity. It was in the course of this operation that both petitioners were arrested without a warrant for allegedly having in their possession plastic sachets containing shabu. After the arrest and investigation, petitioners were charged in two separate informations with violation of Section 11, Article II of Republic Act No. 9165 (R.A. No. 9165). Both of them entered a negative plea on arraignment. The cases were thereafter jointly tried. The prosecution offered the testimony of PO1 Joseph Tayaban (Tayaban) and PO1 Arnold Eugenio (Eugenio) to prove the charges against petitioners. Tayaban and Eugenio professed that they were the ones who arrested both petitioners.

Tayaban testified that the members of Oplan Sita, on 20 June 2003, had started patrolling the area of coverage as early as 9:00 oclock in the morning of that day. At around 2:00 oclock in the afternoon, his colleague, Eugenio, spotted Carino, about a - versus meter away from their location and holding a plastic sachet in his VELASCO, JR., and hand. Right there and then, they placed Carino under arrest and Eugenio immediately seized the plastic sachet. They asked Carino who the source of the plastic sachet was and the latter immediately identified petitioner Andes. They approached Andes, and she allegedly became hysterical when the policemen introduced themselves to her. It was then that Tayaban noticed the woman inserting something inside the pocket of her 5-year old male child. Tayaban was suspicious so he inspected the right PEOPLE OF THE PHILIPPINES, Promulgated: pocket of the child and found a plastic sachet inside it containing Respondent. shabu. Petitioners were immediately brought to the Galas Police March 13, 2009 Station. The plastic sachets were allegedly submitted to the desk officer and then to the station investigator who in the presence of x----------------------------------------------------------------------------------x Tayaban marked each of the specimens with the initials JT-RA Chairperson, CARPIO MORALES, TINGA,

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and AE-RC. The markings purportedly represented the initials of Eugenio and Tayaban and the initials of petitioners from whom they were seized. Eugenio corroborated the testimony of Tayaban in its material respects. He admitted that he was the one who grabbed Carino when he noticed that the latter was holding a plastic sachet in his hand. He suspected the sachet to be containing shabu and he immediately told Carino of his offense. At that point Carino allegedly dropped the plastic sachet, so he (Eugenio) picked it up and after examining the same concluded that it indeed contained shabu. He and his companions brought Carino to their team leader just across the street. The latter asked Carino who the source of the shabu was, and he was told that it was a certain woman. Some members of the team, including Tayaban, left Araneta Avenue and went to Banawe Avenue to the place where the woman allegedly could be found, but Eugenio was not able to catch up with them because he received a phone message moments later that the woman had already been arrested. He instead proceeded to the police station for the investigation. The prosecution also submitted the results of the qualitative examination administered on the contents of the two plastic sachets seized from petitioners. The chemistry report signed by Engineer Leonard M. Jabonillo (Jabonillo), chemist and forensic analyst at the CPD Crime Laboratory Office, revealed that the specimens submitted for analysis yielded positive of methamphetamine hydrochloride content. Both petitioners denied the charges. It was revealed during their testimony, however, that they had previously known each other as Carino was employed as a latero at the automobile repair shop owned by Andess kumpare. Carino testified that he was on his way to work when he was arrested along E. Rodriguez Avenue. He was allegedly grabbed by the hand by one of the policemen and asked him to come with them to the police station. He denied having been frisked at any time between his arrest and conveyance to the police station. Quite boldly, he asserted that Tayaban was the source of the plastic sachet allegedly recovered from him as he in fact saw the said officer pull the sachet out of his own pocket at the time the arrest was taking place. At that point, Carino was asked who the source of the drug was, but when he replied that it was not his, one of the officers retorted, Nagmamaang-maangan ka pa. At the police station, he was allegedly mauled by Tayaban because he again denied ownership of the plastic sachet. When he was brought to the prosecutors office for inquest proceedings, Carino continued, the fiscal allegedly told the police, Bakit hindi na lang natin i-further investigation ito? Wala namang ebidensiya sa kanya, suggesting that the police escort including Tayaban and Eugenio did not bring the supposed sachet of shabu seized from petitioners. Petitioner Andes, for her part, narrated that she and her 5year old son were on their way home from the bakeshop when suddenly, Tayaban and a certain police officer Prado approached them and asked her whether she could identify the man inside the police car; that she obliged, so she proceeded to the where the car was parked and seeing petitioner Carino inside with his hands cuffed told the officers that the man was familiar to her because he was an employee at his kumpares shop but she could not place his name; that she was then invited to come to the police station and once there, she saw Carino being frisked and the officers found nothing on him; and that she was also frisked by Tayaban but found nothing on her either. She also claimed that Tayaban and his companions demanded from her and Carino P10,000.00 for their release but they were detained because they could not and did not pay. On 9 December 2005, the trial court rendered its joint decision in these cases finding both petitioners guilty beyond reasonable doubt of the crime of illegal possession of dangerous drugs. It sentenced petitioners to suffer the prison term of twelve years and one day as minimum to thirteen years as maximum as well as to pay the fine of P300,000.00. Petitioners interposed an appeal with the Court of Appeals, but in its 13 March 2007 Decision the appellate court affirmed the findings and conclusions of the trial court. Petitioners moved for reconsideration but the same was denied. In this Petition for Review on Certiorari, petitioners once again bid to establish that their guilt has not been proven beyond reasonable doubt. They capitalize on the alleged inconsistencies in the testimony of police officers Tayaban and Eugenio, as well as on the inadmissibility, for failure to establish the chain of custody, of the drug specimens supposedly seized from them on account of the failure of the forensic chemist who signed the chemistry report to testify in court. The OSG, for its part, advances that the evidence was sufficient to prove the petitioners guilt in this case especially considering that the alleged inconsistencies in the testimonies of the prosecution witnesses in this case can no longer be challenged because they had already been accorded credibility by the trial court. Besides, the OSG points out, petitioners advance no better defense than their self-serving claim of frame-up which must be dismissed in light of the presumption that the police officers involved in their apprehension have regularly performed their duty. As to the claim that the evidence should not be admitted for failure of the forensic chemist to testify, the OSG points out that the parties had already agreed at the pre-trial to dispense with such testimony inasmuch as they had already stipulated that the drug specimens were actually submitted to the laboratory for analysis and that the results thereof were then reduced in written report. The Court grants the petition. To begin with, prosecutions for illegal possession of prohibited drugs necessitates that the elemental act of possession of a prohibited substance be established with moral certainty, together with the fact that the same is not authorized by law. The dangerous drug itself constitutes the very corpus delicti of the offense and the fact of its existence is vital to a judgment of conviction. In these cases, it is therefore essential that the identity of the prohibited drug be established beyond doubt. The mere fact of unauthorized possession will not suffice to create in a reasonable mind the moral certainty required to sustain a finding of guilt. More than just the fact of possession, the fact that the substance illegally possessed in the first place is the same substance offered in court as exhibit must also be established with the same unwavering exactitude as that requisite to make a finding of guilt. The chain of custody requirement performs this function in that it ensures that unnecessary doubts concerning the identity of the evidence are removed. Chain of custody is defined as the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. As a method of authenticating evidence, it requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same. It is from the testimony of every witness who handled the evidence from which a reliable assurance can be derived that the evidence presented in court is one and the same as that seized from the accused. In the case at bar, however, the prosecution evidence is insufficient to provide that assurance, for all the people who made contact with the sachets of shabu allegedly seized from petitioners, only Tayaban and Eugenio were able to testify in court as to the identity of the evidence. The desk officer at the police station to whom the specimens were purportedly surrendered by Tayaban and Eugenio was not even presented in court to observe the identity and uniqueness of the evidence. Even more to the point is the fact that the testimony of the investigator, who had taken custody of the plastic sachets after the same were reported to the desk officer, was likewise not offered in court to directly observe the evidence and admit the specific markings thereon as

