Legal Writing Atty. Lapuz 1F Prepared by: Harriz F.

Dela Cruz

2. ANTONIO LEJANO, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. G.R. No. 176389

PEOPLE OF THE PHILIPPINES, Appellee, vs. HUBERT JEFFREY P. WEBB, ANTONIO LEJANO, MICHAEL A. GATCHALIAN, HOSPICIO FERNANDEZ, MIGUEL RODRIGUEZ, PETER ESTRADA and GERARDO BIONG, Appellants.

G.R. No. 176864

December 14, 2010

On June 30, 1991 Estrellita Vizconde and her daughters Carmela, nineteen years old, and Jennifer, seven, were brutally slain at their home in Paraaque City. Following an intense investigation, the police arrested a group of suspects, some of whom gave detailed confessions. But the trial court smelled a frame-up and eventually ordered them discharged. Thus, the identities of the real perpetrators remained a mystery especially to the public whose interests were aroused by the gripping details of what everybody referred to as the Vizconde massacre. Four years later in 1995, the National Bureau of Investigation or NBI announced that it had solved the crime. It presented star-witness Jessica M. Alfaro, one of its informers, who claimed that she witnessed the crime. She pointed to accused Hubert Jeffrey P. Webb, Antonio Tony Boy Lejano, Artemio Dong Ventura, Michael A. Gatchalian, Hospicio Pyke Fernandez, Peter Estrada, Miguel Ging Rodriguez, and Joey Filart as the culprits. She also tagged accused police officer, Gerardo Biong, as an accessory after the fact. Relying primarily on Alfaro's testimony, on August 10, 1995 the public prosecutors filed an information for rape with homicide against Webb, et al.

The Regional Trial Court of Paraaque City, Branch 274, presided over by Judge Amelita G. Tolentino, tried only seven of the accused since Artemio Ventura and Joey Filart remained at large. The prosecution presented Alfaro as its main witness with the others corroborating her testimony. These included the medico-legal officer who autopsied the bodies of the victims, the security guards of Pitong Daan Subdivision, the former laundrywoman of the Webbs household, police officer Biongs former girlfriend, and Lauro G. Vizconde, Estrellitas husband. For their part, some of the accused testified, denying any part in the crime and saying they were elsewhere when it took place. Webbs alibi appeared the strongest since he claimed that he was then In addition, the defense presented witnesses to show across the ocean in the United States of America. He presented the testimonies of witnesses as well as documentary and object evidence to prove this. Alfaro's bad reputation for truth and the incredible nature of her testimony. But impressed by Alfaros detailed narration of the crime and the events surrounding it, the trial court found a credible witness in her. It noted her categorical, straightforward, spontaneous, and frank testimony, undamaged by grueling cross-examinations. The trial court remained unfazed by significant discrepancies between Alfaros April 28 and May 22, 1995 affidavits, accepting her explanation that she at first wanted to protect her former boyfriend, accused Estrada, and a relative, accused Gatchalian; that no lawyer assisted her; that she did not trust the investigators who helped her prepare her first affidavit; and that she felt unsure if she would get the support and security she needed once she disclosed all about the Vizconde killings. In contrast, the trial court thought little of the denials and alibis that Webb, Lejano, Rodriguez, and Gatchalian set up for their defense. They paled, according to the court, compared to Alfaros testimony that other witnesses and the physical evidence corroborated. Thus, on January 4, 2000, after four years of arduous hearings, the trial court rendered judgment, finding all the accused guilty as charged and imposing on Webb, Lejano, Gatchalian, Fernandez, Estrada, and Rodriguez the penalty of reclusion perpetua and on Biong, an indeterminate prison term of eleven years, four months, and one day to twelve years. The trial court also awarded damages to Lauro Vizconde. The appellate court did not agree that the accused were tried by publicity or that the trial judge was biased. It found sufficient evidence of conspiracy that rendered Rodriguez, Gatchalian, Fernandez, and Estrada equally guilty with those who had a part in raping and killing Carmela and in executing her mother and sister. On motion for reconsideration by the accused, the Court of Appeals' Special Division of five members voted three against two to deny the motion, hence, the present appeal. On April 20, 2010, as a result of its initial deliberation in this case, the Court issued a Resolution granting the request of Webb to submit for DNA analysis the semen specimen taken from Carmelas cadaver, which specimen was then believed still under the safekeeping of the NBI. The Court granted the request pursuant to section 4 of the Rule on DNA Evidence to give the accused and the prosecution access to scientific evidence that they might want to avail themselves of, leading to a correct decision in the case.

Unfortunately, on April 27, 2010 the NBI informed the Court that it no longer has custody of the specimen, the same having been turned over to the trial court. The trial record shows, however, that the specimen was not among the object evidence that the prosecution offered in evidence in the case. This outcome prompted accused Webb to file an urgent motion to acquit on the ground that the governments failure to preserve such vital evidence has resulted in the denial of his right to due process. Issues Presented Accused Webbs motion to acquit presents a threshold issue: whether or not the Court should acquit him outright, given the governments failure to produce the semen specimen that the NBI found on Carmelas cadaver, thus depriving him of evidence that would prove his innocence. In the main, all the accused raise the central issue of whether or not Webb, acting in conspiracy with Lejano, Gatchalian, Fernandez, Estrada, Rodriguez, Ventura, and Filart, raped and killed Carmela and put to death her mother and sister. But, ultimately, the controlling issues are: 1. Whether or not Alfaros testimony as eyewitness, describing the crime and identifying Webb,

Lejano, Gatchalian, Fernandez, Estrada, Rodriguez, and two others as the persons who committed it, is entitled to belief; and 2. Whether or not Webb presented sufficient evidence to prove his alibi and rebut Alfaros testimony

that he led the others in committing the crime. The issue respecting accused Biong is whether or not he acted to cover up the crime after its commission. The Right to Acquittal Due to Loss of DNA Evidence Webb claims, citing Brady v. Maryland, that he is entitled to outright acquittal on the ground of violation of his right to due process given the States failure to produce on order of the Court either by negligence or willful suppression the semen specimen taken from Carmela. The medical evidence clearly established that Carmela was raped and, consistent with this, semen specimen was found in her. It is true that Alfaro identified Webb in her testimony as Carmelas rapist and killer but serious questions had been raised about her credibility. possibility that Alfaro had lied. At the very least, there exists a On the other hand, the semen specimen taken from Carmela cannot

possibly lie. It cannot be coached or allured by a promise of reward or financial support. No two persons have the same DNA fingerprint, with the exception of identical twins. If, on examination, the DNA of the

subject specimen does not belong to Webb, then he did not rape Carmela. It is that simple. Thus, the Court would have been able to determine that Alfaro committed perjury in saying that he did. Still, Webb is not entitled to acquittal for the failure of the State to produce the semen specimen at this late stage. For one thing, the ruling in Brady v. Maryland that he cites has long be overtaken by the decision in Arizona v. Youngblood, where the U.S. Supreme Court held that due process does not require the State to preserve the semen specimen although it might be useful to the accused unless the latter is able to show bad faith on the part of the prosecution or the police. Here, the State presented a medical expert who testified on the existence of the specimen and Webb in fact sought to have the same subjected to DNA test. For, another, when Webb raised the DNA issue, the rule governing DNA evidence did not yet exist, the country did not yet have the technology for conducting the test, and no Philippine precedent had as yet recognized its admissibility as evidence. Consequently, the idea of keeping the specimen secure even after the trial court rejected the motion for DNA testing did not come up. Indeed, neither Webb nor his co-accused brought up the matter of preserving the specimen in the meantime. Parenthetically, after the trial court denied Webbs application for DNA testing, he allowed the proceeding to move on when he had on at least two occasions gone up to the Court of Appeals or the Supreme Court to challenge alleged arbitrary actions taken against him and the other accused. They raised the DNA issue before the Court of Appeals but merely as an error committed by the trial court in rendering its decision in the case. None of the accused filed a motion with the appeals court to have the DNA test done pending adjudication of their appeal. This, even when the Supreme Court had in the meantime passed the rules allowing such test. Considering the accuseds lack of interest in having such test done, the State cannot be deemed put on reasonable notice that it would be required to produce the semen specimen at some future time. Alfaros Story Based on the prosecutions version, culled from the decisions of the trial court and the Court of Appeals, on June 29, 1991 at around 8:30 in the evening, Jessica Alfaro drove her Mitsubishi Lancer, with boyfriend Peter Estrada as passenger, to the Ayala Alabang Commercial Center parking lot to buy shabu from Artemio Dong Ventura. There, Ventura introduced her to his friends: Hubert Jeffrey P. Webb, Antonio Tony Boy Lejano, Miguel Ging Rodriguez, Hospicio Pyke Fernandez, Michael Gatchalian, and Joey Filart. Alfaro recalled frequently seeing them at a shabu house in Paraaque in January 1991, except Ventura whom she had known earlier in December 1990. As Alfaro smoked her shabu, Webb approached and requested her to relay a message for him to a girl, whom she later identified as Carmela Vizconde. Alfaro agreed. After using up their shabu, the group drove to Carmelas house at 80 Vinzons Street, Pitong Daan Subdivision, BF Homes, Paraaque City.

Riding in her car, Alfaro and Estrada trailed Filart and Rodriguez who rode a Mazda pick-up and Webb, Lejano, Ventura, Fernandez, and Gatchalian who were on a Nissan Patrol car. On reaching their destination, Alfaro parked her car on Vinzons Street, alighted, and approached Carmelas house. Alfaro pressed the buzzer and a woman came out. Alfaro queried her about Carmela. Alfaro had met Carmela twice before in January 1991. When Carmela came out, Alfaro gave her Webbs message that he was just around. Carmela replied, however, that she could not go out yet since she had just arrived home. She told Alfaro to return after twenty minutes. Alfaro relayed this to Webb who then told the group to drive back to the Ayala Alabang Commercial Center. The group had another shabu session at the parking lot. After sometime, they drove back but only Alfaro proceeded to Vinzons Street where Carmela lived. The Nissan Patrol and the Mazda pick-up, with their passengers, parked somewhere along Aguirre Avenue. Carmela was at their garden. She approached Alfaro on seeing her and told the latter that she (Carmela) had to leave the house for a while. Carmela requested Alfaro to return before midnight and she would leave the pedestrian gate, the iron grills that led to the kitchen, and the kitchen door unlocked. Carmela also told Alfaro to blink her cars headlights twice when she approached the pedestrian gate so Carmela would know that she had arrived. Alfaro returned to her car but waited for Carmela to drive out of the house in her own car. Alfaro trailed Carmela up to Aguirre Avenue where she dropped off a man whom Alfaro believed was Carmelas boyfriend. Alfaro looked for her group, found them, and relayed Carmelas instructions to Webb. They then all went back to the Ayala Alabang Commercial Center. for the rest of the evening (bad trip). Webb gave out free cocaine. They all used it and some shabu, too. After about 40 to 45 minutes, Webb decided that it was time for them to leave. He said, Pipilahan natin siya [Carmela] at ako ang mauuna. Lejano said, Ako ang susunod and the others responded Okay, okay. arrived at Carmelas house shortly before midnight. Alfaro parked her car between Vizcondes house and the next. While waiting for the others to They all left the parking lot in a convoy of three vehicles and drove into Pitong Daan Subdivision for the third time. They At the parking lot, Alfaro told the group about her talk with Carmela. When she told Webb of Carmelas male companion, Webbs mood changed

alight from their cars, Fernandez approached Alfaro with a suggestion that they blow up the transformer near the Vizcondes residence to cause a brownout ( Pasabugin kaya natin ang transformer na ito). But Alfaro shrugged off the idea, telling Fernandez, Malakas lang ang tama mo. When Webb, Lejano, and Ventura were already before the house, Webb told the others again that they would line up for Carmela but he would be the first. The others replied, O sige, dito lang kami, magbabantay lang kami. Alfaro was the first to pass through the pedestrian gate that had been left open. Webb, Lejano, and Ventura followed her. On entering the garage, Ventura using a chair mounted the hood of the Vizcondes Nissan Sentra and loosened the electric bulb over it ( para daw walang ilaw). The small group

went through the open iron grill gate and passed the dirty kitchen. Carmela opened the aluminum screen door of the kitchen for them. She and Webb looked each other in the eyes for a moment and, together, headed for the dining area. As she lost sight of Carmela and Webb, Alfaro decided to go out. Lejano asked her where she was going and she replied that she was going out to smoke. As she eased her way out through the kitchen door, she saw Ventura pulling out a kitchen drawer. Alfaro smoked a cigarette at the garden. After about twenty minutes, she was surprised to hear a womans voice ask, Sino yan? Alfaro immediately walked out of the garden to her car. She found her other companions milling around it. Estrada who sat in the car asked her, Okay ba? After sitting in the car for about ten minutes, Alfaro returned to the Vizconde house, using the same route. The interior of the house was dark but some light filtered in from outside. In the kitchen, Alfaro saw Ventura searching a ladys bag that lay on the dining table. When she asked him what he was looking for, he said: Ikaw na nga dito, maghanap ka ng susi. She asked him what key he wanted and he replied: Basta maghanap ka ng susi ng main door pati na rin ng susi ng kotse. When she found a bunch of keys in the bag, she tried them on the main door but none fitted the lock. She also did not find the car key. Unable to open the main door, Alfaro returned to the kitchen. While she was at a spot leading to the dining area, she heard a static noise (like a television that remained on after the station had signed off). Out of curiosity, she approached the masters bedroom from where the noise came, opened the door a little, and peeked inside. The unusual sound grew even louder. As she walked in, she saw Webb on top of Carmela while she lay with her back on the floor. Two bloodied bodies lay on the bed. Lejano was at the foot of the bed about to wear his jacket. Carmela was gagged, moaning, and in tears while Webb raped her, his bare buttocks exposed. Webb gave Alfaro a meaningful look and she immediately left the room. She met Ventura at the dining area. He told her, Prepare an escape. Aalis na tayo. Shocked with what she saw, Alfaro rushed out of the house to the others who were either sitting in her car or milling on the sidewalk. She entered her car and turned on the engine but she did not know where to go. Webb, Lejano, and Ventura came out of the house just then. Webb suddenly picked up a stone and threw it at the main door, breaking its glass frame. As the three men approached the pedestrian gate, Webb told Ventura that he forgot his jacket in the house. But Ventura told him that they could not get in anymore as the iron grills had already locked. They all rode in their cars and drove away until they reached Aguirre Avenue. As they got near an old hotel at the Tropical Palace area, Alfaro noticed the Nissan Patrol slow down. Someone threw something out of the car into the cogonal area.

The convoy of cars went to a large house with high walls, concrete fence, steel gate, and a long driveway at BF Executive Village. learned of what happened. They entered the compound and gathered at the lawn where the blaming session took place. It was here that Alfaro and those who remained outside the Vizconde house The first to be killed was Carmelas mother, then Jennifer, and finally, Carmella. Ventura blamed Webb, telling him, Bakit naman pati yung bata? Webb replied that the girl woke up and on seeing him molesting Carmela, she jumped on him, bit his shoulders, and pulled his hair. Webb got mad, grabbed the girl, pushed her to the wall, and repeatedly stabbed her. Lejano excused himself at this point to use the telephone in the house. cellular phone. At around 2:00 in the morning, accused Gerardo Biong arrived. Webb ordered him to go and clean up the Vizconde house and said to him, Pera lang ang katapat nyan. Biong answered, Okay lang. Webb spoke to his companions and told them, We dont know each other. We havent seen each other baka maulit yan. Alfaro and Estrada left and they drove to her fathers house. 1. The quality of the witness Was Alfaro an ordinary subdivision girl who showed up at the NBI after four years, bothered by her conscience or egged on by relatives or friends to come forward and do what was right? No. She was, at the time she revealed her story, working for the NBI as an asset, a stool pigeon, one who earned her living by fraternizing with criminals so she could squeal on them to her NBI handlers. She had to live a life of lies to get rewards that would pay for her subsistence and vices. According to Atty. Artemio Sacaguing, former head of the NBI Anti-Kidnapping, Hijacking, and Armed Robbery Task Force (AKHAR) Section, Alfaro had been hanging around at the NBI since November or December 1994 as an asset. She supplied her handlers with information against drug pushers and other criminal elements. Some of this information led to the capture of notorious drug pushers like Christopher Cruz Santos and Orlando Bacquir. Alfaros tip led to the arrest of the leader of the Martilyo gang that killed a police officer. Because of her talent, the task force gave her very special treatment and she became its darling, allowed the privilege of spending nights in one of the rooms at the NBI offices. When Alfaro seemed unproductive for sometime, however, they teased her about it and she was piqued. One day, she unexpectedly told Sacaguing that she knew someone who had the real story behind the Vizconde massacre. Sacaguing showed interest. Alfaro promised to bring that someone to the NBI to tell his story. When this did not happen and Sacaguing continued to press her, she told him that she might as well assume the role of her informant. Sacaguing testified thus: ATTY. ONGKIKO: Q. Atty. Sacaguing, how did Jessica Alfaro become a witness in the Vizconde murder case? Will you tell the Honorable Court? Meanwhile, Webb called up someone on his

xxxx A. She told me. Your Honor, that she knew somebody who related to her the

circumstances, I mean, the details of the massacre of the Vizconde family. Thats what she told me, Your Honor. ATTY. ONGKIKO: Q. And what did you say? xxxx A. I was quite interested and I tried to persuade her to introduce to me that man and

she promised that in due time, she will bring to me the man, and together with her, we will try to convince him to act as a state witness and help us in the solution of the case. xxxx Q. Atty. Sacaguing, were you able to interview this alleged witness?

WITNESS SACAGUING: A. No, sir.

ATTY. ONGKIKO: Q. Why not?

WITNESS SACAGUING: A. Because Jessica Alfaro was never able to comply with her promise to bring the man to me. She told me later that she could not and the man does not like to testify. ATTY. ONGKIKO: Q. All right, and what happened after that?

WITNESS SACAGUING: A. She told me, easy lang kayo, Sir, if I may quote, easy lang Sir, huwag kayong COURT: How was that?

WITNESS SACAGUING: A. Easy lang, Sir. Sir, relax lang, Sir, papapelan ko, papapelan ko na lang yan. xxxx ATTY. ONGKIKO: Q. All right, and what was your reaction when Ms. Alfaro stated that papapelan ko na lang yan? WITNESS SACAGUING: A. I said, hindi puwede yan, kasi hindi ka naman eye witness.

