FIRST DIVISION

EUGENE C. YU, Petitioner,

G.R. No. 142848

- versus -

Present:

PANGANIBAN, C.J.* THE HONORABLE PRESIDING JUDGE, REGIONAL TRIAL COURT OF TAGAYTAY CITY, BRANCH 18, THE HONORABLE SECRETARY OF THE DEPARTMENT OF JUSTICE, ASSISTANT PROVINCIAL PROSECUTOR JOSE M. VELASCO, SEC. TEOFISTO T. GUINGONA, RODOLFO OCHOA and REYNALDO DE LOS SANTOS A.K.A. Engine, Chairperson, YNARES-SANTIAGO,** AUSTRIA-MARTINEZ, CALLEJO, SR.,*** and CHICO-NAZARIO, JJ.

Respondents.

Promulgated:

June 30, 2006 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CHICO-NAZARIO, J.:

In the evening of 14 November 1994, Atty. Eugene Tan, former President of the Integrated Bar of the Philippines (IBP) and his driver Eduardo Constantino were abducted by several persons in Alabang, Muntinlupa, and brought somewhere in Cavite where they were both shot to death. At about 5:00 oclock in the afternoon of 17 November 1994, the bodies of the two victims were dug up in a shallow grave at Barangay Malinta, Sampaloc 2, Dasmarias Cavite.1[1] Charged

to investigate the abduction and killing was the Presidential Anti-Crime Commission (PACC). After having conducted a thorough investigation of the case, the PACC filed charges before the Department of Justice (DOJ) entitled, Task Force Cabakid v. Pedro Lim, Bonifacio Roxas, Sgt. Edgar Allan Abalon, Mariano Hizon, Eugenio Hizon and John Does. The same was docketed as I-S. No. 94-557 and was assigned to a panel of Senior State Prosecutors of the DOJ. Later events that transpired as narrated by herein petitioner Eugene Yu are not disputed.

On December 13, 1994, the Department of Justice (DOJ) issued a Resolution (Annex C, ibid.) in the preliminary investigation of the case, docketed as I.S. No. 94-557 finding probable cause against Messrs. Pedro Lim, Bonifacio Rojas, Capt. Alfredo Abad, Toto Mirasol, Venerando Ozores, Mariano Hizon, Eugenio Hizon and private respondents de los Santos and Ochoa for the kidnapping and murder of the late Atty. Eugene Tan and his driver, Eduardo Constantino. Petitioner and his wife, Patricia Lim-Yu, were also named respondents in I.S. No. 94-557. The charges against them however were dropped for lack of evidence to establish probable cause. Thereafter, an information was filed against several accused, namely private respondents Rodolfo Ochoa and Reynaldo de los Santos among others, before the Regional Trial Court, Branch 18, of Tagaytay City presided by respondent judge. On December 16 and 17, 1994 after the information was filed and while under custody of the Presidential Anti-Crime Commission (PACC), private respondents Ochoa and de los Santos executed separate sworn statements (Annexes D and E,, ibid.) implicating petitioner in the abduction and killing of Atty. Eugene Tan and Eduardo Constantino. The PACC re-filed the complaint docketed as I.S. No. 94-614 for murder and kidnapping against petitioner. During the preliminary investigation, petitioner filed a motion to dismiss the charges, citing that the sworn statements of private respondents were not only inadmissible in evidence but also failed to establish probable cause against him. On January 30, 1995, the DOJ investigating panel composed of Senior State Prosecutors Henrick Guingoyon and Ferdinand Abesamis denied petitioners motion to dismiss (Annex F, ibid.). Thereafter, three (3) separate informations were filed against petitioner before the Regional Trial Court, Branch 18, of Tagaytay City. Simultaneously, petitioner filed with the aforesaid court an omnibus motion to determine probable cause, to deny issuance of warrant of arrest and to quash information (Annex G, ibid.).

On December 8, 1995, respondent judge issued a resolution (Annex H, ibid.), the dispositive portion reads: xxxx WHEREFORE, in the light of the foregoing, this Court finds that probable cause exists against accused Eugene Yu as an accomplice in the instant cases, and the prosecution is accordingly directed to amend the informations filed in these cases for the inclusion of the same accused as an accomplice within ten (10) days upon receipt of a copy hereof. As a consequence, let a warrant for the arrest of Eugene Yu be issued in these cases and bail for his provisional liberty is hereby fixed at P60,000.00 each in theses cases. x x x x SO ORDERED. (Rollo, pp. 6; 118-119) Both the prosecution and the petitioner filed their respective motions for reconsideration of the aforequoted resolution. The prosecution sought to maintain the original informations charging petitioner as principal, while the latter sought the dismissal of the cases against him for lack of probable cause. Both motions were denied in an order of the court a quo dated February 6, 1996 (Annex I, ibid.). In a petition for certiorari, docketed before the Supreme Court as G.R. No. 124380 entitled People of the Philippines v. Hon. Eleuterio F. Guerrero, et al., the prosecution impugned the Resolution dated December 8, 1995 and the Order dated February 6, 1996. The petition was dismissed by the Supreme Court in its Resolution dated May 14, 1996. The prosecution refiled the same titled petition before the Court of Appeals, docketed as CA-G.R. SP No. 42208, where it is currently pending, entitled: People of the Philippines vs. Hon. Eleuterio F. Guerrero, et al. In the meantime, the prosecution filed a Petition to Discharge as State Witnesses and Exclude from the Information accused Ochoa and de los Santos on April 17, 1996 (Annex J). Petitioner opposed the motion. On March 6, 1997, respondent judge issued the impugned order, thus: WHEREFORE, in the light of the foregoing premises and considerations, this Court hereby resolves to GRANT the Petition (to Discharge as State Witnesses & Exclude from the Information Accused Ochoa & de los Santos) filed by the prosecution for being impressed with merit, and, accordingly, the same accused are

hereby ordered discharged and excluded from the information filed in these cases as State Witnesses. SO ORDERED. (Annex A, p. 31) Petitioner, who is one of the accused in the aforementioned criminal cases, claims that the orders were issued by public respondent judge with grave abuse of discretion amounting to lack or in excess of jurisdiction, claiming that there is no legal basis or justification to discharge as state witnesses accused Rodolfo Ochoa and Reynaldo de los Santos (hereinafter referred to as private respondents).2[2]

From the Order of the Regional Trial Court (RTC) of Tagaytay City, Branch 18 dated 6 March 1997, petitioner filed a Petition for Certiorari and prohibition before the Court of Appeals.3[3] In a decision4[4] dated 30 September 1999, the Court of Appeals dismissed the petition for lack of merit. The Motion for

Reconsideration filed by petitioner was denied in a resolution dated 4 April 2000.5[5]

Essentially, the Court of Appeals concluded that there was no necessity for a hearing to determine a persons qualification as a state witness after the DOJ had

attested to his qualification. Republic Act No. 6981,6[6] Witness Protection and Security Benefit Program (WPSBP), conferred upon the DOJ the sole authority to determine whether or not an accused is qualified for admission into the program. The appellate court held that under Section 12 of Republic Act No. 6981, upon the filing by the prosecution of a petition to discharge an accused from the information, it is mandatory for the court to order the discharge and exclusion of the accused.7[7]

From this adverse decision and resolution of the Court of Appeals, petitioner filed the instant petition.

The following issues are raised for resolution8[8]:

I.

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED WHEN IT HELD THAT THE DISCHARGE OF AN ACCUSED IS NOT A JUDICIAL FUNCTION. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED WHEN IT DID NOT CONSIDER THAT THE TRIAL COURT GRAVELY ABUSED ITS DISCRETION WHEN IT DISCHARGED

II

THE ACCUSED DESPITE THE FAILURE OF THE PROSECUTION TO PRESENT EVIDENCE TO SHOW THAT THE PRIVATE RESPONDENTS ARE ENTITLED TO BE DISCHARGED AS STATE WITNESS.

Petitioner maintains that since the private respondents were already charged along with the other accused including him (petitioner) before they were admitted to the WPSBP, their admission is a judicial prerogative which requires prior determination by the trial court of their qualification as state witnesses, in accordance with Section 17, Rule 119 of the Revised Rules on Criminal Procedure.

Petitioner further asserts that the case of Webb v. De Leon,9[9] which the RTC relied on in granting the discharge of the private respondents and their admission to the WPSBP, does not apply. In that case, Jessica Alfaro was not charged as a respondent before her application and admission to the WPSBP. Thus, the issue of whether or not she can be discharged from the information upon the filing of the petition for discharge never arose. On the other hand, petitioner contends in this case that the private respondents were already charged along with the other accused, including him, before they were admitted to the WPSBP and discharged as an accused to be utilized as a state witness. Petitioner argues that if this were to be allowed, the same is tantamount to permitting the prosecution to supplant with its own the courts exercise of discretion on how a case over which it has acquired jurisdiction, will proceed.

The argument of petitioner fails to persuade.

Pertinent provision of Republic Act No. 6981 employed by the prosecution in the discharge of the private respondents reads:

SEC. 3. Admission into the Program. Any person who has witnessed or has knowledge or information on the commission of a crime and has testified or is testifying or about to testify before any judicial or quasi-judicial body, or before any investigating authority, may be admitted into the Program:

Provided, That: a) the offense in which his testimony will be used is a grave felony as defined under the Revised Penal Code, or its equivalent under special laws; b) points; c) he or any member of his family within the second civil degree of consanguinity or affinity is subjected to threats to his life or bodily injury or there is a likelihood that he will be killed, forced, intimidated, harassed or corrupted to prevent him from testifying, or to testify falsely, or evasively, because or on account of his testimony; and d) he is not a law enforcement officer, even if he would be testifying against other law enforcement officers. In such a case, only the immediate members of his family may avail themselves of the protection provided for under this Act. If the Department, after examination of said applicant and other relevant facts, is convinced that the requirements of this Act and its implementing rules and regulations have been complied with, it shall admit said applicant to the Program, require said witness to execute a sworn statement detailing his knowledge or information on the commission of the crime, and thereafter issue the proper certification. For purposes of this Act, any such person admitted to the Program shall be known as the Witness. xxxx SEC. 10. State Witness. Any person who has participated in the commission of a crime and desires to be a witness for the State, can apply and, if qualified as determined in this Act and by the Department, shall be admitted into the Program whenever the following circumstances are present: a) the offense in which his testimony will be used is a grave felony as defined under the Revised Penal Code or its equivalent under special laws; b) there is absolute necessity for his testimony; his testimony can be substantially corroborated in its material

c) there is no other direct evidence available for the proper prosecution of the offense committed; d) his testimony can be substantially corroborated on its material points;

e) he does not appear to be most guilty; and

f) he has not at any time been convicted of any crime involving moral turpitude. An accused discharged from an information or criminal complaint by the court in order that he may be a State Witness pursuant to Sections 9 and 10 of Rule 119 of the Revised Rules of Court may upon his petition be admitted to the Program if he complies with the other requirements of this Act. Nothing in this Act shall prevent the discharge of an accused, so that he can be used as a State Witness under Rule 119 of the Revised Rules of Court.

On the other hand, Rule 119, Section 17, of the Revised Rules on Criminal Procedure, upon which petitioner relies reads:

Section 17. Discharge of accused to be state witness. When two or more persons are jointly charged with the commission of any offense, upon motion of the prosecution before resting its case, the court may direct one or more of the accused to be discharged with their consent so that they may be witnesses for the state when, after requiring the prosecution to present evidence and the sworn statement of each proposed state witness at a hearing in support of the discharge, the court is satisfied that: (a) There is absolute necessity for the testimony of the accused whose discharge is requested; (b) There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said accused; (c) The testimony of said accused can be substantially corroborated in its material points; (d) Said accused does not appear to be the most guilty; and

(e) Said accused has not at any time been convicted of any offense involving moral turpitude.

Evidence adduced in support of the discharge shall automatically form part of the trial. If the court denies the motion for discharge of the accused as state witness, his sworn statement shall be inadmissible in evidence.

The discharge of an accused under Republic Act No. 6981 as availed of by the prosecution in favor of the private respondents, is distinct and separate from the discharge of an accused under Section 17, Rule 119 of the Revised Rules on Criminal Procedure.

The discharge of an accused to be a state witness under Republic Act No. 6981 is only one of the modes for a participant in the commission of a crime to be a state witness. Rule 119, Section 17, of the Revised Rules on Criminal Procedure, is another mode of discharge. The immunity provided under Republic Act No. 6981 is granted by the DOJ while the other is granted by the court.

Rule 119, Section 17, of the Revised Rules on Criminal Procedure, contemplates a situation where the information has been filed and the accused had been arraigned and the case is undergoing trial. The discharge of an accused under this rule may be ordered upon motion of the prosecution before resting its case, that is, at any stage of the proceedings, from the filing of the information to the time the defense starts to offer any evidence.10[10]

On the other hand, in the discharge of an accused under Republic Act No. 6981, only compliance with the requirement of Section 14, Rule 110 of the Revised Rules of Criminal Procedure11[11] is required but not the requirement of Rule 119, Section 17.

More to the point is the recent case of Soberano v. People12[12] where this Court held:

An amendment of the information made before plea which excludes some or one of the accused must be made only upon motion by the prosecutor, with notice to the offended party and with leave of court in compliance with Section 14, Rule 110. Section 14, Rule 110 does not qualify the grounds for the exclusion of the accused. Thus, said provision applies in equal force when the exclusion is sought on the usual ground of lack of probable cause, or when it is for utilization of the accused as state witness, as in this case, or on some other ground. At this level, the procedural requirements of Section 17, Rule 119 on the need for the prosecution to present evidence and the sworn statement of each state witness at a hearing in support of the discharge do not yet come into play. This is because, as correctly pointed out by the Court of Appeals, the determination of who should be criminally charged in court is essentially an executive function, not a judicial one. x x x. (Underscoring supplied.)

In this connection, Section 12 of Republic Act No. 698113[13] provides that the issuance of a certification of admission into the program shall be given full

faith by the provincial or city prosecutor who is required not to include the witness in the criminal complaint or information, and if included, to petition for his discharge in order that he can be utilized as a state witness. This provision justifies the regularity of the procedure adopted by the prosecution for the discharge of the private respondents.

The case of Webb v. De Leon,14[14] reiterated in the subsequent case of People v. Peralta,15[15] is quite elucidating in this regard.

Petitioners argument lacks appeal for it lies on the faulty assumption that the decision whom to prosecute is a judicial function, the sole prerogative of courts and beyond executive and legislative interference. In truth, the prosecution of crimes appertains to the executive department of government whose principal power and responsibility is to see that our laws are faithfully executed. A necessary component of this power to execute our laws is the right to prosecute their violators. The right to prosecute vests the prosecutor with a wide range of discretion the discretion of whether, what and whom to charge, the exercise of which depends on a smorgasbord of factors which are best appreciated by prosecutors. We thus hold that it is not constitutionally impermissible for Congress to enact R.A. No. 6981 vesting in the Department of Justice the power to determine who can qualify as a witness in the program and who shall be granted immunity from prosecution. Section 9 of Rule 119 does not support the proposition that the power to choose who shall be a state witness is an inherent judicial prerogative. Under this provision, the court is given the power to discharge a state witness only because it has already acquired jurisdiction over the

crime and the accused. The discharge of an accused is part of the exercise of jurisdiction but is not a recognition of an inherent judicial function. Moreover, the Rules of Court have never been interpreted to be beyond change by legislation designed to improve the administration of our justice system. R.A. No. 6981 is one of the much sought penal reform laws to help government in its uphill fight against crime, one certain cause of which is the reticence of witnesses to testify. The rationale for the law is well put by the Department of Justice, viz: Witnesses, for fear of reprisal and economic disclocation, usually refuse to appear and testify in the investigation/prosecution of criminal complaints/cases. Because of such refusal, criminal complaints/cases have been dismissed for insufficiency and/or lack of evidence. For a more effective administration of criminal justice, there was a necessity to pass a law protecting witnesses and granting them certain rights and benefits to ensure their appearance in investigative bodies/courts. Petitioner Webbs challenge to the validity of R.A. No. 6981 cannot therefore succeed.

Anent the second issue, petitioner argues that the petition to discharge is not supported by any proof or evidence. He claims that the prosecution did not establish that the private respondents have complied with the requisites of Republic Act No. 6981 because the certificate of admission from the DOJ showing that the private respondents were qualified, and the memorandum of agreement between the DOJ and private respondents, as required by Section 516[16] of Republic Act No. 6981, were not presented before the trial court.

We reject the argument for being vacuous.

As found by the DOJ, based on the extrajudicial statements executed by the private respondents regarding their participation in the abduction and killing of Atty. Eugene Tan and his driver, it appears that they were included in an alleged military operation and unaware that the persons they abducted were innocent civilians because they were misled by their military superiors into believing that these individuals were unnamed communist rebels. From their account, private respondents claim to have been oblivious that the persons subject of their surveillance were to be abducted and subsequently killed.

The rule prevailing in this jurisdiction is that the discharge of an accused to be utilized as a state witness because he does not appear to be the most guilty, is highly factual in nature. The discretionary judgment of the trial court on this factual issue is seldom interfered with by the appellate courts except in case of grave abuse of discretion,17[17] which we find not present in the case at bar.

On the issue of failure of the prosecution to present the sworn statement and memorandum of agreement between the private respondents and the DOJ, there is no requirement under Republic Act No. 6891 that the same be first presented in court before an accused may be admitted to the WPSBP. Moreover, the DOJ which is tasked to implement the provisions of Republic Act No. 6981, has determined that the private respondents have satisfied the requirements for admission under the WPSBP. This interpretation of the provisions of Republic Act No. 6981 by the DOJ deserves the respect of the court under the principle that the determination of a government agency tasked to implement a statute is accorded great respect and ordinarily controls the construction of the courts.18[18]

WHEREFORE, in view of the foregoing, the Decision and Resolution of the Court of Appeals dated 30 September 1999 and 4 April 2000, respectively, are AFFIRMED. This case is ordered REMANDED to the

Regional Trial Court of Tagaytay City, Branch 18, for continuation of hearing to its conclusion with deliberate dispatch.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 131377 February 11, 2003

PEOPLE OF THE PHILIPPINES, petitioner, vs. HONORABLE NAZAR U. CHAVES, Judge, RTC-Cagayan de Oro City, Br. 18 and MIGUEL P. PADERANGA, respondents. DECISION YNARES-SANTIAGO, J.: This is a petition for review of the decision dated November 7, 1997 of the Court of Appeals,1 which dismissed the petition for certiorari assailing the Orders dated June 3, 1993; July 15, 1993; and September 23, 1993 of the Regional Trial Court of Cagayan de Oro City, Branch 18 in Criminal Case No. 86-39. Sometime in October 1986, Informations for Multiple Murder for the killing of members of the Bucag family in Gingoog City were filed against Felipe Galarion, Manuel Sabit, Cesar Sabit, Julito Ampo, Eddie Torion, John Doe, Peter Doe and Richard Doe, with the Regional Trial Court of Gingoog City.2 Venue of the case was moved to Cagayan de Oro City by virtue of Administrative Order No. 87-2-244. Thus, Criminal Case No. 86-39 was transferred to the Regional Trial Court of Cagayan de Oro City, Branch 18, presided by respondent Judge Nazar U. Chaves. Only Felipe Galarion was tried and convicted. All the other accused were at large. Two years later, in October 1988, Felizardo Roxas, also known as "Ely Roxas", "Fely Roxas" and "Lolong Roxas," was identified as another member of the group who was responsible for the slaying of the Bucag family. An amended information was filed on October 6, 1988 to implead Roxas as a co-accused. He engaged the services of private respondent Miguel Paderanga as his counsel. In order to give Roxas the opportunity to adduce evidence in support of his defense, a preliminary investigation was conducted. In his counter-affidavit, Roxas implicated Atty. Paderanga as the mastermind of the killings. Consequently, the amended information was again amended to include private respondent Paderanga as one of the accused in Criminal Case No. 8639. Trial of the case ensued. At the hearing on May 18, 1993, the prosecution called Felizardo Roxas as its first witness. Private respondent objected to the presentation of Roxas testimony. The trial court took the matter under advisement. The following day, May 19, 1993, it sustained private respondents objection on the ground that the presentation of Roxas testimony will violate his

right against self-incrimination. The trial court ruled further that before Roxas can be presented as a witness for the prosecution, he must first be discharged as a state witness. Otherwise put, the prosecution cannot present Roxas as a hostile witness. The prosecution filed a motion for reconsideration or, in the alternative, to discharge Roxas as a state witness. It also manifested its intention to present Julito Ampo as another state witness or ordinary prosecution witness. On June 3, 1993, the trial court issued an Order denying the prosecutions motion for reconsideration but setting the motion for the discharge of Roxas as state witness for hearing, to wit: The Court believes that it has amply heard the matter at bar referring to whether the Order of 19 May 1993 on the contention, perception and interpretation of what the prosecution refers to as "hostile witness." After both sides or both panels for that matter extensively argued their respective sides, it is the considered view of the Court, considering all points raised by both sides, that the ruling of the Court should stand and is in fact reiterated with particular reference on the matter on hostile witness. However, with respect to the alternative prayer in the Omnibus Motion for reconsideration, the Court would like to be satisfied as to which contending side is correct on the issue whether the proposed witness-accused Felizardo "Ely" Roxas would satisfy the requirements embodied in Section 9, Rule 119, regarding a proposed state witness.31a\^/phi1.net On June 29, 1993, the trial court issued an Order4 allowing the presentation of the testimony of Felizardo Roxas for purposes of proving the conditions of Rule 119, Section 9 of the Rules of Court on the discharge of a state witness.5 Private respondent interposed an objection, which the trial court overruled. The next day, June 30, 1993, he filed a motion for reconsideration, arguing that the presentation of Roxas testimony will be tantamount to allowing him to testify as a state witness even before his discharge as such; that the qualification of a proposed state witness must be proved by evidence other than his own testimony; and that at the hearing for the discharge of a proposed state witness, only his sworn statement can be presented and not his oral testimony. On July 15, 1993, the trial court issued an Omnibus Order granting private respondents motion for reconsideration, thus: xxx xxx xxx, it is the considered view of this Court that, at this stage and insofar as the proposed state witness is concerned, only his sworn statement may be admitted and considered by the Court. The "evidence" contemplated in the above-quoted last portion of the first paragraph of Rule 119, Sec. 9, is any evidence other than his testimony. Precisely, the rule speaks of "and the sworn statement of such proposed state witness," thus categorizing and removing such statement from the other kind or class of evidence mentioned therein. (underscoring copied) xxx xxx xxx. PREMISES CONSIDERED, this Court is left with no other legally plausible alternative but to grant the subject Motion for Reconsideration of accused Miguel Paderanga filed on 30 June