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his own. The same is true with respect to Jabonillo, the forensic chemist at the crime laboratory who administered the chemical examination on the specimens and who could have testified on the circumstances under which he received the specimen at the laboratory for analysis and testing, as well as on the conduct of the examination which was administered on the specimen and what he did with it at the time it was in his possession and custody. Aside from that, the prosecution has not in fact reasonably explained why these same witnesses were not able to testify in court. While indeed the OSG claims that the testimony of Jabonillo has already been dispensed with by the parties at the pre-trial stage, there however seems to be not a single hint in the pre-trial order which implies that the parties indeed dispensed with said testimony. In view of these loopholes in the evidence adduced against appellant, it can be reasonably concluded that the prosecution was unable to establish the identity of the dangerous drug and in effect failed to obliterate the hypothesis of petitioners guiltlessness. Be that as it may, while a testimony about a perfect chain is not always the standard because it is almost always impossible to obtain, an unbroken chain of custody becomes indispensable and essential when the item of real evidence is not distinctive and is not readily identifiable, or when its condition at the time of testing or trial is critical, or when a witness has failed to observe its uniqueness. The same standard likewise obtains in case the evidence is susceptible to alteration, tampering, contamination and even substitution and exchange. In other words, the exhibits level of susceptibility to fungibility, alteration or tamperingwithout regard to whether the same is advertent or otherwise notdictates the level of strictness in the application of the chain of custody rule. A unique characteristic of narcotic substances is that they are not readily identifiable as in fact they are subject to scientific analysis to determine their composition and nature. Hence, the risk of tampering, loss or mistake with respect to an exhibit of this nature is greatest when the exhibit is small and is one that has physical characteristics fungible in nature and similar in form to substances familiar to people in their daily lives. The danger, according to Graham v. State, is real. In that case, a substance later analyzed as heroin was excluded from the prosecution evidence because it was previously handled by two police officers prior to examination who, however, did not testify in court on the condition and whereabouts of the exhibit at the time it was in their possession. The court pointed out that the white powder seized could have been indeed heroin or it could have been sugar or baking powder. It ruled that unless the state can show by records or testimony the continuous whereabouts of the exhibit at least between the time it came into the possession of police officers until it was tested in the laboratory to determine its composition, testimony of the state as to the laboratorys findings is inadmissible. Indeed, the Court cannot reluctantly close its eyes to the likelihood, or at least the possibility, that at any of the links in the chain of custody over a narcotic specimen there could have been tampering, alteration or substitution of substances from other casesby accident or otherwisein which similar evidence was seized or in which similar evidence was submitted for laboratory testing. Hence, in authenticating the same, a standard more stringent than that applied to cases involving objects which are readily identifiable must be applied, a more exacting standard that entails a chain of custody of the item with sufficient completeness if only to render it improbable that the original item has either been exchanged with another or been contaminated or tampered with. Our drugs laws in fact establish reasonable safeguards for the protection of the identity and integrity of narcotic substances and dangerous drugs seized and/or recovered from drug offenders. Section 21 of R.A. No. 9165 materially requires the apprehending team having initial custody and control of the drugs to, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice, and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof. The same requirements are also found in Section 21 of its implementing rules as well as in Section 2 of the Dangerous Drugs Board Regulation No. 1 series of 2002. The members of the arresting team in this case, however, do not seem to have complied with these guidelines. The prosecution has not even shown that they had extended reasonable efforts to comply with the statutory requirements in handling the evidence. From the testimonies of Tayaban and Eugenio, it is clear that after the arrest of petitioners they immediately seized the plastic sachets, took custody thereof and brought the same to the police station together with petitioners. It was at the police stationand not at the place where the item was seized from appellantwhere, according to Tayaban and Eugenio, the unnamed police investigator had placed the markings on the specimens. What is more telling is the admission made by Tayaban to the effect that the markings were placed on the plastic sachet in his presence and not in the presence of petitioners as required by law. These flaws in the conduct of the post-seizure custody of the dangerous drug allegedly recovered from petitioners, taken together with the failure of the key persons who handled the same to testify on the whereabouts of the exhibits before they were offered in evidence in court, militate against the prosecutions cause because they not only cast doubt on the identity of the corpus delicti but also tend to negate, if not totally discredit, the claim of regularity in the conduct of official police operation advanced by the OSG. Indeed, we cannot give much weight to the contention that the arresting officers in this case were not trained to apprehend and arrest drug offenders, because as agents of the government in law enforcement they are reasonably presumed to know the laws and the rules they are tasked to enforce. We take this occasion to reiterate, albeit not needlessly, that the presumption of regularity in the performance of official duty must be seen in the context of an existing rule of law or statute authorizing the performance of an act or duty or prescribing a procedure in the performance thereof. The presumption, in other words, obtains only where nothing in the records is suggestive of the fact that the law enforcers involved deviated from the standard conduct of official duty as provided for in the law. But where the official act in question is irregular on its face, an adverse presumption arises as a matter of course. All told, in view of the deviation of the apprehending officers from the mandated conduct of taking post-seizure custody of the dangerous drug in this case, there is no way to presume that the members thereof had performed their duties regularly. And even assuming that we can confidently rely on the credibility of the prosecution witnesses in this case, the evidence would still fall short of satisfying the quantum of evidence required to arrive at a finding of guilt beyond reasonable doubt because the evidence chain failed to conclusively connect petitioners with the seized drugs in a way that would establish that the specimens are one and the same as that seized in the first place and offered in court as evidence. In Mallillin v. People, People v. Obmiranis and People v. Garcia, we declared that the failure of the prosecution to offer the testimony of key witnesses to establish a sufficiently complete chain of custody of a specimen of shabu, and the irregularity which characterized the handling of the evidence before the same was finally offered in court, fatally conflict with every proposition relative to the culpability of the accused. It is this same reason that now moves us to reverse the judgment of conviction in the present case. WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR No. 29867 dated 13 March 2007, affirming the joint decision of the Regional Trial Court of Quezon City, Branch 103 in Criminal Case Nos. Q-03-118301 and Q-03-118302 is REVERSED and SET ASIDE. Petitioners Ronald Carino y Asunzion and Rosana Andes y Nobelo are ACQUITTED on reasonable doubt and are accordingly ordered immediately released from custody unless they are lawfully held for another offense.