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

WITNESS SACAGUING: A. Hindi siya nakakibo, until she went away. (TSN, May 28, 1996, pp. 49-50, 58, 77-79) Quite significantly, Alfaro never refuted Sacaguings above testimony. 2. The suspicious details But was it possible for Alfaro to lie with such abundant details some of which even tallied with the physical evidence at the scene of the crime? No doubt, yes. Firstly, the Vizconde massacre had been reported in the media with dizzying details. Everybody was

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

a. The Barroso gang members said that they got into Carmelas house by breaking the glass panel of the front door using a stone wrapped in cloth to deaden the noise. Alfaro could not use this line since the core of her story was that Webb was Carmelas boyfriend. Webb had no reason to smash her front door to get to see her. Consequently, to explain the smashed door, Alfaro had to settle for claiming that, on the way out of the house, Webb picked up some stone and, out of the blue, hurled it at the glass-paneled front door of the Vizconde residence. His action really made no sense. From Alfaros narration, Webb appeared rational in his decisions. It was past midnight, the house was dark, and they wanted to get away quickly to avoid detection. Hurling a stone at that glass door and causing a tremendous noise was bizarre, like inviting the neighbors to come. b. The crime scene showed that the house had been ransacked. The rejected confessions of the Barroso akyat-bahay gang members said that they tried to rob the house. To explain this physical evidence, Alfaro claimed that at one point Ventura was pulling a kitchen drawer, and at another point, going through a handbag on the dining table. He said he was looking for the front-door key and the car key. Again, this portion of Alfaros story appears tortured to accommodate the physical evidence of the ransacked house. She never mentioned Ventura having taken some valuables with him when they left Carmelas house. And why would Ventura rummage a bag on the table for the front-door key, spilling the contents, when they had already gotten into the house. It is a story made to fit in with the crime scene although robbery was supposedly not the reason Webb and his companions entered that house. c. It is the same thing with the garage light. The police investigators found that the bulb had been

loosened to turn off the light. The confessions of the Barroso gang claimed that one of them climbed the parked cars hood to reach up and darken that light. This made sense since they were going to rob the place and they needed time to work in the dark trying to open the front door. Some passersby might look in and see what they were doing. Alfaro had to adjust her testimony to take into account that darkened garage light. So she claimed that Ventura climbed the cars hood, using a chair, to turn the light off. But, unlike the Barroso akyatbahay gang, Webb and his friends did not have anything to do in a darkened garage. They supposedly knew in advance that Carmela left the doors to the kitchen open for them. straight into the house. And, thirdly, Alfaro was the NBIs star witness, their badge of excellent investigative work. After claiming that they had solved the crime of the decade, the NBI people had a stake in making her sound credible and, obviously, they gave her all the preparations she needed for the job of becoming a fairly good substitute witness. She was their darling of an asset. And this is not pure speculation. As pointed out It did not make sense for Ventura to risk standing on the cars hood and be seen in such an awkward position instead of going

above, Sacaguing of the NBI, a lawyer and a ranking official, confirmed this to be a cold fact. Why the trial court and the Court of Appeals failed to see this is mystifying. At any rate, did Alfaro at least have a fine memory for faces that had a strong effect on her, given the circumstances? Not likely. She named Miguel Ging Rodriguez as one of the culprits in the Vizconde killings. But when the NBI found a certain Michael Rodriguez, a drug dependent from the Bicutan Rehabilitation Center, initially suspected to be Alfaros Miguel Rodriguez and showed him to Alfaro at the NBI office, she ran berserk, slapping and kicking Michael, exclaiming: How can I forget your face. We just saw each other in a disco one month ago and you told me then that you will kill me. As it turned out, he was not Miguel Rodriguez, the accused in this case. Two possibilities exist: Michael was really the one Alfaro wanted to implicate to settle some score with him but it was too late to change the name she already gave or she had myopic vision, tagging the wrong people for what they did not do. 3. The quality of the testimony There is another thing about a lying witness: her story lacks sense or suffers from inherent inconsistencies. An understanding of the nature of things and the common behavior of people will help expose a lie. And it has an abundant presence in this case. One. In her desire to implicate Gatchalian, Fernandez, Estrada, Rodriguez, and Filart, who were supposed to be Webbs co-principals in the crime, Alfaro made it a point to testify that Webb proposed twice to his friends the gang-rape of Carmela who had hurt him. And twice, they (including, if one believes Alfaro, her own boyfriend Estrada) agreed in a chorus to his proposal. But when they got to Carmelas house, only Webb, Lejano, Ventura, and Alfaro entered the house. Gatchalian, Fernandez, Estrada, and Rodriguez supposedly stayed around Alfaros car, which was parked on the street between Carmelas house and the next. Some of these men sat on top of the cars lid while others milled on the sidewalk, visible under the street light to anyone who cared to watch them, particularly to the people who were having a drinking party in a nearby house. Obviously, the behavior of Webbs companions out on the street did not figure in a planned gang-rape of Carmela. Two. Ventura, Alfaros dope supplier, introduced her for the first time in her life to Webb and his friends in a parking lot by a mall. So why would she agree to act as Webbs messenger, using her gas, to bring his message to Carmela at her home. More inexplicably, what motivated Alfaro to stick it out the whole night with Webb and his friends? They were practically strangers to her and her boyfriend Estrada. When it came to a point that Webb decided with his friends to gang-rape Carmela, clearly, there was nothing in it for Alfaro. Yet, she stuck it out with them, as a police asset would, hanging in there until she had a crime to report, only she

was not yet an asset then. If, on the other hand, Alfaro had been too soaked in drugs to think clearly and just followed along where the group took her, how could she remember so much details that only a drug-free mind can? Three. When Alfaro went to see Carmela at her house for the second time, Carmella told her that she still had to go out and that Webb and his friends should come back around midnight. Alfaro returned to her car and waited for Carmela to drive out in her own car. And she trailed her up to Aguirre Avenue where she supposedly dropped off a man whom she thought was Carmelas boyfriend. Alfaros trailing Carmela to spy on her unfaithfulness to Webb did not make sense since she was on limited errand. and harm Carmela. Four. According to Alfaro, when they returned to Carmelas house the third time around midnight, she led Webb, Lejano, and Ventura through the pedestrian gate that Carmela had left open. Now, this is weird. Webb was the gang leader who decided what they were going to do. He decided and his friends agreed with him to go to Carmelas house and gang-rape her. Why would Alfaro, a woman, a stranger to Webb before that night, and obviously with no role to play in the gang-rape of Carmela, lead him and the others into her house? It made no sense. It would only make sense if Alfaro wanted to feign being a witness to something she did not see. Five. Alfaro went out of the house to smoke at the garden. After about twenty minutes, a woman But, as a critical witness, Alfaro had to provide a reason for Webb to freak out and decide to come with his friends

exclaimed, Sino yan? On hearing this, Alfaro immediately walked out of the garden and went to her car. Apparently, she did this because she knew they came on a sly. Someone other than Carmela became conscious of the presence of Webb and others in the house. Alfaro walked away because, obviously, she did not want to get involved in a potential confrontation. This was supposedly her frame of mind: fear of getting involved in what was not her business. But if that were the case, how could she testify based on personal knowledge of what went on in the house? Alfaro had to change that frame of mind to one of boldness and reckless curiosity. So that is what she next claimed. She went back into the house to watch as Webb raped Carmela on the floor of the masters bedroom. He had apparently stabbed to death Carmelas mom and her young sister whose bloodied bodies were sprawled on the bed. Now, Alfaro testified that she got scared (another shift to fear) for she hurriedly got out of the house after Webb supposedly gave her a meaningful look. Alfaro quickly went to her car, not minding Gatchalian, Fernandez, Estrada, Rodriguez, and Filart who sat on the car or milled on the sidewalk. She did not speak to them, even to Estrada, her boyfriend. She entered her car and turned on the engine but she testified that she did not know where to go. This woman who a few minutes back led Webb, Lejano, and Ventura into the house, knowing that they were decided to rape and harm Carmela, was suddenly too shocked to know where to go! pendulum swing indicates a witness who was confused with her own lies. This emotional

4.

The supposed corroborations Intending to provide corroboration to Alfaros testimony, the prosecution presented six additional

witnesses: Dr. Prospero A. Cabanayan, the NBI Medico-Legal Officer who autopsied the bodies of the victims, testified on the stab wounds they sustained and the presence of semen in Carmelas genitalia, indicating that she had been raped. Normal E. White, Jr., was the security guard on duty at Pitong Daan Subdivision from 7 p.m. of June 29 to 7 a.m. of June 30, 1991. He got a report on the morning of June 30 that something untoward happened at the Vizconde residence. He went there and saw the dead bodies in the masters bedroom, the bag on the dining table, as well as the loud noise emanating from a television set. White claimed that he noticed Gatchalian and his companions, none of whom he could identify, go in and out of Pitong Daan Subdivision. He also saw them along Vinzons Street. Later, they entered Pitong Daan Subdivision in a three-car convoy. suspicious about their coming and going. But Whites testimony cannot be relied on. His initial claim turned out to be inaccurate. He White could not, however, describe the kind of vehicles they used or recall the time when he saw the group in those two instances. And he did not notice anything

actually saw Gatchalian and his group enter the Pitong Daan Subdivision only once. They were not going in and out. Furthermore, Alfaro testified that when the convoy of cars went back the second time in the direction of Carmelas house, she alone entered the subdivision and passed the guardhouse without stopping. Yet, White who supposedly manned that guardhouse did not notice her. Surprisingly, White failed to note Biong, a police officer, entering or exiting the subdivision on the early morning of June 30 when he supposedly cleaned up Vizconde residence on Webbs orders. What is more, White did not notice Carmela arrive with her mom before Alfaros first visit that night. Carmela supposedly left with a male companion in her car at around 10:30 p.m. but White did not notice it. He also did not notice Carmela reenter the subdivision. White actually discredited Alfaros testimony about the movements of the persons involved. Further, while Alfaro testified that it was the Mazda pick-up driven by Filart that led the threevehicle convoy, White claimed it was the Nissan Patrol with Gatchalian on it that led the convoy since he would not have let the convoy in without ascertaining that Gatchalian, a resident, was in it. guard White did not, therefore, provide corroboration to Alfaros Security testimony.

Justo Cabanacan, the security supervisor at Pitong Daan Subdivision testified that he saw Webb around the last week of May or the first week of June 1991 to prove his presence in the Philippines when he claimed to be in the United States. He was manning the guard house at the entrance of the subdivision of Pitong Daan when he flagged down a car driven by Webb. Webb said that he would see Lilet Sy.

Cabanacan asked him for an ID but he pointed to his United BF Homes sticker and said that he resided there. Cabanacan replied, however, that Pitong Daan had a local sticker. Cabanacan testified that, at this point, Webb introduced himself as the son of Congressman Webb. Still, the supervisor insisted on seeing his ID. Webb grudgingly gave it and after seeing the picture and the name on it, Cabanacan returned the same and allowed Webb to pass without being logged in as their Standard Operating Procedure required. But Cabanacan's testimony could not be relied on. guardhouse book. recording the visit. Mila Gaviola used to work as laundry woman for the Webbs at their house at BF Homes Executive Village. She testified that she saw Webb at his parents house on the morning of June 30, 1991 when she got the dirty clothes from the room that he and two brothers occupied at about 4.a.m. She saw him again pacing the floor at 9 a.m. At about 1 p.m., Webb left the house in t-shirt and shorts, passing through a secret door near the maids quarters on the way out. Finally, she saw Webb at 4 p.m. of the same day. On cross-examination, however, Gaviola could not say what distinguished June 30, 1991 from the other days she was on service at the Webb household as to enable her to distinctly remember, four years later, what one of the Webb boys did and at what time. She could not remember any of the details that happened in the household on the other days. She proved to have a selective photographic memory and this only damaged her testimony. Gaviola tried to corroborate Alfaro's testimony by claiming that on June 30, 1991 she noticed bloodstains on Webb's t-shirt. She did not call the attention of anybody in the household about it when it would have been a point of concern that Webb may have been hurt, hence the blood. Besides, Victoria Ventoso, the Webbs' housemaid from March 1989 to May 1992, and Sgt. Miguel Muoz, the Webbs' security aide in 1991, testified that Gaviola worked for the Webbs only from January 1991 to April 1991. Ventoso further testified that it was not Gaviola's duty to collect the clothes from the 2nd floor bedrooms, this being the work of the housemaid charged with cleaning the rooms. What is more, it was most unlikely for a laundrywoman who had been there for only four months to collect, as she claimed, the laundry from the rooms of her employers and their grown up children at four in the morning while they were asleep. And it did not make sense, if Alfaros testimony were to be believed that Webb, who was so careful and clever that he called Biong to go to the Vizconde residence at 2 a.m. to clean up the evidence against Although it was not common for a security

guard to challenge a Congressmans son with such vehemence, Cabanacan did not log the incident on the Nor did he, contrary to prescribed procedure, record the visitors entry into the subdivision. It did not make sense that Cabanacan was strict in the matter of seeing Webbs ID but not in

him and his group, would bring his bloodied shirt home and put it in the hamper for laundrywoman Gaviola to collect and wash at 4 a.m. as was her supposed habit. Lolita De Birrer was accused Biongs girlfriend around the time the Vizconde massacre took place. Birrer testified that she was with Biong playing mahjong from the evening of June 29, 1991 to the early morning of June 30, when Biong got a call at around 2 a.m. This prompted him, according to De Birrer, to leave and go to BF. Someone sitting at the backseat of a taxi picked him up. When Biong returned at 7 a.m. he washed off what looked like dried blood from his fingernails. And he threw away a foul-smelling handkerchief. She also saw Biong take out a knife with aluminum cover from his drawer and hid it in his steel cabinet. The security guard at Pitong Daan did not notice any police investigator flashing a badge to get into the village although Biong supposedly came in at the unholy hour of two in the morning. His departure before 7 a.m. also remained unnoticed by the subdivision guards. Besides, if he had cleaned up the crime scene shortly after midnight, what was the point of his returning there on the following morning to dispose of some of the evidence in the presence of other police investigators and on-lookers? In fact, why would he steal valuable items from the Vizconde residence on his return there hours later if he had the opportunity to do it earlier? At most, Birrers testimony only established Biongs theft of certain items from the Vizconde residence and gross neglect for failing to maintain the sanctity of the crime scene by moving around and altering the effects of the crime. Birrers testimony failed to connect Biong's acts to Webb and the other accused. Lauro Vizconde testified about how deeply he was affected by the loss of her wife and two daughters. Carmella spoke to him of a rejected suitor she called Bagyo, because he was a Paraaque politicians son. Unfortunately, Lauro did not appear curious enough to insist on finding out who the rejected fellow was. Besides, his testimony contradicts that of Alfaro who testified that Carmela and Webb had an on-going relation. Indeed, if Alfaro were to be believed, Carmela wanted Webb to come to her house around midnight. She even left the kitchen door open so he could enter the house.

5.

The missing corroboration There is something truly remarkable about this case: the prosecutions core theory that Carmela

and Webb had been sweethearts, that she had been unfaithful to him, and that it was for this reason that Webb brought his friends to her house to gang-rape her is totally uncorroborated!

For instance, normally, if Webb, a Congressmans son, courted the young Carmela, that would be news among her circle of friends if not around town. But, here, none of her friends or even those who knew either of them came forward to affirm this. And if Webb hanged around with her, trying to win her favors, he would surely be seen with her. And this would all the more be so if they had become sweethearts, a relation that Alfaro tried to project with her testimony. But, except for Alfaro, the NBI asset, no one among Carmelas friends or her friends friends would testify ever hearing of such relationship or ever seeing them together in some popular hangouts in Paraaque or Makati. Alfaros claim of a five-hour drama is like an alien page, rudely and unconnectedly inserted into Webb and Carmelas life stories or like a piece of jigsaw puzzle trimmed to fit into the shape on the board but does not belong because it clashes with the surrounding pieces. It has neither antecedent nor concomitant support in the verifiable facts of their personal histories. It is quite unreal. What is more, Alfaro testified that she saw Carmela drive out of her house with a male passenger, Mr. X, whom Alfaro thought the way it looked was also Carmelas lover. This was the all-important reason Webb supposedly had for wanting to harm her. Again, none of Carmelas relatives, friends, or people who knew her ever testified about the existence of Mr.X in her life. Nobody has come forward to testify having ever seen him with Carmela. And despite the gruesome news about her death and how Mr. X had played a role in it, he never presented himself like anyone who had lost a special friend normally would. Obviously, Mr. X did not exist, a mere ghost of the imagination of Alfaro, the woman who made a living informing on criminals. Webbs U.S. Alibi Among the accused, Webb presented the strongest alibi. a. The travel preparations Webb claims that in 1991 his parents, Senator Freddie Webb and his wife, Elizabeth, sent their son to the United States (U.S.) to learn the value of independence, hard work, and money. Gloria Webb, his aunt, accompanied him. Rajah Tours booked their flight to San Francisco via United Airlines. Josefina Nolasco of Rajah Tours confirmed that Webb and his aunt used their plane tickets. Webb told his friends, including his neighbor, Jennifer Claire Cabrera, and his basketball buddy, Joselito Orendain Escobar, of his travel plans. He even invited them to his despedida party on March 8, 1991 at Faces Disco along Makati Ave. On March 8,1991, the eve of his departure, he took girlfriend Milagros Castillo to a dinner at Bunchums at the Makati Cinema Square. His basketball buddy Rafael Jose with Tina Calma, a blind date arranged by Webb, joined them. They afterwards went to Faces Disco for Webb's despedida party. Among those present were his friends Paulo Santos and Jay Ortega. b. The two immigration checks

The following day, March 9, 1991, Webb left for San Francisco, California, with his Aunt Gloria on board United Airlines Flight 808. Before boarding his plane, Webb passed through the Philippine Immigration booth at the airport to have his passport cleared and stamped. was listed on the United Airlines Flights Passenger Manifest. On arrival at San Francisco, Webb went through the U.S. Immigration where his entry into that country was recorded. Thus, the U.S. Immigration Naturalization Service, checking with its Nonimmigrant Information System, confirmed Webb's entry into the U.S. on March 9, 1991. Webb presented at the trial the INS Certification issued by the U.S. Immigration and Naturalization Service, the computergenerated print-out of the US-INS indicating Webb's entry on March 9, 1991, and the US-INS Certification dated August 31, 1995, authenticated by the Philippine Department of Foreign Affairs, correcting an earlier August 10, 1995 Certification. c. Details of U.S. sojourn In San Francisco, Webb and his aunt Gloria were met by the latters daughter, Maria Teresa Keame, who brought them to Glorias house in Daly City, California. During his stay with his aunt, Webb met Christopher Paul Legaspi Esguerra, Glorias grandson. In April 1991, Webb, Christopher, and a certain Daphne Domingo watched the concert of Deelite Band in San Francisco. In the same month, Dorothy Wheelock and her family invited Webb to Lake Tahoe to return the Webbs hospitality when she was in the Philippines. In May 1991, on invitation of another aunt, Susan Brottman, Webb moved to Anaheim Hills, California. During his stay there, he occupied himself with playing basketball once or twice a week with Steven Keeler and working at his cousin-in-laws pest control company. Webb presented the companys logbook showing the tasks he performed, his paycheck, his ID, and other employment papers. On June 14, 1991 he applied for a driver's license and wrote three letters to his friend Jennifer Cabrera. On June 28, 1991, Webbs parents visited him at Anaheim and stayed with the Brottmans. On the same day, his father introduced Honesto Aragon to his son when he came to visit. On the following day, June 29, Webb, in the company of his father and Aragon went to Riverside, California, to look for a car. They bought an MR2 Toyota car. Later that day, a visitor at the Brottmans, Louis Whittacker, saw Webb looking at the plates of his new car. To prove the purchase, Webb presented the Public Records of California Department of Motor Vehicle and a car plate LEW WEBB. n using the car in the U.S., Webb even received traffic citations. On June 30, 1991 Webb, again accompanied by his father and Aragon, bought a bicycle at Orange Cycle Center. The Center issued Webb a receipt dated June 30, 1991. On July 4, 1991, Independence Day, the Webbs, the Brottmans, and the Vaca family had a lakeside picnic. Immigration Officer, Ferdinand Sampol checked Webbs visa, stamped, and initialed his passport, and let him pass through. He

Webb stayed with the Brottmans until mid July and rented a place for less than a month.