1993. The questioned Order issued on 29 June 1993 is hereby reconsidered and/or set aside, without prejudice to the prosecutions presenting any other evidence in support of the discharge. On the other Motion for Reconsideration simultaneously filed by the prosecution, it appearing that the same does not point to or specify any particular Order on record that has to be reconsidered, no ruling or action thereon is necessary. Whatever matters that have been treated therein are deemed resolved hereinabove. Considering the manifestation of the prosecution to the effect that it is adopting the same move and stand with respect to the proposed discharge of accused Julito Ampo, the ruling herein made likewise applies to accused Ampo.6 On August 9, 1993, the prosecution filed a motion for reconsideration. In an Order dated September 23, 1993, the trial court denied the motion for lack of merit.7 On November 17, 1993, the prosecution, through the Office of the Solicitor General, filed a petition for certiorari, prohibition and mandamus with the Court of Appeals, docketed as CAG.R. SP No. 32616, assailing the trial courts Orders of June 3, 1993; July 15, 1993; and September 23, 1993. On November 7, 1997, the Court of Appeals dismissed the petition for lack of merit.8 Hence, this petition for review raising the following issues: I. WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN RULING THAT THE CHALLENGED ORDER OF THE TRIAL COURT DATED 3 JUNE 1993 (WHICH DENIED PROSECUTIONS MOTION FOR FELIZARDO "ELY" ROXAS TO BE PRESENTED AS AN ORDINARY WITNESS) HAS ALREADY BECOME FINAL SINCE NO APPEAL HAS BEEN PERFECTED WITHIN THE REGLEMENTARY PERIOD, BY LOOSELY CITING THE CASE OF AMARANTE v. COURT OF APPEALS, 232 SCRA 104. II. WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN LIMITING THE EVIDENCE THAT NEEDS TO BE PRESENTED BY THE PROSECUTION IN ITS MOTION TO DISCHARGE TO THE RESPECTIVE SWORN STATEMENT EXECUTED BY ITS PROPOSED WITNESSES AND IN UPHOLDING THE TRIAL COURTS DENIAL OF THE PRESENTATION OF OTHER EVIDENCE.9 The Court of Appeals, in passing upon the issue of whether or not the prosecution may present the testimony of Felizardo Roxas as a hostile witness, held that the trial courts Order of June 3, 1993 disallowing the said presentation had already become final due to the prosecutions failure to appeal the same. This is error. Clearly, the Order dated June 3, 1993 was interlocutory; it did not finally dispose of the case on its merits. As such, the Order cannot be the proper subject of appeal. It may, however, be assailed in a special civil action for certiorari. Under the Rules of Court then governing, the petition for certiorari may be filed within a reasonable period.10 While there is no showing in the record that the prosecution moved for a reconsideration of the June 3, 1993 Order, it nevertheless appears that it filed a Motion for Reconsideration of the

Omnibus Order dated July 15, 1993, wherein it raised the matter of presenting Roxas as an ordinary witness, as distinguished from a state witness.11 This Motion was denied by the trial court on September 23, 1993. Thereafter, on November 17, 1993, the prosecution instituted a petition for certiorari, prohibition and mandamus before the Court of Appeals. The petition, clearly, was filed well within the reasonable period contemplated by the Rules. It was even filed within sixty days, the reglementary period prescribed in the present 1997 Rules of Civil Procedure. The prosecution, petitioner herein, also argues that Ely Roxas and Julito Ampo have voluntarily expressed their consent to testify as prosecution witnesses. Hence, there is no need to first discharge them as state witnesses before they can be presented on the stand. The petition has merit. It is true that an accused cannot be made a hostile witness for the prosecution, for to do so would compel him to be a witness against himself. However, he may testify against a co-defendant where he has agreed to do so, with full knowledge of his right and the consequences of his acts.12 It is not necessary that the court discharges him first as state witness. There is nothing in the rules that says so. There is a difference between testifying as state witness and testifying as a co-accused. In the first, the proposed state witness has to qualify as a witness for the state, after which he is discharged as an accused and exempted from prosecution.13 In the second, the witness remains an accused and can be made liable should he be found guilty of the criminal offense. However, we cannot simply rely on petitioners representation that Roxas and Ampo have volunteered to testify for the prosecution. This is a matter that the trial court must determine with certainty, lest their right against self-incrimination be violated. Petitioner also maintains that it can validly present the testimony of Ely Roxas and Julito Ampo at the hearing for their discharge as state witnesses. We agree. Rule 119, Section 17 of the Revised Rules of Criminal Procedure (formerly Rule 119, Section 9), provides that the trial court may direct one or more of the accused to be discharged with their consent so that they may be witnesses for the state "after requiring the prosecution to present evidence and the sworn statement of each proposed state witness at a hearing in support of the discharge" (underscoring ours). The provision does not make any distinction as to the kind of evidence the prosecution may present. What it simply requires, in addition to the presentation of the sworn statement of the accused concerned, is the presentation of such evidence as are necessary to determine if the conditions exist for the discharge, so as to meet the object of the law, which is to prevent unnecessary or arbitrary exclusion from the complaint of persons guilty of the crime charged.14 No exemption from the term evidence is provided by the law as to exclude the testimony of the accused. When the law does not distinguish, we should not distinguish.15 There is no other evidence more competent than the testimony of the proposed witness himself to prove the conditions that his testimony is absolutely necessary in the case; that there is no other direct evidence available for the proper prosecution of the offense; that his testimony can be corroborated in its material points; that he does not appear to be the most guilty; and that he has not been convicted of any offense involving moral turpitude. Further, the trial judge will not be

able to clarify matters found in the sworn statements of the proposed witnesses if they are not allowed to testify. Private respondent counters Roxas and Ampo cannot be allowed to testify because their testimony will effectively constitute an admission by a conspirator which, under Rule 130, Section 30 of the Rules of Court,16 is inadmissible as evidence against a co-conspirator until the conspiracy is established by evidence other than said declaration. In this regard, suffice it to state that private respondent can interpose the proper objection during the direct examination of these witnesses, when the prosecution propounds questions which may touch on the matter of conspiracy. Indeed, it is still premature for private respondent to raise this objection in the instant petition. WHEREFORE, in view of the foregoing, the petition is GRANTED. The assailed decision of the Court of Appeals dated November 7, 1997 is REVERSED. The Regional Trial Court of Cagayan de Oro City, in Criminal Case No. 86-39, is directed to determine the voluntariness of Felizardo Roxas and Julito Ampos decision to testify as prosecution witnesses and, thereafter, to allow the prosecution to present said witnesses. In the alternative, the trial court is directed to allow Felizardo Roxas and Julito Ampo to testify at the hearing on the motion for their discharge as state witnesses. SO ORDERED.

SECOND DIVISION

HUN HYUNG PARK, Petitioner,

G.R. No. 165496

Present:

QUISUMBING, J., Chairperson, CARPIO, CARPIO MORALES, - versus TINGA, and VELASCO, JR., JJ.

Promulgated: EUNG WON CHOI, Respondent. February 12, 2007

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

DECISION

CARPIO MORALES, J.:

Petitioner, Hun Hyung Park, assails the Court of Appeals (CA) Resolutions dated May 20, 200419[1] and September 28, 200420[2] in CA G.R. CR No. 28344 dismissing his petition and denying reconsideration thereof, respectively.

In an Information21[3] dated August 31, 2000, respondent, Eung Won Choi, was charged for violation of Batas Pambansa Blg. 22, otherwise known as the Bouncing Checks Law, for issuing on June 28, 1999 Philippine National Bank Check No. 0077133 postdated August 28, 1999 in the amount of P1,875,000 which was dishonored for having been drawn against insufficient funds.

Upon arraignment, respondent, with the assistance of counsel, pleaded not guilty to the offense charged. Following the pre -trial conference, the prosecution presented its evidence-in-chief.

After the prosecution rested its case, respondent filed a Motion for Leave of Court to File Demurrer to Evidence to which he attached his Demurrer, asserting that the prosecution failed to prove that he received the notice of dishonor, hence, the presumption of the element of knowledge of insufficiency of funds did not arise.22[4]

By Order23[5] of February 27, 2003, the Metropolitan Trial Court (MeTC) of Makati, Branch 65 granted the Demurrer and dismissed the case. prosecutions Motion for Reconsideration was denied.24[6] The

Petitioner appealed the civil aspect25[7] of the case to the Regional Trial Court (RTC) of Makati, contending that the dismissal of the criminal case should not include its civil aspect.

By Decision of September 11, 2003, Branch 60 of the RTC held that while the evidence presented was insufficient to prove respondents criminal liability, it did not altogether extinguish his civil liability. It accordingly granted the appeal of petitioner and ordered respondent to pay him the amount of P1,875,000 with legal interest.26[8]

Upon respondents motion for reconsideration, however, the RTC set aside its decision and ordered the remand of the case to the MeTC for further proceedings, so that the defendant [-respondent herein] may adduce evidence on the civil aspect of the case.27[9] Petitioners motion for reconsideration of the remand of the case having been denied, he elevated the case to the CA which, by the assailed resolutions, dismissed his petition for the following reasons:

1.

The verification and certification of non-forum shopping attached to the petition does not fully comply with Section 4, as amended by A.M. No. 00-210-SC, Rule 7, 1997 Rules of Court, because it does not give the assurance that the allegations of the petition are true and correct based on authentic records. The petition is not accompanied by copies of certain pleadings and other material portions of the record, (i.e., motion for leave to file demurrer to evidence, demurrer to evidence and the opposition thereto, and the Municipal [sic] Trial Courts Order dismissing Criminal Case No. 294690) as would support the allegations of the petition (Sec. 2, Rule 42, ibid.).

2.

3. The Decision dated September 11, 2003 of the Regional Trial Court attached to the petition is an uncertified and illegible mere machine copy of the original (Sec. 2, Rule 42, ibid.).

4. Petitioners failed to implead the People of the Philippines as party-respondent in the petition.28[10]

In his present petition, petitioner assails the above-stated reasons of the appellate court in dismissing his petition.

The manner of verification for pleadings which are required to be verified, such as a petition for review before the CA of an appellate judgment of the RTC,29[11] is prescribed by Section 4 of Rule 7 of the Rules of Court:

Sec. 4. Verification. Except when otherwise specifically required by law or rule, pleadings need not be under oath, verified or accompanied by affidavit. A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his personal knowledge or based on authentic records. A pleading required to be verified which contains a verification based on information and belief, or upon knowledge, information and belief, or lacks a proper verification shall be treated as an unsigned pleading.30[12] (Emphasis and underscoring supplied)

Petitioner argues that the word or is a disjunctive term signifying disassociation and independence, hence, he chose to affirm in his petition he filed

before the court a quo that its contents are true and correct of my own personal knowledge,31[13] and not on the basis of authentic documents.

On the other hand, respondent counters that the word or may be interpreted in a conjunctive sense and construed to mean as and, or vice versa, when the context of the law so warrants.

A reading of the above-quoted Section 4 of Rule 7 indicates that a pleading may be verified under either of the two given modes or under both. The veracity of the allegations in a pleading may be affirmed based on either ones own personal knowledge or on authentic records, or both, as warranted. The use of the preposition or connotes that either source qualifies as a sufficient basis for verification and, needless to state, the concurrence of both sources is more than sufficient.32[14] Bearing both a disjunctive and conjunctive sense, this parallel legal signification avoids a construction that will exclude the combination of the alternatives or bar the efficacy of any one of the alternatives standing alone.33[15]

Contrary to petitioners position, the range of permutation is not left to the pleaders liking, but is dependent on the surrounding nature of the allegations which may warrant that a verification be based either purely on personal knowledge, or entirely on authentic records, or on both sources.

As pointed out by respondent, authentic records as a basis for verification bear significance in petitions wherein the greater portions of the allegations are based on the records of the proceedings in the court of origin and/or the court a quo, and not solely on the personal knowledge of the petitioner. To illustrate, petitioner himself could not have affirmed, based on his personal knowledge, the truthfulness of the statement in his petition34[16] before the CA that at the pre-trial conference respondent admitted having received the letter of demand, because he (petitioner) was not present during the conference.35[17] Hence, petitioner needed to rely on the records to confirm its veracity.

Verification is not an empty ritual or a meaningless formality. Its import must never be sacrificed in the name of mere expedience or sheer caprice. For what is at stake is the matter of verity attested by the sanctity of an oath36[18] to

secure an assurance that the allegations in the pleading have been made in good faith, or are true and correct and not merely speculative.37[19]

This Court has strictly been enforcing the requirement of verification and certification and enunciating that obedience to the requirements of procedural rules is needed if fair results are to be expected therefrom. Utter disregard of the rules cannot just be rationalized by harking on the policy of liberal construction.38[20] While the requirement is not jurisdictional in nature, it does not make it less a rule. A relaxed application of the rule can only be justified by the attending circumstances of the case.39[21] To sustain petitioners explanation that the basis of verification is a matter of simple preference would trivialize the rationale and diminish the resoluteness of the rule. It would play on predilection and pay no heed in providing enough assurance of the correctness of the allegations.

On the second reason of the CA in dismissing the petition that the petition was not accompanied by copies of certain pleadings and other material portions of

the record as would support the allegations of the petition (i.e., Motion for Leave to File Demurrer to Evidence, Demurrer to Evidence and the Opposition thereto, and the MeTC February 27, 2003 Order dismissing the case) petitioner contends that these documents are immaterial to his appeal.

Contrary to petitioners contention, however, the materiality of those documents is very apparent since the civil aspect of the case, from which he is appealing, was likewise dismissed by the trial court on account of the same Demurrer.

Petitioner, nonetheless, posits that he subsequently submitted to the CA copies of the enumerated documents, save for the MeTC February 27, 2003 Order, as attachments to his Motion for Reconsideration.

The Rules, however, require that the petition must be accompanied by clearly legible duplicate original or true copies of the judgments or final orders of both lower courts, certified correct by the clerk of court.40[22]

A perusal of the petition filed before the CA shows that the only duplicate original or certified true copies attached as annexes thereto are the January 14,

2004 RTC Order granting respondents Motion for Reconsideration and the March 29, 2004 RTC Order denying petitioners Motion for Reconsideration. T he copy of the September 11, 2003 RTC Decision, which petitioner prayed to be reinstated, is not a certified true copy and is not even legible. Petitioner later recompensed though by appending to his Motion for Reconsideration a duplicate original copy.

While petitioner averred before the CA in his Motion for Reconsideration that the February 27, 2003 MeTC Order was already attached to his petition as Annex G, Annex G bares a replicate copy of a different order, however. It was to this Court that petitioner belatedly submitted an uncertified true copy of the said MeTC Order as an annex to his Reply to respondents Comment.

This Court in fact observes that the copy of the other MeTC Order, that dated May 5, 2003, which petitioner attached to his petition before the CA is similarly uncertified as true.

Since both Orders of the MeTC were adverse to him even with respect to the civil aspect of the case, petitioner was mandated to submit them in the required form.41[23]

In fine, petitioner fell short in his compliance with Section 2 (d) of Rule 42, the mandatory tenor of which is discernible thereunder and is well settled.42[24] He has not, however, advanced any strong compelling reasons to warrant a relaxation of the Rules, hence, his petition before the CA was correctly dismissed.

Procedural rules are tools designed to facilitate the adjudication of cases. Courts and litigants alike are thus enjoined to abide strictly by the rules. And while the Court, in some instances, allows a relaxation in the application of the rules, this we stress, was never intended to forge a bastion for erring litigants to violate the rules with impunity. The liberality in the interpretation and application of the rules applies only in proper cases and under justifiable causes and circumstances. While it is true that litigation is not a game of technicalities, it is equally true that every case must be prosecuted in accordance with the prescribed procedure to insure an orderly and speedy administration of justice.43[25] (Emphasis supplied)

As to the third reason for the appellate courts dismissal of his petition failure to implead the People of the Philippines as a party in the petition indeed, as petitioner contends, the same is of no moment, he having appealed only the civil aspect of the case. Passing on the dual purpose of a criminal action, this Court ruled:

Unless the offended party waives the civil action or reserves the right to institute it separately or institutes the civil action prior to the criminal action, there are two actions involved in a criminal case. The first is the criminal action for the punishment of the offender. The parties are the People of the Philippines as the plaintiff and the accused. In a criminal action, the private complainant is merely a witness for the State on the criminal aspect of the action. The second is the civil action arising from the delict. The private complainant is the plaintiff and the accused is the defendant. There is a merger of the trial of the two cases to avoid multiplicity of suits.44[26] (Underscoring supplied)

It bears recalling that the MeTC acquitted respondent.45[27] As a rule, a judgment of acquittal is immediately final and executory and the prosecution cannot appeal the acquittal because of the constitutional prohibition against double jeopardy.

Either the offended party or the accused may, however, appeal the civil aspect of the judgment despite the acquittal of the accused. The public prosecutor has generally no interest in appealing the civil aspect of a decision acquitting the accused. The acquittal ends his work. The case is terminated as far as he is concerned. The real parties in interest in the civil aspect of a decision are the offended party and the accused.46[28]

Technicality aside, the petition is devoid of merit.

When a demurrer to evidence is filed without leave of court, the whole case is submitted for judgment on the basis of the evidence for the prosecution as the accused is deemed to have waived the right to present evidence.47[29] At that juncture, the court is called upon to decide the case including its civil aspect, unless the enforcement of the civil liability by a separate civil action has been waived or reserved.48[30]

If the filing of a separate civil action has not been reserved or priorly instituted or the enforcement of civil liability is not waived, the trial court should, in case of conviction, state the civil liability or damages caused by the wrongful act or omission to be recovered from the accused by the offended party, if there is any.49[31]

For, in case of acquittal, the accused may still be adjudged civilly liable. The extinction of the penal action does not carry with it the extinction of the civil action where (a) the acquittal is based on reasonable doubt as only preponderance of evidence is required; (b) the court declares that the liability of the accused is only civil; and (c) the civil liability of the accused does not arise from or is not based upon the crime of which the accused was acquitted.50[32]

The civil action based on delict may, however, be deemed extinguished if there is a finding on the final judgment in the criminal action that the act or omission from which the civil liability may arise did not exist.51[33]

In case of a demurrer to evidence filed with leave of court, the accused may adduce countervailing evidence if the court denies the demurrer.52[34] Such

denial bears no distinction as to the two aspects of the case because there is a disparity of evidentiary value between the quanta of evidence in such aspects of the case. In other words, a court may not deny the demurrer as to the criminal aspect

and at the same time grant the demurrer as to the civil aspect, for if the evidence so far presented is not insufficient to prove the crime beyond reasonable doubt, then the same evidence is likewise not insufficient to establish civil liability by mere preponderance of evidence.

On the other hand, if the evidence so far presented is insufficient as proof beyond reasonable doubt, it does not follow that the same evidence is insufficient to establish a preponderance of evidence. For if the court grants the demurrer, proceedings on the civil aspect of the case generally proceeds. The only

recognized instance when an acquittal on demurrer carries with it the dismissal of the civil aspect is when there is a finding that the act or omission from which the civil liability may arise did not exist. Absent such determination, trial as to the civil aspect of the case must perforce continue. Thus this Court, in Salazar v. People,53[35] held:

If demurrer is granted and the accused is acquitted by the court, the accused has the right to adduce evidence on the civil aspect of the case unless the court also declares that the act or omission from which the civil liability may arise did not exist.54[36]

In the instant case, the MeTC granted the demurrer and dismissed the case without any finding that the act or omission from which the civil liability may arise did not exist.