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The Director of the Bureau of Corrections is directed to implement this Decision and to report to this Court the action taken hereon within five (5) days from receipt. SO ORDERED. G.R. No. 131516 March 5, 2003 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RONNIE RULLEPA Y GUINTO, accused-appellant. CARPIO MORALES, J.: On complaint of Cyra May Francisco Buenafe, accused-appellant Ronnie Rullepa y Guinto was charged with Rape before the Regional Trial Court (RTC) of Quezon City allegedly committed as follows: That on or about the 17th day of November, 1995, in Quezon City, Philippines, the said accused, by means of force and intimidation, to wit: by then and there willfully, unlawfully and feloniously removing her parity, kissing her lips and vagina and thereafter rubbing his penis and inserting the same to the inner portion of the vagina of the undersigned complainant, 3 years of age, a minor, against her will and without her consent.1 Arraigned on January 15, 1996, accused-appellant pleaded not guilty.2 From the testimonies of its witnesses, namely Cyra May,3 her mother Gloria Francisco Buenafe, Dr. Cristina V. Preyra, and SPO4 Catherine Borda, the prosecution established the following facts: On November 20, 1995, as Gloria was about to set the table for dinner at her house in Quezon City, Cyra May, then only three and a half years old, told her, "Mama, si kuya Ronnie lagay niya titi niya at sinaksak sa puwit at sa bibig ko." "Kuya Ronnie" is accused-appellant Ronnie Rullepa, the Buenafes' house boy, who was sometimes left with Cyra May at home. Gloria asked Cyra May how many times accused-appellant did those things to her, to which she answered many times. Pursuing, Gloria asked Cyra May what else he did to her, and Cyra May indicated the room where accused-appellant slept and pointed at his pillow. As on the night of November 20, 1995 accused-appellant was out with Gloria's husband Col. Buenafe,4 she waited until their arrival at past 11:00 p.m. Gloria then sent accused-appellant out on an errand and informed her husband about their daughter's plaint. Buenafe thereupon talked to Cyra May who repeated what she had earlier told her mother Gloria. When accused-appellant returned, Buenafe and Gloria verified from him whether what Cyra May had told them was true. Ronnie readily admitted doing those things but only once, at 4:00 p.m. of November 17, 1995 or three days earlier. Unable to contain her anger, Gloria slapped accused-appellant several times. Since it was already midnight, the spouses waited until the following morning to bring accused-appellant to Camp Karingal where he admitted the imputations against him, on account of which he was detained. Gloria's sworn statement5 was then taken.6 Recalling what accused-appellant did to her, Cyra May declared at the witness stand: "Sinaksak nya ang titi sa pepe ko, sa puwit ko, at sa bunganga," thus causing her pain and drawing her to cry. She added that accused-appellant did these to her twice in his bedroom. Dr. Ma. Cristina V. Preyra, the Medico-Legal Officer and Chief of the Biological Science Branch of the Philippine National Police Crime Laboratory who examined Cyra May, came up with her report dated November 21, 1995,7 containing the following findings and conclusions: FINDINGS: GENERAL AND EXTRA GENITAL: Fairly developed, fairly nourished and coherent female child subject. Breasts are undeveloped. Abdomen is flat and soft. GENITAL: There is absence of pubic hair. Labia majora are full, convex and coaptated with congested and abraded labia minora presenting in between. On separating the same is disclosed an abraded posterior fourchette and an elastic, fleshy type intact hymen. External vaginal orifice does not admit the tip of the examining index finger. xxx xxx xxx CONCLUSION: Subject is in virgin state physically. There are no external signs of recent application of any form of trauma at the time of examination. (Emphasis supplied.) By Dr. Preyra's explanation, the abrasions on the labia minora could have been caused by friction with an object, perhaps an erect penis. She doubted if riding on a bicycle had caused the injuries.8 The defense's sole witness was accused-appellant, who was 28 and single at the time he took the witness stand on June 9, 1997. He denied having anything to do with the abrasions found in Cyra May's genitalia, and claimed that prior to the alleged incident, he used to be ordered to buy medicine for Cyra May who had difficulty urinating. He further alleged that after he refused to answer Gloria's queries if her husband Buenafe, whom he usually accompanied whenever he went out of the house, was womanizing, Gloria would always find fault in him. He suggested that Gloria was behind the filing of the complaint. Thus: q According to them you caused the abrasions found in her genital? a That is not true, sir, q If that is not true, what is the truth? a As I have mentioned earlier that before I started working with the family I was sent to Crame to buy medicine for the daughter because she had difficulty in urinating. q Did you know why the child has difficulty in urinating? a No, I do not know, sir. q And how about the present complaint filed against you, the complaint filed by the mother of the victim? a I did not do it, sir. q What is the truth, what can you say about this present complaint filed against you? a As I said Mrs. Buenafe got mad at me because after I explained to her that I was going with her gusband (sic) to the children of the husband with a former marriage.9 Finding for the prosecution, Branch 96 of the Quezon City RTC rendered judgment, the dispositive portion of which reads: WHEREFORE, judgment is hereby rendered finding accused RONNIE RULLEPA y GUINTO guilty beyond reasonable doubt of rape, and he is accordingly sentenced to death. The accused is ordered to pay CYRA MAE BUENAFE the amount of P40,000.00 as civil indemnity. Costs to be paid by the accused.10 (Italics in the original.) Hence, this automatic review, accused-appellant assigning the following errors to the trial court: I THE COURT A QUO ERRED IN CONSIDERING AS ADMISSIBLE IN EVIDENCE THE ACCUSEDAPPELLANT'S ADMISSION. II THE COURT A QUO ERRED ON (sic) RULING THAT THE ACCUSED-APPELLANT'S SILENCE DURING TRIAL AMOUNTED TO AN IMPLIED ADMISSION OF GUILT. III THE COURT A QUO ERRED IN FINDING THAT THE GUILT OF THE ACCUSED-APPELLANT FOR THE CRIME CHARGED HAS BEEN PROVEN BEYOND REASONABLE DOUBT. IV THE COURT A QUO GRAVELY ERRED IN IMPOSING THE SUPREME PENALTY OF DEATH UPON THE ACCUSED-APPELLANT.11 (Emphasis supplied.) Accused-appellant assails the crediting by the trial court, as the following portion of its decision shows, of his admission to Gloria of having sexually assaulted Cyra May: In addition, the mother asserted that Rullepa had admitted Cyra Ma[y]'s complaint during the confrontation in the house. Indeed, according to the mother, the admission was even expressly qualified by Rullepa's insistence that he had committed the sexual assault only once, specifying the time thereof as 4:00 pm of November 17, 1995. That qualification proved that the admission was voluntary and true. An uncoerced and truthful admission like this should be absolutely admissible and competent. xxx xxx xxx Remarkably, the admission was not denied by the accused during trial despite his freedom to deny it if