On

August 4, 1991 he left for Longwood, Florida, to stay with the spouses Jack and Sonja Rodriguez. There, he met Armando Rodriguez with whom he spent time, playing basketball on weekends, watching movies, and playing billiards. In November 1991, Webb met performing artist Gary Valenciano, a friend of Jack Rodriguez, who was invited for a dinner at the Rodriguezs house. He left the Rodriguezs home in August 1992, returned to Anaheim and stayed with his aunt Imelda Pagaspas. He stayed there until he left for the Philippines on October 26, 1992. d. The second immigration checks As with his trip going to the U.S., Webb also went through both the U.S. and Philippine immigrations on his return trip. Thus, his departure from the U.S. was confirmed by the same certifications that confirmed his entry. Furthermore, a Diplomatic Note of the U.S. Department of State with enclosed letter from Acting Director Debora A. Farmer of the Records Operations, Office of Records of the US-INS stated that the Certification dated August 31, 1995 is a true and accurate statement. And when he boarded his plane, the Passenger Manifest of Philippine Airlines Flight No. 103, certified by Agnes Tabuena confirmed his return trip. When he arrived in Manila, Webb again went through the Philippine Immigration. authenticated by Carmelita Alipio, the immigration officer who processed Webbs reentry. Upon his return, in October 1992, Paolo Santos, Joselito Erondain Escobar, and Rafael Jose once again saw Webb playing basketball at the BF's Phase III basketball court. e. Alibi versus positive identification The trial court and the Court of Appeals are one in rejecting as weak Webbs alibi. Their reason is uniform: Webbs alibi cannot stand against Alfaros positive identification of him as the rapist and killer of Carmela and, apparently, the killer as well of her mother and younger sister. Because of this, to the lower courts, Webbs denial and alibi were fabricated. But not all denials and alibis should be regarded as fabricated. Indeed, if the accused is truly In fact, the This was

arrival stamp and initial on his passport indicated his return to Manila on October 27, 1992.

innocent, he can have no other defense but denial and alibi. So how can such accused penetrate a mind that has been made cynical by the rule drilled into his head that a defense of alibi is a hangmans noose in the face of a witness positively swearing, I saw him do it.? Most judges believe that such assertion automatically dooms an alibi which is so easy to fabricate. This quick stereotype thinking, however, is

distressing. For how else can the truth that the accused is really innocent have any chance of prevailing over such a stone-cast tenet? There is only one way. A judge must keep an open mind. He must guard against slipping into hasty conclusion, often arising from a desire to quickly finish the job of deciding a case. the accuseds claim that he did not do it. blinking an eye. Rather, to be acceptable, the positive identification must meet at least two criteria: First, the positive identification of the offender must come from a credible witness. She is credible who can be trusted to tell the truth, usually based on past experiences with her. Her word has, to one who knows her, its weight in gold. And second, the witness story of what she personally saw must be believable, not inherently contrived. A witness who testifies about something she never saw runs into inconsistencies and makes bewildering claims. Here, as already fully discussed above, Alfaro and her testimony fail to meet the above criteria. She did not show up at the NBI as a spontaneous witness bothered by her conscience. She had been hanging around that agency for sometime as a stool pigeon, one paid for mixing up with criminals and squealing on them. Police assets are often criminals themselves. She was the prosecutions worst possible choice for a witness. Indeed, her superior testified that she volunteered to play the role of a witness in the Vizconde killings when she could not produce a man she promised to the NBI. And, although her testimony included details, Alfaro had prior access to the details that the investigators knew of the case. She took advantage of her familiarity with these details to include in her testimony the clearly incompatible act of Webb hurling a stone at the front door glass frames even when they were trying to slip away quietlyjust so she can accommodate this crime scene feature. She also had Ventura rummaging a bag on the dining table for a front door key that nobody needed just to explain the physical evidence of that bag and its scattered contents. And she had Ventura climbing the cars hood, risking being seen in such an awkward position, when they did not need to darken the garage to force open the front doorjust so to explain the darkened light and foot prints on the car hood. Further, her testimony was inherently incredible. Her story that Gatchalian, Fernandez, Estrada, Rodriguez, and Filart agreed to take their turns raping Carmela is incongruent with their indifference, exemplified by remaining outside the house, milling under a street light, visible to neighbors and passersby, and showing no interest in the developments inside the house, like if it was their turn to rape A positive declaration from a witness that he saw the accused commit the crime should not automatically cancel out A lying witness can make as positive an identification as a truthful witness can. The lying witness can also say as forthrightly and unequivocally, He did it! without

Carmela. Alfaros story that she agreed to serve as Webbs messenger to Carmela, using up her gas, and staying with him till the bizarre end when they were practically strangers, also taxes incredulity. To provide basis for Webbs outrage, Alfaro said that she followed Carmela to the main road to watch her let off a lover on Aguirre Avenue. And, inexplicably, although Alfaro had only played the role of messenger, she claimed leading Webb, Lejano, and Ventura into the house to gang-rape Carmella, as if Alfaro was establishing a reason for later on testifying on personal knowledge. Her swing from an emotion of fear when a woman woke up to their presence in the house and of absolute courage when she nonetheless returned to become the lone witness to a grim scene is also quite inexplicable. Ultimately, Alfaros quality as a witness and her inconsistent, if not inherently unbelievable, testimony cannot be the positive identification that jurisprudence acknowledges as sufficient to jettison a denial and an alibi. f. A documented alibi To establish alibi, the accused must prove by positive, clear, and satisfactory evidence that (a) he was present at another place at the time of the perpetration of the crime, and (b) that it was physically impossible for him to be at the scene of the crime. The courts below held that, despite his evidence, Webb was actually in Paraaque when the Vizconde killings took place; he was not in the U.S. from March 9, 1991 to October 27, 1992; and if he did leave on March 9, 1991, he actually returned before June 29, 1991, committed the crime, erased the fact of his return to the Philippines from the records of the U.S. and Philippine Immigrations, smuggled himself out of the Philippines and into the U.S., and returned the normal way on October 27, 1992. But this ruling practically makes the death of Webb and his passage into the next life the only acceptable alibi in the Philippines. Courts must abandon this unjust and inhuman paradigm. If one is cynical about the Philippine system, he could probably claim that Webb, with his fathers connections, can arrange for the local immigration to put a March 9, 1991 departure stamp on his passport and an October 27, 1992 arrival stamp on the same. But this is pure speculation since there had been no indication that such arrangement was made. Besides, how could Webb fix a foreign airlines passenger manifest, officially filed in the Philippines and at the airport in the U.S. that had his name on them? How could Webb fix with the U.S. Immigrations record system those two dates in its record of his travels as well as the dates when he supposedly departed in secret from the U.S. to commit the crime in the Philippines and then return there? No one has come up with a logical and plausible answer to these questions. The Court of Appeals rejected the evidence of Webbs passport since he did not leave the original to be attached to the record. But, while the best evidence of a document is the original, this means that

the same is exhibited in court for the adverse party to examine and for the judge to see. As Court of Appeals Justice Tagle said in his dissent, the practice when a party does not want to leave an important document with the trial court is to have a photocopy of it marked as exhibit and stipulated among the parties as a faithful reproduction of the original. parties and on the court. The U.S. Immigration certification and the computer print-out of Webbs arrival in and departure from that country were authenticated by no less than the Office of the U.S. Attorney General and the State Department. Still the Court of Appeals refused to accept these documents for the reason that Webb failed to present in court the immigration official who prepared the same. But this was unnecessary. Webbs passport is a document issued by the Philippine government, which under international practice, is the official record of travels of the citizen to whom it is issued. The entries in that passport are presumed true. The U.S. Immigration certification and computer print-out, the official certifications of which have been authenticated by the Philippine Department of Foreign Affairs, merely validated the arrival and departure stamps of the U.S. Immigration office on Webbs passport. They have the same evidentiary value. The officers who issued these certifications need not be presented in court to testify on them. Their trustworthiness arises from the sense of official duty and the penalty attached to a breached duty, in the routine and disinterested origin of such statement and in the publicity of the record. The Court of Appeals of course makes capital of the fact that an earlier certification from the U.S. Immigration office said that it had no record of Webb entering the U.S. his dissenting opinion, thus: While it is true that an earlier Certification was issued by the U.S. INS on August 16, 1995 finding no evidence of lawful admission of Webb, this was already clarified and deemed erroneous by no less than the US INS Officials. As explained by witness Leo Herrera-Lim, Consul and Second Secretary of the Philippine Embassy in Washington D.C., said Certification did not pass through proper diplomatic channels and was obtained in violation of the rules on protocol and standard procedure governing such request. The initial request was merely initiated by BID Commissioner Verceles who directly communicated with the Philippine Consulate in San Francisco, USA, bypassing the Secretary of Foreign Affairs which is the proper protocol procedure. Mr. Steven Bucher, the acting Chief of the Records Services Board of US-INS Washington D.C. in his letter addressed to Philip Antweiler, Philippine Desk Officer, State Department, declared the earlier Certification as incorrect and But that erroneous first certification was amply explained by the U.S. Government and Court of Appeals Justice Tagle stated it in Stipulations in the course of trial are binding on the

erroneous as it was not exhaustive and did not reflect all available information. Also, Richard L. Huff, Co-Director of the Office of Information and privacy, US Department of Justice, in response to the appeal raised by Consul General Teresita V. Marzan, explained that the INS normally does not maintain records on individuals who are entering the country as visitors rather than as immigrants: and that a notation concerning the entry of a visitor may be made at the Nonimmigrant Information system. Since appellant Webb entered the U.S. on a mere tourist visa, obviously, the initial search could not have produced the desired result inasmuch as the data base that was looked into contained entries of the names of IMMIGRANTS and not that of NON-IMMIGRANT visitors of the U.S.. The trial court and the Court of Appeals expressed marked cynicism over the accuracy of travel documents like the passport as well as the domestic and foreign records of departures and arrivals from airports. They claim that it would not have been impossible for Webb to secretly return to the Philippines after he supposedly left it on March 9, 1991, commit the crime, go back to the U.S., and openly return to the Philippines again on October 26, 1992. Travel between the U.S. and the Philippines, said the lower courts took only about twelve to fourteen hours. If the Court were to subscribe to this extremely skeptical view, it might as well tear the rules of evidence out of the law books and regard suspicions, surmises, or speculations as reasons for impeaching evidence. It is not that official records, which carry the presumption of truth of what they state, are immune to attack. They are not. That presumption can be overcome by evidence. Here, however, the prosecution did not bother to present evidence to impeach the entries in Webbs passport and the certifications of the Philippine and U.S. immigration services regarding his travel to the U.S. and back. The prosecutions rebuttal evidence is the fear of the unknown that it planted in the lower courts minds. 7. Effect of Webbs alibi to others Webbs documented alibi altogether impeaches Alfaro's testimony, not only with respect to him, but also with respect to Lejano, Estrada, Fernandez, Gatchalian, Rodriguez, and Biong. For, if the Court accepts the proposition that Webb was in the U.S. when the crime took place, Alfaros testimony will not hold together. Webbs participation is the anchor of Alfaros story. Without it, the evidence against the others must necessarily fall. CONCLUSION In our criminal justice system, what is important is, not whether the court entertains doubts about the innocence of the accused since an open mind is willing to explore all possibilities, but whether it entertains a reasonable, lingering doubt as to his guilt. For, it would be a serious mistake to send an innocent man to jail where such kind of doubt hangs on to ones inner being, like a piece of meat lodged immovable between teeth.

Will the Court send the accused to spend the rest of their lives in prison on the testimony of an NBI asset who proposed to her handlers that she take the role of the witness to the Vizconde massacre that she could not produce? WHEREFORE, the Court REVERSES and SETS ASIDE the Decision dated December 15, 2005 and Resolution dated January 26, 2007 of the Court of Appeals in CA-G.R. CR-H.C. 00336 and ACQUITS accused-appellants Hubert Jeffrey P. Webb, Antonio Lejano, Michael A. Gatchalian, Hospicio Fernandez, Miguel Rodriguez, Peter Estrada and Gerardo Biong of the crimes of which they were charged for failure of the prosecution to prove their guilt beyond reasonable doubt. They are ordered immediately RELEASED from detention unless they are confined for another lawful cause. Let a copy of this Decision be furnished the Director, Bureau of Corrections, Muntinlupa City for immediate implementation. The Director of the Bureau of Corrections is DIRECTED to report the action he has taken to this Court within five days from receipt of this Decision.

3. [ A.M. No. 10-7-17-SC, February 08, 2011 ] IN THE MATTER OF THE CHARGES OF PLAGIARISM, ETC., AGAINST ASSOCIATE JUSTICE MARIANO C. DEL CASTILLO.

Petitioners Isabelita C. Vinuya, et al., all members of the Malaya Lolas Organization, seek reconsideration of the decision of the Court dated October 12, 2010 that dismissed their charges of plagiarism, twisting of cited materials, and gross neglect against Justice Mariano Del Castillo in connection with the decision he wrote for the Court in G.R. No. 162230, entitled Vinuya v. Romulo. Mainly, petitioners claim that the Court has by its decision legalized or approved of the commission of plagiarism in the Philippines. This claim is absurd. The Court, like everyone else, condemns plagiarism as the world in general understands and uses the term. Plagiarism, a term not defined by statute, has a popular or common definition. To plagiarize, says Webster, is "to steal and pass off as one's own" the ideas or words of another. Stealing implies malicious taking. Black's Law Dictionary, the world's leading English law dictionary quoted by the Court in its decision, defines plagiarism as the "deliberate and knowing presentation of another person's original ideas or creative expressions as one's own." The presentation of another persons ideas as ones own must be deliberate or premedidateda taking with ill intent. There is no commonly-used dictionary in the world that embraces in the meaning of plagiarism errors in attribution by mere accident or in good faith. Certain educational institutions of course assume different norms in its application. For instance, the Loyola Schools Code of Academic Integrity ordains that "plagiarism is identified not through intent but through the act itself. The objective act of falsely attributing to one's self what is not one's work, whether intentional or out of neglect, is sufficient to conclude that plagiarism has occurred. Students who plead ignorance or appeal to lack of malice are not excused." But the Court's decision in the present case does not set aside such norm. The decision makes this clear, thus: To paraphrase Bast and Samuels, while the academic publishing model is based on the originality of the writer's thesis, the judicial system is based on the doctrine of stare decisis, which encourages courts to cite historical legal data, precedents, and related studies in their decisions. The judge is not expected to produce original scholarship in every respect. The strength of a decision lies in the soundness and general acceptance of the precedents and long held legal opinions it draws from.

Original scholarship is highly valued in the academe and rightly so. A college thesis, for instance, should contain dissertations embodying results of original research, substantiating a specific view. This must be so since the writing is intended to earn for the student an academic degree, honor, or distinction. He earns no credit nor deserves it who takes the research of others, copies their dissertations, and proclaims these as his own. There should be no question that a cheat deserves neither reward nor sympathy.