Respondent did not assail the RTC order of remand. He thereby recognized that there is basis for a remand.

Indicatively, respondent stands by his defense that he merely borrowed P1,500,000 with the remainder representing the interest, and that he already made a partial payment of P1,590,000. Petitioner counters, however, that the payments made by respondent pertained to other transactions.55[37] Given these conflicting claims which are factual, a remand of the case would afford the fullest opportunity for the parties to ventilate, and for the trial court to resolve the same.

Petitioner finally posits that respondent waived his right to present evidence on the civil aspect of the case (1) when the grant of the demurrer was reversed on appeal, citing Section 1 of Rule 33,56[38] and (2) when respondent orally opposed petitioners motion for reconsideration pleading that proceedings with respect to the civil aspect of the case continue.

Petitioners position is tenuous.

Petitioners citation of Section 1 of Rule 33 is incorrect. Where a court has jurisdiction over the subject matter and over the person of the accused, and the crime was committed within its territorial jurisdiction, the court necessarily exercises jurisdiction over all issues that the law requires it to resolve.

One of the issues in a criminal case being the civil liability of the accused arising from the crime, the governing law is the Rules of Criminal Procedure, not the Rules of Civil Procedure which pertains to a civil action arising from the initiatory pleading that gives rise to the suit.57[39]

As for petitioners attribution of waiver to respondent, it cannot be determined with certainty from the records the nature of the alleged oral objections of respondent to petitioners motion for reconsideration of the grant of the demurrer to evidence. Any waiver of the right to present evidence must be

positively demonstrated. Any ambiguity in the voluntariness of the waiver is

frowned upon,58[40] hence, courts must indulge every reasonable presumption against it.59[41]

This Court therefore upholds respondents right to present evidence as reserved by his filing of leave of court to file the demurrer.

WHEREFORE, the petition is, in light of the foregoing discussions, DENIED.

The case is REMANDED to the court of origin, Metropolitan Trial Court of Makati City, Branch 65 which is DIRECTED to forthwith set Criminal Case No. 294690 for further proceedings only for the purpose of receiving evidence on the civil aspect of the case.
FIRST DIVISION [G.R. No. 132081. November 26, 2002] JOEL M. SANVICENTE, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. DECISION

YNARES-SANTIAGO, J.: Petitioner was charged with homicide for the killing of one Dennis Wong y Chua. On June 11, 1995, at around 5:30 p.m., petitioner fatally shot the victim outside the Far East Bank along Katipunan Avenue, Loyola Heights, Quezon City after the latter allegedly attempted to rob him of a large amount of cash which he had just withdrawn from the automatic teller machine.60[1] Responding policemen found the lifeless body of the victim at the parking space in front of the Far East Bank and Trust Company Branch along Katipunan Road, Loyola Heights, Quezon City. Recovered at the scene were five empty caliber .45 shells, two live caliber .45 bullets and an ATM card in the name of Violeta Sanvicente.61[2] On June 13, 1995, police authorities located petitioners car in Barrio Malapit, San Isidro, Nueva Ecija and took custody thereof. Petitioners counsel, Atty. Leonardo A. Valmonte, turned over to Police Station 9 petitioners .45 caliber Mark IV pistol bearing Serial No. 5504095. He also wrote a letter addressed to P/Major Antonio Diaz, Station Commander of PNP Station 9, CPDC, Anonas Road, Quezon City which reads as follows: This is in connection with the alleged death of one Dennis Wong that occurred in Katipunan Ave., Q.C., in the afternoon of June 11, 1995. According to my client, Joel Sanvicente, on said date, place and hour above he just withdrew from the Far East Bank and Trust Co., Katipunan branch a large amount of cash. On his way out of the bank, said victim immediately attacked him to grab the money he has just withdrew (sic). My said client pulled out his gun (duly licensed with Permit to Carry) and fired a warning shot upwards. Still the deceased continued his attack and grabbed his gun. After a brief struggle, my client was forced to shoot the deceased in the defense of his person and money. My client will submit a formal statement during the proper preliminary investigation, if needed. On June 13, 1995, my clients car (Mercedes Benz with plate no. TFU 736) was taken by your operatives led by Capt. Alejandro Casanova and [is] now in your custody. In view of the untoward incident, my client suffered serious anxiety and depression and was advised to undergo medical treatment and confinement at the Delos Santos Hospital in Rodriguez Ave., Q. C. My client would have no objection if you assigned police escort/guard under your supervision pending his confinement.

For all intense (sic) & purposes, this letter shall serve as a voluntary surrender, without admission of guilt on the part of my client.62[3] At his arraignment, petitioner pleaded not guilty.63[4] During the trial, the prosecution presented Ballistics Report No. B-046-95, stating that slugs recovered from the crime scene, on the one hand, and cartridge cases fired from petitioners caliber .45 Mark IV pistol, on the other hand, were fired from the same firearm.64[5] The MedicoLegal Officer who conducted the autopsy on the deceased failed to appear at the trial. In order to dispense with her testimony, petitioner admitted the due execution and genuineness of the medico-legal report. After trial, the prosecution filed its Formal Offer of Exhibits,65[6] which included the above-quoted letter of petitioners counsel to P/Maj. Antonio Diaz, marked as Exhibit LL. The trial court admitted all the prosecutions exhibits in its Order dated August 27, 1996.66[7] Meanwhile, petitioner begged leave to file a demurrer to evidence, which was granted by the trial court.67[8] Hence, on August 29, 1996, petitioner filed a Motion To Dismiss (On Demurrer to Evidence),68[9] based on the following grounds: (1) the lack of positive identification of the accused is a fatal omission warranting dismissal; (2) prosecutions evidence are totally

hearsay/incompetent, hence, inadmissible and the guilt of the accused was not proven by positive evidence beyond reasonable doubt. On October 7, 1996, the trial court issued an Order dismissing the case together with the civil aspect thereof for insufficiency of evidence.69[10] The prosecution filed a motion for reconsideration,70[11] which was denied on the ground, among others, that with the dismissal of the case double jeopardy had set in.71[12] The prosecution filed a petition for certiorari with the Court of Appeals, docketed as CA-G.R. SP No. 43697. In a Decision dated July 25, 1997,72[13] the appellate court nullified the October 7, 1996 Order of the trial court. Petitioners motion for reconsideration73[14] was likewise denied in a Resolution dated January 2, 1998.74[15] Hence, the instant petition. In reversing the trial courts Order dismissing the criminal case against petitioner, the Court of Appeals found that the trial court committed grave abuse of discretion in preventing the prosecution from establishing the due execution and authenticity of Exhibit LL which, it claimed, positively identified petitioner as the perpetrator of the crime charged.75[16]

Under Rule 119, Section 23 of the Revised Rules of Criminal Procedure, as amended, the trial court may dismiss the action on the ground of insufficiency of evidence upon a demurrer to evidence filed by the accused with or without leave of court. In resolving accuseds demurrer to evidence, the court is merely required to ascertain whether there is competent or sufficient evidence to sustain the indictment or support a verdict of guilt.76[17] The grant or denial of a demurrer to evidence is left to the sound discretion of the trial court and its ruling on the matter shall not be disturbed in the absence of a grave abuse of discretion.77[18] Significantly, once the court grants the demurrer, such order amounts to an acquittal and any further prosecution of the accused would violate the constitutional proscription on double jeopardy.78[19] This constitutes an exception to the rule that the dismissal of a criminal case made with the express consent of the accused or upon his own motion bars a plea of double jeopardy.79[20] The finality-of-acquittal rule was stressed thus in People v. Velasco:80[21] The fundamental philosophy highlighting the finality of an acquittal by the trial court cuts deep into the humanity of the laws and in jealous watchfulness over the rights of the citizens, when brought in unequal contest with the State xxx.81[22] Thus Green expressed the concern that (t)he underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety

and insecurity, as well as enhancing the possibility that even though innocent, he may be found guilty.82[23] It is axiomatic that on the basis of humanity, fairness and justice, an acquitted defendant is entitled to the right of repose as a direct consequence of the finality of his acquittal. The philosophy underlying this rule establishing the absolute nature of acquittals is part of the paramount importance criminal justice system attaches to the protection of the innocent against wrongful conviction.83[24] The interest in the finality-of-acquittal rule, confined exclusively to verdicts of not guilty, is easy to understand: it is a need for repose, a desire to know the exact extent of ones liability.84[25] With this right of repose, the criminal justice system has built in a protection to insure that the innocent, even those whose innocence rests upon a jurys leniency, will not be found guilty in a subsequent proceeding.85[26] Given the far-reaching scope of an accuseds right against double jeopardy, even an appeal based on an alleged misappreciation of evidence will not lie.86[27] The only instance when double jeopardy will not attach is when the trial court acted with grave abuse of discretion amounting to lack or excess of jurisdiction, such as where the prosecution was denied the opportunity to present its case,87[28] or where the trial was a sham.88[29] However, while certiorari may be availed of to correct an erroneous acquittal, the petitioner in such an extraordinary proceeding

must clearly demonstrate that the trial court blatantly abused its authority to a point so grave as to deprive it of its very power to dispense justice.89[30] In the instant case, petitioner filed a demurrer to evidence after the prosecution adduced its evidence and rested its case. The trial court subsequently dismissed the case after finding that the evidence presented by the prosecution was insufficient to support the charge against petitioner. The prosecution, which relied primarily on Exhibit LL as the basis for the indictment against petitioner, however, contested the dismissal of the case allegedly because the trial court prevented it from further identifying the genuineness and due execution of said document in the manner that it wanted.90[31] The crux of the problem lies in the confusion between the due execution of a piece of documentary evidence vis--vis the truth of its contents. Likewise at the core of the dilemma is the fundamental distinction between an admission and a confession. The prosecution maintains that the letter, Exhibit LL, constituted a confession and argues thus: What better evidence is there to positively identify the perpetrator of the crime than the confession of the petitioner himself, freely and voluntarily given, assisted by counsel?91[32] According to the prosecution, this extrajudicial confession constitutes the strongest evidence of guilt.92[33] An admission is defined under Rule 130, Section 26 of the Rules of Court as the act, declaration or omission of a party as to a relevant fact. A confession, on the other hand, under Rule 130, Section 33 is the declaration of an accused acknowledging his guilt of the offense charged or any offense necessarily included therein. More particularly, a confession is a declaration made at any time by a person, voluntarily and without compulsion or inducement stating or acknowledging that he had committed or participated in the commission of a crime. The term admission, on the other hand, is usually applied in criminal cases to statements of fact by the accused which do not directly involve an

acknowledgment of the guilt of the accused or of criminal intent to commit the offense with which he is charged.93[34] In short, in a confession, an accused acknowledges his guilt; while there is no such acknowledgment of guilt in an admission.94[35] Only recently in People v. Licayan,95[36] the Court distinguished confession and admission in this wise: A confession is an acknowledgment in express terms, by a party in a criminal case, of his guilt of the crime charged, while an admission is a statement by the accused, direct or implied, of facts pertinent to the issue, and tending, in connection with proof of other facts, to prove his guilt. In other words, an admission is something less than a confession, and is but an acknowledgment of some fact or circumstance which in itself is insufficient to authorize a conviction, and which tends only to establish the ultimate fact of guilt. (Emphasis ours) 96[37] There is no question that the letter dated June 14, 1995 is an admission, not a confession, because of the unmistakable qualification in its last paragraph that For all intense (sic) & purposes, this letter shall serve as a voluntary surrender, without admission of guilt on the part of my client. . . (Emphasis and italics supplied). With the foregoing distinctions in mind, the trial court correctly rejected the prosecutions motion to have Exhibit LL further identified in the manner that it wanted,97[38] i.e., through the proposed testimony of petitioners counsel, Atty. Valmonte, who incidentally refused to testify. Aside from covering a subject which squarely falls within the scope of privileged communication, it would, more importantly, be tantamount to converting the admission into a confession.

It can not be denied that the contents of Exhibit LL, particularly with regard to the details of the shooting communicated by petitioner to Atty. Valmonte, is privileged because it is connected with the business for which petitioner retained the services of the latter.98[39] More specifically, said communication was relayed by petitioner to Atty. Valmonte in order to seek his professional advice or assistance in relation to the subject matter of the employment, or to explain something in connection with it, so as to enable him to better advice his client or manage the litigation.99[40] Pertinent to this is Section 24 (b) of Rule 130 of the Rules of Court, to wit: SEC. 24. Disqualification by reason of privileged communication. The following persons cannot testify as to matters learned in confidence in the following cases: xxx xxx xxx

(b) An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment nor can an attorneys secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity; x x x. It is worthy to note that the prosecution did not summon petitioner himself to testify although he too was a signatory of Exhibit LL. Apparently, it was aware that petitioner could well invoke his right against self-incrimination and refuse to answer its questions. The prosecution then attempted to draw out what it could not constitutionally extract from his lawyer. Yet, and as stated previously, said Exhibit LL had earlier been admitted in evidence by the trial court in its Order dated August 27, 1996. What was objectionable was the prosecutions sole reliance on the document without proof of other facts to establish its case against petitioner because of its mistaken assumption that the same was a confession. Significantly, the prosecution was neither barred nor prevented by the trial court from establishing the genuineness and due execution of the document through other means. Rule 132, Section 20of the Rules of Court provides the following means of authenticating the document: SEC. 20. Proof of private document. Before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either: (a) By anyone who saw the document executed or written; or

(b)

By evidence of the genuineness of the signature or handwriting of the maker.

Any other private document need only be identified as that which it is claimed to be. Thus, the due execution of a document can be proved through the testimony of: (1) the person/s who executed it; (2) the person before whom its execution was acknowledged; or (3) any person who was present and saw it executed and delivered or who, after its execution and delivery, saw it and recognized the signatures therein or by a person to whom the parties to the instrument previously confirmed the execution thereof.100[41] Thus, respondent could have called to the witness stand P/Maj. Antonio Diaz, the addressee of Exhibit LL, to identify the said document since it was supposedly delivered to him personally. Samples of the signatures appearing on the document which can be readily obtained or witnesses who are familiar with them could have also been presented. The prosecution did not. Neither did it subpoena P/Senior Inspector Alejandro M. Casanova, who prepared the detailed Police Report of the incident used as the basis of the inquest proceedings, nor were any eyewitnesses presented, notwithstanding that there appeared to be at least two eyewitnesses to the incident. It must be borne in mind that in a criminal trial, it is the prosecution that determines the charges to be filed and how the legal and factual elements in the case shall be utilized as components of the information.101[42] Stated differently, the determination of what evidence to adduce to bolster a successful prosecution of a criminal offense is the exclusive domain of prosecutorial discretion. Indeed, courts generally can not interfere with the prosecutors discretion as to control over criminal prosecutions.102[43] However, it is the court which ultimately determines whether such evidence is sufficient to sustain an indictment, thus, the care with which the prosecution must build up its case against the accused can not be gainsaid because, as has been stated time and again, in any criminal prosecution, the State must rely on the strength of its own evidence and not on the weakness of the evidence of the defense.103[44] Viewed vis-a-vis the foregoing lapses detailed above, the prosecutions insistence to have Exhibit LL admitted in the manner it wanted shows only too clearly a subtle but shrewd

scheme to cover up for the foregoing procedural missteps and to cut evidentiary corners to build its case at the expense of the defense. This cannot be countenanced. An accused should not be prejudiced for the failure of the prosecution to discharge its burden of overcoming the constitutional presumption of innocence and to establish the guilt of the accused beyond reasonable doubt.104[45] Indeed, if the prosecution fails to discharge the burden, then it is not only the accuseds right to be freed, it is even more the courts constitutional duty to acquit him.105[46] If at all, the foregoing acts of the prosecution underscores just how careless and haphazard it had been in building up a case against the petitioner. For such, it has nothing but itself to blame if the trial court in assaying the proof it adduced found the same wanting. It will neither be allowed to sweep its procedural miscues under the rug, so to speak, on the pretext that it was denied due process when the trial court supposedly prevented it from presenting Exhibit LL. To be more precise, the trial court had admitted Exhibit LL in evidence but rejected the further admission of the document in the manner that it wanted. Verily, the prosecution can not have its cake and eat it too. Moreover, we agree with the trial court that the letter marked as Exhibit LL is hearsay inasmuch as its probative force depends in whole or in part on the competency and credibility of some person other than the witness by whom it is sought to produce it.106[47] The term as used in the law of evidence signifies all evidence which is not founded upon the personal knowledge of the witness from whom it is elicited, and which consequently does not depend wholly for its credibility and weight upon the confidence which the court may have in him. Its value, if any, is measured by the credit to be given to some third persons not sworn as witnesses to that fact and consequently not subject to cross-examination.107[48] In short, it is the evidence not of what the witness knows himself but of what he has heard from others.108[49] Thus, in one case we stated that [w]hen evidence is based on what was supposedly told the witness, the same is without any

evidentiary weight being patently hearsay.109[50] In the case at bar, it is noteworthy that the statements in the letter were made by petitioners counsel, who even began his narration of the events with the phrase: According to my client.110[51] In holding that petitioner was identified as the person who committed the offense, the appellate court relied on the following circumstances: (1) he admitted responsibility therefor through Exhibit LL, which was signed by him and his counsel; (2) he surrendered even before the issuance of the warrant of arrest; (3) his gun was also surrendered to the police authorities by his counsel; (4) empty shells recovered at the scene of the crime matched his gun; and (5) the letterreferral of P/Senior Inspector Alejandro Casanova to Quezon City Prosecutor indicated that petitioner was under the custody of the policeman on detail supposedly to guard him at the hospital.111[52] With regard to the first circumstance, suffice it to state that, as has lengthily been discussed earlier, Exhibit LL is merely an admission and not a confession. In fact, petitioner specifically denied criminal intent therein. By and of itself it is insufficient to support a conviction unless it is considered in connection with other proof to establish the ultimate fact of guilt. The second and third incidents actually support petitioners innocence because were he indeed guilty of the felony, he would not likely have surrendered even before the warrant was issued for his arrest. Courts go by the biblical truism that the the wicked flee when no man pursueth but the righteous are as bold as a lion.112[53] The fourth event merely proves the fact that the empty shells recovered from the crime scene were fired from the surrendered gun. It, however, does not answer the penultimate question of who actually pulled the trigger of the firearm. Lastly, the appellate courts reading of the letter-referral,113[54] mentioning that petitioner had been placed under the custody of a policeman, was inaccurate. As explained by Atty. Valmonte

in Exhibit LL, the policeman was actually requested for petitioners personal safety owing to the untoward incident which caused petitioner serious anxiety and depression, and for which he had to undergo treatment and confinement.114[55] All told, we find no grave abuse on the part of the trial court in dismissing the charges against petitioner. WHEREFORE, in view of all the foregoing, the petition is GRANTED. The decision of the Court of Appeals dated July 25, 1997 and the Resolution dated January 2, 1998 in CA-G.R. SP No. 43697 are REVERSED and SET ASIDE. Republic of the Philippines SUPREME COURT Manila EN BANC
G.R. No. 72670 September 12, 1986 SATURNINA GALMAN, REYNALDO GALMAN and JOSE P. BENGZON, MARY CONCEPCION BAUTISTA, JOAQUIN G. BERNAS; S.J., M. BELLARMINE BERNAS, O.S.B., FRANCISCO I. CHAVEZ, SOLITA COLLAS-MONSOD, SANTIAGO DUMLAO, JR., MARIA FERIA, MARCELO B. FERNAN, FRANCISCO GARCHITORENA, * ANDREW GONZALEZ, JOSE C. LAURETA, SALVADOR P. LOPEZ, FELIX K. MARAMBA, JR., CECILIA MUOZ PALMA. JAIME V. ONGPIN, FELIX PEREZ, JOSE B.L. REYES, JOSE E. ROMERO, JR., RAMON DEL ROSARIO, JR., RICARDO J. ROMULO, AUGUSTO SANCHEZ, EMMANUEL V. SORIANO, DAVID SYCIP, ENRIQUE SYQUIA, CRISTINA TAN, JESUS VARGAS, BERNARDO M. VILLEGAS, VICENTE JAYME, **, petitioners, vs. SANDIGANBAYAN, FIRST DIVISION (represented by Justice Manuel Pamaran, Chairman, and Justices Augusto Amores and Bienvenido Vera Cruz, Members), JUSTICE BERNARDO FERNANDEZ (Ombudsman) and GEN. FABIAN C. VER, MAJ. GEN. PROSPERO A. OLIVAS, BRIG. GEN. LUFHER A. CUSTODIO, COL. ARTURO G. CUSTODIO, COL. VICENTE B. TIGAS, JR., CAPT. FELIPE VALERIO, CAPT. LLEWELYN KAVINTA, CAPT. ROMEO M. BAUTISTA, 2nd LT. JESUS CASTRO, SGT. PABLO MARTINEZ, SGT. ARNULFO DE MESA, SGT. TOMAS FERNANDEZ, SGT. CLARO LAT, SGT. FILOMENO MIRANDA, SGT. ROLANDO C. DE GUZMAN, SGT. ERNESTO M. MATEO, SGT. RODOLFO M. DESOLONG, SGT. LEONARDO MOJICA, SGT. PEPITO TORIO, SGT. ARMANDO DELA CRUZ, SGT. PROSPERO A. BONA, CIC ROGELIO MORENO, CIC MARIO LAZAGA, AIC CORDOVA G. ESTELO, AIC ANICETO ACUPIDO and HERMILO GOSUICO, *** , respondents. Lupino Lazaro and Arturo M. de Castro for petitioners. Antonio R. Coronel for respondents Gen. Ver and Col. Tigas, Jr. Rodolfo U. Jimenez for respondent Brig. Gen. Custodio. Ramon M. Bernaldo for respondent H. Gosuico. Romulo Quimbo for respondent B. Vera Cruz. Norberto J. Quisumbing for respondent P. Olivas. Felix Solomon for respondent Col. A. Custodio.