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untrue. Hence, the admission became conclusive upon him.12 (Emphasis supplied.) To accused-appellant, the statements attributed to him are inadmissible since they were made out of fear, having been elicited only after Cyra May's parents "bullied and questioned him." He thus submits that it was error for the trial court to take his failure to deny the statements during the trial as an admission of guilt. Accused-appellant's submission does not persuade. The trial court considered his admission merely as an additional ground to convince itself of his culpability. Even if such admission, as well as the implication of his failure to deny the same, were disregarded, the evidence suffices to establish his guilt beyond reasonable doubt. The plain, matter-of-fact manner by which Cyra May described her abuse in the hands of her Kuya Ronnie is an eloquent testament to the truth of her accusations. Thus she testified on direct examination: q Do you recall if Ronnie Rullepa did anything to you? a Yes, sir. q What did he do to you? a "Sinaksak nya ang titi sa pepe ko, sa puwit ko, at sa bunganga" q How many times did he do that to you? a Twice, sir. xxx xxx xxx q Do you remember when he did these things to you? a Opo. q When was that? a When my mother was asleep, he put he removed my panty and inserted his penis inside my vagina, my anus and my mouth, sir. xxx xxx xxx q After your Kuya Ronnie did those things to you what did you feel? a "Sabi nya ganito (Witness putting her finger in her lips) Nasaktan po ako at umiyak po ako". q Did you cry because of hurt? a Yes. q What part of your body hurt? a "Pepe ko po." When I went to the bathroom to urinate, I felt pain in my organ, sir.13 Cyra May reiterated her testimony during cross-examination, providing more revolting details of her ordeal: q So, you said that Kuya Ronnie did something to you what did he do to you on November 17, 1995? a "Sinaksak nga yong titi nya". He inserted his penis to my organ and to my mouth, sir. xxx xxx xxx q When you said that your kuya Ronnie inserted his penis into your organ, into your mouth, and into your anus, would you describe what his penis? a It is a round object, sir. Court: Is this titi of your kuya Ronnie a part of his body? a Opo. q Was that in the head of kuya Ronnie? a No, sir. q Which part of his body that titi located? (Witness pointing to her groin area) Court: Continue xxx xxx xxx q Why were you in that room? a Gusto nya po matulog ako sa kuwarto niya. q When you were in that room, what did Kuya Ronnie do to you? a "Hinubo po niya ang panty ko." q And after he remove your panty, what did Kuya Ronnie do, what did he do to you? a He inserted his penis to my organ, sir. q Why did kuya Ronnie, was kuya Ronnie already naked or he was already wearing any clothing? a Still had his clothing on, sir. q So, where did his penis, saan lumabas ang penis ni Kuya Ronnie? a Dito po, (Witness referring or pointing to her groin area) xxx xxx xxx q So, that's the and at the time, you did not cry and you did not shout for help? a Sabi nya po, not to make any noise because my mother might be roused from sleep. q How long was kuya Ronnie did that to you? a Matagal po. q After kuya Ronnie scrub his penis to your vagina, what other things did he do? a After that he inserted his penis to my mouth, and to my anus, sir. q You did not complain and you did not shout? a I cried, sir.14 Accused-appellant draws attention to the statement of Cyra May that he was not in the house on November 17 (1995), as reflected in the following transcript of her testimony: q Is it not a fact that you said a while ago that when your father leaves the house, he [was] usually accompanied by your kuya Ronnie? a Opo. q Why is it that Kuya Ronnie was in the house when your father left the house at that time, on November 17? a He was with Kuya Ronnie, sir. q So, it is not correct that kuya Ronnie did something to you because your kuya Ronnie [was] always with your Papa? a Yes, sir.15 The above-quoted testimony of Cyra May does not indicate the time when her father Col. Buenafe left their house on November 17, 1995 with accused-appellant and, thus, does not preclude accused-appellant's commission of rape on the same date. In any event, a young child is vulnerable to suggestion, hence, her affirmative response to the defense counsel's above-quoted leading questions. As for the variance in the claim regarding when Gloria was informed of the rape, Gloria having testified that she learned of it on November 20, 199516 while Cyra May said that immediately after the incident, she awakened her mother who was in the adjacent room and reported it:17 This is a minor matter that does not detract from Cyra May's categorical, material testimony that accused-appellant inserted his penis into her vagina. Accused-appellant goes on to contend that Cyra May was coached, citing the following portion of her testimony: q "Yong sinabi mong sinira nya ang buhay mo," where did you get that phrase? a It was the word of my Mama, sir.18 On the contrary, the foregoing testimony indicates that Cyra May was really narrating the truth, that of hearing her mother utter "sinira niya ang buhay mo." Accused-appellant's suggestion that Cyra May merely imagined the things of which he is accused, perhaps getting the idea from television programs, is preposterous. It is true that "the ordinary child is a `great weaver of romances,"' and her "imagination may induce (her) to relate something she has heard or read in a story as personal experience."19 But Cyra May's account is hardly the stuff of romance or fairy tales. Neither is it normal TV fare, if at all. This Court cannot believe that a victim of Cyra May's age could concoct a tale of defloration, allow the examination of her private parts, and undergo the expense, trouble, inconvenience, not to mention the trauma of public trial."20 Besides, her testimony is corroborated by the findings of Dr. Preyra that there were abrasions in her labia minora, which she opined, could have been caused by friction with an erect penis. This Court thus accords great weight to the following assessment of the trial court regarding the competency and credibility of Cyra May as a witness: Her very tender age notwithstanding, Cyra Ma(y) nonetheless appeared to possess the necessary intelligence and perceptiveness sufficient to invest her with the competence to testify about her experience. She might have been an impressionable child as all others of her age are but her narration of Kuya Ronnie's placing his "titi" in her "pepe" was certainly one which could not be considered as a common child's tale. Her responses during the examination of counsel and of the Court established her consciousness of the distinction between good and bad, which rendered inconceivable for her to describe a "bad" act of the accused unless it really happened to her. Needless to state, she described the act of the accused as bad. Her demeanor as a witness manifested during trial by her unhesitant, spontaneous, and plain responses to