But the policy adopted by schools of disregarding the element of malicious intent found in dictionaries is evidently more in the nature of establishing what evidence is sufficient to prove the commission of such dishonest conduct than in rewriting the meaning of plagiarism. Since it would be easy enough for a student to plead ignorance or lack of malice even as he has copied the work of others, certain schools have adopted the policy of treating the mere presence of such copied work in his paper sufficient objective evidence of plagiarism. Surely, however, if on its face the student's work shows as a whole that he has but committed an obvious mistake or a clerical error in one of hundreds of citations in his thesis, the school will not be so unreasonable as to cancel his diploma. In contrast, decisions of courts are not written to earn merit, accolade, or prize as an original piece of work or art. Deciding disputes is a service rendered by the government for the public good. Judges issue decisions to resolve everyday conflicts involving people of flesh and blood who ache for speedy justice or juridical beings which have rights and obligations in law that need to be protected. The interest of society in written decisions is not that they are originally crafted but that they are fair and correct in the context of the particular disputes involved. decision of a court of law. There is a basic reason for individual judges of whatever level of courts, including the Supreme Court, not to use original or unique language when reinstating the laws involved in the cases they decide. Their duty is to apply the laws as these are written. But laws include, under the doctrine of stare decisis, judicial interpretations of such laws as are applied to specific situations. Under this doctrine, Courts are "to stand by precedent and not to disturb settled point." Once the Court has "laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle, and apply it to all future cases, where facts are substantially the same; regardless of whether the parties or property are the same." And because judicial precedents are not always clearly delineated, they are quite often entangled in apparent inconsistencies or even in contradictions, prompting experts in the law to build up regarding such matters a large body of commentaries or annotations that, in themselves, often become part of legal writings upon which lawyers and judges draw materials for their theories or solutions in particular cases. And, because of the need to be precise and correct, judges and practitioners alike, by practice and tradition, usually lift passages from such precedents and writings, at times omitting, without malicious intent, attributions to the originators. Is this dishonest? No. Duncan Webb, writing for the International Bar Association puts it succinctly. When practicing lawyers (which include judges) write about the law, they effectively place their ideas, their language, and their work in the public domain, to be affirmed, adopted, criticized, or rejected. Being in the public domain, other lawyers can thus freely use these without fear of committing some wrong or incurring some liability. Thus: The tendency to copy in law is readily explicable. In law accuracy of words is everything. Legal disputes often centre round the way in which obligations have been expressed in legal documents and how the facts of the real world fit the meaning of the words Justice, not originality, form, and style, is the object of every

in which the obligation is contained. This, in conjunction with the risk-aversion of lawyers means that refuge will often be sought in articulations that have been tried and tested. In a sense therefore the community of lawyers have together contributed to this body of knowledge, language, and expression which is common property and may be utilized, developed and bettered by anyone. The implicit right of judges to use legal materials regarded as belonging to the public domain is not unique to the Philippines. As Joyce C. George, whom Justice Maria Lourdes Sereno cites in her dissenting opinion, observed in her Judicial Opinion Writing Handbook: A judge writing to resolve a dispute, whether trial or appellate, is exempted from a charge of plagiarism even if ideas, words or phrases from a law review article, novel thoughts published in a legal periodical or language from a party's brief are used without giving attribution. Thus judges are free to use whatever sources they deem appropriate to resolve the matter before them, without fear of reprisal. This exemption applies to judicial writings intended to decide cases for two reasons: the judge is not writing a literary work and, more importantly, the purpose of the writing is to resolve a dispute. As a result, judges adjudicating cases are not subject to a claim of legal plagiarism. If the Court were to inquire into the issue of plagiarism respecting its past decisions from the time of Chief Justice Cayetano S. Arellano to the present, it is likely to discover that it has not on occasion acknowledged the originators of passages and views found in its decisions. These omissions are true for many of the decisions that have been penned and are being penned daily by magistrates from the Court of Appeals, the Sandiganbayan, the Court of Tax Appeals, the Regional Trial Courts nationwide and with them, the municipal trial courts and other first level courts. Never in the judiciary's more than 100 years of history has the lack of attribution been regarded and demeaned as plagiarism. This is not to say that the magistrates of our courts are mere copycats. They are not. Their decisions analyze the often conflicting facts of each case and sort out the relevant from the irrelevant. They identify and formulate the issue or issues that need to be resolved and evaluate each of the laws, rulings, principles, or authorities that the parties to the case invoke. The decisions then draw their apt conclusions regarding whether or not such laws, rulings, principles, or authorities apply to the particular cases before the Court. These efforts, reduced in writing, are the product of the judges' creativity. It is here--actually the substance of their decisions--that their genius, originality, and honest labor can be found, of which they should be proud. In Vinuya, Justice Del Castillo examined and summarized the facts as seen by the opposing sides in a way that no one has ever done. He identified and formulated the core of the issues that the parties raised. And when he had done this, he discussed the state of the law relevant to their resolution. It was

here that he drew materials from various sources, including the three foreign authors cited in the charges against him. He compared the divergent views these present as they developed in history. He then explained why the Court must reject some views in light of the peculiar facts of the case and applied those that suit such facts. Finally, he drew from his discussions of the facts and the law the right solution to the dispute in the case. On the whole, his work was original. He had but done an honest work. The Court will not, therefore, consistent with established practice in the Philippines and elsewhere, dare permit the filing of actions to annul the decisions promulgated by its judges or expose them to charges of plagiarism for honest work done. This rule should apply to practicing lawyers as well. Counsels for the petitioners, like all lawyers handling cases before courts and administrative tribunals, cannot object to this. Although as a rule they receive compensation for every pleading or paper they file in court or for every opinion they render to clients, lawyers also need to strive for technical accuracy in their writings. They should not be exposed to charges of plagiarism in what they write so long as they do not depart, as officers of the court, from the objective of assisting the Court in the administration of justice. As Duncan Webb said: In presenting legal argument most lawyers will have recourse to either previous decisions of the courts, frequently lifting whole sections of a judge's words to lend weight to a particular point either with or without attribution. The words of scholars are also sometimes given weight, depending on reputation. Some encyclopaedic works are given particular authority. In England this place is given to Halsbury's Laws of England which is widely considered authoritative. A lawyer can do little better than to frame an argument or claim to fit with the articulation of the law in Halsbury's. While in many cases the very purpose of the citation is to claim the authority of the author, this is not always the case. Frequently commentary or dicta of lesser standing will be adopted by legal authors, largely without attribution. xxxx The converse point is that originality in the law is viewed with skepticism. It is only the arrogant fool or the truly gifted who will depart entirely from the established template and reformulate an existing idea in the belief that in doing so they will improve it. While over time incremental changes occur, the wholesale abandonment of established expression is generally considered foolhardy. The Court probably should not have entertained at all the charges of plagiarism against Justice Del Castillo, coming from the losing party. But it is a case of first impression and petitioners, joined by some faculty members of the University of the Philippines school of law, have unfairly maligned him with the charges of plagiarism, twisting of cited materials, and gross neglect for failing to attribute lifted passages

from three foreign authors. These charges as already stated are false, applying the meaning of plagiarism as the world in general knows it. True, Justice Del Castillo failed to attribute to the foreign authors materials that he lifted from their works and used in writing the decision for the Court in the Vinuya case. But, as the Court said, the evidence as found by its Ethics Committee shows that the attribution to these authors appeared in the beginning drafts of the decision. Unfortunately, as testified to by a highly qualified and experienced courtemployed researcher, she accidentally deleted the same at the time she was cleaning up the final draft. The Court believed her since, among other reasons, she had no motive for omitting the attribution. The foreign authors concerned, like the dozens of other sources she cited in her research, had high reputations in international law. Notably, those foreign authors expressly attributed the controversial passages found in their works to earlier writings by others. The authors concerned were not themselves the originators. As it happened, although the ponencia of Justice Del Castillo accidentally deleted the attribution to them, there remained in the final draft of the decision attributions of the same passages to the earlier writings from which those authors borrowed their ideas in the first place. In short, with the remaining attributions after the erroneous clean-up, the passages as it finally appeared in the Vinuya decision still showed on their face that the lifted ideas did not belong to Justice Del Castillo but to others. He did not pass them off as his own. With our ruling, the Court need not dwell long on petitioners' allegations that Justice Del Castillo had also committed plagiarism in writing for the Court his decision in another case, Ang Ladlad v. Commission on Elections. Petitioners are nit-picking. Upon close examination and as Justice Del Castillo amply demonstrated in his comment to the motion for reconsideration, he in fact made attributions to passages in such decision that he borrowed from his sources although they at times suffered in formatting lapses. Considering its above ruling, the Court sees no point in further passing upon the motion of the Integrated Bar of the Philippines for leave to file and admit motion for reconsideration-in-intervention dated January 5, 2011 and Dr. Peter Payoyo's claim of other instances of alleged plagiarism in the Vinuya decision. ACCORDINGLY, the Court DENIES petitioners' motion for reconsideration for lack of merit.

4. [ A.M. No. 10-7-17-SC, October 15, 2010 ]

IN THE MATTER OF THE CHARGES OF PLAGIARISM, ETC., AGAINST ASSOCIATE JUSTICE MARIANO C. DEL CASTILLO. This case is concerned with charges that, in preparing a decision for the Court, a designated member plagiarized the works of certain authors and twisted their meanings to support the decision. Petitioners Isabelita C. Vinuya and about 70 other elderly women, all members of the Malaya Lolas Organization, filed with the Court in G.R. No. 162230 a special civil action of certiorari with application for preliminary mandatory injunction against the Executive Secretary, the Secretary of Foreign Affairs, the Secretary of Justice, and the Office of the Solicitor General. Petitioners claimed that in destroying villages in the Philippines during World War II, the Japanese army systematically raped them and a number of other women, seizing them and holding them in houses or cells where soldiers repeatedly ravished and abused them. Petitioners alleged that they have since 1998 been approaching the Executive Department, represented by the respondent public officials, requesting assistance in filing claims against the Japanese military officers who established the comfort women stations. But that Department declined, saying that petitioners' individual claims had already been fully satisfied under the Peace Treaty between the Philippines and Japan. Petitioners wanted the Court to render judgment, compelling the Executive Department to espouse their claims for official apology and other forms of reparations against Japan before the International Court of Justice and other international tribunals. On April 28, 2010, the Court rendered judgment dismissing petitioners' action. Justice Mariano C. del Castillo wrote the decision for the Court. The Court essentially gave two reasons for its decision: it cannot grant the petition because, first, the Executive Department has the exclusive prerogative under the Constitution and the law to determine whether to espouse petitioners' claim against Japan; and, second, the Philippines is not under any obligation in international law to espouse their claims. On June 9, 2010, petitioners filed a motion for reconsideration of the Court's decision. More than a month later on July 18, 2010, counsel for petitioners, Atty. Herminio Harry Roque, Jr., announced in his online blog that his clients would file a supplemental petition "detailing plagiarism committed by the court" under the second reason it gave for dismissing the petition and that "these stolen passages were also twisted to support the court's erroneous conclusions that the Filipino comfort women of World War Two have no further legal remedies." The media gave publicity to Atty. Roque's announcement. On July 19, 2010, petitioners filed the supplemental motion for reconsideration that Atty. Roque announced. It accused Justice Del Castillo of "manifest intellectual theft and outright plagiarism" when he wrote the decision for the Court and of "twisting the true intents of the plagiarized sources ... to suit the

arguments

of

the

assailed

Judgment."

They

charged

Justice

Del

Castillo

of

copying

without

acknowledgement certain passages from three foreign articles: a. A Fiduciary Theory of Jus Cogens by Evan J. Criddle and Evan Fox-Descent, Yale Journal of International Law (2009); b. Breaking the Silence: Rape as an International Crime by Mark Ellis, Case Western Reserve Journal of International Law (2006); and c. Enforcing Erga Omnes Obligations by Christian J. Tams, Cambridge University Press (2005). Petitioners claim that the integrity of the Court's deliberations in the case has been put into question by Justice Del Castillo's fraud. The Court should thus "address and disclose to the public the truth about the manifest intellectual theft and outright plagiarism" that resulted in gross prejudice to the petitioners. Because of the publicity that the supplemental motion for reconsideration generated, Justice Del Castillo circulated a letter to his colleagues, subsequently verified, stating that when he wrote the decision for the Court he had the intent to attribute all sources used in it. He said in the pertinent part: It must be emphasized that there was every intention to attribute all sources, whenever due. At no point was there ever any malicious intent to appropriate another's work as our own. We recall that this ponencia was thrice included in the Agenda of the Court en banc. It was deliberated upon during the Baguio session on April 13, 2010, April 20, 2010 and in Manila on April 27, 2010. Each time, suggestions were made which necessitated major revisions in the draft. Sources were re-studied, discussions modified, passages added or deleted. The resulting decision comprises 34 pages with 78 footnotes. xxxx As regards the claim of the petitioners that the concepts as contained in the above foreign materials were "twisted," the same remains their opinion which we do not necessarily share. On July 27, 2010, the Court En Banc referred the charges against Justice Del Castillo to its Committee on Ethics and Ethical Standards, chaired by the Chief Justice, for investigation and recommendation. The Chief Justice designated retired Justice Jose C. Vitug to serve as consultant of the Committee. He graciously accepted. On August 2, 2010, the Committee directed petitioners to comment on Justice Del Castillo's verified letter. When this was done, it set the matter for hearing.

In the meantime, on July 19, 2010, Evan Criddle wrote on his blog that he and his co-author Evan Fox-Descent (referred to jointly as Criddle-Descent) learned of alleged plagiarism involving their work but Criddle's concern, after reading the supplemental motion for reconsideration, was the Court's conclusion that prohibitions against sexual slavery are not jus cogens or internationally binding norms that treaties cannot diminish. On July 23, 2010, Dr. Mark Ellis wrote the Court expressing concern that in mentioning his work, the Court "may have misread the argument [he] made in the article and employed them for cross purposes." Dr. Ellis said that he wrote the article precisely to argue for appropriate legal remedy for victims of war crimes. On August 8, 2010, after the referral of the matter to the Committee for investigation, the Dean of the University of the Philippines (U.P.) College of Law publicized a Statement from his faculty, claiming that the Vinuya decision was "an extraordinary act of injustice" and a "singularly reprehensible act of dishonesty and misrepresentation by the Highest Court of the land." The statement said that Justice Del Castillo had a "deliberate intention to appropriate the original authors' work," and that the Court's decision amounted to "an act of intellectual fraud by copying works in order to mislead and deceive." On August 18, 2010 Mr. Christian J. Tams wrote Chief Justice Renato C. Corona that, although relevant sentences in the Court's decision were taken from his work, he was given generic reference only in the footnote and in connection with a citation from another author (Bruno Simma) rather than with respect to the passages taken from his work. He thought that the form of referencing was inappropriate. Mr. Tams was also concerned that the decision may have used his work to support an approach to erga omnes concept (obligations owed by individual States to the community of nations) that is not consistent with what he advocated. On August 26, 2010, the Committee heard the parties' submissions in the summary manner of administrative investigations. Counsels from both sides were given ample time to address the Committee and submit their evidence. The Committee queried them on these. Counsels for Justice Del Castillo later asked to be heard with the other parties not in attendance so they could make submissions that their client regarded as sensitive and confidential, involving the drafting process that went into the making of the Court's decision in the Vinuya case. Petitioners' counsels vigorously objected and the Committee sustained the objection. After consulting Justice Del Castillo, his counsels requested the Committee to hear the Justice's court researcher, whose name need not be mentioned here, explain the research work that went into the making of the decision in the Vinuya case. The Committee granted the request. The researcher demonstrated by Power Point presentation how the attribution of the lifted passages to the writings of Criddle-Descent and Ellis, found in the beginning drafts of her report to Justice

Del Castillo, were unintentionally deleted. She tearfully expressed remorse at her "grievous mistake" and grief for having "caused an enormous amount of suffering for Justice Del Castillo and his family." On the other hand, addressing the Committee in reaction to the researcher's explanation, counsel for petitioners insisted that lack of intent is not a defense in plagiarism since all that is required is for a writer to acknowledge that certain words or language in his work were taken from another's work. Counsel invoked the Court's ruling in University of the Philippines Board of Regents v. Court of Appeals and Arokiaswamy William Margaret Celine, arguing that standards on plagiarism in the academe should apply with more force to the judiciary. After the hearing, the Committee gave the parties ten days to file their respective memoranda. They filed their memoranda in due course. Subsequently after deliberation, the Committee submitted its unanimous findings and recommendations to the Court. This case presents two issues: 1. Whether or not, in writing the opinion for the Court in the Vinuya case, Justice Del Castillo plagiarized the published works of authors Tams, Criddle-Descent, and Ellis. 2. Whether or not Justice Del Castillo twisted the works of these authors to make it appear that such works supported the Court's position in the Vinuya decision. The Court's Rulings Because of the pending motion for reconsideration in the Vinuya case, the Court like its Committee on Ethics and Ethical Standards will purposely avoid touching the merits of the Court's decision in that case or the soundness or lack of soundness of the position it has so far taken in the same. The Court will deal, not with the essential merit or persuasiveness of the foreign author's works, but how the decision that Justice Del Castillo wrote for the Court appropriated parts of those works and for what purpose the decision employed the same. At its most basic, plagiarism means the theft of another person's language, thoughts, or ideas. To plagiarize, as it is commonly understood according to Webster, is "to take (ideas, writings, etc.) from (another) and pass them off as one's own." The passing off of the work of another as one's own is thus an indispensable element of plagiarism. The Passages from Tams Petitioners point out that the Vinuya decision lifted passages from Tams' book, Enforcing Erga Omnes Obligations in International Law (2006) and used them in Footnote 69 with what the author thought was a mere generic reference. But, although Tams himself may have believed that the footnoting in this case was not "an appropriate form of referencing," he and petitioners cannot deny that the decision

did attribute the source or sources of such passages. Justice Del Castillo did not pass off Tams' work as his own. The Justice primarily attributed the ideas embodied in the passages to Bruno Simma, whom Tams himself credited for them. Still, Footnote 69 mentioned, apart from Simma, Tams' article as another source of those ideas. The Court believes that whether or not the footnote is sufficiently detailed, so as to satisfy the footnoting standards of counsel for petitioners is not an ethical matter but one concerning clarity of writing. The statement "See Tams, Enforcing Obligations Erga Omnes in International Law (2005)" in the Vinuya decision is an attribution no matter if Tams thought that it gave him somewhat less credit than he deserved. Such attribution altogether negates the idea that Justice Del Castillo passed off the challenged passages as his own. That it would have been better had Justice Del Castillo used the introductory phrase "cited in" rather than the phrase "See" would make a case of mere inadvertent slip in attribution rather than a case of "manifest intellectual theft and outright plagiarism." If the Justice's citations were imprecise, it would just be a case of bad footnoting rather than one of theft or deceit. If it were otherwise, many would be target of abuse for every editorial error, for every mistake in citing pagination, and for every technical detail of form. The Passages from Ellis and Criddle-Descent Petitioners also attack the Court's decision for lifting and using as footnotes, without attribution to the author, passages from the published work of Ellis. The Court made the following statement on page 27 of its decision, marked with Footnote 65 at the end: We fully agree that rape, sexual slavery, torture, and sexual violence are morally reprehensible as well as legally prohibited under contemporary international law. 65 xxx Footnote 65 appears down the bottom of the page. Since the lengthy passages in that footnote came almost verbatim from Ellis' article, such passages ought to have been introduced by an acknowledgement that they are from that article. The footnote could very well have read: 65 In an article, Breaking the Silence: Rape as an International Crime, Case Western Reserve Journal of International Law (2006), Mark Ellis said: The concept of rape as an international crime is relatively new. This is not to say that rape has never been historically prohibited, particularly in war. But modern-day sensitivity to the crime of rape did not emerge until after World War II. In the Nuremberg Charter, the word rape was not mentioned. The article on crimes against humanity explicitly set forth prohibited acts, but rape was not mentioned by name. (For example, the Treaty of Amity and Commerce between Prussia and the United States provides that in time of war all women and children "shall not be molested in their persons." The Treaty of Amity and Commerce, Between his Majesty the King of Prussia and the United States of America, art. 23, Sept. 10, 1785, U.S.-Pruss., 8 Treaties &

Other Int'l Agreements Of The U.S. 78, 85. The 1863 Lieber Instructions classified rape as a crime of "troop discipline." (Mitchell, The Prohibition of Rape in International Humanitarian Law as a Norm of Jus cogens: Clarifying the Doctrine, 15 Duke J. Comp. Int'l. L. 219, 224). It specified rape as a capital crime punishable by the death penalty (Id. at 236). The 1907 Hague Convention protected women by requiring the protection of their "honour." ("Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected." Convention (IV) Respecting the Laws & Customs of War on Land, art. 46, Oct. 18, 1907. General Assembly resolution 95 (I) of December 11, 1946 entitled, "Affirmation of the Principles of International Law recognized by the Charter of the Nrnberg Tribunal"; General Assembly document A/64/Add.1 of 1946; See Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279. Article 6(c) of the Charter established crimes against humanity as the following: CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the Jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. The Nuremberg Judgment did not make any reference to rape and rape was not prosecuted. (Judge Gabrielle Kirk McDonald, The International Criminal Tribunals Crime and Punishment in the International Arena,7 ILSA J. Int'l. Comp. L. 667, 676.) However, International Military Tribunal for the Far East prosecuted rape crimes, even though its Statute did not explicitly criminalize rape. The Far East Tribunal held General Iwane Matsui, Commander Shunroku Hata and Foreign Minister Hirota criminally responsible for a series of crimes, including rape, committed by persons under their authority. (The Tokyo Judgment: Judgment Of The International Military Tribunal For The Far East 445-54 (1977). The first mention of rape as a specific crime came in December 1945 when Control Council Law No. 10 included the term rape in the definition of crimes against humanity. Law No. 10, adopted by the four occupying powers in Germany, was devised to establish a uniform basis for prosecuting war criminals in German courts. (Control Council for Germany, Law No. 10: Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, Dec. 20, 1945, 3 Official Gazette Control Council for Germany 50, 53 (1946)) The 1949 Geneva Convention Relative to the Treatment of Prisoners of War was the first modernday international instrument to establish protections against rape for women. Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 27, 6 U.S.T. 3316, 75 U.N.T.S. 287 (entry into force Oct. 20, 1950) [hereinafter Fourth Geneva Convention].Furthermore, the ICC, the ICTY, and the International Criminal Tribunal for Rwanda (ICTR) have significantly advanced the crime of rape by enabling it to be prosecuted as genocide, a war crime, and a crime against humanity.