Alfonso S. Cruz for B. Fernandez. Edgardo B. Gayos for M. Pamaran. RESOLUTION

TEEHANKEE, C.J.: Last August 21st, our nation marked with solemnity and for the first time in freedom the third anniversary of the treacherous assassination of foremost opposition leader former Senator Benigno "Ninoy" Aquino, Jr. imprisoned for almost eight years since the imposition of martial law in September, 1972 by then President Ferdinand E. Marcos, he was sentenced to death by firing squad by a military tribunal for common offenses alleged to have been committed long before the declaration of martial law and whose jurisdiction over him as a civilian entitled to trial by judicial process by civil courts he repudiated. Ninoy pleaded in vain that the military tribunals are admittedly not courts but mere instruments and subject to the control of the President as created by him under the General Orders issued by him as Commander-in-Chief of the Armed Forces of the Philippines, and that he had already been publicly indicted and adjudged guilty by the President of the charges in a 1 nationwide press conference held on August 24, 1971 when he declared the evidence against Ninoy "not only strong but overwhelming ." This followed the Plaza Miranda bombing of August 21, 1971 of the proclamation rally of the opposition Liberal Party candidates for the November, 1971 elections (when eight persons were killed and practically all of the opposition candidates headed by Senator Jovito Salonga and many more were seriously injured), and the suspension of the privilege of the writ of habeas corpus under Proclamation No. 889 on August 23, 1971. The massacre was instantly attributed to the communists but the truth has never been known. But the then President never filed the said charges against Ninoy in the civil courts. Ninoy Aquino was nevertheless thereafter allowed in May, 1980 to leave the country to undergo successful heart surgery. After three years of exile and despite the regime's refusal to give him a passport, he sought to return home "to strive for a genuine national reconciliation founded on justice." He was to be cold-bloodedly killed while under escort away by soldiers from his plane that had just landed at the Manila International Airport on that fateful day at past 1 p.m. His brain was smashed by a bullet fired point blank into the back of his head by a murderous assassin, notwithstanding that the airport was ringed by airtight security of close to 2,000 soldiers and "from a military viewpoint, it 2 (was) technically impossible to get inside (such) a cordon." The military investigators reported within a span of three hours that the man who shot Aquino (whose identity was then supposed to be unknown and was revealed only days later as Rolando Galman, although he was the personal friend of accused Col. Arturo Custodio who picked him up from his house on August 17, 1983) was a communist-hired gunman, and that the military escorts gunned him down in turn. The military later filmed a re-enactment of the killing scripted according to this version and continuously replayed it on all TV channels as if it were taken live on the spot. The then President instantly accepted the military version and repeated it in a nationally televised press conference that he gave late in the evening of August 22, 1983, wherein he said, in order to induce disbelief that the military had a hand in the killing, that "if the purpose was to eliminate Aquino, this was not the way to do it." The national tragedy shocked the conscience of the entire nation and outraged the free world. The large masses of people who joined in the ten-day period of national mourning and came out in millions in the largest and most orderly public turnout for Ninoy's funeral reflected their grief for his martyrdom and their yearning for the truth, justice and freedom. The then President was constrained to create a Fact Finding Board to investigate "the treacherous and vicious assassination of former Senator Benigno S. Aquino, Jr. on August 21, 1983 [which] has to all Filipinos become a national tragedy and national shame specially 4 because of the early distortions and exaggerations in both foreign and local media so that all right thinking and honest men desire to ventilate the truth through fare, independent and dispassionate investigation by prestigious and free investigators." After two false starts,
6 5 3

he

finally constituted the Board on October 22, 1983 which held 125 hearing days commencing November 3, 1983 (including 3 hearings in Tokyo and 8 hearings in Los Angeles, California) and heard the testimonies of 194 witnesses recorded in 20,377 pages of transcripts, until the submission of their minority and majority reports to the President on October 23 and 24, 1984. This was to mark another first anywhere in the world wherein the minority report was submitted one day ahead by the ponente thereof, the chairman, who was received congenially and cordially by the then President who treated the report as if it were the majority report instead of a minority report of one and forthwith referred it to respondent Tanodbayan "for final resolution through the legal system" and for trial in the Sandiganbayan which was better known as a graft court; and the majority report of the four other members was submitted on the following day to the then President who coldly received them and could scarcely conceal his instant rejection of their report with the grim statement that "I hope you can live with your conscience with what you have done." The fact is that both majority and minority reports were one in rejecting the military version as propounded by the chief investigator, respondent Gen. Olivas, that Rolando Galman was the NPA-hired assassin, stating that "the evidence shows [to the contrary] that Rolando Galman had no subversive affiliations." They were in agreement that "only the soldiers in the staircase with Sen. Aquino could have shot him;" that Galman, the military's "fall guy" was "not the assassin of Sen. Aquino and that "the SWAT troopers who gunned down Galman and the soldiers who escorted Sen. Aquino down the service stairs, deliberately and in conspiracy with one another, gave a perjured story to us regarding the alleged shooting by Galman of Sen. Aquino and the mowing down, in turn, of Galman himself;" in short, that Ninoy's assassination was the product of a military conspiracy, not a communist plot The only difference between the two reports is that the majority report found all the twenty-six private respondents abovenamed in the title of the case headed by then AFP Chief General Fabian C. Ver involved in the military conspiracy and therefore "indictable for the premeditated killing of Senator Benigno S. Aquino, Jr. and Rolando Galman at the MIA on August 21, 1983;" while the chairman's minority report would exclude nineteen of them and limit as plotters "the six persons who were on the service stairs while Senator Aquino was descending" and "General Luther Custodio . . . because the criminal plot could not have been planned and implemented without his intervention."

The chairman wrote in her minority report (somewhat prophetically) that "The epilogue to our work lies in what will transpire in accordance with the action that the Office of the President may thereafter direct to be taken. "The four-member majority report (also prophetically) wrote in the epilogue (after warning the forces who adhere to an alien and intolerable political ideology against unscrupulously using the report "to discredit our traditionally revered institutions"), that "the tragedy opened our eyes and for the first time confirmed our worst fears of what unchecked evil would be capable of doing." They wrote: The task of the Board was clear and unequivocal. This task was not only to determine the facts and circumstances surrounding the death of the late former Senator. Of greater significance is the awesome responsibility of the Board to uphold righteousness over evil, justice over injustice, rationality over irrationality, humaneness over inhumanity. The task was indeed a painful test, the inevitable result of which will restore our country's honored place among the sovereign nations of the free world where peace, law and order, freedom, and justice are a way of life. More than any other event in contemporary Philippine history, the killing of the late former Senator Aquino has brought into sharper focus, the ills pervading Philippine society. It was the concretization of the horror that has been haunting this country for decades, routinely manifested by the breakdown of peace and order, economic instability, subversion, graft and corruption, and an increasing number of abusive elements in what are otherwise noble institutions in our country-the military and law enforcement agencies. We are, however, convinced that, by and large, the great majority of the officers and men of these institutions have remained decent and honorable, dedicated to their noble mission in the service of our country and people. The tragedy opened our eyes and for the first time confirmed our worst fears of what unchecked evil would be capable of doing. As former Israeli Foreign Minister Abba Eban observes. "Nobody who has great authority can be trusted not to go beyond its proper limits." Social apathy, passivity and indifference and neglect have spawned in secret a dark force that is bent on destroying the values held sacred by freedom-loving people. To assert our proper place in the civilized world, it is imperative that public officials should regard public service as a reflection of human Ideals in which the highest sense of moral values and integrity are strictly required. A tragedy like that which happened on August 21, 1983, and the crisis that followed, would have normally caused the resignation of the Chief of the Armed Forces in a country where public office is viewed with highest esteem and respect and where the moral responsibilities of public officials transcend all other considerations. It is equally the fact that the then President through all his recorded public acts and statements from the beginning disdained and rejected his own Board's above findings and insisted on the military version of Galman being Ninoy's assassin. In upholding this view that "there is no involvement of anyone in his government in the assassination," he told David Briscoe (then AP Manila Bureau Chief in a Radio-TV interview on September 9, 1983 that "I am convinced that if any member of my government were involved, I would have known somehow ... Even at a 7 fairly low level, I would have known. I know how they think. I know what they are thinking of." He told CBS in another interview in May, 1984 (as his Fact Finding Board was holding its hearings) the following: CBS: But indeed there has been recent evidence that seems to contradict earlier reports, namely, the recent evidence seems to indicate that some of the guards may have been responsible (for shooting Ninoy). MARCOS: Well, you are of course wrong. What you have been reading are the newspapers and the newspaper reports have been biased. The evidence still proves that Galman was the killer. The evidence also shows that there were intelligence reports connecting the communist party to the killing. 8 In his reply of October 25, 1984 to General Ver's letter of the same date going on leave of absence upon release of the Board's majority report implicating him, he wrote that "(W)e are even more aware, general, that the circumstances under which the board has chosen to implicate you in its findings are fraught with doubt and great contradictions of opinion and testimony. And we are deeply disturbed that on the basis of so-called evidence, you have been so accused by some members of the Board," and extended "My very best wishes to you and 9 your family for a speedy resolution of your case," even as he announced that he would return the general to his position as AFP Chief "if he is acquitted by the Sandiganbayan." In an interview on June 4, 1985 with the Gamma Photo Agency, as respondent court was hearing the 10 cases, he was quoted as saying that "as will probably be shown, those witnesses (against the accused) are perjured witnesses." It was against this setting that on November 11, 1985 petitioners Saturnina Galman and Reynaldo Galman, mother and son, respectively, of the late Rolando Galman, and twenty-nine (29) other petitioners, composed of three former Justices of this Court, five incumbent and former university presidents, a former AFP Chief of Staff, outstanding members of the Philippine Bar and solid citizens of the community, filed the present action alleging that respondents Tanodbayan and Sandiganbayan committed serious irregularities constituting mistrial and resulting in miscarriage of justice and gross violation of the constitutional rights of the petitioners and the sovereign people of the Philippines to due process of law. They asserted that the Tanodbayan did not represent the interest of the people when he failed to exert genuine and earnest efforts to present vital and important testimonial and documentary evidence for the prosecution and that the Sandiganbayan Justices were biased, prejudiced and partial in favor of the accused, and that their acts "clouded with the gravest doubts the sincerity of government to find out the truth about the Aquino assassination." Petitioners prayed for the immediate issuance of a temporary restraining order restraining the respondent Sandiganbayan from rendering a decision on the merits in the pending criminal cases which it had scheduled on November 20,

1985 and that judgment be rendered declaring a mistrial and nullifying the proceedings before the Sandiganbayan and ordering a re-trial 10 before an impartial tribunal by an unbiased prosecutor. -a At the hearing on November 18, 1985 of petitioners' prayer for issuance of a temporary restraining order enjoining respondent court from 11 rendering a decision in the two criminal cases before it, the Court resolved by nine-to-two votes to issue the restraining order prayed for. The Court also granted petitioners a five-day period to file a reply to respondents' separate comments and respondent Tanodbayan a threeday period to submit a copy of his 84-page memorandum for the prosecution as filed in the Sandiganbayan, the signature page of which alone had been submitted to the Court as Annex 5 of his comment. But ten days later on November 28, 1985, the Court by the same nine-to- two-vote ratio in reverse,
12

resolved to dismiss the petition and to

13

lift the temporary restraining order issued ten days earlier enjoining the Sandiganbayan from rendering its decision. The same Court majority denied petitioners' motion for a new 5-day period counted from receipt of respondent Tanodbayan's memorandum for the prosecution (which apparently was not served on them and which they alleged was "very material to the question of his partiality, bias and prejudice" within which to file a consolidated reply thereto and to respondents' separate comments, by an eight-to-three vote, with Justice 14 Gutierrez joining the dissenters. On November 29, 1985, petitioners filed a motion for reconsideration, alleging that the dismissal did not indicate the legal ground for such action and urging that the case be set for a full hearing on the merits because if the charge of partiality and bias against the respondents and suppression of vital evidence by the prosecution are proven, the petitioners would be entitled to the reliefs demanded: The People are entitled to due process which requires an impartial tribunal and an unbiased prosecutor. If the State is deprived of a fair opportunity to prosecute and convict because certain material evidence is suppressed by the prosecution and the tribunal is not impartial, then the entire proceedings would be null and void. Petitioners prayed that the Sandiganbayan be restrained from promulgating their decision as scheduled anew on December 2, 1985. On December 5, 1985, the Court required the respondents to comment on the motion for reconsideration but issued no restraining order. Thus, on December 2, 1985, as scheduled, respondent Sandiganbayan issued its decision acquitting all the accused of the crime charged, declaring them innocent and totally absolving them of any civil liability. This marked another unusual first in that respondent Sandiganbayan in effect convicted the very victim Rolando Galman (who was not on trial) as the assassin of Ninoy contrary to the very information and evidence submitted by the prosecution. In opposition, respondents submitted that with the Sandiganbayan's verdict of acquittal, the instant case had become moot and academic. On February 4, 1986, the same Court majority denied petitioners' motion for reconsideration for lack of merit, with the writer and Justice Abad Santos maintaining our dissent. On March 20, 1986, petitioners filed their motion to admit their second motion for reconsideration attached therewith. The thrust of the second motion for reconsideration was the startling and theretofore unknown revelations of Deputy Tanodbayan Manuel Herrera as reported in the March 6, 1986 issue of the Manila Times entitled "Aquino Trial a Sham," that the then President had ordered the respondents Sandiganbayan and Tanodbayan Bernardo Fernandez and the prosecution panel headed by Herrera to whitewash the criminal cases against the 26 respondents accused and produce a verdict of acquittal. On April 3, 1986, the Court granted the motion to admit the second motion for reconsideration and ordered the respondents to comment 15 thereon. Respondent Tanodbayan Bernardo Fernandez stated in his Manifestation filed on April 11, 1986 that he had ceased to hold office as Tanodbayan as of April 8, 1986 when he was replaced by the new Tanodbayan, Raul M. Gonzales, but reiterating his position in his comment on the petition, he added "relative to the reported alleged revelations of Deputy Tanodbayan Manuel Herrera, herein respondent never succumbed to any alleged attempts to influence his actuations in the premises, having instead successfully resisted perceived attempts to exert pressure to drop the case after preliminary investigation, and actually ordered the filing and prosecution of the two (2) murder cases below against herein private party respondents." He candidly admitted also in his memorandum: "There is not much that need 15 be said about the existence of pressure. That there were pressures can hardly be denied; in fact, it has never been denied." -a He submitted that "even as he vehemently denies insinuations of any direct or indirect complicity or participation in any alleged attempt to supposedly whitewash the cases below, . . . should this Honorable Court find sufficient cause to justify the reopening and retrial of the cases below, he would welcome such development so that any wrong that had been caused may be righted and so that, at the very least the actuations of herein respondent in the premises may be reviewed and reexamined, confident as he is that the end will show that he had done nothing in the premises that violated his trust as Tanodbayan (Ombudsman)." New Tanodbayan Raul M. Gonzales in his comment of April 14, 1986 "interposed no objection to the reopening of the trial of the cases . . . as, in fact, he urged that the said cases be reopened in order that justice could take its course." Respondents Justices of the Sandiganbayan First Division in their collective comment of April 9, 1986 stated that the trial of the criminal cases by them was valid and regular and decided on the basis of evidence presented and the law applicable, but manifested that "if it is true that the former Tanodbayan and the Deputy Tanodbayan, Chief of the Prosecution Panel, were pressured into suppressing vital evidence which would probably alter the result of the trial, Answering Respondents would not interpose any objection to the reopening of those cases, if only to allow justice to take its course." Respondent Sandiganbayan Justice Bienvenido C. Vera Cruz, in a separate comment, asserted that he passed no note to anyone; the note being bandied about is not in his handwriting; he had nothing to do with the writing of the note or of any note of any kind intended for any lawyer of the defense or even of the prosecution; and requested for an investigation by this Court to settle the note passing issue once and for all.

Deputy Tanodbayan Manuel Herrera, in his comment of April 14, 1986 affirmed the allegations in the second motion for reconsideration that he revealed that the Sandiganbayan Justices and Tanodbayan prosecutors were ordered by Marcos to whitewash the Aquino-Galman murder case. He amplified his revelations, as follows: 1. AB INITIO, A. VERDICT OF ACQUITTAL! Incidents during the preliminary investigation showed ominous signs that the fate of the criminal case on the death of Ex-Senator Benigno Aquino and Rolando Galman on August 21, 1983 was doomed to an ignominous end. Malacanang wanted dismissal-to the extent that a prepared resolution was sent to the Investigating Panel (composed of the undersigned, Fiscals Ernesto Bernabe and Leonardo Tamayo) for signature. This, of course, was resisted by the panel, and a resolution charging all the respondents as principals was forwarded to the Tanodbayan on January 10, 1985. 2. MALACAANG CONFERENCE PLANNED SCENARIO OF TRIAL At 6:00 p.m. of said date (January 10) Mr. Ferdinand E. Marcos (the former President) summoned to Malacaang Justice Bernardo Fernandez (the Tanodbayan), Sandiganbayan Justice Manuel Pamaran (the Presiding Justice) and an the members of the Panel Also present at the meeting were Justice Manuel Lazaro (the Coordinator) and Mrs. Imelda R. Marcos, who left earlier, came back and left again. The former President had a copy of the panel's signed resolution (charging all accused as principals), evidently furnished him in advance, and with prepared notes on the contents thereof. The former President started by vehemently maintaining that Galman shot Aquino at the tarmac. Albeit initially the undersigned argued against the theory, to remain silent was the more discreet posture when the former President became emotional (he was quite sick then). During a good part of the conference, the former President talked about Aquino and the communists, lambasting the Agrava Board, specially the Legal Panel. Shifting to the military he rumbled on such statements as: "It will be bloody . . . Gen. Ramos, though close to me, is getting ambitious and poor Johnny does not know what to do". . . 'our understanding with Gen. Ramos is that his stint is only temporary, but he is becoming ambitious "the boys were frantic when they heard that they will be charged in court, and wig be detained at city jail." From outright dismissal, the sentiment veered towards a more pragmatic approach. The former President more or less conceded that for political and legal reasons all the respondents should be charged in court, Politically, as it will become evident that the government was serious in pursuing the case towards its logical conclusion, and thereby ease public demonstrations; on the other hand, legally, it was perceived that after (not IF) they are acquitted, double jeopardy would inure. The former President ordered then that the resolution be revised by categorizing the participation of each respondent. In the matter of custody of the accused pendente lite the Coordinator was ordered to get in touch with Gen. Narciso Cabrera, Gen. Vicente Eduardo and Director Jolly Bugarin to put on record that they had no place in their respective institutions. The existence of PD No. 1950 (giving custody to commanding officers of members of AFP charged in court) was never mentioned. It was decided that the presiding justice (First Division) would personally handle the trial, and assurance was made by him that it would be finished in four to six months, pointing out that, with the recent effectivity of the New Rules on Criminal Procedure, the trial could be expedited. Towards the end of the two-hour meeting and after the script had been tacitly mapped out, the former President uttered: "Mag moro-moro na lang kayo." The parting words of the former President were: "Thank you for your cooperation. I know how to reciprocate." While still in the palace grounds on the way out, the undersigned manifested his desire to the Tanodbayan to resign from the panel, or even the office. This, as well as other moves to this effect, had always been refused. Hoping that with sufficient evidence sincerely and efficiently presented by the prosecution, all involves in the trial would be conscience-pricked and realize the futility and injustice of proceeding in accordance with the script, the undersigned opted to say on. Herrera further added details on the "implementation of the script," such as the holding of a "make-believe raffle" within 18 minutes of the filing of the Informations with the Sandiganbayan at noon of January 23, 1985, while there were no members of the media; the installation of TV monitors directly beamed to Malacanang; the installation of a "war room" occupied by the military; attempts to direct and stifle witnesses for the prosecution; the suppression of the evidence that could be given by U.S. Airforce men about the "scrambling" of Ninoy's plane; the suppression of rebuttal witnesses and the bias and partiality of the Sandiganbayan; its cavalier disregard of his plea that it "should not decide these cases on the merits without first making a final ruling on the Motion for Inhibition;" and the Presiding Justice's over-kill with the