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questions further enhanced her claim to credit and trustworthiness.21 (Italics in the original.) In a futile attempt at exculpation, accused-appellant claims that even before the alleged incident Cyra May was already suffering from pain in urinating. He surmises that she could have scratched herself which caused the abrasions. Dr. Preyra, however, was quick to rule out this possibility. She stated categorically that that part of the female organ is very sensitive and rubbing or scratching it is painful.22 The abrasions could not, therefore, have been self-inflicted. That the Medical-Legal Officer found "no external signs of recent application of any form of trauma at the time of the examination" does not preclude accused-appellant's conviction since the infliction of force is immaterial in statutory rape.23 More. That Cyra May suffered pain in her vagina but not in her anus despite her testimony that accused-appellant inserted his penis in both orifices does not diminish her credibility. It is possible that accused-appellant's penis failed to penetrate her anus as deeply as it did her vagina, the former being more resistant to extreme forces than the latter. Accused-appellant's imputation of ill motive on the part of Gloria is puerile. No mother in her right mind would subject her child to the humiliation, disgrace and trauma attendant to a prosecution for rape if she were not motivated solely by the desire to incarcerate the person responsible for the child's defilement.24 Courts are seldom, if at all, convinced that a mother would stoop so low as to subject her daughter to physical hardship and shame concomitant to a rape prosecution just to assuage her own hurt feelings.25 Alternatively, accused-appellant prays that he be held liable for acts of lasciviousness instead of rape, apparently on the basis of the following testimony of Cyra May, quoted verbatim, that he merely "scrubbed" his penis against her vagina: q Is it not a fact that kuya Ronnie just made some scrubbed his penis into your vagina? a Yes, Sir. q And when he did not actually penetrated your vagina? a Yes, sir.26 Dr. Preyra, however, found abrasions in the labia minora, which is "directly beneath the labia majora,"27 proving that there was indeed penetration of the vagina, not just a mere rubbing or "scrubbing" of the penis against its surface. In fine, the crime committed by accused-appellant is not merely acts of lasciviousness but statutory rape. The two elements of statutory rape are (1) that the accused had carnal knowledge of a woman, and (2) that the woman is below twelve years of age.28 As shown in the previous discussion, the first element, carnal knowledge, had been established beyond reasonable doubt. The same is true with respect to the second element. The victim's age is relevant in rape cases since it may constitute an element of the offense. Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659,29 provides: Art. 335. When and how rape is committed. Rape is committed by having carnal knowledge of a woman under any of the following circumstances: xxx xxx xxx. 3. When the woman is under twelve years of age . . . xxx xxx xxx. The crime of rape shall be punished by reclusion perpetua. xxx xxx xxx. Furthermore, the victim's age may constitute a qualifying circumstance, warranting the imposition of the death sentence. The same Article states: The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant circumstances: 1. when the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity with the third civil degree, or the common-law spouse of the parent of the victim: xxx xxx xxx. 4. when the victim is . . . a child below seven (7) years old. xxx xxx xxx. Because of the seemingly conflicting decisions regarding the sufficiency of evidence of the victim's age in rape cases, this Court, in the recently decided case of People v. Pruna,30 established a set of guidelines in appreciating age as an element of the crime or as a qualifying circumstance, to wit: 1. The best evidence to prove the age of the offended party is an original or certified true copy of the certificate of live birth of such party. 2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and school records which show the date of birth of the victim would suffice to prove age. 3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible, of the victim's mother or a member of the family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following circumstances: a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years old; b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years old; c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18 years old. 4. In the absence of a certificate of live birth, authentic document, or the testimony of the victim's mother or relatives concerning the victim's age, the complainant's testimony will suffice provided that it is expressly and clearly admitted by the accused. 5. It is the prosecution that has the burden of proving the age of the offended party. The failure of the accused to object to the testimonial evidence regarding age shall not be taken against him. 6. The trial court should always make a categorical finding as to the age of the victim. Applying the foregoing guidelines, this Court in the Pruna case held that the therein accused-appellant could only be sentenced to suffer the penalty of reclusion perpetua since: . . . no birth certificate or any similar authentic document, such as a baptismal certificate of LIZETTE, was presented to prove her age. . . . . xxx xxx xxx. However, the Medico-Legal Report relied upon by the trial court does not in any way prove the age of LIZETTE, for there is nothing therein which even mentions her age. Only testimonial evidence was presented to establish LIZETTE's age. Her mother, Jacqueline, testified (that the victim was three years old at the time of the commission of the crime). xxx xxx xxx Likewise, LIZETTE testified on 20 November 1996, or almost two years after the incident, that she was 5 years old. However, when the defense counsel asked her how old she was on 3 January 1995, or at the time of the rape, she replied that she was 5 years old. Upon further question as to the date she was born, she could not answer. For PRUNA to be convicted of rape in its qualified form and meted the supreme penalty of death, it must be established with certainty that LIZETTE was below 7 years old at the time of the commission of the crime. It must be stressed that the severity of the death penalty, especially its irreversible and final nature once carried out, makes the decision-making process in capital offenses aptly subject to the most exacting rules of procedure and evidence. In view of the uncertainty of LIZETTE's exact age, corroborative evidence such as her birth certificate, baptismal certificate or any other authentic document should be introduced in evidence in order that the qualifying circumstance of "below seven (7) years old" is appreciated against the appellant. The lack of objection on the part of the defense as to her age did not excuse the prosecution from discharging its burden. That the defense invoked LIZETTE's tender age for purposes of questioning her competency to testify is not necessarily an admission that she was below 7 years of age when PRUNA raped her on 3 January 1995. Such being the case, PRUNA cannot be convicted of