But, as it happened, the acknowledgment above or a similar introduction was missing from Footnote 65. Next, petitioners also point out that the following eight sentences and their accompanying footnotes appear in text on pages 30-32 of the Vinuya decision: xxx In international law, the term "jus cogens" (literally, "compelling law") refers to norms that command peremptory authority, superseding conflicting treaties and custom. Jus cogens norms are considered peremptory in the sense that they are mandatory, do not admit derogation, and can be modified only by general international norms of equivalent authority. 71 Early strains of the jus cogens doctrine have existed since the 1700s,72 but peremptory norms began to attract greater scholarly attention with the publication of Alfred von Verdross's influential 1937 article, Forbidden Treaties in International Law.73 The recognition of jus cogens gained even more force in the 1950s and 1960s with the ILC's preparation of the Vienna Convention on the Law of Treaties (VCLT).74 Though there was a consensus that certain international norms had attained the status of jus cogens,75 the ILC was unable to reach a consensus on the proper criteria for identifying peremptory norms. After an extended debate over these and other theories of jus cogens, the ILC concluded ruefully in 1963 that "there is not as yet any generally accepted criterion by which to identify a general rule of international law as having the character of jus cogens."76 In a commentary accompanying the draft convention, the ILC indicated that "the prudent course seems to be to x x x leave the full content of this rule to be worked out in State practice and in the jurisprudence of international tribunals."77 Thus, while the existence of jus cogens in international law is undisputed, no consensus exists on its substance,77 beyond a tiny core of principles and rules.78

Admittedly, the Vinuya decision lifted the above, including their footnotes, from Criddle-Descent's article, A Fiduciary Theory of Jus Cogens. Criddle-Descent's footnotes were carried into the Vinuya decision's own footnotes but no attributions were made to the two authors in those footnotes. The Explanation Unless amply explained, the above lifting from the works of Ellis and Criddle-Descent could be construed as plagiarism. But one of Justice Del Castillo's researchers, a court-employed attorney, explained how she accidentally deleted the attributions, originally planted in the beginning drafts of her report to him, which report eventually became the working draft of the decision. She said that, for most parts, she did her research electronically. For international materials, she sourced these mainly from Westlaw, an online research service for legal and law-related materials to which the Court subscribes.

In the old days, the common practice was that after a Justice would have assigned a case for study and report, the researcher would source his materials mostly from available law books and published articles on print. When he found a relevant item in a book, whether for one side of the issue or for the other, he would place a strip of paper marker on the appropriate page, pencil mark the item, and place the book on his desk where other relevant books would have piled up. He would later paraphrase or copy the marked out passages from some of these books as he typed his manuscript on a manual typewriter. This occasion would give him a clear opportunity to attribute the materials used to their authors or sources. With the advent of computers, however, as Justice Del Castillo's researcher also explained, most legal references, including the collection of decisions of the Court, are found in electronic diskettes or in internet websites that offer virtual libraries of books and articles. Here, as the researcher found items that were relevant to her assignment, she downloaded or copied them into her "main manuscript," a smorgasbord plate of materials that she thought she might need. The researcher's technique in this case is not too far different from that employed by a carpenter. The carpenter first gets the pieces of lumber he would need, choosing the kinds and sizes suitable to the object he has in mind, say a table. When ready, he would measure out the portions he needs, cut them out of the pieces of lumber he had collected, and construct his table. He would get rid of the scraps. Here, Justice Del Castillo's researcher did just that. She electronically "cut" relevant materials from books and journals in the Westlaw website and "pasted" these to a "main manuscript" in her computer that contained the issues for discussion in her proposed report to the Justice. She used the Microsoft Word program. Later, after she decided on the general shape that her report would take, she began pruning from that manuscript those materials that did not fit, changing the positions in the general scheme of those that remained, and adding and deleting paragraphs, sentences, and words as her continuing discussions with Justice Del Castillo, her chief editor, demanded. Parenthetically, this is the standard scheme that computer-literate court researchers use everyday in their work. Justice Del Castillo's researcher showed the Committee the early drafts of her report in the Vinuya case and these included the passages lifted from the separate articles of Criddle-Descent and of Ellis with proper attributions to these authors. But, as it happened, in the course of editing and cleaning up her draft, the researcher accidentally deleted the attributions. First Finding The Court adopts the Committee's finding that the researcher's explanation regarding the accidental removal of proper attributions to the three authors is credible. Given the operational properties of the Microsoft program in use by the Court, the accidental decapitation of attributions to sources of research materials is not remote.

For most senior lawyers and judges who are not computer literate, a familiar example similar to the circumstances of the present case would probably help illustrate the likelihood of such an accident happening. If researcher X, for example, happens to be interested in "the inalienable character of juridical personality" in connection with an assignment and if the book of the learned Civilist, Arturo M. Tolentino, happens to have been published in a website, researcher X would probably show interest in the following passage from that book: xxx Both juridical capacity and capacity to act are not rights, but qualities of persons; hence, they cannot be alienated or renounced.15 xxx _____________________________ 15 3 Von Tuhr 296; 1 Valverde 291. Because the sentence has a footnote mark (#15) that attributes the idea to other sources, it is evident that Tolentino did not originate it. The idea is not a product of his intellect. He merely lifted it from Von Tuhr and Valverde, two reputable foreign authors. When researcher X copies and pastes the above passage and its footnote into a manuscript-in-themaking in his computer, the footnote number would, given the computer program in use, automatically change and adjust to the footnoting sequence of researcher X's manuscript. Thus, if the preceding footnote in the manuscript when the passage from Tolentino was pasted on it is 23, Tolentino's footnote would automatically change from the original Footnote 15 to Footnote 24. But then, to be of use in his materials-gathering scheme, researcher X would have to tag the Tolentino passage with a short description of its subject for easy reference. A suitable subject description would be: "The inalienable character of juridical personality.23" The footnote mark, 23 From Tolentino, which researcher X attaches to the subject tag, serves as reminder to him to attribute the passage in its final form to Tolentino. After the passage has been tagged, it would now appear like this: The inalienable character of juridical personality. 23 xxx Both juridical capacity and capacity to act are not rights, but qualities of persons; hence, they cannot be alienated or renounced.24 xxx _____________________________ 23 From Tolentino. 24 3 Von Tuhr 296; 1 Valverde 291.

The tag is of course temporary and would later have to go. It serves but a marker to help researcher X maneuver the passage into the right spot in his final manuscript. The mistake of Justice Del Castillo's researcher is that, after the Justice had decided what texts, passages, and citations were to be retained including those from Criddle-Descent and Ellis, and when she was already cleaning up her work and deleting all subject tags, she unintentionally deleted the footnotes that went with such tags--with disastrous effect. To understand this, in Tolentino's example, the equivalent would be researcher X's removal during cleanup of the tag, "The inalienable character of juridical personality. 23," by a simple "delete" operation, and the unintended removal as well of the accompanying footnote (#23). The erasure of the footnote eliminates the link between the lifted passage and its source, Tolentino's book. Only the following would remain in the manuscript: xxx Both juridical capacity and capacity to act are not rights, but qualities of persons; hence, they cannot be alienated or renounced.43 _____________________________ 43 3 Von Tuhr 296; 1 Valverde 291 As it happened, the Microsoft word program does not have a function that raises an alarm when original materials are cut up or pruned. The portions that remain simply blend in with the rest of the manuscript, adjusting the footnote number and removing any clue that what should stick together had just been severed. This was what happened in the attributions to Ellis and Criddle-Descent. The researcher deleted the subject tags and, accidentally, their accompanying footnotes that served as reminder of the sources of the lifted passages. With 119 sources cited in the decision, the loss of the 2 of them was not easily detectable. Petitioners point out, however, that Justice Del Castillo's verified letter of July 22, 2010 is inconsistent with his researcher's claim that the omissions were mere errors in attribution. They cite the fact that the Justice did not disclose his researcher's error in that letter despite the latter's confession regarding her mistake even before the Justice sent his letter to the Chief Justice. By denying plagiarism in his letter, Justice Del Castillo allegedly perjured himself and sought to whitewash the case. But nothing in the July 22 letter supports the charge of false testimony. Justice Del Castillo merely explained "that there was every intention to attribute all sources whenever due" and that there was never "any malicious intent to appropriate another's work as our own," which as it turns out is a true statement. He recalled how the Court deliberated upon the case more than once, prompting major revisions in the draft of the decision. In the process, "(s)ources were re-studied, discussions modified, passages added or

deleted." Nothing in the letter suggests a cover-up. Indeed, it did not preclude a researcher's inadvertent error. And it is understandable that Justice Del Castillo did not initially disclose his researcher's error. He wrote the decision for the Court and was expected to take full responsibility for any lapse arising from its preparation. What is more, the process of drafting a particular decision for the Court is confidential, which explained his initial request to be heard on the matter without the attendance of the other parties. Notably, neither Justice Del Castillo nor his researcher had a motive or reason for omitting attribution for the lifted passages to Criddle-Descent or to Ellis. The latter authors are highly respected professors of international law. The law journals that published their works have exceptional reputations. It did not make sense to intentionally omit attribution to these authors when the decision cites an abundance of other sources. Citing these authors as the sources of the lifted passages would enhance rather than diminish their informative value. Both Justice Del Castillo and his researcher gain nothing from the omission. Thus, the failure to mention the works of Criddle-Decent and Ellis was unquestionably due to inadvertence or pure oversight. Petitioners of course insist that intent is not material in committing plagiarism since all that a writer has to do, to avoid the charge, is to enclose lifted portions with quotation marks and acknowledge the sources from which these were taken. Petitioners point out that the Court should apply to this case the ruling in University of the Philippines Board of Regents v. Court of Appeals and Arokiaswamy William Margaret Celine. They argue that standards on plagiarism in the academe should apply with more force to the judiciary. But petitioners' theory ignores the fact that plagiarism is essentially a form of fraud where intent to deceive is inherent. Their theory provides no room for errors in research, an unrealistic position considering that there is hardly any substantial written work in any field of discipline that is free of any mistake. The theory places an automatic universal curse even on errors that, as in this case, have reasonable and logical explanations. Indeed, the 8th edition of Black's Law Dictionary defines plagiarism as the "deliberate and knowing presentation of another person's original ideas or creative expressions as one's own." Thus, plagiarism presupposes intent and a deliberate, conscious effort to steal another's work and pass it off as one's own. Besides, the Court said nothing in U.P. Board of Regents that would indicate that an intent to pass off another's work as one's own is not required in plagiarism. The Court merely affirmed the academic freedom of a university to withdraw a master's degree that a student obtained based on evidence that she misappropriated the work of others, passing them off as her own. This is not the case here since, as already stated, Justice Del Castillo actually imputed the borrowed passages to others.

Second Finding The Court also adopts the Committee's finding that the omission of attributions to Criddle-Descent and Ellis did not bring about an impression that Justice Del Castillo himself created the passages that he lifted from their published articles. That he merely got those passages from others remains self-evident, despite the accidental deletion. The fact is that he still imputed the passages to the sources from which Criddle-Descent and Ellis borrowed them in the first place. This is best illustrated in the familiar example above. After the deletion of the subject tag and, accidentally, its footnote which connects to the source, the lifted passage would appear like this: xxx Both juridical capacity and capacity to act are not rights, but qualities of persons; hence, they cannot be alienated or renounced.43 ____________________________ 43 3 Von Tuhr 296; 1 Valverde 291. Although the unintended deletion severed the passage's link to Tolentino, the passage remains to be attributed to Von Tuhr and Valverde, the original sources that Tolentino himself cites. The text and its footnote reference cancel out any impression that the passage is a creation of researcher X. It is the same with the passages from Criddle-Descent and Ellis. Because such passages remained attributed by the footnotes to the authors' original sources, the omission of attributions to Criddle-Descent and Ellis gave no impression that the passages were the creations of Justice Del Castillo. This wholly negates the idea that he was passing them off as his own thoughts. True the subject passages in this case were reproduced in the Vinuya decision without placing them in quotation marks. But such passages are much unlike the creative line from Robert Frost, "The woods are lovely, dark, and deep, but I have promises to keep, and miles to go before I sleep, and miles to go before I sleep." The passages here consisted of common definitions and terms, abridged history of certain principles of law, and similar frequently repeated phrases that, in the world of legal literature, already belong to the public realm. To paraphrase Bast and Samuels, while the academic publishing model is based on the originality of the writer's thesis, the judicial system is based on the doctrine of stare decisis, which encourages courts to cite historical legal data, precedents, and related studies in their decisions. The judge is not expected to produce original scholarship in every respect. The strength of a decision lies in the soundness and general acceptance of the precedents and long held legal opinions it draws from. Third Finding

Petitioners allege that the decision twisted the passages from Tams, Criddle-Descent, and Ellis. The Court adopts the Committee's finding that this is not so. Indeed, this allegation of twisting or misrepresentation remains a mystery to the Court. To twist means "to distort or pervert the meaning of." For example, if one lifts the lyrics of the National Anthem, uses it in his work, and declares that Jose Palma who wrote it "did not love his country," then there is "twisting" or misrepresentation of what the anthem's lyrics said. Here, nothing in the Vinuya decision said or implied that, based on the lifted passages, authors Tams, Criddle-Descent, and Ellis supported the Court's conclusion that the Philippines is not under any obligation in international law to espouse Vinuya et al.'s claims. The fact is that, first, since the attributions to Criddle-Descent and Ellis were accidentally deleted, it is impossible for any person reading the decision to connect the same to the works of those authors as to conclude that in writing the decision Justice Del Castillo "twisted" their intended messages. And, second, the lifted passages provided mere background facts that established the state of international law at various stages of its development. These are neutral data that could support conflicting theories regarding whether or not the judiciary has the power today to order the Executive Department to sue another country or whether the duty to prosecute violators of international crimes has attained the status of jus cogens. Considering how it was impossible for Justice Del Castillo to have twisted the meaning of the passages he lifted from the works of Tams, Criddle-Descent, and Ellis, the charge of "twisting" or misrepresentation against him is to say the least, unkind. To be more accurate, however, the charge is reckless and obtuse. No Misconduct On occasions judges and justices have mistakenly cited the wrong sources, failed to use quotation marks, inadvertently omitted necessary information from footnotes or endnotes. But these do not, in every case, amount to misconduct. Only errors that are tainted with fraud, corruption, or malice are subject of disciplinary action. This is not the case here. Justice Del Castillo's acts or omissions were not shown to have been impelled by any of such disreputable motives. If the rule were otherwise, no judge or justice, however competent, honest, or dedicated he may be, can ever hope to retire from the judiciary with an unblemished record. No Inexcusable Negligence Finally, petitioners assert that, even if they were to concede that the omission was the result of plain error, Justice Del Castillo is nonetheless guilty of gross inexcusable negligence. They point out that he has full control and supervision over his researcher and should not have surrendered the writing of the decision to the latter.

But this assumes that Justice Del Castillo abdicated the writing of the Vinuya decision to his researcher, which is contrary to the evidence adduced during the hearing. As his researcher testified, the Justice set the direction that the research and study were to take by discussing the issues with her, setting forth his position on those issues, and reviewing and commenting on the study that she was putting together until he was completely satisfied with it. In every sense, Justice Del Castillo was in control of the writing of the report to the Court, which report eventually became the basis for the decision, and determined its final outcome. Assigning cases for study and research to a court attorney, the equivalent of a "law clerk" in the United States Supreme Court, is standard practice in the high courts of all nations. This is dictated by necessity. With about 80 to 100 cases assigned to a Justice in our Court each month, it would be truly senseless for him to do all the studies and research, going to the library, searching the internet, checking footnotes, and watching the punctuations. If he does all these by himself, he would have to allocate at least one to two weeks of work for each case that has been submitted for decision. The wheels of justice in the Supreme Court will grind to a halt under such a proposition. What is important is that, in this case, Justice Del Castillo retained control over the writing of the decision in the Vinuya case without, however, having to look over his researcher's shoulder as she cleaned up her draft report to ensure that she hit the right computer keys. The Justice's researcher was after all competent in the field of assignment given her. She finished law from a leading law school, graduated third in her class, served as Editor-in Chief of her school's Law Journal, and placed fourth in the bar examinations when she took it. She earned a master's degree in International Law and Human Rights from a prestigious university in the United States under the Global-Hauser program, which counsel for petitioners concedes to be one of the top post graduate programs on International Law in the world. Justice Del Castillo did not exercise bad judgment in assigning the research work in the Vinuya case to her. Can errors in preparing decisions be prevented? Not until computers cease to be operated by human beings who are vulnerable to human errors. They are hypocrites who believe that the courts should be as error-free as they themselves are. Incidentally, in the course of the submission of petitioners' exhibits, the Committee noted that petitioners' Exhibit J, the accusing statement of the Faculty of the U.P. College of Law on the allegations of plagiarism and misinterpretation, was a mere dummy. The whole of the statement was reproduced but the signatures portion below merely listed the names of 38 faculty members, in solid rows, with the letters "Sgd" or "signed" printed beside the names without exception. Supreme Court Justice Vicente V. Mendoza, a U. P. professor. Because the Committee declined to admit a mere dummy of Exhibit J, it directed Atty. Roque to present the signed copy within three days of the August 26 hearing. He complied. As it turned out, the original statement was signed by only a minority of the faculty members on the list. The set of signatories These included the name of retired

that appeared like solid teeth in the dummy turned out to be broken teeth in the original.