declaration that "the Court finds all accused innocent of the crimes charged in the two informations, and accordingly, they incur neither criminal nor civil liability," adding that "in the almost twenty years that the undersigned has been the prosecutor in the sala of the Presiding Justice this is the only occasion where civil liability is pronounced in a decision of acquittal. " He "associated himself with the motion for reconsideration and likewise prayed that the proceedings in the Sandiganbayan and its decision be declared null and void." New Solicitor General Sedfrey Ordoez' comment of April 25, 1986 submitted that a declaration of mistrial will depend on the veracity of the evidence supportive of petitioners' claim of suppression of evidence and collusion. He submitted that this would require reception of evidence by a Court-appointed or designated commissioner or body of commissioners (as was done in G.R. No. 71316, Fr. Romano case; and G.R. No. 61016, Morales case; and G.R. No. 70054, Banco Filipino case); and that if petitioners' claim were substantiated, a reopening of the double murder case is proper to avoid a miscarriage of justice since the verdict of acquittal would no longer be a valid basis for a double jeopardy claim. Respondents-accused opposed the second motion for reconsideration and prayed for its denial. Respondent Olivas contended that the proper step for the government was to file a direct action to annul the judgment of acquittal and at a regular trial present its evidence of collusion and pressures. As a whole, all the other respondents raised the issue of double jeopardy, and invoked that the issues had become moot and academic because of the rendition of the Sandiganbayan's judgment of acquittal of all respondents- accused on December 2, 1985, with counsels for respondents Ver and Tigas, as well as Olivas, further arguing that assuming that the judgment of acquittal is void for any reason, the remedy is a direct action to annul the judgment where the burden of proof falls upon the plaintiff to establish by clear, competent and convincing evidence the cause of the nullity. After Petitioners had filed their consolidated reply, the Court resolved per its resolution of June 5, 1986 to appoint a three-member commission composed of retired Supreme Court Justice Conrado Vasquez, chairman, and retired Intermediate Appellate Court Justices Milagros German and Eduardo Caguioa as members, to hear and receive evidence, testimonial and documentary, of the charges of collusion and pressures and relevant matters, upon prior notice to all parties, and to submit their findings to this Court for proper disposition. The Commission conducted hearings on 19 days, starting on June 16, 1986 and ending on July 16, 1986, On the said last day, respondents announced in open hearing that they decided to forego the taking of the projected deposition of former President Marcos, as his testimony would be merely corroborative of the testimonies of respondents Justice Pamaran and Tanodbayan Fernandez. On July 31, 1986, it 16 submitted its extensive 64-page Report wherein it discussed fully the evidence received by it and made a recapitulation of its findings in capsulized form, as follows: 1. The Office of the Tanodbayan, particularly Justice Fernandez and the Special Investigating Panel composed of Justice Herrera, Fiscal Bernabe and Special Prosecutor Tamayo, was originally of the view that all of the twenty-six (26) respondents named in the Agrava Board majority report should all be charged as principals of the crime of double murder for the death of Senator Benigno Aquino and Rolando Galman. 2. When Malacanang learned of the impending filing of the said charge before the Sandiganbayan, the Special Investigating Panel having already prepared a draft Resolution recommending such course of action, President Marcos summoned Justice Fernandez, the tree members of the Special Investigating Panel, and justice Pamaran to a conference in Malacanang in the early evening of January 10, 1985. 3. In said conference, President Marcos initially expressed his disagreement with the recommendation of the Special Investigating Panel and disputed the findings of the Agrava Board that it was not Galman who shot Benigno Aquino. 4. Later in the conference, however, President Marcos was convinced of the advisability of filing the murder charge in court so that, after being acquitted as planned, the accused may no longer be prosecuted in view of the doctrine of double jeopardy. 5. Presumably in order to be assured that not all of the accused would be denied bail during the trial, considering that they would be charged with capital offenses, President Marcos directed that the several accused be "categorized" so that some of them would merely be charged as accomplices and accessories. 6. In addition to said directive, President Marcos ordered that the case be handled personally by Justice Pamaran who should dispose of it in the earliest possible time. 7. The instructions given in the Malacanang conference were followed to the letter; and compliance therewith manifested itself in several specific instances in the course of the proceedings, such as, the changing of the resolution of the special investigating panel, the filing of the case with the Sandiganbayan and its assignment to Justice Pamaran, suppression of some vital evidence, harassment of witnesses, recantation of witneses who gave adverse testimony before the Agrava Board, coaching of defense counsels, the hasty trial, monitoring of proceedings, and even in the very decision rendered in the case. 8. That that expression of President Marcos' desire as to how he wanted the Aquino-Galman case to be handled and disposed of constituted sufficient pressure on those involved in said task to comply with the same in the subsequent course of the proceedings.

9. That while Justice Pamaran and Justice Fernandez manifested no revulsion against complying with the Malacaang directive, justice Herrera played his role with manifestly ambivalent feelings. 10. Sufficient evidence has been ventilated to show a scripted and pre-determined manner of handling and disposing of the Aquino-Galman murder case, as stage-managed from Malacaang and performed by willing dramatis personnae as well as by recalcitrant ones whipped into line by the omnipresent influence of an authoritarian ruler. The Commission submitted the following recommendation. Considering the existence of adequate credible evidence showing that the prosecution in the Aquino-Galman case and the Justices who tried and decided the same acted under the compulsion of some pressure which proved to be beyond their capacity to resist, and which not only prevented the prosecution to fully ventilate its position and to offer all the evidences which it could have otherwise presented, but also predetermined the final outcome of the case, the Commission is of the considered thinking and belief, subject to the better opinion and judgment of this Honorable Court that the proceedings in the said case have been vitiated by lack of due process, and hereby respectfully recommends that the prayer in the petition for a declaration of a mistrial in Sandiganbayan Cases Nos. 10010 and 10011 entitled "People vs. Luther Custodia et al.," be granted. The Court per its Resolution of July 31, 1986 furnished all the parties with copies of the Report and required them to submit their objections thereto. It thereafter heard the parties and their objections at the hearing of August 26, 1986 and the matter was submitted for the Court's resolution. The Court adopts and approves the Report and its findings and holds on the basis thereof and of the evidence received and appreciated by the Commission and duly supported by the facts of public record and knowledge set forth above and hereinafter, that the then President (code named Olympus) had stage-managed in and from Malacanang Palace "a scripted and pre-determined manner of handling and disposing of the Aquino-Galman murder case;" and that "the prosecution in the Aquino Galman case and the Justices who tried and decided the same acted under the compulsion of some pressure which proved to be beyond their capacity to resist', and which not only prevented the prosecution to fully ventilate its position and to offer all the evidences which it could have otherwise presented, but also pre-determined the final outcome of the case" of total absolution of the twenty-six respondents accused of all criminal and civil liability. The Court finds that the Commission's Report (incorporated herein by reference) and findings and conclusions are duly substantiated by the evidence and facts of public record. Composed of distinguished members of proven integrity with a combined total of 141 years of experience in the practice of law (55 years) and in the prosecutoral and judicial services (86 years in the trial and appellate courts), experts at 17 sifting the chaff from the grain, the Commission properly appraised the evidences presented and denials made by public respondents, thus: The desire of President Marcos to have the Aquino-Galman case disposed of in a manner suitable to his purposes was quite understandable and was but to be expected. The case had stirred unprecedented public outcry and wide international attention. Not invariably, the finger of suspicion pointed to those then in power who supposedly had the means and the most compelling motive to eliminate Senator Aquino. A day or so after the assassination, President Marcos came up with a public statement aired over television that Senator Aquino was killed not by his military escorts, but by a communist hired gun. It was, therefore, not a source of wonder that President Marcos would want the case disposed of in a manner consistent with his announced theory thereof which, at the same time, would clear his name and his administration of any suspected guilty participation in the assassination. The calling of the conference was undoubtedly to accomplish this purpose. . . . President Marcos made no bones to conceal his purpose for calling them. From the start, he expressed irritation and displeasure at the recommendation of the investigating panel to charge all of the twenty-six (26) respondents as principals of the crime of double murder. He insisted that it was Galman who shot Senator Aquino, and that the findings of the Agrava Board were not supported by evidence that could stand in court. He discussed and argued with Justice Herrera on this point. Midway in the course of the discussion, mention was made that the filing of the charge in court would at least mollify public demands and possibly prevent further street demonstrations. It was further pointed out that such a procedure would be a better arrangement because, if the accused are charged in court and subsequently acquitted, they may claim the benefit of the doctrine of double jeopardy and thereby avoid another prosecution if some other witnesses shall appear when President Marcos is no longer in office. xxx xxx xxx After an agreement was reached as to filing the case, instead of dismissing it, but with some of the accused to be charged merely as accomplices or accessories, and the question of preventive custody of the accused having thereby received satisfactory solution, President Marcos took up the matter of who would try the case and how long it would take to be finished. According to Justice Herrera, President Marcos told Justice Pamaran 'point blank' to personally handle the case. This was denied by Justice Pamaran. No similar denial was voiced by Justice Fernandez in the entire course of his two-day testimony. Justice Pamaran explained that such order could not have been given inasmuch as it was not yet certain

then that the Sandiganbayan would try the case and, besides, cases therein are assigned by raffle to a division and not to a particular Justice thereof. It was preposterous to expect Justice Pamaran to admit having received such presidential directive. His denial, however, falls to pieces in the light of the fact that the case was indeed handled by him after being assigned to the division headed by him. A supposition of mere coincidence is at once dispelled by the circumstance that he was the only one from the Sandiganbayan called to the Malacanang conference wherein the said directive was given. . . . The giving of such directive to Justice Pamaran may also be inferred from his admission that he gave President Marcos the possible time frame when asked as to how long it would take him to finish the case. The testimony of Justice Herrera that, during the conference, and after an agreement was reached on filing the case and subsequently acquitting the accused, President Marcos told them "Okay, mag moro-moro na lamang kayo;" and that on their way out of the room President Marcos expressed his thanks to the group and uttered "I know how to reciprocate," did not receive any denial or contradiction either on the part of justice Fernandez or justice Pamaran. (No other person present in the conference was presented by the respondents. Despite an earlier manifestation by the respondents of their intention to present Fiscal Bernabe and Prosecutor Tamayo, such move was abandoned without any reason having been given therefor.) The facts set forth above are all supported by the evidence on record. In the mind of the Commission, the only conclusion that may be drawn therefrom is that pressure from Malacanang had indeed been made to bear on both the court and the prosecution in the handling and disposition of the Aquino-Galman case. The intensity of this pressure is readily deductible from the personality of the one who exerted it, his moral and official ascendancy over those to whom his instructions were directed, the motivation behind such instructions, and the nature of the government prevailing at that time which enabled, the then head of state to exercise authoritarian powers. That the conference called to script or stage-manage the prosecution and trial of the Aquino-Galman case was considered as something anomalous that should be kept away from the public eye is shown by the effort to assure its secrecy. None but those directly involved were caned to attend. The meeting was held in an inner room of the Palace. Only the First Lady and Presidential Legal Assistant Justice Lazaro were with the President. The conferees were told to take the back door in going to the room where the meeting was held, presumably to escape notice by the visitors in the reception hall waiting to see the President. Actually, no public mention alas ever made of this conference until Justice Herrera made his expose some fifteen (15) months later when the former president was no longer around. President Marcos undoubtedly realized the importance of the matter he wanted to take up with the officials he asked to be summoned. He had to do it personally, and not merely through trusted assistants. The lack of will or determination on the part of Justice Fernandez and Justice Pamaran to resist the presidential summons despite their realization of its unwholesome implications on their handling of the celebrated murder case may be easily inferred from their unquestioned obedience thereto. No effort to resist was made, despite the existence of a most valid reason to beg off, on the lame excuses that they went there out of "curiosity," or "out of respect to the Office of the President," or that it would be 'unbecoming to refuse a summons from the President.' Such frame of mind only reveals their susceptibility to presidential pressure and lack of capacity to resist the same. The very acts of being summoned to Malacanang and their ready acquiescence thereto under the circumstances then obtaining, are in themselves pressure dramatized and exemplified Their abject deference to President Marcos may likewise be inferred from the admitted fact that, not having been given seats during the two-hour conference (Justice Fernandez said it was not that long, but did not say how long) in which President Marcos did the talking most of the time, they listened to him on their feet. Verily, it can be said that any avowal of independent action or resistance to presidential pressure became illusory from the very moment they stepped inside Malacanang Palace on January 10, 1985. 18 The Commission pinpointed the crucial factual issue thus: "the more significant inquiry is on whether the Sandiganbayan and the Office of the Tanodbayan actually succumbed to such pressure, as may be gauged by their subsequent actuations in their respective handling of the case." It duly concluded that "the pressure exerted by President Marcos in the conference held on January 10, 1985 pervaded the entire proceedings of the Aquino Galman [murder] cases" as manifested in several specific incidents and instances it enumerated in the Report under the heading of "Manifestations of Pressure and Manipulation." Suffice it to give hereinbelow brief excerpts: 1. The changing of the original Herrera panel draft Resolution charging all the twenty-six accused as principals by conspiracy by categorizing and charging 17 as principals, Generals Ver and Olivas and 6 others as accessories and the civilian as accomplice, and recommending bail for the latter two categories: "The categorization may not be completely justified by saying that, in the mind of Justice Fernandez, there was no sufficient evidence to justify that all of the accused be charged as principals. The majority of the Agrava Board found the existence of conspiracy and recommended that all of the accused be charged accordingly. Without going into the merit of such finding, it may hardly be disputed that, in case of doubt, and in accordance with the standard practice of the prosecution to charge accused with the most serious possible offense or in the highest category so as to prevent an incurable injustice in the event that the evidence presented in the trial will show his guilt of the graver charge, the most logical and practical course of action should have been, as originally recommended by the Herrera panel, to charge all the accused as principals. As it turned out, Justice Fernandez readily opted for categorization which, not surprisingly, was in consonance with the Malacaang instruction." It is too much to attribute to coincidence that such unusual categorization came only after the then President's instruction at Malacanang when Gen. Ver's counsel, Atty. Coronel, had been asking the same of Tanodbayan Fernandez since November, 1984; and "Justice Fernandez himself, admit(ted) that, as of that time, [the Malacanang conference on January 10, 1985], his own view was in conformity with that of the Special Investigating Panel to charge all of the twenty-six (26)

respondents as principals of the crime of double murder." As the Commission further noted, "Justice Fernandez never denied the claim of Justice Herrera that the draft resolution of January 10, 1985 (Exhibit 'B-1') [charging all 26 accused as principals] was to have been the subject of a press conference on the afternoon of said date which did not go through due to the summons for them to go to Malacanang in 20 the early evening of said date." 2. Suppression of vital evidence and harassment of witnesses:" Realizing, no doubt, that a party's case is as strong as the evidence it can present, unmistakable and persistent efforts were exerted in behalf of the accused to weaken the case of the prosecution and thereby assure and justify [the accused's] eventual scripted acquittal. Unfavorable evidences were sought to be suppressed, and some were indeed prevented from being ventilated. Adverse witnesses were harassed, cajoled, perjured or threatened either to refrain from testifying or to testify in a manner favorable to the defense." The Report specified the ordeals of the prosecution witnesses: Cesar Loterina, PAL employee, Roberta Masibay, Galman's step-daughter who recanted their testimonies before the Fact Finding Board and had to be discarded as prosecution witnesses before at the trial. Witnesses Viesca and Raas who also testified before the Board "disappeared all of a sudden and could not be located by the police. The Commission narrated the efforts to stifle Kiyoshi Wakamiya eyewitness who accompanied Ninoy on his fateful flight on August 21, 1983 and described them as "palpable, if crude and display(ing) sheer abuse of power." Wakamiya was not even allowed to return to Manila on August 20, 1984 to participate in the first death anniversary of Ninoy but was deported as an undesirable alien and had to leave on the next plane for Tokyo. The Board had to go to Tokyo to hear Wakamiya give his testimony before the Japanese police in accordance with their law and Wakamiya claimed before the Commission that the English transcription of his testimony, as prepared by an official of the Philippine Embassy in Tokyo, was inaccurate and did not correctly reflect the testimony he gave "although there was no clear showing of the discrepancy from the original transcription which was in Nippongo. Upon his arrival at the MIA on August 21, 1985 on invitation of Justice Herrera to testify at the ongoing trial, "a shot was fired and a soldier was seen running away by media men who sought to protect Wakamiya from harm by surrounding him." Wakamiya was forced by immigration officials to leave the country by Saturday (August 24th) notwithstanding Herrera's request to let him stay until he could testify the following Monday (August 26th). In the case of principal eyewitness Rebecca Quijano, the Commission reported that ... Undoubtedly in view of the considerable significance of her proposed testimony and its unfavorable effect on the cause of the defense, the efforts exerted to suppress the same was as much as, if not more than those in the case of Wakamiya. ... She recounted that she was in constant fear of her life, having been hunted by armed men; that their house in Tabaco, Albay was ransacked, her family harassed by the foreclosure of the mortgage on their house by the local Rural Bank, and ejected therefrom when she ignored the request of its manager to talk with her about her proposed testimony; that a certain William Farias offered her plane tickets for a trip abroad; that Mayor Rudy Farias of Laoag City kept on calling her sister in the United States to warn her not to testify; that, later, Rudy and William Farias offered her two million pesos supposedly coming from Bongbong Marcos, a house and lot in Baguio, the dropping of her estafa case in Hongkong, and the punishment of the persons responsible for the death of her father, if she would refrain from testifying. It is a matter of record, however, that despite such cajolery and harassments, or perhaps because of them, Ms. Quijano eventually testified before the Sandiganbayan. Justice Herrera was told by justice Fernandez of the displeasure expressed by Olympus at justice Herrera's going out of his way to make Ms. Quijano to testify, and for his refusal to honor the invitation to attend the birthday party of the First Lady on May 1, 1985, as on the eve of Ms. Quijano's testimony on May 2, 1985. The insiduous attempts to tamper with her testimony, however, did not end with her taking the witness stand. In the course of her testimony several notes were passed to Atty. Rodolfo Jimenez, the defense counsel who cross-examined her, one of which suggested that she be asked more questions about Dean Narvasa who was suspected of having coached her as to what to declare (Exhibit "D"); and on another occasion, at a crucial point in her testimony, a power brownout occurred; which lasted for about twenty minutes, throwing the courtroom into darkness, and making most of those present to scamper for safety, and Ms. Quijano to pass over the railing of the rostrum so as to be able to leave the courtroom. It was verified that the brownout was limited to the building housing the Sandiganbayan, it not having affected the nearby Manila City Hall and the Finance Building. Justice Herrera declared that the main switchboard of the Sandiganbayan electrical system was located beside the room occupied by Malacaang people who were keeping track of the proceedings. Atty. Lupino Lazaro for petitioners further made of record at that August 26th hearing that the two Olivas sisters, Ana and Catherine (hospitality girls) disappeared on September 4, 1984, two weeks after Ninoy's assassination. And the informant, by the name of Evelyn (also a hospitality girl) who jotted down the number of the car that took them away, also disappeared. On January 29, 1984, during the proceedings of the Board, Lina Galman, the common-law wife of Rolando Galman, was kidnapped together with a neighbor named Rogelio Taruc, They have been missing since then, despite his attempts to find any of them. According to him, "nobody was looking for these five persons because they said Marcos was in Power [despite his appeal to the Minister of National Defense to locate them]. Today, still no one is looking for these people." And he appealed to the new leadership for its assistance in learning their fate. 3. The discarding of the affidavits executed by U.S. airmen "While it is true that the U.S. airmen's proposed testimonies would show an attempt of the Philippine Air Force to divert the plane to Basa Airfield or some other place, such showing would not necessarily contravene the theory of the prosecution, nor the actual fact that Senator Aquino was killed at the Manila International Airport. Justice Herrera had accurately pointed out that such attempt of scrambling Aquino's plane merely showed a 'wider range of conspiracy,' it being possibly just one of two or three other plans designed to accomplish the same purpose of liquidating Senator Aquino. In any event, even assuming that the said piece of evidence could go either way, it may not be successfully contended that it was prudent or wise on the part of the prosecution to totally discard the said piece of evidence. Despite minor inconsistencies contained therein, its introduction could have helped the cause of the prosecution. If it were not so, or that it would even favor the defense, as averred by Justice Fernandez, the determined effort to suppress the same would have been totally uncalled for."
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4. Nine proposed rebuttal witnesses not presented. 5. The failure to exhaust available remedies against adverse developments: "When the Supreme Court denied the petition of Justice Fernandez [against the exclusion of the testimonies given by the military respondents headed by Gen. Ver before the Fact Finding Board], the latter almost immediately announced to media that he was not filing a motion for the reconsideration of said denial for the reason that it would be futile to do so and foolhardy to expect a favorable action on the same. ... His posture ... is, in the least, indicative that he was living up to the instruction of finishing the trial of the case as soon as possible, if not of something else." 6. The assignment of the case to Presiding Justice Pamaran: "Justice Herrera testified that President Marcos ordered Justice Pamaran pointblank to handle the case. The pro-forma denial by Justice Pamaran of such instruction crumbles under the actuality of such directive having been complied with to the letter. ... "Justice Pamaran sought to discredit the claim that he was ordered by President Marcos to handle the case personally by explaining that cases in the Sandiganbayan are assigned by raffle and not to a particular Justice, but to a division thereof. The evidence before the Comission on how the case happened to be assigned to Justice Pamaran evinces a strong indication that such assignment was not done fairly or regularly. "There was no evidence at all that the assignment was indeed by virtue of a regular raffle, except the uncorroborated testimony of Justice Pamaran. ... Despite an announcement that Justice Escareal would be presented by the respondents to testify on the contents of his aforesaid Memorandum, such was not done. No reason was given why Justice Escarel could not, or would not like to testify. Neither was any one of the officials or employees of the Sandiganbayan who, according to Justice Pamaran, were present during the supposed raffle, presented to corroborate the claim of Justice xxx xxx xxx "It is also an admitted fact that the two Informations in the double murder case were filed by Justice Herrera on January 23, 1985, at 12:02 p.m., and the members of the Raffle Committee were summoned at 12:20 p.m. or only 18 minutes after the filing of the two Informations. Such speed in the actual assignment of the case can truly be categorized as unusual, if not extraordinary, considering that before a case filed may be included in the raffle, there is need for a certain amount of paper work to be undertaken. If such preliminary requirements were done in this case within the limited time available therefor, the charge that the raffle was rushed to avoid the presence of media people would ring with truth. What is more intriguing is the fact that although a raffle might have been actually conducted which resulted in the assignment of the case to the First Division of the Sandiganbayan, the Commission did not receive any evidence on how or why it was handled personally by Justice Pamaran who wrote the decision thereof, and not by any one of the two other members of his division. . . . 7. The custody of the accused their confinement in a military camp, instead of in a civilian jail: "When the question of custody came up after the case was filed in the Sandiganbayan, the latter issued an order directing the confinement of the accused in the City Jail of Manila. This order was not carried out in view of the information given by the Warden of the City Jail that there was no space for the twenty-six accused in said jail. The same information was given when the custody was proposed to be given to the National Penitentiary in Muntinglupa and to the National Bureau of Investigation. At that point, the defense came up with Presidential Decree No. 1950A which authorizes the custody of the accused military personnel with their respective Commanding Officers. Justice Herrera claimed that the said Presidential Decree was not known even to the Tanodbayan Justice Fernandez who had to call up the then Minister of Justice Estelito Mendoza to request a copy of the same, and was given such copy only after sometime. ..." 8. The monitoring of proceedings and developments from Malacaang and by Malacaang personnel: "There is an uncontradicted evidence that the progress of the proceedings in the Sandiganbayan as well as the developments of the case outside the Court had been monitored by Malacaang presumably for it to know what was happening and to take remedial measures as may be necessary. Justice Pamaran had candidly admitted that television cameras "boldly carrying the label of 'Office of the President of the Philippines' " were installed in the courtroom for that purpose. There was a room in the Sandiganbayan, mischievously caned 'war room', wherein military and Malacaang personnel stayed to keep track of the proceedings." the close monitoring by Malacaang showed its results on several occasions specified in the Report. Malacaang was immediately aware of the Japanese witness Wakamiya's presence injustice Herrera's office on August 21, 1985 and forestalled the giving of his testimony by having the Japanese Embassy advise Wakamiya to leave the country at once. Likewise, Col. Balbino Diego, Malacaang intelligence chief, suddenly appeared at the National Bureau of Investigation office when the "crying lady" Rebecca Quijano was brought there by NBI agents for interrogation and therein sought to obtain custody of her. "It is likewise an undisputed fact," the Commission noted "that several military personnel pretended to be deputy sheriffs of the Sandiganbayan and attended the trials thereof in the prescribed deputy sheriffs' uniforms." The Commission's inescapable finding. " It is abundantly clear that President Marcos did not only give instructions as to how the case should be handled He saw to it that he would know if his instructions will be complied with." 9. Partiality of Sandiganbayan betrayed by its decision: "That President Marcos had wanted all of the twenty-six accused to be acquitted may not be denied. The disposal of the case in said manner is an integral part of the scenario which was cleverly designed to accomplish two principal objectives, seemingly conflicting in themselves, but favorable both to then administration and to the accused; to wit, [1] the satisfaction of the public clamor for the suspected killers of Senator Aquino to be charged in court, and [2] the foreclosure of any possibility that they may again be prosecuted for the same offense in the event that President Marcos shall no longer be in power. "In rendering its decision the Sandiganbayan overdid itself in favoring the presidential directive. Its bias and partiality in favor of the accused was glaringly obvious. The evidence presented by the prosecution was totally ignored and disregarded. ... It was deemed not sufficient to simply acquit all of the twenty-six accused on the standard ground that their guilt had not been proven beyond reasonable doubt, as was the