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qualified rape, and hence the death penalty cannot be imposed on him. However, conformably with no. 3 (b) of the foregoing guidelines, the testimony of LIZETTE's mother that she was 3 years old at the time of the commission of the crime is sufficient for purposes of holding PRUNA liable for statutory rape, or rape of a girl below 12 years of age. Under the second paragraph of Article 335, as amended by R.A. No. 7659, in relation to no. 3 of the first paragraph thereof, having carnal knowledge of a woman under 12 years of age is punishable by reclusion perpetua. Thus, the penalty to be imposed on PRUNA should be reclusion perpetua, and not death penalty. (Italics in the original.) Several cases31 suggest that courts may take "judicial notice" of the appearance of the victim in determining her age. For example, the Court, in People v. Tipay,32 qualified the ruling in People v. Javier,33 which required the presentation of the birth certificate to prove the rape victim's age, with the following pronouncement: This does not mean, however, that the presentation of the certificate of birth is at all times necessary to prove minority. The minority of a victim of tender age who may be below the age of ten is quite manifest and the court can take judicial notice thereof. The crucial years pertain to the ages of fifteen to seventeen where minority may seem to be dubitable due to one's physical appearance. In this situation, the prosecution has the burden of proving with certainty the fact that the victim was under 18 years of age when the rape was committed in order to justify the imposition of the death penalty under the above-cited provision. (Emphasis supplied.) On the other hand, a handful of cases34 holds that courts, without the requisite hearing prescribed by Section 3, Rule 129 of the Rules of Court,35 cannot take judicial notice of the victim's age. Judicial notice signifies that there are certain "facta probanda," or propositions in a party's case, as to which he will not be required to offer evidence; these will be taken for true by the tribunal without the need of evidence.36 Judicial notice, however, is a phrase sometimes used in a loose way to cover some other judicial action. Certain rules of Evidence, usually known under other names, are frequently referred to in terms of judicial notice.37 The process by which the trier of facts judges a person's age from his or her appearance cannot be categorized as judicial notice. Judicial notice is based upon convenience and expediency for it would certainly be superfluous, inconvenient, and expensive both to parties and the court to require proof, in the ordinary way, of facts which are already known to courts.38 As Tundag puts it, it "is the cognizance of certain facts which judges may properly take and act on without proof because they already know them." Rule 129 of the Rules of Court, where the provisions governing judicial notice are found, is entitled "What Need Not Be Proved." When the trier of facts observes the appearance of a person to ascertain his or her age, he is not taking judicial notice of such fact; rather, he is conducting an examination of the evidence, the evidence being the appearance of the person. Such a process militates against the very concept of judicial notice, the object of which is to do away with the presentation of evidence. This is not to say that the process is not sanctioned by the Rules of Court; on the contrary, it does. A person's appearance, where relevant, is admissible as object evidence, the same being addressed to the senses of the court. Section 1, Rule 130 provides: SECTION 1. Object as evidence. Objects as evidence are those addressed to the senses of the court. When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court. "To be sure," one author writes, "this practice of inspection by the court of objects, things or persons relevant to the fact in dispute, has its roots in ancient judicial procedure."39 The author proceeds to quote from another authority: "Nothing is older or commoner in the administration of law in all countries than the submission to the senses of the tribunal itself, whether judge or jury, of objects which furnish evidence. The view of the land by the jury, in real actions, of a wound by the judge where mayhem was alleged, and of the person of one alleged to be an infant, in order to fix his age, the inspection and comparison of seals, the examination of writings, to determine, whether they are (`)blemished,(') the implements with which a crime was committed or of a person alleged, in a bastardy proceeding, to be the child of another, are few illustrations of what may be found abundantly in our own legal records and textbooks for seven centuries past."40 (Emphasis supplied.) A person's appearance, as evidence of age (for example, of infancy, or of being under the age of consent to intercourse), is usually regarded as relevant; and, if so, the tribunal may properly observe the person brought before it.41 Experience teaches that corporal appearances are approximately an index of the age of their bearer, particularly for the marked extremes of old age and youth. In every case such evidence should be accepted and weighed for what it may be in each case worth. In particular, the outward physical appearance of an alleged minor may be considered in judging his age; a contrary rule would for such an inference be pedantically over-cautious.42 Consequently, the jury or the court trying an issue of fact may be allowed to judge the age of persons in court by observation of such persons.43 The formal offer of the person as evidence is not necessary. The examination and cross-examination of a party before the jury are equivalent to exhibiting him before the jury and an offer of such person as an exhibit is properly refused.44 This Court itself has sanctioned the determination of an alien's age from his appearance. In Braca v. Collector of Customs,45 this Court ruled that: The customs authorities may also determine from the personal appearance of the immigrant what his age is. The person of a Chinese alien seeking admission into the Philippine Islands is evidence in an investigation by the board of special inquiry to determine his right to enter; and such body may take into consideration his appearance to determine or assist in determining his age and a finding that the applicant is not a minor based upon such appearance is not without evidence to support it. This Court has also implicitly recognized the same process in a criminal case. Thus, in United States v. Agadas,46 this Court held: Rosario Sabacahan testified that he was 17 years of age; that he had never purchased a cedula; and that he was going to purchase a cedula the following January. Thereupon the court asked this defendant these questions: "You are a pretty big boy for seventeen." Answer: "I cannot tell exactly because I do not remember when I was born, but 17 years is my guess." Court: "If you are going to take advantage of that excuse, you had better get some positive evidence to that effect." Answer: "I do not remember, as I already stated on what date and in what year I was born." The court, in determining the question of the age of the defendant, Rosario Sabacahan, said: "The defendant, Rosario Sabacahan, testified that he thought that he was about 17 years of age, but judging by his appearance he is a youth 18 or 19 years old. He has shown that he has no positive information on the subject and no effort was made by the defense to prove the fact that he is entitled to the mitigating circumstance of article 9, paragraph 2, of the Penal code, which fact it is held to be incumbent upon the defense to establish by satisfactory evidence in order to enable the court to give an accused person the benefit of the mitigating circumstance." In United States vs. Estavillo and Perez (10 Off. Gaz., 1984) Estavillo testified, when the case was tried in the court below, that he then was only 16 years of age. There was no other testimony in the record with reference to his age. But the trial judge said: "The accused Estavillo, notwithstanding his testimony giving his age as 16 years, is, as a matter of fact, not less than 20." This court, in passing upon the age of Estavillo, held: "We presume that the trial court reached this conclusion with reference to the age of Estavillo from the latter's personal appearance. There is no proof in the record, as we have said, which even tends to establish the assertion that this appellant understated his age. . . . It is true that the trial court had an opportunity to note the personal appearance of Estavillo for the purpose of determining his age, and by so doing reached the conclusion that he was at least 20, just two years over 18. This appellant