Since only 37

out of the 81 on the list signed the document, it does not appear to be a statement of the Faculty but of just some of its members. And retired Justice V. V. Mendoza did not sign the statement, contrary to what the dummy represented. The Committee wondered why the Dean submitted a dummy of the signed document when U. P. has an abundance of copying machines. Since the above circumstances appear to be related to separate en banc matter concerning the supposed Faculty statement, there is a need for the Committee to turn over the signed copy of the same to the en banc for its consideration in relation to that matter. WHEREFORE, in view of all of the above, the Court: 1. DISMISSES for lack of merit petitioner Vinuya, et al.'s charges of plagiarism, twisting of cited materials, and gross neglect against Justice Mariano C. del Castillo; 2. DIRECTS the Public Information Office to send copies of this decision to Professors Evan J. Criddle and Evan Fox-Descent, Dr. Mark Ellis, and Professor Christian J. Tams at their known addresses; 3. DIRECTS the Clerk of Court to provide all court attorneys involved in legal research and reporting with copies of this decision and to enjoin them to avoid editing errors committed in the Vinuya case while using the existing computer program especially when the volume of citations and footnoting is substantial; and 4. Finally, DIRECTS the Clerk of Court to acquire the necessary software for use by the Court that can prevent future lapses in citations and attributions. Further, the Court DIRECTS the Committee on Ethics and Ethical Standards to turn over to the en banc the dummy as well as the signed copy of petitioners' Exhibit J, entitled "Restoring Integrity," a statement by the Faculty of the University of the Philippines College of Law for the en banc's consideration in relation to the separate pending matter concerning that supposed Faculty statement.

5. [ G.R. Nos. 147036-37, April 10, 2012 ] PETITIONER-ORGANIZATIONS, NAMELY: PAMBANSANG KOALISYON NG MGA SAMAHANG MAGSASAKA AT MANGGAGAWA SA NIYUGAN (PKSMMN), COCONUT INDUSTRY REFORM MOVEMENT (COIR), BUKLOD NG MALAYANG MAGBUBUKID, PAMBANSANG KILUSAN NG MGA SAMAHANG MAGSASAKA (PAKISAMA), CENTER FOR AGRARIAN REFORM, EMPOWERMENT AND TRANSFORMATION (CARET), PAMBANSANG KATIPUNAN NG MGA SAMAHAN SA KANAYUNAN (PKSK); PETITIONER- LEGISLATOR: REPRESENTATIVE

LORETA ANN ROSALES; AND PETITIONER-INDIVIDUALS, NAMELY: VIRGILIO V. DAVID, JOSE MARIE FAUSTINO, JOSE CONCEPCION, ROMEO ROYANDOYAN, JOSE V. ROMERO, JR., ATTY. CAMILO L. SABIO, AND ATTY. ANTONIO T. CARPIO, PETITIONERS, VS. EXECUTIVE PRODUCERS SECRETARY, FEDERATION, SECRETARY INC. OF AGRICULTURE, AND UNITED SECRETARY COCONUT OF AGRARIAN BANK REFORM, (UCPB),

PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT, THE SOLICITOR GENERAL, PHILIPPINE COCONUT (COCOFED), PLANTERS RESPONDENTS. [ G.R. NO. 147811] TEODORO J. AMOR, REPRESENTING THE PEASANT ALLIANCE OF SAMAR AND LEYTE (PASALEY), DOMINGO C. ENCALLADO, REPRESENTING ANIBAN NG MAGSASAKA AT MANGGAGAWA SA NIYUGAN (AMMANI), AND VIDAL M. PILIIN, REPRESENTING THE LAGUNA COALITION, PETITIONERS, VS. EXECUTIVE SECRETARY, SECRETARY OF AGRICULTURE, SECRETARY OF AGRARIAN REFORM,

PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT, THE SOLICITOR GENERAL, PHILIPPINE COCONUT PRODUCERS FEDERATION, UNITED COCONUT PLANTERS BANK, RESPONDENTS. These are consolidated petitions to declare unconstitutional certain presidential decrees and executive orders of the martial law era relating to the raising and use of coco-levy funds. On June 19, 1971 Congress enacted Republic Act (R.A.) 6260 that established a Coconut Investment Fund (CI Fund) for the development of the coconut industry through capital financing. Coconut farmers were to capitalize and administer the Fund through the Coconut Investment Company (CIC) whose objective was, among others, to advance the coconut farmers interests. For this purpose, the law imposed a levy of P0.55 on the coconut farmers first domestic sale of every 100 kilograms of copra, or its equivalent, for which levy he was to get a receipt convertible into CIC shares of stock. About a year following his proclamation of martial law in the country or on August 20, 1973 President Ferdinand E. Marcos issued Presidential Decree (P.D.) 276, which established a Coconut Consumers Stabilization Fund (CCS Fund), to address the crisis at that time in the domestic market for coconut-based consumer goods. The CCS Fund was to be built up through the imposition of a P15.00-levy for every first sale of 100 kilograms of copra resecada. The levy was to cease after a year or earlier provided the crisis was over. Any remaining balance of the Fund was to revert to the CI Fund established under R.A. 6260. A year later or on November 14, 1974 President Marcos issued P.D. 582, creating a permanent fund called the Coconut Industry Development Fund (CID Fund) to channel for the ultimate direct benefit of coconut farmers part of the levies that they were already paying. The Philippine Coconut Authority (PCA) was to provide P100 million as initial capital of the CID Fund and, thereafter, give the Fund at least

P0.20 per kilogram of copra resecada out of the PCAs collection of coconut consumers stabilization levy. In case of the lifting of this levy, the PCA was then to impose a permanent levy of P0.20 on the first sale of every kilogram of copra to form part of the CID Fund. Also, under P.D. 582, the Philippine National Bank (PNB), then owned by the Government, was to receive on deposit, administer, and use the CID Fund. P.D. 582 authorized the PNB to invest the unused portion of the CID Fund in easily convertible investments, the earnings of which were to form part of the Fund. In 1975 President Marcos enacted P.D. 755 which approved the acquisition of a commercial bank for the benefit of the coconut farmers to enable such bank to promptly and efficiently realize the industrys credit policy. Thus, the PCA bought 72.2% of the shares of stock of First United Bank, headed by Pedro Cojuangco. Due to changes in its corporate identity and purpose, the banks articles of incorporation were amended in July 1975, resulting in a change in the banks name from First United Bank to United Coconut Planters Bank (UCPB). On July 14, 1976 President Marcos enacted P.D. 961, the Coconut Industry Code, which consolidated and codified existing laws relating to the coconut industry. The Code provided that surpluses from the CCS Fund and the CID Fund collections, not used for replanting and other authorized purposes, were to be invested by acquiring shares of stock of corporations, including the San Miguel Corporation (SMC), engaged in undertakings related to the coconut and palm oil industries. UCPB was to make such investments and equitably distribute these for free to coconut farmers. These investments constituted the Coconut Industry Investment Fund (CIIF). P.D. 961 also provided that the coconut levy funds (coco-levy funds) shall be owned by the coconut farmers in their private capacities. This was reiterated in the PD 1468 amendment of June 11, 1978. In 1980, President Marcos issued P.D. 1699, suspending the collections of the CCS Fund and the CID Fund. But in 1981 he issued P.D. 1841 which revived the collection of coconut levies. P.D. 1841 renamed the CCS Fund into the Coconut Industry Stabilization Fund (CIS Fund). This Fund was to be earmarked proportionately among several development programs, such as coconut hybrid replanting program, insurance coverage for the coconut farmers, and scholarship program for their children. In November 2000 then President Joseph Estrada issued Executive Order (E.O.) 312, establishing a Sagip Niyugan Program which sought to provide immediate income supplement to coconut farmers and encourage the creation of a sustainable local market demand for coconut oil and other coconut products. The Executive Order sought to establish a P1-billion fund by disposing of assets acquired using coco-levy funds or assets of entities supported by those funds. A committee was created to manage the fund under this program. A majority vote of its members could engage the services of a reputable auditing firm to conduct periodic audits. At about the same time, President Estrada issued E.O. 313, which created an irrevocable trust fund known as the Coconut Trust Fund (the Trust Fund). This aimed to provide financial assistance to coconut farmers, to the coconut industry, and to other agri-related programs. The shares of stock of SMC were to

serve as the Trust Funds initial capital. These shares were acquired with CII Funds and constituted approximately 27% of the outstanding capital stock of SMC. E.O. 313 designated UCPB, through its Trust Department, as the Trust Funds trustee bank. The Trust Fund Committee would administer, manage, and supervise the operations of the Trust Fund. The Committee would designate an external auditor to do an annual audit or as often as needed but it may also request the Commission on Audit (COA) to intervene. To implement its mandate, E.O. 313 directed the Presidential Commission on Good Government, the Office of the Solicitor General, and other government agencies to exclude the 27% CIIF SMC shares from Civil Case 0033, entitled Republic of the Philippines v. Eduardo Cojuangco, Jr., et al., which was then pending before the Sandiganbayan and to lift the sequestration over those shares. On January 26, 2001, however, former President Gloria Macapagal-Arroyo ordered the suspension of E.O.s 312 and 313. This notwithstanding, on March 1, 2001 petitioner organizations and individuals brought the present action in G.R. 147036-37 to declare E.O.s 312 and 313 as well as Article III, Section 5 of P.D. 1468 unconstitutional. On April 24, 2001 the other sets of petitioner organizations and individuals instituted G.R. 147811 to nullify Section 2 of P.D. 755 and Article III, Section 5 of P.D.s 961 and 1468 also for being unconstitutional. The parties submit the following issues for adjudication: Procedurally 1. Whether or not petitioners special civil actions of certiorari under Rule 65 constituted the proper remedy for their actions; and 2. Whether or not petitioners have legal standing to bring the same to court. On the substance 3. Whether or not the coco-levy funds are public funds; and 4. Whether or not (a) Section 2 of P.D. 755, (b) Article III, Section 5 of P.D.s 961 and 1468, (c) E.O. 312, and (d) E.O. 313 are unconstitutional. The Rulings of the Court First. UCPB questions the propriety of the present petitions for certiorari and mandamus under Rule 65 on the ground that there are no ongoing proceedings in any tribunal or board or before a government official exercising judicial, quasi-judicial, or ministerial functions. UCPB insists that the Court exercises appellate jurisdiction with respect to issues of constitutionality or validity of laws and presidential orders.

But, as the Court previously held, where there are serious allegations that a law has infringed the Constitution, it becomes not only the right but the duty of the Court to look into such allegations and, when warranted, uphold the supremacy of the Constitution. Moreover, where the issues raised are of paramount importance to the public, as in this case, the Court has the discretion to brush aside technicalities of procedure. Second. The Court has to uphold petitioners right to institute these petitions. The petitioner organizations in these cases represent coconut farmers on whom the burden of the coco-levies attaches. It is also primarily for their benefit that the levies were imposed. The individual petitioners, on the other hand, join the petitions as taxpayers. The Court recognizes their right to restrain officials from wasting public funds through the enforcement of an unconstitutional statute. This so-called taxpayers suit is based on the theory that expenditure of public funds for the purpose of executing an unconstitutional act is a misapplication of such funds. Besides, the 1987 Constitution accords to the citizens a greater participation in the affairs of government. Indeed, it provides for people's initiative, the right to information on matters of public concern (including the right to know the state of health of their President), as well as the right to file cases questioning the factual bases for the suspension of the privilege of writ of habeas corpus or declaration of martial law. These provisions enlarge the peoples right in the political as well as the judicial field. It grants them the right to interfere in the affairs of government and challenge any act tending to prejudice their interest. Third. For some time, different and conflicting notions had been formed as to the nature and ownership of the coco-levy funds. The Court, however, finally put an end to the dispute when it categorically ruled in Republic of the Philippines v. COCOFED that these funds are not only affected with public interest; they are, in fact, prima facie public funds. Prima facie means a fact presumed to be true unless disproved by some evidence to the contrary. The Court was satisfied that the coco-levy funds were raised pursuant to law to support a proper governmental purpose. They were raised with the use of the police and taxing powers of the State for the benefit of the coconut industry and its farmers in general. The COA reviewed the use of the funds. The Bureau of Internal Revenue (BIR) treated them as public funds and the very laws governing coconut levies recognize their public character. The Court has also recently declared that the coco-levy funds are in the nature of taxes and can only be used for public purpose. Taxes are enforced proportional contributions from persons and property, levied by the State by virtue of its sovereignty for the support of the government and for all its public needs. Here, the coco-levy funds were imposed pursuant to law, namely, R.A. 6260 and P.D. 276. The funds were collected and managed by the PCA, an independent government corporation directly under

the President. And, as the respondent public officials pointed out, the pertinent laws used the term levy, which means to tax, in describing the exaction. Of course, unlike ordinary revenue laws, R.A. 6260 and P.D. 276 did not raise money to boost the governments general funds but to provide means for the rehabilitation and stabilization of a threatened industry, the coconut industry, which is so affected with public interest as to be within the police power of the State. The funds sought to support the coconut industry, one of the main economic backbones of the country, and to secure economic benefits for the coconut farmers and farm workers. The subject laws are akin to the sugar liens imposed by Sec. 7(b) of P.D. 388,and the oil price stabilization funds under P.D. 1956, as amended by E.O. 137. Respondent UCPB suggests that the coco-levy funds are closely similar to the Social Security System (SSS) funds, which have been declared to be not public funds but properties of the SSS members and held merely in trust by the government. But the SSS Law collects premium contributions. It does not collect taxes from members for a specific public purpose. They pay contributions in exchange for insurance protection and benefits like loans, medical or health services, and retirement packages. The benefits accrue to every SSS member, not to the public, in general. Furthermore, SSS members do not lose ownership of their contributions. The government merely holds these in trust, together with his employers contribution, to answer for his future benefits. The cocolevy funds, on the other hand, belong to the government and are subject to its administration and disposition. Thus, these funds, including its incomes, interests, proceeds, or profits, as well as all its assets, properties, and shares of stocks procured with such funds must be treated, used, administered, and managed as public funds. Lastly, the coco-levy funds are evidently special funds. In Gaston v. Republic Planters Bank, the Court held that the State collected stabilization fees from sugar millers, planters, and producers for a special purpose: to finance the growth and development of the sugar industry and all its components. The fees were levied for a special purpose and, therefore, constituted special fund when collected. Its character as such fund was made clear by the fact that they were deposited in the PNB (then a wholly owned government bank) and not in the Philippine Treasury. In Osmea v. Orbos, the Court held that the oil price stabilization fund was a special fund mainly because this was segregated from the general fund and placed in what the law referred to as a trust account. Yet it remained subject to COA scrutiny and review. The Court finds no substantial distinction between these funds and the coco-levy funds, except as to the industry they each support. Fourth. Petitioners in G.R. 147811 assert that Section 2 of P.D. 755 above is void and unconstitutional for disregarding the public character of coco-levy funds. The subject section provides: Section 2. Financial Assistance. x x x and since the operations, and activities of the Philippine Coconut Authority are all in accord with the present social economic plans and programs of the Government, all

collections and levies which the Philippine Coconut Authority is authorized to levy and collect such as but not limited to the Coconut Consumers Stabilization Levy, and the Coconut Industry Development Fund as prescribed by Presidential Decree No. 582 shall not be considered or construed, under any law or regulation, special and/or fiduciary funds and do not form part of the general funds of the national government within the contemplation of Presidential Decree No. 711. (Emphasis ours) The Court has, however, already passed upon this question in Philippine Coconut Producers Federation, Inc. (COCOFED) v. Republic of the Philippines. It held as unconstitutional Section 2 of P.D. 755 for effectively authorizing the PCA to utilize portions of the CCS Fund to pay the financial commitment of the farmers to acquire UCPB and to deposit portions of the CCS Fund levies with UCPB interest free. And as there also provided, the CCS Fund, CID Fund and like levies that PCA is authorized to collect shall be considered as non-special or fiduciary funds to be transferred to the general fund of the Government, meaning they shall be deemed private funds. Identical provisions of subsequent presidential decrees likewise declared coco-levy funds private properties of coconut farmers. Article III, Section 5 of P.D. 961 reads: Section 5. Exemptions. The Coconut Consumers Stabilization Fund and the Coconut Industry Development Fund as well as all disbursements of said funds for the benefit of the coconut farmers as herein authorized shall not be construed or interpreted, under any law or regulation, as special and/or fiduciary funds, or as part of the general funds of the national government within the contemplation of P.D. No. 711; nor as a subsidy, donation, levy, government funded investment, or government share within the contemplation of P.D. 898, the intention being that said Fund and the disbursements thereof as herein authorized for the benefit of the coconut farmers shall be owned by them in their own private capacities . (Emphasis ours) Section 5 of P.D. 1468 basically reproduces the above provision, thus Section 5. Exemption. The Coconut Consumers Stabilization Fund and the Coconut Industry Development Fund, as well as all disbursements as herein authorized, shall not be construed or interpreted, under any law or regulation, as special and/or fiduciary funds, or as part of the general funds of the national government within the contemplation of P.D. 711; nor as subsidy, donation, levy government funded investment, or government share within the contemplation of P.D. 898, the intention being that said Fund and the disbursements thereof as herein authorized for the benefit of the coconut farmers shall be owned by them in their private capacities: Provided, however, That the President may at any time authorize the Commission on Audit or any other officer of the government to audit the business affairs, administration, and condition of persons and entities who receive subsidy for coconut-based consumer products x x x. (Emphasis ours)