most logical and appropriate way of justifying the acquittal in the case, there not being a total absence of evidence that could show guilt on the part of the accused. The decision had to pronounce them 'innocent of the crime charged on the two informations, and accordingly, they incur neither criminal nor civil liability.' It is a rare phenomenon to see a person accused of a crime to be favored with such total absolution. ... Doubt on the soundness of the decision entertained by one of the two justices who concurred with the majority decision penned by Justice Pamaran was revealed by Justice Herrera who testified that in October, 1985, when the decision was being prepared, Justice Agusto Amores told him that he was of the view that some of the accused should be convicted he having found difficulty in acquitting all of them; however, he confided to Justice Herrera that Justice Pamaran made it clear to him and Justice Vera Cruz that Malacaang had instructions to acquit all of the twenty-six accused (TSN, July 17, 1986, p. 49). Justice Amores also told Justice Herrera that he would confirm this statement (which was mentioned in Justice Herrera's comment to the Second Motion for Reconsideration) if asked about it (TSN, June 19, 1986, pp. 92-93). This testimony Justice Herrera remained unrebutted " (Emphasis supplied) The record shows suffocatingly that from beginning to end, the then President used, or more precisely, misused the overwhelming resources of the government and his authoritarian powers to corrupt and make a mockery of the judicial process in the Aquino-Galman murder cases. 22 As graphically depicted in the Report, supra, and borne out by the happenings (res ipsa loquitur ) since the resolution prepared by his "Coordinator," Manuel Lazaro, his Presidential Assistant on Legal Affairs, for the Tanodbayan's dismissal of the cases against all accused 23 was unpalatable (it would summon the demonstrators back to the streets ) and at any rate was not acceptable to the Herrera prosecution panel, the unholy scenario for acquittal of all 26 accused after the rigged trial as ordered at the Malacanang conference, would accomplish the two principal objectives of satisfaction of the public clamor for the suspected killers to be charged in court and of giving them through their 24 acquittal the legal shield of double jeopardy. Indeed, the secret Malacanang conference at which the authoritarian President called together the Presiding Justice of the Sandiganbayan and Tanodbayan Fernandez and the entire prosecution panel headed by Deputy Tanodbayan Herrera and told them how to handle and rig (moro-moro) the trial and the close monitoring of the entire proceedings to assure the pre-determined ignominious final outcome are without parallel and precedent in our annals and jurisprudence. To borrow a phrase from Ninoy's April 14, 1975 letter withdrawing his petition for 25 habeas corpus, "This is the evil of one-man rule at its very worst." Our Penal Code penalizes "any executive officer who shall address any order or suggestion to any judicial authority with respect to any case or business coming within the exclusive jurisdiction of the courts of 26 justice." His obsession for "the boys' " acquittal led to several first which would otherwise be inexplicable: 1. He turned his back on and repudiated the findings of the very Fact Finding Board that he himself appointed to investigate the "national tragedy and national shame" of the "treacherous and vicious assassination of Ninoy Aquino and "to ventilate the truth through free, independent and dispassionate investigation by prestigious and free investigators." 2. He cordially received the chairman with her minority report one day ahead of the four majority members and instantly referred it to respondents "for final resolution through the legal system" as if it were the majority and controlling report; and rebuked the four majority members when they presented to him the next day their report calling for the indictment of all 26 respondents headed by Gens. Ver and Olivas (instead of the lesser seven under the chairman's minority report). 3. From the day after the Aquino assassination to the dictated verdict of acquittal, he totally disregarded the Board's majority and minority findings of fact and publicly insisted that the military's "fall guy" Rolando Galman was the killer of Ninoy Aquino and sought futilely to justify the soldiers' incompetence and gross negligence to provide any security for Ninoy in contrast to their alacrity in gunning down the alleged assassin Galman and searing his lips. 4. The Sandiganbayan's decision (Pamaran, J. ponente) in effect convicted Rolando Galman as Ninoy's assassin notwithstanding that he was not on trial but the victim according to the very information filed, and evidence to the contrary submitted, by the Herrera prosecution panel; and 5. Justice Pamaran's ponencia (despite reservations expressed by Justice Amores who wanted to convict some of the accused) granted all 26 accused total absolution and pronounced them "innocent of the crimes charged in the two informations, and accordingly, they incur neither criminal nor civil liability," notwithstanding the evidence on the basis of which the Fact Finding Board had unanimously declared the soldiers' version of Galman being Aquino's killer a "perjured story, given deliberately and in conspiracy with one another." The fact of the secret Malacaang conference of January 10, 1985 at which the authoritarian President discussed with the Presiding Justice of the Sandiganbayan and the entire prosecution panel the matter of the imminent filing of the criminal charges against all the twenty-six accused (as admitted by respondent Justice Fernandez to have been confirmed by him to the then President's "Coordinator" Manuel Lazaro on the preceding day) is not denied. It is without precedent. This was illegal under our penal laws, supra. This illegality vitiated from the very beginning all proceedings in the Sandiganbayan court headed by the very Presiding Justice who attended. As the Commission noted: "The very acts of being summoned to Malacaang and their ready acquiescence thereto under the circumstances then obtaining, are in themselves pressure dramatized and exemplified. ... Verily, it can be said that any avowal of independent action or resistance to presidential pressure became illusory from the very moment they stepped inside Malacanang Palace on January 10, 1985." No court whose Presiding Justice has received "orders or suggestions" from the very President who by an amendatory decree (disclosed only at the hearing of oral arguments on November 8, 1984 on a petition challenging the referral of the Aquino-Galman murder cases to the Tanodbayan and Sandiganbayan instead of to a court martial, as mandatory required by the known P.D. 1850 at the time providing for 26 exclusive jurisdiction of courts martial over criminal offenses committed by military men -a) made it possible to refer the cases to the Sandiganbayan, can be an impartial court, which is the very essence of due process of law. As the writer then wrote, "jurisdiction over cases

should be determined by law, and not by preselection of the Executive, which could be much too easily transformed into a means of 26 predetermining the outcome of individual cases. -b "This criminal collusion as to the handling and treatment of the cases by public respondents at the secret Malacanang conference (and revealed only after fifteen months by Justice Manuel Herrera) completely disqualified respondent Sandiganbayan and voided ab initio its verdict. This renders moot and irrelevant for now the extensive arguments of respondents accused, particularly Generals Ver and Olivas and those categorized as accessories, that there has been no evidence or witness suppressed against them, that the erroneous conclusions of Olivas as police investigator do not make him an accessory of the crimes he investigated and the appraisal and evaluation of the testimonies of the witnesses presented and suppressed. There will be time and opportunity to present all these arguments and considerations at the remand and retrial of the cases herein ordered before a neutral and impartial court. The Supreme Court cannot permit such a sham trial and verdict and travesty of justice to stand unrectified. The courts of the land under its aegis are courts of law and justice and equity. They would have no reason to exist if they were allowed to be used as mere tools of injustice, deception and duplicity to subvert and suppress the truth, instead of repositories of judicial power whose judges are sworn and committed to render impartial justice to all alike who seek the enforcement or protection of a right or the prevention or redress of a wrong, without fear or favor and removed from the pressures of politics and prejudice. More so, in the case at bar where the people and the world are entitled to know the truth, and the integrity of our judicial system is at stake. In life, as an accused before the military tribunal, Ninoy had pleaded in vain that as a civilian he was entitled to due process of law and trial in the regular civil courts before an impartial court with an unbiased prosecutor. In death, Ninoy, as the victim of the "treacherous and vicious assassination" and the relatives and sovereign people as the aggrieved parties plead once more for due process of law and a retrial before an impartial court with an unbiased prosecutor. The Court is constrained to declare the sham trial a mock trial the non-trial of the century-and that the pre-determined judgment of acquittal was unlawful and void ab initio. 1. No double jeopardy.-It is settled doctrine that double jeopardy cannot be invoked against this Court's setting aside of the trial courts' judgment of dismissal or acquittal where the prosecution which represents the sovereign people in criminal cases is denied due process. As 27 the Court stressed in the 1985 case of People vs. Bocar, Where the prosecution is deprived of a fair opportunity to prosecute and prove its case its right to due process is thereby violated. 27-a The cardinal precept is that where there is a violation of basic constitutional rights, courts are ousted of their jurisdiction. Thus, the violation of the State's right to due process raises a serious jurisdictional issue (Gumabon vs. Director of the Bureau of Prisons, L-30026, 37 SCRA 420 [Jan. 30, 1971]which cannot be glossed over or disregarded at will. Where the denial of the fundamental right of due process is apparent, a decision rendered in disregard of that right is void for lack of jurisdiction (Aducayen vs. Flores, L-30370 [May 25, 1973], 51 SCRA 78; Shell Co. vs. Enage, L30111-12, 49 SCRA 416 [Feb. 27, 1973]). Any judgment or decision rendered notwithstanding such violation may be regarded as a "lawless thing, which can be treated as an outlaw and slain at sight, or ignored wherever it exhibits its head" (Aducayen vs. Flores, supra). Respondent Judge's dismissal order dated July 7, 1967 being null and void for lack of jurisdiction, the same does not constitute a proper basis for a claim of double jeopardy (Serino vs. Zosa, supra). xxx xxx xxx Legal jeopardy attaches only (a) upon a valid indictment, (b) before a competent court, (c) after arraignment, (d) a valid plea having been entered; and (e) the case was dismissed or otherwise terminated without the express consent of the accused (People vs. Ylagan, 58 Phil. 851). The lower court was not competent as it was ousted of its jurisdiction when it violated the right of the prosecution to due process. In effect the first jeopardy was never terminated, and the remand of the criminal case for further hearing and/or trial before the lower courts amounts merely to a continuation of the first jeopardy, and does not expose the accused to a second jeopardy. More so does the rule against the invoking of double jeopardy hold in the cases at bar where as we have held, the sham trial was but a mock trial where the authoritarian president ordered respondents Sandiganbayan and Tanodbayan to rig the trial and closely monitored the entire proceedings to assure the pre-determined final outcome of acquittal and total absolution as innocent of an the respondents-accused. Notwithstanding the laudable efforts of Justice Herrera which saw him near the end "deactivating" himself from the case, as it was his belief that its eventual resolution was already a foregone conclusion, they could not cope with the misuse and abuse of the overwhelming powers of the authoritarian President to weaken the case of the prosecution, to suppress its evidence, harass, intimidate and threaten its witnesses, secure their recantation or prevent them from testifying. Fully aware of the prosecution's difficulties in locating witnesses and overcoming their natural fear and reluctance to appear and testify, respondent Sandiganbayan maintained a "dizzying tempo" of the proceedings and announced its intention to terminate the proceedings in about 6 months time or less than a year, pursuant to the scripted scenario. The prosecution complained of "the Presiding Justice's seemingly hostile attitude towards (it)" and their being the subject of warnings, reprimand and contempt proceedings as compared to the nil situation for the defense. Herrera likewise complained of being "cajoled into producing witnesses and pressed on making assurances that if given a certain period, they will be able to produce their witnesses Herrera pleaded for "a reasonable period of preparation of its evidence" and cited other pending cases before respondent court that were pending trial for a much 28 longer time where the "dizzying tempo" and "fast pace" were not maintained by the court. Manifestly, the prosecution and the sovereign people were denied due process of law with a partial court and biased Tanodbayan under the constant and pervasive monitoring and pressure exerted by the authoritarian President to assure the carrying out of his instructions. A dictated, coerced and scripted verdict of acquittal such as that in the case at bar is a void judgment. In legal contemplation, it is no judgment at all. It neither binds nor bars anyone.

Such a judgment is "a lawless thing which can be treated as an outlaw". It is a terrible and unspeakable affront to the society and the people. 29 To paraphrase Brandeis: If the authoritarian head of the government becomes the law-breaker, he breeds contempt for the law, he invites every man to become a law unto himself, he invites anarchy. Respondents-accused's contention that the Sandiganbayan judgment of acquittal ends the case which cannot be appealed or re-opened, without being put in double jeopardy was forcefully disposed of by the Court in People vs. Court of Appeals, which is fully applicable here, as follows: "That is the general rule and presupposes a valid judgment. As earlier pointed out, however, respondent Courts' Resolution of acquittal was a void judgment for having been issued without jurisdiction. No double jeopardy attaches, therefore. A void judgment is, in legal effect, no judgment at all By it no rights are divested. Through it, no rights can be attained. Being worthless, all proceedings founded upon it are equally worthless. It neither binds nor bars anyone. All acts performed under it and all claims flowing out of it are void. |lang1033 xxx xxx xxx "Private respondent invoke 'justice for the innocent'. For justice to prevail the scales must balance. It is not to be dispensed for the accused alone. The interests of the society, which they have wronged must also be equally considered. A judgment of conviction is not necessarily a denial of justice. A verdict of acquittal neither necessarily spells a triumph of justice. To the party wronged, to the society offended, it could 30 also mean injustice. This is where the Courts play a vital role. They render justice where justice is due. 2. Motion to Disqualify/Inhibit should have been resolved Ahead.-The private prosecutors had filed a motion to disqualify and for inhibition of respondents Justices of the Sandiganbayan on grounds of manifest bias and partiality to the defense and arising from then Atty. (now Tanodbayan) Raul M. Gonzales' charge that Justice Vera-Cruz had been passing coaching notes to defense counsel. Justice Herrera had joined the motion and pleaded at the hearing of June 25, 1985 and in the prosecution memorandum that respondent Sandiganbayan "should not decide the case on the merits without first making a final ruling on the Motion for Inhibition." Herrera quoted the exchange between him and the Presiding Justice to show the latter's "following the script of Malacanang. PJ PAMARAN Well the court believes that we should proceed with the trial and then deal later on with that. After all, the most important thing here is, shall we say, the decision of the case. J. HERRERA I think more important than the decision of the case, Your Honor, is the capacity of the justices to sit in judgment. That is more important than anything else.(p. 13 TSN, June 25, 1985) (Emphasis supplied by Herrera). 31 But the Sandiganbayan brushed aside Herrera's pleas and then wrongly blamed him, in the decision, for supposedly not having joined the petition for inhibition, contrary to the facts above-stated, as follows: ... the motion for inhibition above referred to related exclusively for the contempt proceeding. Too, it must be remembered that the prosecution neither joined that petition, nor did it at any time manifest a desire to file a similar motion prior to the submission of these cases for decision. To do it now is not alone out of season but is also a confession of official insouciance (Page 22, Decision). 32 The action for prohibition was filed in the Court to seek the disqualification of respondents Justices pursuant to the procedure recognized by 33 the Court in the 1969 case of Paredes vs. Gopengco since an adverse ruling by respondent court might result in a verdict of acquittal, leaving the offended party without any remedy nor appeal in view of the double jeopardy rule, not to mention the overiding and transcendental public interest that would make out a case of denial of due process to the People if the alleged failure on the part of the 34 Tanodbayan to present the complete evidence for the prosecution is substantiated. In this case, petitioners' motion for reconsideration of the abrupt dismissal of their petition and lifting of the temporary restraining order enjoining the Sandiganbayan from rendering its decision had been taken cognizance of by the Court which had required the respondents', including the Sandiganbayan's, comments. Although no restraining order was issued anew, respondent Sandiganbayan should not have precipitately issued its decision of total absolution of all the accused pending the final action of this Court. This is the teaching of Valdez vs. 35 Aquilizan , Wherein the court in setting aside the hasty convictions, ruled that "prudence dictated that (respondent judge) refrain from deciding the cases or at the very least to hold in abeyance the promulgation of his decision pending action by this Court. But prudence gave way to imprudence; the respondent judge acted precipitately by deciding the cases [hastily without awaiting this Court's action]. All of the acts of the respondent judge manifest grave abuse of discretion on his part amounting to lack of jurisdiction which substantively prejudiced the petitioner." 3. Re: Objections of respondents.-The other related objections of respondents' counsels must be rejected in the face of the Court's declaration that the trial was a mock trial and that the pre-determined judgment of acquittal was unlawful and void ab initio.