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testified that he was only 16, and this testimony stands uncontradicted. Taking into consideration the marked difference in the penalties to be imposed upon that age, we must, therefore, conclude (resolving all doubts in favor of the appellants) that the appellants' ages were 16 and 14 respectively." While it is true that in the instant case Rosario testified that he was 17 years of age, yet the trial court reached the conclusion, judging from the personal appearance of Rosario, that "he is a youth 18 or 19 years old." Applying the rule enunciated in the case just cited, we must conclude that there exists a reasonable doubt, at least, with reference to the question whether Rosario was, in fact 18 years of age at the time the robbery was committed. This doubt must be resolved in favor of the defendant, and he is, therefore, sentenced to six months of arresto mayor in lieu of six years ten months and one day of presidio mayor. . . . . There can be no question, therefore, as to the admissibility of a person's appearance in determining his or her age. As to the weight to accord such appearance, especially in rape cases, Pruna laid down guideline no. 3, which is again reproduced hereunder: 3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible, of the victim's mother or a member of the family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following circumstances: a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years old; b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years old; c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18 years old. Under the above guideline, the testimony of a relative with respect to the age of the victim is sufficient to constitute proof beyond reasonable doubt in cases (a), (b) and (c) above. In such cases, the disparity between the allegation and the proof of age is so great that the court can easily determine from the appearance of the victim the veracity of the testimony. The appearance corroborates the relative's testimony. As the alleged age approaches the age sought to be proved, the person's appearance, as object evidence of her age, loses probative value. Doubt as to her true age becomes greater and, following Agadas, supra, such doubt must be resolved in favor of the accused. This is because in the era of modernism and rapid growth, the victim's mere physical appearance is not enough to gauge her exact age. For the extreme penalty of death to be upheld, nothing but proof beyond reasonable doubt of every fact necessary to constitute the crime must be substantiated. Verily, the minority of the victim should be not only alleged but likewise proved with equal certainty and clearness as the crime itself. Be it remembered that the proof of the victim's age in the present case spells the difference between life and death.47 In the present case, the prosecution did not offer the victim's certificate of live birth or similar authentic documents in evidence. The victim and her mother, however, testified that she was only three years old at the time of the rape. Cyra May's testimony goes: q Your name is Cyra Mae is that correct? a Yes, sir. q And you are 3 years old? a Yes, sir.48 That of her mother goes: Q How old was your daughter when there things happened? A 3 and years old. Q When was she born? A In Manila, May 10, 1992.49 Because of the vast disparity between the alleged age (three years old) and the age sought to be proved (below twelve years), the trial court would have had no difficulty ascertaining the victim's age from her appearance. No reasonable doubt, therefore, exists that the second element of statutory rape, i.e., that the victim was below twelve years of age at the time of the commission of the offense, is present. Whether the victim was below seven years old, however, is another matter. Here, reasonable doubt exists. A mature three and a half-year old can easily be mistaken for an underdeveloped seven-year old. The appearance of the victim, as object evidence, cannot be accorded much weight and, following Pruna, the testimony of the mother is, by itself, insufficient. As it has not been established with moral certainty that Cyra May was below seven years old at the time of the commission of the offense, accused-appellant cannot be sentenced to suffer the death penalty. Only the penalty of reclusion perpetua can be imposed upon him. In line with settled jurisprudence, the civil indemnity awarded by the trial court is increased to P50,000.00. In addition, Cyra May is entitled to an award of moral damages in the amount of P50,000.00.50 WHEREFORE, the Decision of the Regional Trial Court of Quezon City, Branch 96, is AFFIRMED with MODIFICATION. Accused-appellant Ronnie Rullepa y Guinto is found GUILTY of Statutory Rape, defined and punished by Article 335 (3) of the Revised Penal Code, as amended, and is sentenced to suffer the penalty of reclusion perpetua. He is ordered to pay private complainant, Cyra May Buenafe y Francisco, the amount of P50,000.00 as civil indemnity and P50,000.00 as moral damages. SO ORDERED. FIRST DIVISION [G.R. No. 80505 : December 4, 1990.] 192 SCRA 28 THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. MARIO TANDOY y LIM, Defendant-Appellant. DECISION CRUZ, J.: The decision of the Regional Trial Court of Makati, Branch 133 dated October 13, 1987, convicting Mario Tandoy of the crime of violation of Art. II, Sec. 4 of Rep. Act No. 6425 known as the Dangerous Drugs Act of 1972, is before us on appeal. The information against the accused-appellant read as follows: That on or about the 27th day of May 1986, in the Municipality of Makati, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused without being authorized by law, did then and there willfully, unlawfully and feloniously sell eight (8) pieces of dried marijuana flowering tops, two (2) pieces of dried marijuana flowering tops and crushed dried marijuana flowering tops, which are prohibited drug, for and in consideration of P20.00. Upon arraignment, Tandoy entered a plea of not guilty. After trial, Judge Buenaventura J. Guerrero rendered a decision the dispositive portion of which declared: WHEREFORE, the Court finds Mario Tandoy y Lim guilty beyond reasonable doubt of violation of Sec. 4, Art. II, Rep. Act No. 6425, as amended, and is hereby sentenced to life imprisonment and to pay a fine of P20,000.00 and cost.: nad The marijuana confiscated in this case is declared confiscated and forfeited and ordered turned over to the Dangerous Drugs Board for proper disposal. SO ORDERED. The accused-appellant raises the following assignment of errors in this appeal: 1. The Court a quo erred in finding accused guilty beyond reasonable doubt of the crime charged despite lack of evidence to prove that he sold marijuana to the poseur-buyer. 2. The Court a quo erred in admitting in evidence against the accused Exh. "E-2-A" which is merely a xerox copy of the P10.00 bill allegedly used as buy-bust money. The evidence of the prosecution may be summarized as follows: On May 27, 1986, at about 3:30 p.m. Lt. Salido, Jr. of the Makati Police Station dispatched Pfc. Herino de la Cruz, and Detectives Pablo R. Singayan, Nicanor Candolesas, Luisito de la Cruz, Estanislao Dalumpines, Antonio Manalastas and Virgilio Padua to conduct a buy-bust operation at Solchuaga St., Barangay Singkamas, Makati.