Notably, the raising of money by levy on coconut farm production, a form of taxation as already stated, began in 1971 for the purpose of developing the coconut industry and promoting the interest of coconut farmers. The use of the fund was expanded in 1973 to include the stabilization of the domestic market for coconut-based consumer goods and in 1974 to divert part of the funds for obtaining direct benefit to coconut farmers. After five years or in 1976, however, P.D. 961 declared the coco-levy funds private property of the farmers. P.D. 1468 reiterated this declaration in 1978. But neither presidential decree actually turned over possession or control of the funds to the farmers in their private capacity. The government continued to wield undiminished authority over the management and disposition of those funds. In any event, such declaration is void. There is ownership when a thing pertaining to a person is completely subjected to his will in everything that is not prohibited by law or the concurrence with the rights of another. An owner is free to exercise all attributes of ownership: the right, among others, to possess, use and enjoy, abuse or consume, and dispose or alienate the thing owned. The owner is of course free to waive all or some of these rights in favor of others. But in the case of the coconut farmers, they could not, individually or collectively, waive what have not been and could not be legally imparted to them. Section 2 of P.D. 755, Article III, Section 5 of P.D. 961, and Article III, Section 5 of P.D. 1468 completely ignore the fact that coco-levy funds are public funds raised through taxation. And since taxes could be exacted only for a public purpose, they cannot be declared private properties of individuals although such individuals fall within a distinct group of persons. The Court of course grants that there is no hard-and-fast rule for determining what constitutes public purpose. It is an elastic concept that could be made to fit into modern standards. Public purpose, for instance, is no longer restricted to traditional government functions like building roads and school houses or safeguarding public health and safety. Public purpose has been construed as including the promotion of social justice. Thus, public funds may be used for relocating illegal settlers, building low-cost housing for them, and financing both urban and agrarian reforms that benefit certain poor individuals. Still, these uses relieve volatile iniquities in society and, therefore, impact on public order and welfare as a whole. But the assailed provisions, which removed the coco-levy funds from the general funds of the government and declared them private properties of coconut farmers, do not appear to have a color of social justice for their purpose. The levy on copra that farmers produce appears, in the first place, to be a business tax judging by its tax base. The concept of farmers-businessmen is incompatible with the idea that coconut farmers are victims of social injustice and so should be beneficiaries of the taxes raised from their earnings. It would altogether be different of course if the laws mentioned set apart a portion of the coco-levy fund for improving the lives of destitute coconut farm owners or workers for their social amelioration to establish a proper government purpose. The support for the poor is generally recognized as a public duty

and has long been an accepted exercise of police power in the promotion of the common good. But the declarations do not distinguish between wealthy coconut farmers and the impoverished ones. And even if they did, the Government cannot just embark on a philanthropic orgy of inordinate dole-outs for motives political or otherwise. Consequently, such declarations are void since they appropriate public funds for private purpose and, therefore, violate the citizens right to substantive due process. On another point, in stating that the coco-levy fund shall not be construed or interpreted, under any law or regulation, as special and/or fiduciary funds, or as part of the general funds of the national government, P.D.s 961 and 1468 seek to remove such fund from COA scrutiny. This is also the fault of President Estradas E.O. 312 which deals with P1 billion to be generated out of the sale of coco-fund acquired assets. Thus Section 5. Audit of Fund and Submission of Report. The Committee, by a majority vote, shall engage the services of a reputable auditing firm to conduct periodic audits of the fund. It shall render a quarterly report on all pertinent transactions and availments of the fund to the Office of the President within the first three (3) working days of the succeeding quarter. (Emphasis ours) E.O. 313 has a substantially identical provision governing the management and disposition of the Coconut Trust Fund capitalized with the substantial SMC shares of stock that the coco-fund acquired. Thus Section 13. Accounting. x x x The Fund shall be audited annually or as often as necessary by an external auditor designated by the Committee. The Committee may also request the Commission on Audit to conduct an audit of the Fund. (Emphasis ours) But, since coco-levy funds are taxes, the provisions of P.D.s 755, 961 and 1468 as well as those of E.O.s 312 and 313 that remove such funds and the assets acquired through them from the jurisdiction of the COA violate Article IX-D, Section 2(1) of the 1987 Constitution. Section 2(1) vests in the COA the power and authority to examine uses of government money and property. The cited P.D.s and E.O.s also contravene Section 2 of P.D. 898 (Providing for the Restructuring of the Commission on Audit), which has the force of a statute. And there is no legitimate reason why such funds should be shielded from COA review and audit. The PCA, which implements the coco-levy laws and collects the coco-levy funds, is a government-owned and controlled corporation subject to COA review and audit.

E.O. 313 suffers from an additional infirmity. Its title, Rationalizing the Use of the Coconut Levy Funds by Constituting a Fund for Assistance to Coconut Farmers as an Irrevocable Trust Fund and Creating a Coconut Trust Fund Committee for the Management thereof tends to mislead. Apparently, it intends to create a trust fund out of the coco-levy funds to provide economic assistance to the coconut farmers and, ultimately, benefit the coconut industry. But on closer look, E.O. 313 strays from the special purpose for which the law raises coco-levy funds in that it permits the use of coco-levy funds for improving productivity in other food areas. Thus: Section 2. Purpose of the Fund. The Fund shall be established for the purpose of financing programs of assistance for the benefit of the coconut farmers, the coconut industry, and other agri-related programs intended to maximize food productivity, develop business opportunities in the countryside, provide livelihood alternatives, and promote anti-poverty programs . (Emphasis ours) xxxx Section 9. Use and Disposition of the Trust Income. The Coconut Trust Fund Committee, on an annual basis, shall determine and establish the amount comprising the Trust Income. After such determination, the Committee shall earmark, allocate and disburse the Trust Income for the following purposes, namely: xxxx (d) Thirty percent (30%) of the Trust Income shall be used to assist and fund agriculturallyrelated programs for the Government, as reasonably determined by the Trust Fund Committee, implemented for the purpose of: (i) maximizing food productivity in the agriculture areas of the country, (ii) enhancing the upliftment and well-being of the living conditions of farmers and agricultural workers, (iii) developing viable industries and business opportunities in the countryside, (iv) providing alternative means of livelihood to the direct dependents of agriculture businesses and enterprises, and (v) providing financial assistance and support to coconut farmers in times of economic hardship due to extremely low prices of copra and other coconut products, natural calamities, world market dislocation and similar occurrences, including financial support to the ERAPs Sagip Niyugan Program established under Executive Order No. 312 dated November 3, 2000; x x x. (Emphasis ours) Clearly, E.O. 313 above runs counter to the constitutional provision which directs that all money collected on any tax levied for a special purpose shall be treated as a special fund and paid out for such purpose only. Assisting other agriculturally-related programs is way off the coco-funds objective of promoting the general interests of the coconut industry and its farmers.

A final point, the E.O.s also transgress P.D. 1445, Section 84(2),the first part by the previously mentioned sections of E.O. 313 and the second part by Section 4 of E.O. 312 and Sections 6 and 7 of E.O. 313. E.O. 313 vests the power to administer, manage, and supervise the operations and disbursements of the Trust Fund it established (capitalized with SMC shares bought out of coco-levy funds) in a Coconut Trust Fund Committee. Thus

Section 6. Creation of the Coconut Trust Fund Committee. A Committee is hereby created to administer, manage and supervise the operations of the Trust Fund, chaired by the President with ten (10) members, as follows (a) four (4) representatives from the government sector, two of whom shall be the Secretary of Agriculture and the Secretary of Agrarian Reform who shall act as Vice Chairmen; (b) four (4) representatives from coconut farmers organizations, one of whom shall come from a list of nominees from the Philippine Coconut Producers Federation Inc. (COCOFED); (c) a representative from the CIIF; and (d) a representative from a non-government organization (NGO) involved in agricultural and rural development. All decisions of the Coconut Trust Fund Committee shall be determined by a majority vote of all the members. The Coconut Trust Fund Committee shall perform the functions and duties set forth in Section 7 hereof, with the skill, care, prudence and diligence necessary under the circumstances then prevailing that a prudent man acting in like capacity would exercise. The members of the Coconut Trust Fund Committee shall be appointed by the President and shall hold office at his pleasure. The Coconut Trust Fund Committee is authorized to hire administrative, technical and/or support staff as may be required to enable it to effectively perform its functions and responsibilities. (Emphasis ours) Section 7. Functions and Responsibilities of the Committee. The Coconut Trust Fund Committee shall have the following functions and responsibilities: (a) set the investment policy of the Trust Fund; (b) establish priorities for assistance giving preference to small coconut farmers and farmworkers which

shall be reviewed periodically and revised as necessary in accordance with changing conditions; (c) receive, process and approve project proposals for financing by the Trust Fund; (d) decide on the use of the Trust Funds income or net earnings including final action on applications for assistance, grants and/or loans; (e) avail of professional counsel and services by retaining an investment and financial manager, if desired; (f) formulate the rules and regulations governing the allocation, utilization and disbursement of the Fund; and (g) perform such other acts and things as may be necessary proper or conducive to attain the purposes of the Fund. (Emphasis ours) Section 4 of E.O. 312 does essentially the same thing. It vests the management and disposition of the assistance fund generated from the sale of coco-levy fund-acquired assets into a Committee of five members. Thus, Section 4 of E.O. 312 provides Section 4. Funding. Assets acquired through the coconut levy funds or by entities financed by the coconut levy funds identified by the President for appropriate disposal or sale, shall be sold or disposed to generate a maximum fund of ONE BILLION PESOS (P1,000,000,000.00) which shall be managed by a Committee composed of a Chairman and four (4) members to be appointed by the President whose term shall be co-terminus with the Program. x x x (Emphasis ours) In effect, the above transfers the power to allocate, use, and disburse coco-levy funds that P.D. 232 vested in the PCA and transferred the same, without legislative authorization and in violation of P.D. 232, to the Committees mentioned above. An executive order cannot repeal a presidential decree which has the same standing as a statute enacted by Congress. UCPB invokes the principle of separability to save the assailed laws from being struck down. The general rule is that where part of a statute is void as repugnant to the Constitution, while another part is valid, the valid portion, if susceptible to being separated from the invalid, may stand and be enforced. When the parts of a statute, however, are so mutually dependent and connected, as conditions, considerations, or compensations for each other, as to warrant a belief that the legislature intended them as a whole, the nullity of one part will vitiate the rest. In which case, if some parts are unconstitutional, all the other provisions which are thus dependent, conditional, or connected must consequently fall with them. But, given that the provisions of E.O.s 312 and 313, which as already stated invalidly transferred powers over the funds to two committees that President Estrada created, the rest of their provisions became non-operational. It is evident that President Estrada would not have created the new funding

programs if they were to be managed by some other entity. Indeed, he made himself Chairman of the Coconut Trust Fund and left to his discretion the appointment of the members of the other committee. WHEREFORE, the Court GRANTS the petition in G.R. 147036-37, PARTLY GRANTS the petition in G.R. 147811, and declares the following VOID: a) E.O. 312, for being repugnant to Section 84(2) of P.D. 1445, and Article IX-D, Section 2(1) of the Constitution; and b) E.O. 313, for being in contravention of Section 84(2) of P.D. 1445, and Article IX-D, Section 2(1) and Article VI, Section 29(3) of the Constitution. The Court has previously declared Section 2 of P.D. 755 and Article III, Section 5 of P.D.s 961 and 1468 unconstitutional.

6. PEOPLE OF THE PHILIPPINES, Appellee, v. RODEL SINGSON, Appellant. G.R. No. 194719 September 21, 2011

In this rape case, when the victims mother got home and found her daughters bedroom locked, she looked for the key, opened her daughters bedroom with it, and found her naked in bed with the accused hiding underneath it. The Provincial Prosecutor of Cabarroguis, Quirino, charged the accused Rodel Singson with rape before the Regional Trial Court (RTC) of that province in Criminal Case 1841. MJ testified that, through text messages by mobile phones, Rodel became her boyfriend and their relation lasted from January to September 2003. Manila. But they hardly saw each other after MJ studied in After a few They met when MJ came home to Santiago for vacation in the summer of 2003.

months, however, she broke up with Rodel to concentrate on her studies. In the evening of December 22, 2003 MJ and her mother, LK, attended the simbang gabi from 9:00 p.m. to 10:00 p.m. After the mass, LK wanted to join some church members to go caroling. Since MJ felt sleepy, she bade her mother leave to go home at about 11:30 p.m. to her surprise, saw Rodel standing at the door. Rodel said that he wanted to talk to MJ about renewing their relation. She was at first hesitant to entertain him because he appeared drunk but she eventually let him in. After talking with Rodel at the On reaching home, MJ prepared to go to bed but someone knocked at their door. Thinking it was her mother, she opened it and,

living room for about 45 minutes, MJ asked him to leave and he did. MJ then entered her room. But, suddenly, Rodel appeared and sprayed something on her face that made her feel weak and dizzy. Her vision also became blurred. After undressing her, Rodel touched her body in various parts. Eventually, he violated her. She could only cry until she lost consciousness. MJ woke up to the screams of her brother who was gripping Rodel by the bedroom window. As it turned out, when LK came home at 2:00 a.m., she knocked at MJs bedroom to check if she had gotten home safely but LK got no answer. Worried, LK used a key to open the door and she saw MJ naked and unconscious on the bed. Noticing unfamiliar clothes on the floor, LK became suspicious and looked around. When she checked under the bed, she saw Rodel there in his underwear. LK shouted for help, waking up her sister who happened to be the barangay chairman of their village. Some barangay tanods came. They moved MJ to another room and arrested Rodel. It was to her aunt that MJ told her story because the incident affected her mother deeply. Rodel, on the other hand, insisted that he and MJ freely had sexual intercourse borne of their mutual affection. He did not rape her. But, declining to give credence to his defense, on November 26, 2007 the RTC found Rodel guilty of rape, sentenced him to life imprisonment, and ordered him to pay MJ P50,000.00 as civil indemnity and another P50,000.00 as moral damages. On March 25, 2010 the Court of Appeals (CA) in CA-G.R. CR-H.C. 03161 affirmed the RTC decision, hence, this appeal. The only issue presented in this case is whether or not Rodel raped MJ after spraying her with drugs that weakened her resistance and eventually rendered her unconscious. The Ruling of the Court

One of the ways of committing rape, according to Article 335 of the Revised Penal Code, as amended by Section 11 of Republic Act 7659, is by having carnal knowledge of a woman when she has been deprived of reason or otherwise rendered unconscious. The prosecution claims that this was Rodels crime. But the Court doubts MJs story. She testified that Rodel sprayed something on her face, causing her to feel weak and dizzy. Rodel then brought her into her room and took off her clothes. He kissed her neck and breasts and successfully ravished her. She said that she was unable to scream for help because she suddenly became unconscious when Rodel entered her. scream that she woke up. It was only when she heard her brother

But, MJs story is at variance with what she said in her December 23, 2003 affidavit which she executed only hours after the incident. MJ there said that she was fully conscious during the time Rodel was raping her. Indeed, she described Rodels pumping motion until he discharged into her. She even felt pain afterwards in her genitals and in the other parts of her body. MJ claimed that it was only after it was over that her eyes felt heavy and she lost consciousness. When the defense counsel confronted her with this inconsistency between her testimony and her affidavit, MJ could not offer an explanation. The testimony of LK, MJs mother, is just as dubious. She said that on entering her daughters

room, she saw MJ naked in bed. Seeing a mans pants on the floor, LK looked under the bed and saw Rodel hiding there. LK tried to rouse her daughter but she would not wake up, prompting LK to cry for help. When the barangay chairman and the tanods arrived, they pulled Rodel from under the bed. It was only then that MJ came around and told her mother that she had been raped. On cross-examination, however, LKs story of what happened followed a different sequence. Rather than try to wake her daughter up, she immediately screamed for help on seeing Rodel under the bed. His son came, wrapped a blanket around MJ, and brought her still unconscious into another room. And LK claimed that MJ woke up only after Rodel and the others had left. LK also said that when she started screaming for help, MJ asked her, What happen now to you? This shows that MJ regained consciousness at about the time her mother saw Rodel under the bed. Only afterwards did they move MJ out of the room. LKs revised version somehow corroborates Rodels story of what really happened. Rodel testified: Q: A: A: A: Q: A: Q: A: Q: A: Q: A: And what did you do when [MJ] instructed you to hide under her bed? I went under the bed, sir. xxxx Her brother peeped under the bed and he saw me so he pulled me and punched me, sir. xxxx After that, they took [MJ] out of her room and brought her to another room, sir. Who took [MJ] to another room? Her mother, sir. xxxx How about you, what did they do to you, if any? I was locked inside the room of [MJ], sir. What happened next? I heard her mother talking to [MJ] whether she wants to continue her studies or she wants So, what happened after that? No more, sir.

to get marry already.

Consider also that, although MJ claimed that Rodel sprayed her face with something that made her dizzy and weak, the prosecution never produced the spray can or bottle he used, which the barangay chairman or her tanods would have seized and kept as evidence if it existed. MJs mother did not mention seeing it. Surely, Rodel who only had his underwear on when they arrested him could not have taken or concealed it. It seems doubtful, therefore, that there had been a spraying of some immobilizing drugs that morning. Testimonial evidence, to be believed, must not only come from credible lips but must be credible in substance. A story that defies reason and logic and above all runs against the grain of common experience cannot persuade. Here, the prosecutions account failed to pass these tests. In her Affidavit, MJ said that Rodel sought to walk her home because he wanted to talk to her about fixing their relationship. In her testimony, however, MJ insisted that she had no conversation with Rodel prior to his showing up at her house near midnight of December 23, 2003. Thus: Q: A: Q: A: Q: A: Q: A: Q: A: When was the first time you saw Rodel? At the start of the caroling, sir. Did you talk to each other when you saw him? No, sir. You just saw him? Yes, sir. So, that was the first and last time you have seen him while caroling? Yes, sir. You are very sure about that? Yes, sir. (Emphasis supplied) When confronted by her contradictory statements, MJ had to admit that Rodel indeed talked to her about walking her home during the caroling. Thus: A: Only that part- he volunteered to accompany me, when we were in the terrace he said he

wanted to talk to me, sir. MJ also testified that she and Rodel never really had a deep relationship because they seldom saw each other and communicated only through text messages on their mobile phones. Indeed, she broke up with him three months before December 2003. Yet, when Rodel came by their house at around midnight of December 23, she let him in when Rodel was visibly drunk. Then she let him stay for nearly an hour before asking him to leave.

And when Rodel left, MJ did not see him off at the door to lock it as he went out. Her excuse in not locking the door was that her mother was still out. But, notably, when Rodel supposedly came and knocked at the door after she got home at 11:30 p.m., she had to let him in because it was already locked. MJ also said that she was no longer naked when she woke up and heard her brother screaming by the bedroom window, with Rodel in a tight grip. If this were true, somebody must have slipped her clothes back on while she was out cold. This contradicts LKs testimony that her son had to wrap MJ in a blanket before taking her out of the room. In insisting that she already had her dress on when she woke up, MJ was apparently steering clear of the fact that her mother had caught her naked, with Rodel in his underwear beneath the bed. MJ simply wanted to save her dignity at Rodels expense. Apparently, what bothered MJ more was not the supposed rape but how she would explain the compromising situation in which her mother found her. Thus MJ testified: Q: A: Q: A: So, when you recovered consciousness, what did you do? I cried and cried, sir. Why did you cry? xxxx Because I could not accept what happened because my mother was asking me what xxxx Q: A: Q: A: Q: A: Q: A: Q: A: A: What did you tell your mother after you regained consciousness? I cried, sir. What else did you tell your mother after you regained your consciousness? I was just crying, sir. Did you not tell her that Rodel Singson sprayed something to your face? I told her, sir. Immediately after you regained your consciousness, is that what you mean? No, sir it took sometime. Why did you not tell immediately? (No answer of the witness). I do not know because I was crying and crying, sir. (Emphasis supplied) MJs above testimony also contradicts her mothers original claim that when her daughter woke up she immediately said that Rodel raped her. Of course, LK had to remedy this contradiction by subsequently saying that MJ mentioned the supposed rape only when the barangay authorities showed up. Thus, LK said: happened, sir.