(a) It follows that there is no need to resort to a direct action to annul the judgment, instead of the present action which was timely filed initially to declare a mistrial and to enjoin the rendition of the void judgment. And after the hasty rendition of such judgment for the declaration of its nullity, following the presentation of competent proof heard by the Commission and the Court's findings therefrom that the proceedings were from the beginning vitiated not only by lack of due process but also by the collusion between the public respondents (court and Tanodbayan) for the rendition of a pre-determined verdict of acquitting all the twenty-six respondents-accused. (b) It is manifest that this does not involve a case of mere irregularities in the conduct of the proceedings or errors of judgment which do not affect the integrity or validity of the judgment or verdict. (c) The contention of one of defense counsel that the State and the sovereign people are not entitled to due process is clearly erroneous and contrary to the basic principles and jurisprudence cited hereinabove. (d) The submittal of respondents-accused that they had not exerted the pressure applied by the authoritarian president on public respondents and that no evidence was suppressed against them must be held to be untenable in the wake of the evil plot now exposed for their preordained wholesale exoneration. (e) Respondents' invocation of the writer's opinion in Luzon Brokerage Co., Inc. vs. Maritime Bldg. Co., Inc. is inappropriate. The writer therein held that a party should be entitled to only one Supreme Court and may not speculate on vital changes in the Court's membership for review of his lost case once more, since public policy and sound practice demand that litigation be put to an end and no second pro forma motion for reconsideration reiterating the same arguments should be kept pending so long (for over six (6) years and one (1) month since the denial of the first motion for reconsideration), This opinion cannot be properly invoked, because here, petitioners' second motion for reconsideration was filed promptly on March 20, 1986 following the denial under date of February 4th of the first motion for reconsideration and the same was admitted per the Court's Resolution of April 3, 1986 and is now being resolved within five months of its filing after the Commission had received the evidence of the parties who were heard by the Court only last August 26th. The second motion for reconsideration is based on an entirely new material ground which was not known at the time of the denial of the petition and filing of the first motion for reconsideration, i.e, the secret Malacaang conference on January 10, 1985 which came to light only fifteen months later in March, 1986 and showed beyond per adventure (as proved in the Commission hearings) the merits of the petition and that the authoritarian president had dictated and pre-determined the final outcome of acquittal. Hence, the ten members of the Court (without any new appointees) 37 unanimously voted to admit the second motion for reconsideration. 4. With the declaration of nullity of the proceedings, the cases must now be tried before an impartial court with an unbiased prosecutor.There has been the long dark night of authoritarian regime, since the fake ambush in September, 1972 of then Defense Secretary Juan Ponce Enrile (as now admitted by Enrile himself was staged to trigger the imposition of martial law and authoritarian one-man rule, with the padlocking of Congress and the abolition of the office of the Vice-President. As recently retired Senior Justice Vicente Abad Santos recalled in his valedictory to the new members of the Bar last May, "In the past few years, the judiciary was under heavy attack by an extremely powerful executive. During this state of judicial siege, lawyers both in and outside the judiciary perceptively surrendered to the animus of technicality. In the end, morality was overwhelmed by technicality, so that the latter emerged ugly and naked in its true manifestation." Now that the light is emerging, the Supreme Court faces the task of restoring public faith and confidence in the courts. The Supreme Court enjoys neither the power of the sword nor of the purse. Its strength lies mainly in public confidence, based on the truth and moral force of its judgments. This has been built on its cherished traditions of objectivity and impartiallity integrity and fairness and unswerving loyalty to the Constitution and the rule of law which compels acceptance as well by the leadership as by the people. The lower courts draw their bearings from the Supreme Court. With this Court's judgment today declaring the nullity of the questioned judgment or acquittal and directing a new trial, there must be a rejection of the temptation of becoming instruments of injustice as vigorously as we rejected becoming its victims. The end of one form of injustice should not become simply the beginning of another. This simply means that the respondents accused must now face trial for the crimes charged against them before an impartial court with an unbiased prosecutor with all due process. What the past regime had denied the people and the aggrieved parties in the sham trial must now be assured as much to the accused as to the aggrieved parties. The people will assuredly have a way of knowing when justice has prevailed as well as when it has failed. The notion nurtured under the past regime that those appointed to public office owe their primary allegiance to the appointing authority and are accountable to him alone and not to the people or the Constitution must be discarded. The function of the appointing authority with the mandate of the people, under our system of government, is to fill the public posts. While the appointee may acknowledge with gratitude the opportunity thus given of rendering public service, the appointing authority becomes functus officio and the primary loyalty of the appointed must be rendered to the Constitution and the sovereign people in accordance with his sacred oath of office. To paraphrase the late Chief Justice Earl Warren of the United States Supreme Court, the Justices and judges must ever realize that they have no constituency, serve no majority nor minority but serve only the public interest as they see it in accordance with their oath of office, guided only, the Constitution and their own conscience and honor. 5. Note of Commendation.- The Court expresses its appreciation with thanks for the invaluable services rendered by the Commission composed of retired Supreme Court Justice Conrado M. Vasquez, chairman, and retired Court of Appeals Justices Milagros German and Eduardo Caguioa as members. In the pure spirit of public service, they rendered selflessly and without remuneration thorough competent and dedicated service in discharging their tasks of hearing and receiving the evidence, evaluating the same and submitting their Report and findings to the Court within the scheduled period and greatly easing the Court's burden. ACCORDINGLY, petitioners' second motion for reconsideration is granted. The resolutions of November 28, 1985 dismissing the petition and of February 4, 1986 denying petitioners' motion for reconsideration are hereby set aside and in lieu thereof, judgment is hereby rendered
36

nullifying the proceedings in respondent Sandiganbayan and its judgment of acquittal in Criminal Cases Nos. 10010 and 10011 entitled "People of the Philippines vs. Gen. Luther Custodia et al." and ordering a re-trial of the said cases which should be conducted with deliberate dispatch and with careful regard for the requirements of due process, so that the truth may be finally known and justice done to an This resolution is immediately executory. SO ORDERED.

FIRST DIVISION

PEOPLE OF THE PHILIPPINES, Petitioner,

G.R. No. 128587

Present:

PUNO, C.J., Chairperson, - versus SANDOVAL-GUTIERREZ, CORONA, AZCUNA, and GARCIA, JJ. HON. PERFECTO A.S. LAGUIO, JR., in his capacity as Presiding Judge, Branch 18, RTC, Manila, and LAWRENCE WANG Y CHEN, Respondents. Promulgated:

March 16, 2007

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

DECISION
GARCIA, J.:

On pure questions of law, petitioner People of the Philippines has directly come to this Court via this petition for review on certiorari to nullify and set aside the Resolution115[1] dated 13 March 1997 of the Regional Trial Court of Manila,

Branch 18, in Criminal Case Nos. 96-149990 to 96-149992, entitled People of the Philippines v. Lawrence Wang y Chen, granting private respondent Lawrence C. Wangs Demurrer to Evidence and acquitting him of the three (3) charges filed against him, namely: (1) Criminal Case No. 96-149990 for Violation of Section 16, Article III in relation to Section 2(e)(2), Article I of Republic Act (R.A.) No. 6425 (Dangerous Drugs Act); (2) Criminal Case No. 96-149991 for Violation of Presidential Decree No. 1866 (Illegal Possession of Firearms); and (3) Criminal Case No. 96-149992 for Violation of Comelec Resolution No. 2828 in relation to R.A. No. 7166 (COMELEC Gun Ban).

The three (3) separate Informations filed against Lawrence C. Wang in the court of origin respectively read:

Criminal Case No. 96-149990 (Violation of Dangerous Drugs Act):

That on or about the 17th day of May 1996, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and knowingly have in his possession and under his custody and control a bulk of white and yellowish crystalline substance known as SHABU contained in thirty-two (32) transparent plastic bags weighing approximately 29.2941 kilograms, containing methamphetamine hydrochloride, a regulated drug, without the corresponding license or prescription therefor.

Contrary to law.116[2]

Criminal Case No. 96-149991 (Illegal Possession of Firearms):

That on or about the 17th day of May 1996, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and knowingly have in his possession and under his custody and control one (1) DAEWOO Cal. 9mm, automatic pistol with one loaded magazine and one AMT Cal. .380 9mm automatic backup pistol with magazine loaded with ammunitions without first having secured the necessary license or permit therefor from the proper authorities.

Contrary to law. 117[3]

Criminal Case No. 96-149992 (Violation of Comelec Gun Ban):

That on or about the 17th day of May 1996, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and knowingly have in his possession and under his custody and control one (1) DAEWOO Cal. 9mm automatic pistol with one loaded magazine and one (1) AMT Cal. 380 9mm automatic backup pistol with magazine loaded with ammunitions, carrying the same along Maria Orosa St., Ermita, Manila, which is a public place, on the date which is covered by an election period, without first securing the written permission or authority from the Commission on Elections, as provided by the COMELEC Resolution 2828 in relation to Republic Act 7166.

Contrary to law. 118[4]

During his arraignment, accused Wang refused to enter a plea to all the Informations and instead interposed a continuing objection to the admissibility of the evidence obtained by the police operatives. Thus, the trial court ordered that a plea of Not Guilty be entered for him.119[5] Thereafter, joint trial of the three (3) consolidated cases followed.

The pertinent facts are as follows:

On 16 May 1996, at about 7:00 p.m., police operatives of the Public Assistance and Reaction Against Crime of the Department of Interior and Local Government, namely, Captain Margallo, Police Inspector Cielito Coronel and SPO3 Reynaldo Cristobal, arrested SPO2 Vergel de Dios, Rogelio Anoble and a certain Arellano, for unlawful possession of methamphetamine hydrochloride, a regulated drug popularly known as shabu. In the course of the investigation of the three arrested persons, Redentor Teck, alias Frank, and Joseph Junio were identified as the source of the drug. An entrapment operation was then set after the three were prevailed upon to call their source and pretend to order another supply of shabu.

At around 11:00 p.m. that same date, Redentor Teck and Joseph Junio were arrested while they were about to hand over another bag of shabu to SPO2 De Dios and company. Questioned, Redentor Teck and Joseph Junio informed the police operatives that they were working as talent manager and gymnast instructor, respectively, of Glamour Modeling Agency owned by Lawrence Wang. Redentor Teck and Joseph Junio did not disclose their source of shabu but admitted that they were working for Wang.120[6] They also disclosed that they knew of a scheduled delivery of shabu early the following morning of 17 May 1996, and that their employer (Wang) could be found at the Maria Orosa Apartment in Malate, Manila. The police operatives decided to look for Wang to shed light on the illegal drug activities of Redentor Teck and Joseph Junio. Police Inspector Cielito Coronel and his men then proceeded to Maria Orosa Apartment and placed the same under surveillance.

Prosecution witness Police Inspector Cielito Coronel testified that at about 2:10 a.m. of 17 May 1996, Wang, who was described to the operatives by Teck, came out of the apartment and walked towards a parked BMW car. On nearing the car, he (witness) together with Captain Margallo and two other police officers approached Wang, introduced themselves to him as police officers, asked his name and, upon hearing that he was Lawrence Wang, immediately frisked him and asked him to open the back compartment of the BMW car.121[7] When

frisked, there was found inside the front right pocket of Wang and confiscated from him an unlicensed AMT Cal. 380 9mm automatic Back-up Pistol loaded with ammunitions. At the same time, the other members of the operatives searched the BMW car and found inside it were the following items: (a) 32 transparent plastic bags containing white crystalline substance with a total weight of 29.2941 kilograms, which substance was later analyzed as positive for methamphetamine hydrochloride, a regulated drug locally known as shabu; (b) cash in the amount of P650,000.00; (c) one electronic and one mechanical scales; and (d) an unlicensed Daewoo 9mm Pistol with magazine. Then and there, Wang resisted the warrantless arrest and search.122[8]

On 6 December 1996, the prosecution rested its case and upon motion, accused Wang was granted 25 days from said date within which to file his intended Demurrer to Evidence.123[9] On 19 December 1996, the prosecution filed a Manifestation124[10] to the effect that it had rested its case only in so far as the charge for Violation of the Dangerous Drugs Act in Criminal Case No. 96149990 is concerned, and not as regards the two cases for Illegal Possession of

Firearms (Crim. Case No. 96-149991) and Violation of the Comelec Gun Ban (Crim. Case No. 96-149992). Accordingly, trial continued.

On 9 January 1997, Wang filed his undated Demurrer to Evidence,125[11] praying for his acquittal and the dismissal of the three (3) cases against him for lack of a valid arrest and search warrants and the inadmissibility of the prosecutions evidence against him. Considering that the prosecution has not yet filed its Opposition to the demurrer, Wang filed an Amplification126[12] to his Demurrer of Evidence on 20 January 1997. On 12 February 1997, the prosecution filed its Opposition127[13] alleging that the warrantless search was legal as an incident to the lawful arrest and that it has proven its case, so it is now time for the defense to present its evidence.

On 13 March 1997, the respondent judge, the Hon. Perfecto A.S. Laguio, Jr., issued the herein assailed Resolution128[14] granting Wangs Demurrer to Evidence and acquitting him of all charges for lack of evidence, thus:

WHEREFORE, the accused's undated Demurrer to Evidence is hereby granted; the accused is acquitted of the charges against him for the crimes of Violation of Section 16, Article III of the Dangerous Drugs Act, Illegal Possession of Firearms, and Violation of Comelec Gun Ban, for lack of evidence; the 32 bags of shabu with a total weight of 29.2941 kilograms and the two unlicensed pistols, one AMT Cal. .380 9mm and one Daewoo Cal. 9mm. are ordered confiscated in favor of the government and the branch clerk is directed to turn over the 32 bags of shabu to the Dangerous Drugs Board in Intramuros, Manila, and the two firearms to the Firearms and Explosive Units, PNP, Camp Crame, Quezon City, for proper disposition, and the officer-in-charge of PARAC, Department of Interior and Local Government, is ordered to return the confiscated amount of P650,000.00 to the accused, and the confiscated BMW car to its registered owner, David Lee. No costs.

SO ORDERED.

Hence, this petition129[15] for review on certiorari by the People, submitting that the trial court erred I

XXX IN HOLDING THAT THE UNDISPUTED FACTS AND CIRCUMSTANCES DID NOT CONSTITUTE PROBABLE CAUSE WITHIN THE CONTEMPLATION OF SECTION 2, ARTICLE III OF THE CONSTITUTION, AND IN HOLDING THAT SUCH FACTS AND CIRCUMSTANCES NEITHER JUSTIFIED THE WARRANTLESS SEARCH OF ACCUSED'S VEHICLE AND THE SEIZURE OF THE CONTRABAND THEREIN.

ll

XXX IN HOLDING, IN EFFECT, THAT A WARRANTLESS SEARCH IS CONSTITUTIONALLY ALLOWABLE AND CAN ONLY BE VALID AS AN INCIDENT TO A LAWFUL ARREST.

lII

XXX IN DECLARING THE WARRANTLESS ARREST OF THE ACCUSED AND THE SEARCH AND SEIZURE OF HIS HANDGUNS UNLAWFUL.

IV

XXX IN NOT DECLARING THE ACCUSED AS HAVING WAIVED, AS A RESULT OF HIS SUBMISSION AND FAILURE TO PROTEST THE SEARCH AND HIS ARREST, HIS CONSTITUTIONAL RIGHT AGAINST UNREASONABLE SEARCH AND SEIZURE AND HIS OBJECTION TO THE ADMISSION OF THE EVIDENCE SEIZED.

XXX IN NOT ADMITTING IN EVIDENCE THE EVIDENCE SEIZED AND OFFERED BY THE PROSECUTION AND IN NOT DENYING ACCUSED'S DEMURRER TO EVIDENCE.

In its Resolution130[16] of 9 July 1997, the Court, without giving due course to the petition, required the public and private respondents to comment thereon within ten days from notice. Private respondent Wang filed his

comment131[17]on 18 August 1997.

On 10 September 1997, the Court required the People to file a reply,132[18] which the Office of the Solicitor General did on 5 December 1997, after several extensions.133[19]

On 20 October 2004, the Court resolved to give due course to the petition and required the parties to submit their respective memoranda,134[20] which they did.

The case presents two main issues: (a) whether the prosecution may appeal the trial courts resolution granting Wangs demurrer to evidence and acquitting him of all the charges against him without violating the constitutional proscription against double jeopardy; and (b) whether there was lawful arrest, search and seizure by the police operatives in this case despite the absence of a warrant of arrest and/or a search warrant.

First off, it must be emphasized that the present case is an appeal filed directly with this Court via a petition for review on certiorari under Rule 45 in relation to Rule 41, Section 2, paragraph (c) of the Rules of Court raising only pure questions of law, ordinary appeal by mere filing of a notice of appeal not being allowed as a mode of appeal directly to this Court. Then, too, it bears stressing that the right to appeal is neither a natural right nor a part of due process, it being merely a statutory privilege which may be exercised only in the manner provided for by law (Velasco v. Court of Appeals135[21]). Although Section 2, Rule 122 of the Rules on Criminal Procedure states that any party may appeal, the right of the People to appeal is, in the very same provision, expressly made subject to the prohibition against putting the accused in double jeopardy. It also basic that appeal in criminal cases throws the whole records of the case wide open for

review by the appellate court, that is why any appeal from a judgment of acquittal necessarily puts the accused in double jeopardy. In effect, the very same Section 2 of Rule 122 of the Rules on Criminal Procedure, disallows appeal by the People from judgments of acquittal.

An order granting an accuseds demurrer to evidence is a resolution of the case on the merits, and it amounts to an acquittal. Generally, any further

prosecution of the accused after an acquittal would violate the constitutional proscription on double jeopardy. To this general rule, however, the Court has previously made some exceptions.

The celebrated case of Galman v. Sandiganbayan136[22] presents one exception to the rule on double jeopardy, which is, when the prosecution is denied due process of law:

No court whose Presiding Justice has received orders or suggestions from the very President who by an amendatory decree (disclosed only at the hearing of oral arguments on November 8, 1984 on a petition challenging the referral of the AquinoGalman murder cases to the Tanodbayan and Sandiganbayan instead of to a court martial, as mandatorily required by the known P.D. 1850 at the time providing for exclusive jurisdiction of courts martial over criminal offenses committed by military men) made it possible to refer the cases to the Sandiganbayan, can be an impartial

court, which is the very essence of due process of law. As the writer then wrote, jurisdiction over cases should be determined by law, and not by preselection of the Executive, which could be much too easily transformed into a means of predetermining the outcome of individual cases. This criminal collusion as to the handling and treatment of the cases by public respondents at the secret Malacaang conference (and revealed only after fifteen months by Justice Manuel Herrera) completely disqualified respondent Sandiganbayan and voided ab initio its verdict. This renders moot and irrelevant for now the extensive arguments of respondents accused, particularly Generals Ver and Olivas and those categorized as accessories, that there has been no evidence or witness suppressed against them, that the erroneous conclusions of Olivas as police investigator do not make him an accessory of the crimes he investigated and the appraisal and evaluation of the testimonies of the witnesses presented and suppressed. There will be time and opportunity to present all these arguments and considerations at the remand and retrial of the cases herein ordered before a neutral and impartial court. The Supreme Court cannot permit such a sham trial and verdict and travesty of justice to stand unrectified. The courts of the land under its aegis are courts of law and justice and equity. They would have no reason to exist if they were allowed to be used as mere tools of injustice, deception and duplicity to subvert and suppress the truth, instead of repositories of judicial power whose judges are sworn and committed to render impartial justice to all alike who seek the enforcement or protection of a right or the prevention or redress of a wrong, without fear or favor and removed from the pressures of politics and prejudice. More so, in the case at bar where the people and the world are entitled to know the truth, and the integrity of our judicial system is at stake. In life, as an accused before the military tribunal Ninoy had pleaded in vain that as a civilian he was entitled to due process of law and trial in the regular civil courts before an impartial court with an unbiased prosecutor. In death, Ninoy, as the victim of the treacherous and vicious assassination and the relatives and sovereign people as the aggrieved parties plead once more for due process of law and a retrial before an impartial court with an unbiased prosecutor. The Court is constrained to declare the sham trial a mock trial the non-trial of the century and that the predetermined judgment of acquittal was unlawful and void ab initio. 1. No double jeopardy. It is settled doctrine that double jeopardy cannot be invoked against this Court's setting aside of the trial courts' judgment of dismissal or acquittal where the prosecution which represents the sovereign people in criminal cases is denied due process. As the Court stressed in the 1985 case of People vs. Bocar, Where the prosecution is deprived of a fair opportunity to prosecute and prove its case, its right to due process is thereby violated.