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The target area was a store along the said street, and Singayan was to pose as the buyer. He stood alone near the store waiting for any pusher to approach. The other members of the team strategically positioned themselves. Soon, three men approached Singayan. One of them was the accused-appellant, who said without preamble: "Pare, gusto mo bang umiskor?" Singayan said yes. The exchange was made then and there two rolls/pieces of marijuana for one P10.00 and two P5.00 bills marked ANU (meaning Anti-Narcotics Unit). The team then moved in and arrested Tandoy. Manalastas and Candolesas made a body search of the accused-appellant and took from him the marked money, as well as eight more rolls/foils of marijuana and crushed leaves.: nad The arresting officers brought Tandoy to the Office of the AntiNarcotics Unit, Makati Police Station, for investigation by Detective Marvin Pajilan. The accused-appellant chose to remain silent after having been informed of his constitutional rights. These events were narrated under oath by De la Cruz, Singayan and Pajilan. 1 Microscopic, chemical and chromotographic examination was performed on the confiscated marijuana by Raquel P. Angeles, forensic chemist of the National Bureau of Investigation, who later testified that the findings were positive. The marijuana was offered as an exhibit. 2 As might be expected, the accused-appellant had a different story. His testimony was that from 1:30 to 4:00 p.m. of the day in question, he was playing "cara y cruz" with 15 other persons along Solchuaga St. when somebody suddenly said that policemen were making arrests. The players grabbed the bet money and scampered. However, he and a certain Danny (another "cara y cruz" player) were caught and taken to the Narcotics Command headquarters in Makati. There they were mauled and warned that if they did not point to their fellow pushers, they would rot in jail. The accused-appellant denied he had sold marijuana to Singayan and insisted the bills taken from him were the bet money he had grabbed at the "cara y cruz" game. 3 The trial court, which had the opportunity to observe the demeanor of the witnesses and to listen to their respective testimonies, gave more credence to the statements of the arresting officers. Applying the presumption that they had performed their duties in a regular manner, it rejected Tandoy's uncorroborated allegation that he had been manhandled and framed. Tandoy had not submitted sufficient evidence of his charges, let alone his admission that he had no quarrel with the peace officers whom he had met only on the day of his arrest. In People v. Patog, 4 this Court held: When there is no evidence and nothing to indicate the principal witness for the prosecution was actuated by improper motives, the presumption is that he was not so actuated and his testimony is entitled to full faith and credit. Tandoy submits that "one will not sell this prohibited drug to another who is a total stranger until the seller is certain of the identity of the buyer." The conjecture must be rejected.: nad In People v. Paco, 5 this Court observed: Drug-pushing when done on a small level as in this case belongs to that class of crimes that may be committed at anytime and at any place. After the offer to buy is accepted and the exchange is made, the illegal transaction is completed in a few minutes. The fact that the parties are in a public place and in the presence of other people may not always discourage them from pursuing their illegal trade as these factors may even serve to camouflage the same. Hence, the Court has sustained the conviction of drug pushers caught selling illegal drugs in a billiard hall (People v. Rubio, G.R. No. 66875, June 19, 1986, 142 SCRA 329; People v. Sarmiento, G.R. No. 72141, January 12, 1987, 147 SCRA 252), in front of a store (People vs. Khan, supra) along a street at 1:45 p.m. (People v. Toledo, G.R. No. 67609, November 22, 1985, 140 SCRA 259), and in front of a house (People v. Policarpio, G.R. No. 69844, February 23, 1988). As the Court has also held, "What matters is not an existing familiarity between the buyer and the seller but their agreement and the acts constituting the sale and delivery of the marijuana leaves." 6 Under the second assigned error, the accused-appellant invokes the best evidence rule and questions the admission by the trial court of the xerox copy only of the marked P10.00 bill. The Solicitor General, in his Comment, correctly refuted that contention thus: This assigned error centers on the trial court's admission of the P10.00 bill marked money (Exh. E-2-A) which, according to the appellant, is excluded under the best evidence rule for being a mere xerox copy. Apparently, appellant erroneously thinks that said marked money is an ordinary document falling under Sec. 2, Rule 130 of the Revised Rules of Court which excludes the introduction of secondary evidence except in the five (5) instances mentioned therein.:-cralaw The best evidence rule applies only when the contents of the document are the subject of inquiry. Where the issue is only as to whether or not such document was actually executed, or exists, or in the circumstances relevant to or surrounding its execution, the best evidence rule does not apply and testimonial evidence is admissible. (Cf. Moran, op. cit., pp. 76-77; 4 Martin, op. cit., p. 78.) Since the aforesaid marked money was presented by the prosecution solely for the purpose of establishing its existence and not its contents, other substitutionary evidence, like a xerox copy thereof, is therefore admissible without the need of accounting for the original. Moreover, the presentation at the trial of the "buy-bust money" was not indispensable to the conviction of the accused-appellant because the sale of the marijuana had been adequately proved by the testimony of the police officers. So long as the marijuana actually sold by the accused-appellant had been submitted as an exhibit, the failure to produce the marked money itself would not constitute a fatal omission. We are convinced from the evidence on record that the prosecution has overcome the constitutional presumption of innocence in favor of the accused-appellant with proof beyond reasonable doubt of his guilt. He must therefore suffer the penalty prescribed by law for those who would visit the scourge of drug addiction upon our people. WHEREFORE, the appeal is DISMISSED and the challenged decision AFFIRMED in toto, with costs against the accusedappellant.: nad SO ORDERED

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