Court: What is the span of time did you tell to your mother?

Q: A: Q: A: Q: A: Q: A: Q: A:

Now, what did your daughter tell you? Actually my daughter narrated the incident to the barangay captain not to me So when did your daughter tell to the barangay captain what happened to her? I can no longer remember because that whole afternoon I was very weak and my body can So it was the barangay captain who told you that your daughter was raped Yes, sir. xxxx So you did not know that morning that your daughter was raped? I dont know, sir. When did you talk first with your daughter after that incident? Maybe two days after the incident because she herself was also crying. She was

because during that time I can not speak and I was shocked, sir.

not go through it, sir. because your daughter told to her about that?

always in tears and we can not talk to her, sir. (Emphasis supplied) The barangay chairman, MJs aunt and LKs sister, testified that on her arrival the first thing she heard was that a man entered the house and that her sister found MJ naked. No one told the barangay chairman at that point that MJ had been raped. No wonder, the first thing the barangay chairman did was to go into the room and ask MJ if Rodel had taken her virginity from her. Thus: Q: A: Q: A: Q: A: Q: A: Who told you that her daughter was raped? My elder sister told me that a man entered their house but I was not yet informed So, how did the mother of [MJ] tell you that her daughter [MJ] was raped? She was the first one who saw [MJ] naked. That was told to you by her, is that correct? Yes, sir. xxxx When did you ask [MJ] about that Madam Witness? After my elder sister told me that she saw [MJ] naked so I went to [MJ] to verify if xxxx Q: A: Do you remember if [MJ] told you about what the accused did first that he sprayed No sir because the only thing I asked is that if he had taken her womanhood . something in the face of [MJ]? (Emphasis supplied) It is uncanny that even after so much time had passed, still no one told the barangay chairman right off when she arrived that MJ had been raped. It was MJs nakedness in her room and Rodels

that [MJ] was raped.

her womanhood was taken.

presence under the bed that preoccupied the barangay chairman and made her ask if MJs virginity had been taken from her, which fact in itself did not amount to rape. How Rodel succeeded in taking that virginitysupposedly by spraying MJ with something that made her dizzyapparently did not have relevance to the barangay chairmans line of inquiry. The sequence of events that the prosecution tried to establish did not also make sense. The story is that MJ got home at about 11:30 p.m. Rodel came around midnight and they talked for about 30 to 45 minutes. This means that Rodel left at 12:45 a.m. at the latest. Since he came right back into the house, this means that, if the prosecution evidence were to be believed, he raped MJ at about 12:45 a.m. Thus, at least one hour would have passed before MJs mother, LK, came home at 2:00 a.m. So what reason would Rodel have for staying around in his underwear after raping MJ? And, although the bedroom had a window through which Rodel could easily have escaped, he chose to dive under the bed. MJ to her mothers wrath. It seems, considering all the testimonies that what happened is that, since they were alone in the house, Rodel and MJ lost control and made love. When MJs mother suddenly showed up and opened her daughters room with a key, Rodel hid under the bed. But the suspicious mother, finding her daughter naked, looked for him under the bed. LK summoned her sister, the barangay chairman, her son and her brother-in-law, both tanods and seized Rodel. Asked if she preferred getting married to continuing her studies, MJ must have chosen the latter. And, to save face, her relatives who had political power made it look like Rodel raped her. Although the weight of jurisprudence is that the Court must respect the factual findings of the trial court and the CA, this case presents an exception. On close examination, the prosecutions evidence left much to be desired. With so many inconsistencies and incompatibilities with common experience, the Court is unable to see the unfiltered truth. To conclude, the evidence failed to overcome the constitutional presumption of innocence of the accused. WHEREFORE, the Court GRANTS the appeal, SETS ASIDE the decision of the Court of Appeals dated March 25, 2010 in CA-G.R. CR-HC 03161 as well as the decision of the Regional Trial Court of Cabarroguis, Quirino, Branch 31 in Criminal Case 1841, and ACQUITS the accused-appellant Rodel Singson of the crime charged on ground of reasonable doubt. The Court orders his immediate RELEASE from custody unless he is being held for some other lawful cause and ORDERS the Director of the Bureau of Corrections to immediately implement this Decision and to inform the Court within five days from its receipt of the date appellant was actually released from confinement. Costs de oficio. These circumstances indicate that Rodel did not believe he committed a crime. He hid simply to avoid exposing

7. GREENHILLS EAST ASSOCIATION,

INC., represented v.

G.R. No. 169741 January 20, 2010

by its President JOSEFINA J. CASTILLO, Petitioner,

E. GANZON, INC., represented by its President EULALIO GANZON, Respondent.

This case is about a residential subdivisions resistance to the construction of a high-rise building beside it and a failure to promptly file a memorandum appeal with the Office of the President (OP), resulting in the dismissal of the case for failure to perfect the appeal. Petitioner Greenhills East Association, Inc. (GEA) is the homeowners association of Greenhills East Subdivision, a residential subdivision in Barangay Wack-Wack, Greenhills East, Mandaluyong City. For a time now, respondent E. Ganzon, Inc. (EGI) has sought to develop a 4,109-square meter lot (the land site) at the corner of EDSA and Ortigas Avenue in Barangay Wack-Wack (the Barangay) with its owner, the San Buena Realty and Development Corp. EGI wanted to build on the property a 77-storey mixed-used building with an 8-storey basement for a total of 85 storeys (the project). SKYCITY Condominium, when built, will be the tallest building in the country. Petitioner GEAs subdivision has been classified under Section 4, Article IV of the Metropolitan Manila Commission Ordinance 81-01 (MMZO 81-01) as an R-1 low density residential zone. subdivision consists of about 380 lots. Salle Greenhills), and a private road network. As it happened, the land site on which the project will rise is adjacent to Greenhills East Subdivision although MMZO 81-01 had classified that site as C-2 or a Major Commercial Zone. It is bounded by EDSA on the east, Florida Street on the north, Lot 11, Block 4 of the Subdivision and a narrow creek on the west, and Ortigas Avenue on the south. Sometime in April or May 1997, respondent EGI fenced its land site, demolished the structures on it, and began excavation works without first getting a clearance from the Barangay. On July 10, 1997 the Housing and Land Use Regulatory Board (HLURB) issued to EGI a Certificate of Locational Viability and on August 11, 1997 the City of Mandaluyong issued to it an Excavation and Ground Preparation Permit. On September 15, 1997 the HLURB further issued to EGI a Preliminary Approval and Locational Clearance for its project. In January 1998 petitioner GEA wrote the HLURB National Capital Region, Regional Director, opposing respondent EGIs project. Not content with its HLURB opposition, GEA filed a separate one The It has a church (the Sanctuario de San Jose), a school (the La The proposed

addressed to the Department of Public Works and Highways (DPWH). On June 4, 1998 the DPWH advised the Building Official of Mandaluyong to require EGI to secure a Development Permit and a valid Locational Clearance for its project from the HLURB. In a separate development, EGI applied with the Barangay for clearance covering its project. On July 15, 1998, however, the Barangay denied the application. On November 24, 1999 the HLURB Arbiter rendered a decision, dismissing petitioner GEAs opposition to respondent EGIs project. On March 20, 2001 acting on GEAs petition for review of the Arbiters decision, the HLURB Board of Commissioners issued a resolution, denying the petition. It also denied GEAs motion for reconsideration on October 30, 2001. On November 20, 2001 petitioner GEA filed its Notice of Appeal with the OP, simultaneously paying the required appeal and legal fees. On December 12, 2001 GEA received a copy of the OPs order dated November 27, 2001, requiring GEA to file its memorandum on appeal within 15 days from notice. But before the period was up or on December 27, 2001, GEA filed a motion for extension of 15 days within which to submit its memorandum on appeal. memorandum. Petitioner GEA filed the required Memorandum on Appeal with the OP on January 16, 2002 but asked that office for an extension of two days within which to file the required draft decision. On January 18, 2002 GEA filed still another motion for extension, this time for one day, within which to file the required draft. GEA claims that it intended to file the same on January 21, 2002 but, due to a nationwide brownout on that day, it had to ask for five more days within which to do so. Finally, GEA filed its draft decision with the OP on January 28, 2002. On February 10, 2003 petitioner GEA received a copy of an order from the OP dated January 28, 2003, denying its appeal on the ground of GEAs failure to perfect it on time. reconsideration of the Order, but the OP denied the same. On August 13, 2003 petitioner GEA filed with the Court of Appeals (CA) a petition for review of the OPs orders. On December 21, 2004, the CA rendered judgment, denying GEAs petition. GEA filed a motion for reconsideration but this, too, was denied, hence, the present recourse to this Court. Petitioner GEA basically presents the following issues for resolution: 1. Whether or not the CA correctly upheld the ruling of the OP that petitioner GEA failed to perfect on GEA moved for a On January 11, 2002 GEA filed another motion for extension, this time for five days or until January 16, 2002, within which to file the required

time its appeal to that office from the decision of the HLURB; and 2. Whatever be the answer, if the substantial matter need to be addressed, whether or not the

HLURB erred in finding no valid ground to restrict respondent EGIs use of the subject land site, which lies beside a residential subdivision, for constructing a high-rise building.

The Rulings of the Court One. Petitioner GEA contends that it had already perfected its appeal when it filed on November 20, 2001 a notice of appeal with the OP from the decision of the HLURB. The Rules and Regulations Governing Appeals to the Office of the President of the Philippines requires the appellant to file, not only a notice of appeal, but also a memorandum on appeal that must, among other things, state the grounds relied on for the appeal, the issues involved, and the reliefs sought. The appellant must, to perfect his appeal, comply with these requirements within 15 days from receipt of a copy of the HLURB decision. memorandum. Still, the OP actually gave petitioner GEA a chance to comply with the omitted requirement by directing it in the Order of November 27, 2001 to submit its appeal memorandum and draft decision within 15 days from notice; otherwise, it would dismiss the case. Since GEA received the above order on December 12, 2001, it had until December 27, 2001 within which to comply with it. Petitioner GEA points out that it filed two successive motions for extension of time within which to file the required memorandum appeal and draft decision. Since GEA had already filed its memorandum appeal before the OP could deny those motions, it cannot be said that GEA filed the memorandum appeal out of time. But petitioner GEA gambled when it did not file the memorandum appeal and draft decision within the extra 15 days that the OP gave it. It asked first for an extension of 15 days and then an additional extension of five days. GEA had no right to assume, however, that the OP would grant these extensions. The governing rules did not provide for them. Consequently, GEA has only itself to blame when its appeal was dismissed. Notably, the OP also required petitioner GEA to file, along with its memorandum appeal, a draft decision. GEA did not. It instead filed two more motions for extension of time within which to do so. Section 5 of the Rules of that office provides that failure to comply with its orders may warrant a dismissal of the appeal. Consequently, the OP acted within its authority in dismissing GEAs appeal for this additional reason. Two. With the above ruling, this decision should end here. But petitioner GEA asks the Court to dispense with the technicalities involved and rule instead on the merits of the case, given that GEA and its members had gone through a lot of trouble to get the HLURB to stop the project from rising on the contested land site. To avert the likelihood that this case would shift to another forum under the guise of Petitioner GEA, however, failed to submit an appeal

some other issue or issues, the Court deems it wise to resolve the substantial issue that petitioner GEA presents considering that both sides have amply argued the same. Petitioner GEA invokes Section 10, Article V of MMZO 81-01. This section provides height

restrictions on a C-2 property that adjoins an R-1 property without an intervening street or permanent open space that is over six meters wide and that the properties have adjacent front yards, or even when there are none, the intervening street or permanent open space does not exceed three meters in width. But MMZO 81-01 applies to a situation where an R-1 property adjoins a C-2 property. This has ceased to be the case between the land site and the subdivision after the Mandaluyong City government enacted Ordinance 128 in 1993. That was before the present case came up. Ordinance 128 converted certain R-1 zones to C-2 zones and these included those on the western side of respondent EGIs land site, namely Lot 11, Block 4, and Lot 11, Block 20. Consequently, the subject land site ceased to be adjacent to an R-1 zone and no longer suffered from height restrictions. Petitioner GEA of course claims that the lots that Ordinance 128 converted into C-2 zones were only the lots between Ortigas Avenue and Notre Dame Street that run parallel to EDSA but at some depth from it. They are on the Wack-Wack side of Ortigas Avenue. Ordinance 128 describes the newly converted C-2 zones relevant to this case as a lot deep along Ortigas Avenue from EDSA to Notre Dame Street. Because of the mention of Notre Dame Street, which is found on only one side of Ortigas Avenue, GEA concludes that the new C-2 zones did not extend to the other side of Ortigas Avenue where Greenhills East Subdivision and respondent EGIs land site are located. But, as HLURB pointed out, if the purpose of the ordinance was to limit the land classification conversion only to the side of Ortigas Avenue where the Wack-Wack Subdivision lay, it would have simply stated, using the technical language applied to the other converted areas, a lot deep along the WackWack side of Ortigas Avenue from EDSA to Notre Dame Street, instead of saying, a lot deep along Ortigas Avenue. It could only mean, therefore, that the ordinance intended to convert all the lots, on both sides and margins of Ortigas Avenue up to the point where Notre Dame Street was. The Court finds either conclusion unclear, given the essentially vague way by which Ordinance 128 describes the affected areas. What really clears up the issue for the Court is the HLURBs recourse to the Revised Zoning Map of Mandaluyong City. The color-coded map shows identical color and captions for the lots stretching at some depth from EDSA, but running parallel to it, on both sides of Ortigas Avenue, including Lot 11, Block 4, and Lot 11, Block 20 on the Greenhills East Subdivision side. The map tags both sides of Ortigas Avenue with the same C-2 classification. In relying on the Mandaluyong zoning map, the HLURB took note of the standard procedure observed in fixing the boundaries of lands, where the preparation and drafting of the illustrative maps precede the drafting of the text that describes those boundaries. Although the text of the ordinance is controlling, any doubt or vagueness in the meaning of its provisions may be cleared up by a reference to

the official map.

As a quasi-judicial body, which enjoys an expertise in land zoning classifications, the

HLURB can take judicial notice of such official maps as are generated and used in government zoning activities. The Court has no reason to disturb its findings in this case. Petitioner GEA argues, however, that even on the assumption that Ordinance 128 converted the lots on the Greenhills East Subdivision side of Ortigas Avenue into a C-2 zone, such conversion affected only Lot 11, Block 20. It did not convert Lot 11, Block 4, which was adjacent to the controversial land site, and which retained an R-1 classification. But, as the HLURB Board of Commissioners noted, using the sketch map submitted to it, although the land site indeed adjoins Lot 11, Block 4, it does so not in the manner that would properly call for the application of the zoning ordinance. Based on the HLURBs observation, Lot 11 of Block 4 and the land site do not have common boundaries that join them. Rather, they touch each other only at a certain point due to the irregular shape of the properties, following the direction of the meandering creek that lies between them. For this reason, it cannot be said that Section 10, Article V of MMZO 81-01, which sets height restrictions, applies to the project. No matter how hard it tries to learn the technical intricacies of certain highly regulated human activities, the Supreme Court will always be inadequately equipped to identify the facts that matter when resolving issues involving such activities. Invariably, the Court must respect the factual findings of administrative agencies which have expertise on matters that fall within their jurisdiction. Here, since the HLURB has the expertise in applying zonal classifications on specific properties and since petitioner GEA fails to make out a clear case that it has erred, the Court must rely on its finding that respondent EGIs land site does not, for the purpose of applying height restrictions, adjoin an R-1 zone. Petitioner GEA nonetheless contends that the proposed 77-storey building would have mixed uses, part residential, part office, and part commercial, which would not be accord with the patterns of land uses suitable to C-2 zones. The buildings in C-2 zones, it suggests, should rise no higher than 40 or 50 storeys from the ground. GEA invokes Article IV, Section 4, paragraph 5 of MMZO 81-01, which states that establishments in a C-2 zone should be sufficient to provide the needs of the district level. GEA infers from this that a C-2 establishment must be such that it will provide the needs of the district level only and that, beyond those needs, the establishment should be in High Intensity or C-3 Zone. But such contention has no basis. MMZO 81-01 contains no provision that allows the construction of not more than 40 or 50-storey buildings in a C-1 or C-2 zone and restricts higher buildings to a C-3 zone. There are just no height restrictions under the law for buildings located in C-2 zones, save probably for height clearances prescribed by the Air Transportation Office. The Court cannot find fault in HLURBs assertion that the real test of whether a land use serves the need of a district is not in the size or height of the buildings but in the sufficiency or surplus of the business or human activities in a given district to which they cater. Land use is affected by the intensity

of such activities.

Extraordinary population density or overcrowding, brought about by competition for

space in the scarce area of the district, is to be avoided. Using this test, the HLURB, which is the clearing house for efficient land use, found no clear showing that respondent EGIs project if finished would cause havoc in the population level of the land district where the project lies. What is more, the houses of petitioner GEAs members are separated by fence and guarded gates from the adjacent areas outside their subdivision. Their exclusiveness amply protects their yen for greater space than the rest of the people of the metropolis outside their enclave can hope for. Respondent EGIs project offers no threat to the subdivisions privacy. It is on the other side of the fence, wholly unconnected to the workings within the subdivision. The new building would be in the stream of human traffic that passes EDSA and Ortigas Avenue. Consequently, it would largely attract people whose primary activities connect to those wide avenues. It would seem unreasonable for petitioner GEA to dictate on property owners outside their gates how they should use their lands if such use is not in contravention of law. Finally, petitioner GEA contends that the lack of approval of the project by the homeowners association or the Barangay precludes it from proceeding. GEA invokes Section 14, Article V of MMZO 8101 which provides that, where a proposed land use will necessarily affect the character of the residential zone, the proponent needs to get such approval. clearance and a building permit. But, although Section 152 (c) of the Local Government Code requires a barangay clearance for any activity within its jurisdiction, such clearance cannot be denied when the activity is in a permissible zone. The denial would otherwise be illegal. Here, as discussed above, the applicable ordinance of Mandaluyong City does not preclude the construction of the project on the land site in question over the unreasonable objection of a nearby association of subdivision dwellers. Indeed, the city or municipality to which the barangay unit belongs may still issue the required license or building permit despite the withholding of the barangay clearance as had happened in this case. The Court will not dwell on the other matters raised concerning environmental requirements respecting light, ventilation, drainage, sewerage, waste disposal, and pollution relating to the project. These matters very well fall under the competence of other government agencies. not meet the requirements of other laws. ACCORDINGLY, the Court DENIES the petition for lack of merit and affirms the decision of the Court of Appeals dated December 21, 2004 and its Resolution dated September 14, 2005. Surely, the HLURB decision does not and cannot in any way confer a blanket passport for constructing a building that does It is a prerequisite for the issuance of a locational