The cardinal precept is that where there is a violation of basic constitutional rights, courts are ousted of their jurisdiction. Thus, the violation of the State's right to due process raises a serious jurisdictional issue (Gumabon vs. Director of the Bureau of Prisons, L-30026, 37 SCRA 420 [Jan. 30, 1971]) which cannot be glossed over or disregarded at will. Where the denial of the fundamental right of due process is apparent, a decision rendered in disregard of that right is void for lack of jurisdiction (Aducayen vs. Flores, L-30370 [May 25, 19731, 51 SCRA 78; Shell Co. vs. Enage, L-30111-12, 49 SCRA 416 Feb. 27, 1973]). Any judgment or decision rendered notwithstanding such violation may be regarded as a lawless thing, which can be treated as an outlaw and slain at sight, or ignored wherever it exhibits its head (Aducayen vs. Flores, supra). Respondent Judge's dismissal order dated July 7, 1967 being null and void for lack of jurisdiction, the same does not constitute a proper basis for a claim of double jeopardy (Serino vs. Zosa, supra). xxx xxx xxx

Legal jeopardy attaches only (a) upon a valid indictment, (b) before a competent court, (c) after arraignment, (d) a valid plea having been entered; and (e) the case was dismissed or otherwise terminated without the express consent of the accused (People vs. Ylagan, 58 Phil. 851). The lower court was not competent as it was ousted of its jurisdiction when it violated the right of the prosecution to due process. In effect, the first jeopardy was never terminated, and the remand of the criminal case for further hearing and/or trial before the lower courts amounts merely to a continuation of the first jeopardy, and does not expose the accused to a second jeopardy.

Another exception is when the trial court commits grave abuse of discretion in dismissing a criminal case by granting the accuseds demurrer to evidence. In point is the fairly recent case of People v. Uy,137[23] which involved the trial courts decision which granted the two separate demurrers to evidence

filed by the two accused therein, both with leave of court, resulting in their acquittal of their respective charges of murder due to insufficiency of evidence. In resolving the petition for certiorari filed directly with this Court, we had the occasion to explain:

The general rule in this jurisdiction is that a judgment of acquittal is final and unappealable. People v. Court of Appeals explains the rationale of this rule:

In our jurisdiction, the finality-of-acquittal doctrine as a safeguard against double jeopardy faithfully adheres to the principle first enunciated in Kepner v. United States. In this case, verdicts of acquittal are to be regarded as absolutely final and irreviewable. The cases of United States v. Yam Tung Way, People v. Bringas, Gandicela v. Lutero, People v. Cabarles, People v. Bao, to name a few, are illustrative cases. The fundamental philosophy behind the constitutional proscription against double jeopardy is to afford the defendant, who has been acquitted, final repose and safeguard him from government oppression through the abuse of criminal processes. As succinctly observed in Green v. United States "(t)he underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent, he may be found guilty." (Underscoring supplied)

The same rule applies in criminal cases where a demurrer to evidence is granted. As held in the case of People v. Sandiganbayan:

The demurrer to evidence in criminal cases, such as the one at bar, is filed after the prosecution had rested its case, and when the

same is granted, it calls for an appreciation of the evidence adduced by the prosecution and its sufficiency to warrant conviction beyond reasonable doubt, resulting in a dismissal of the case on the merits, tantamount to an acquittal of the accused. Such dismissal of a criminal case by the grant of demurrer to evidence may not be appealed, for to do so would be to place the accused in double-jeopardy. The verdict being one of acquittal, the case ends there. (Italics in the original)

Like any other rule, however, the above-said rule is not absolute. By way of exception, a judgment of acquittal in a criminal case may be assailed in a petition for certiorari under Rule 65 of the Rules of Court upon a clear showing by the petitioner that the lower court, in acquitting the accused, committed not merely reversible errors of judgment but also grave abuse of discretion amounting to lack or excess of jurisdiction or a denial of due process, thus rendering the assailed judgment void. (Emphasis supplied.)

In Sanvicente v. People,138[24] the Court allowed the review of a decision of the Court of Appeals (CA) which reversed the accuseds acquittal upon demurrer to evidence filed by the accused with leave of court, the CA ruling that the trial court committed grave abuse of discretion in preventing the prosecution from establishing the due execution and authenticity of certain letter marked therein as Exhibit LL, which supposedly positively identified therein petitioner as the perpetrator of the crime charged. The Court, in a petition for certiorari, sustained the CAs power to review the order granting the demurrer to evidence, explaining thus:

Under Rule 119, Section 23 of the Revised Rules of Criminal Procedure, as amended, the trial court may dismiss the action on the ground of insufficiency of evidence upon a demurrer to evidence filed by the accused with or without leave of court. In resolving accuseds demurrer to evidence, the court is merely required to ascertain whether there is competent or sufficient evidence to sustain the indictment or support a verdict of guilt.
The grant or denial of a demurrer to evidence is left to the sound discretion of the trial court and its ruling on the matter shall not be disturbed in the absence of a grave abuse of discretion. Significantly, once the court grants the demurrer, such order amounts to an acquittal and any further prosecution of the accused would violate the constitutional proscription on double jeopardy. This constitutes an exception to the rule that the dismissal of a criminal case made with the express consent of the accused or upon his own motion bars a plea of double jeopardy. The finality-of-acquittal rule was stressed thus in People v. Velasco: The fundamental philosophy highlighting the finality of an acquittal by the trial court cuts deep into the humanity of the laws and in jealous watchfulness over the rights of the citizens, when brought in unequal contest with the State xxx. Thus Green expressed the concern that (t)he underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent, he may be found guilty. It is axiomatic that on the basis of humanity, fairness and justice, an acquitted defendant is entitled to the right of repose as a direct consequence of the finality of his acquittal. The philosophy underlying this rule establishing the absolute nature of acquittals is part of the paramount importance criminal justice system attaches to the protection of the innocent against wrongful conviction. The interest in the finality-of-acquittal rule, confined exclusively to verdicts of not guilty, is easy to understand: it is a need for repose, a desire to know the exact extent of ones liability. With this right of repose, the criminal justice system has built in a protection to insure that the innocent, even those whose innocence rests upon a jurys leniency, will not be found guilty in a subsequent proceeding. Given the far-reaching scope of an accuseds right against double jeopardy, even an appeal based on an alleged misappreciation of evidence will not lie. The only instance when double jeopardy will not attach is when the trial court acted with grave

abuse of discretion amounting to lack or excess of jurisdiction, such as where the prosecution was denied the opportunity to present its case or where the trial was a sham. However, while certiorari may be availed of to correct an erroneous acquittal, the petitioner in such an extraordinary proceeding must clearly demonstrate that the trial court blatantly abused its authority to a point so grave as to deprive it of its very power to dispense justice. (Emphasis supplied.)

By this time, it is settled that the appellate court may review dismissal orders of trial courts granting an accuseds demurrer to evidence. This may be done via the special civil action of certiorari under Rule 65 based on the ground of grave abuse of discretion, amounting to lack or excess of jurisdiction. Such dismissal order, being considered void judgment, does not result in jeopardy. Thus, when the order of dismissal is annulled or set aside by an appellate court in an original special civil action via certiorari, the right of the accused against double jeopardy is not violated.

Unfortunately, what petitioner People of the Philippines, through then Secretary of Justice Teofisto T. Guingona, Jr. and then Solicitor General Silvestre H. Bello, III, filed with the Court in the present case is an appeal by way of a petition for review on certiorari under Rule 45 raising a pure question of law, which is different from a petition for certiorari under Rule 65.

In Madrigal Transport Inc. v. Lapanday Holdings Corporation,139[25] we have enumerated the distinction between the two remedies/actions, to wit:
Appeal and Certiorari Distinguished Between an appeal and a petition for certiorari, there are substantial distinctions which shall be explained below. As to the Purpose. Certiorari is a remedy designed for the correction of errors of jurisdiction, not errors of judgment. In Pure Foods Corporation v. NLRC, we explained the simple reason for the rule in this light: When a court exercises its jurisdiction, an error committed while so engaged does not deprive it of the jurisdiction being exercised when the error is committed. If it did, every error committed by a court would deprive it of its jurisdiction and every erroneous judgment would be a void judgment. This cannot be allowed. The administration of justice would not survive such a rule. Consequently, an error of judgment that the court may commit in the exercise of its jurisdiction is not correct[a]ble through the original civil action of certiorari. The supervisory jurisdiction of a court over the issuance of a writ of certiorari cannot be exercised for the purpose of reviewing the intrinsic correctness of a judgment of the lower court -- on the basis either of the law or the facts of the case, or of the wisdom or legal soundness of the decision. Even if the findings of the court are incorrect, as long as it has jurisdiction over the case, such correction is normally beyond the province of certiorari. Where the error is not one of jurisdiction, but of an error of law or fact -- a mistake of judgment -appeal is the remedy. As to the Manner of Filing. Over an appeal, the CA exercises its appellate jurisdiction and power of review. Over a certiorari, the higher court uses its original jurisdiction in accordance with its power of control and supervision over the proceedings of lower courts. An appeal is thus a continuation of the original suit, while a petition for certiorari is an original and independent action that was not part of the trial that had resulted in the rendition of the judgment or order complained of. The parties to an appeal are the original parties to the action. In contrast, the parties to a petition for certiorari are the aggrieved party (who thereby becomes the petitioner) against the lower court or

quasi-judicial agency, and the prevailing parties (the public and the private respondents, respectively). As to the Subject Matter. Only judgments or final orders and those that the Rules of Court so declared are appealable. Since the issue is jurisdiction, an original action for certiorari may be directed against an interlocutory order of the lower court prior to an appeal from the judgment; or where there is no appeal or any plain, speedy or adequate remedy. As to the Period of Filing. Ordinary appeals should be filed within fifteen days from the notice of judgment or final order appealed from. Where a record on appeal is required, the appellant must file a notice of appeal and a record on appeal within thirty days from the said notice of judgment or final order. A petition for review should be filed and served within fifteen days from the notice of denial of the decision, or of the petitioners timely filed motion for new trial or motion for reconsideration. In an appeal by certiorari, the petition should be filed also within fifteen days from the notice of judgment or final order, or of the denial of the petitioners motion for new trial or motion for reconsideration. On the other hand, a petition for certiorari should be filed not later than sixty days from the notice of judgment, order, or resolution. If a motion for new trial or motion for reconsideration was timely filed, the period shall be counted from the denial of the motion. As to the Need for a Motion for Reconsideration. A motion for reconsideration is generally required prior to the filing of a petition for certiorari, in order to afford the tribunal an opportunity to correct the alleged errors. Note also that this motion is a plain and adequate remedy expressly available under the law. Such motion is not required before appealing a judgment or final order.

Also in Madrigal, we stressed that the special civil action of certiorari and appeal are two different remedies mutually exclusive; they are neither alternative nor successive. Where appeal is available, certiorari will not prosper. In the dismissal of a criminal case upon demurrer to evidence, appeal is not available as such an appeal will put the accused in double jeopardy. Certiorari, however, is allowed.

For being the wrong remedy taken by petitioner People of the Philippines in this case, this petition is outrightly dismissible. The Court cannot reverse the assailed dismissal order of the trial court by appeal without violating private respondents right against double jeopardy.

Even assuming that the Court may treat an appeal as a special civil action of certiorari, which definitely this Court has the power to do, when there is a clear showing of grave abuse of discretion committed by the lower court, the instant petition will nevertheless fail on the merits as the succeeding discussion will show.

There are actually two (2) acts involved in this case, namely, the warrantless arrest and the warrantless search. There is no question that

warrantless search may be conducted as an incident to a valid warrantless arrest. The law requires that there be first a lawful arrest before a search can be made; the process cannot be reversed.140[26] However, if there are valid reasons to conduct lawful search and seizure which thereafter shows that the accused is

currently committing a crime, the accused may be lawfully arrested in flagrante delicto141[27] without need for a warrant of arrest.

Finding that the warrantless arrest preceded the warrantless search in the case at bar, the trial court granted private respondent's demurrer to evidence and acquitted him of all the three charges for lack of evidence, because the unlawful arrest resulted in the inadmissibility of the evidence gathered from an invalid warrantless search. The trial courts ratiocination is quoted as follows:

The threshold issue raised by the accused in his Demurrer to Evidence is whether his warrantless arrest and search were lawful as argued by the prosecution, or unlawful as asserted by the defense.

Under Section 5, Rule 113 of the New Rules of Court, a peace officer may arrest a person without a warrant: (a) when in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) when an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it, and (c) when the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while being transferred from one confinement to another. None of these circumstances were present when the accused was arrested. The accused was merely walking from the Maria Orosa Apartment and was about to enter the parked BMW car when the police officers arrested and frisked him and searched his car. The accused was not committing any visible offense at the time of his arrest. Neither was there an indication that he was about to commit a crime or that he had just committed an offense. The unlicensed AMT Cal.380 9mm Automatic Back-up Pistol that the accused had in his possession was concealed inside the right

front pocket of his pants. And the handgun was bantam and slim in size that it would not give an outward indication of a concealed gun if placed inside the pant's side pocket as was done by the accused. The arresting officers had no information and knowledge that the accused was carrying an unlicensed handgun, nor did they see him in possession thereof immediately prior to his arrest.

Ditto on the 32 bags of shabu and the other unlicensed Daewoo Cal. 9mm Pistol with magazine that were found and seized from the car. The contraband items in the car were not in plain view. The 32 bags of shabu were in the trunk compartment, and the Daewoo handgun was underneath the drivers seat of the car. The police officers had no information, or knowledge that the banned articles were inside the car, or that the accused had placed them there. The police officers searched the car on mere suspicion that there was shabu therein.

On this matter, pertinent portions of the testimonies of Police Inspector Cielito Coronel and SP03 Reynaldo are hereunder quoted:

POLICE INSPECTOR CIELITO CORONELS TESTIMONY

PROSECUTOR TO WITNESS: Direct-Examination

Q. A.

Mr. Witness, what was your role or participation in this case? I am one of those responsible for the arrest of the accused.

xxx

xxx

xxx

Q. A.

Where did you make that arrest, Mr. Witness? The apprehension was made in front of an apartment along Maria Orosa Street, Ermita, Manila.

Q. A.

What date was that when you arrested the accused? It was on May 17, 1996, at about 2:10 a.m.

xxx

xxx

xxx

Q.

What was the reason why you together with other policemen effected the arrest of the accused? We arrested him because of the information relayed to us by one of those whom we have previously apprehended in connection with the delivery of shabu somewhere also in Ermita, Manila.

A.

xxx

xxx

xxx

Q.

When you established that he was somewhere at Maria Orosa, what did you do? We waited for him.

A.

xxx

xxx

xxx

Q.

You yourself, Mr. Witness, where did you position yourself during that time? I was inside a vehicle waiting for the accused to appear.

A.

Q. A.

What about your other companions where were they? They were position in strategic places within the area.

Q.

What happened when you and your companions were positioned in that place?

A.

That was when the accused arrived.

Q. A.

How many of your approached him. Inspector Margallo, myself and two other operatives.

Q. A.

What happened when you approached the accused, Mr. Witness? We introduced ourselves as police officers and we frisked him and we asked him to open the back compartment of his car.

Q. A.

You said you frisked him, what was the result of that? He was found in possession of one back-up pistol with one loaded magazine and likewise when the compartment was opened several plastic bags containing white crystalline substance suspected to be shabu (were found).

Q. A.

What did you do when you found out Mr. Witness? When the car was further search we later found another firearm, a Daewoo Pistol at the place under the seat of the driver.

Q. A.

Then what happened? He was brought to our headquarters at Mandaluyong for further investigation.

Q.

What about the suspected shabu that you recovered, what did you do with that? The suspected shabu that we recovered were forwarded to the NBI for laboratory examination.

A.

Q.

Did you come to know the results?

A.

It was found positive for methamphetamine hydrochloride. (TSN, pp. 38, November 15, 1996).

ATTY. LOZANO TO WITNESS: CROSS

Q.

You arrested Joseph Junio and Redentor Teck for alleged transporting of shabu on May 16, 1996, at 11:00 p.m., is it not? Yes, Sir.

A.

Q. A.

You asked Redentor Teck where he is employed, is it not? Yes, Sir.

xxx

xxx

xxx

Q.

Redentor Teck told you that he is a talent manager at the Glenmore Modeling Agency, is it not? Yes, Sir.

A.

.Q. A.

The Glenmore Modeling Agency is owned by Lawrence Wang, is it not? I supposed, Sir.

Q.

And that is why immediately after Redentor Teck told you that he is an employee of the Glenmore Modeling Agency owned by Lawrence Wang, naturally, you and your companions look for Lawrence Wang to shed light on the transporting of shabu by Redentor Teck and Joseph Junio, is it not? Yes, Sir.

A.

Q.

Thereafter, you spotted a person previously described by Redentor Teck as Lawrence Wang, is it not? Yes, Sir.

A.

Q.

While you were arresting Lawrence Wang, your companions at the same time searched the BMW car described in your affidavit of arrest, is it not? Yes, Sir.

A.

xxx

xxx

xxx

Q.

Lawrence Wang was not inside the BMW car while the same was searched, is it not? He was outside, Sir.

A.

Q.

The driver of the car was inside the car when the arrest and search were made, is it not? He was likewise outside, Sir.

A.

Q. A.

Lawrence Wang did resist arrest and search is it not? Yes, Sir.

Q. A.

When you effected the arrest, there was no warrant of arrest, is it not? Yes, Sir.

Q.

When the search was made on the BMW car, there was no search warrant, is it not? Yes, none, Sir. (TSN, pp. 3-12, November 15, 1996)

A.

SPO3 REYNALDO CRISTOBALS TESTIMONY PROSECUTOR TO WITNESS: DIRECT EXAMINATION

Q. A.

What is you role or participation in this case? I was one of the arresting officers and investigator, Sir.

xxx

xxx

xxx

Q.
A.

What kind of specific offense did the accused allegedly do so that you arrested him, Mr. Witness?
He was arrested on the basis of the recovered drugs in his possession placed inside his car.

xxx

xxx

xxx

Q.

Mr. witness, you said that you recovered drug from the car of the accused, please tell us the antecedent circumstances which led you to recover or confiscate these items?
Earlier in the evening about 11:00 p.m. of May 16, we arrested one Redentor Teck and Joseph Junio.

A.

COURT: Where did you arrest these people? A They were arrested in Metro Manila also.

COURT: The same date?

A.

May 16, about 11:00 p.m. They were arrested and when they were investigated, Teck mentioned the name of Lawrence Wang as his employer.

COURT: Why were these people, arrested? A. For violation of R.A. 6425.

COURT: How were they arrested?

A.

They were arrested while in the act of transporting shabu or handling shabu to another previously arrested person. It was a series of arrest.

COURT: So, this involved a series of operation?

A.

Yes, Your Honor. About 11:00 p.m. of May 16, we arrested three (3) persons, SPO2 Vergel de Dios, a certain Arellano and a certain Rogelio Noble. When they were arrested they divulged the name of the source.

COURT: They were arrested for what, for possession?

A.

Yes, Your Honor. For unlawful possession of shabu . Then they divulged to us the name of the person from whom they get shabu.

COURT: Whose name did they mention: A. One Alias Frank, who turned out to be Redentor Teck and Joseph Junio. We let them call Redentor Teck and Joseph Junio thru the cellphone and pretend and to order another supply of shabu.

COURT: So there was an entrapment? A. Yes, Your Honor.

COURT: So, these two (2) were arrested?

A.

While they were about to hand over another bag of shabu to Noble and company.

COURT: And these two reveals (revealed) some information to you as to the source of the shabu? A. Yes, Your Honor.

COURT: What was the information? A. Teck told us that he is an employee of Lawrence Wang.

COURT: What did you do when you were told about that? A. They also told us that there was an ongoing delivery of shabu on that morning.

COURT: When? A. Of that date early morning of May 17, 1996.

COURT: At what place? A. We asked them where we could find Lawrence Wang and Teck lead us to Maria Orosa Apartment where we conducted a stake out which lasted up to 2:00 a.m.

xxx

xxx

xxx

COURT: What happened during the stake out? A. When the person of the accused was identified to us, we saw him opening his car together with his driver.

COURT: So, he was about to leave when you saw him? A. Probably, Sir.

COURT: What did you do? A. We saw him opened his car and we have a suspicion that there was a shabu inside the compartment of the car.

xxx

xxx

xxx

COURT: All right, when you saw the accused opened his car, what did you do? A. We approached him.

COURT: What happened when you approached him? A. We suspected the shabu inside the compartment of his car.

COURT: And this shabu that you saw inside the compartment of the car, what did you do with that? A. Well, he was first arrested by Captain Margallo and Lt. Coronel while I was the one who inspected and opened the compartment of the car and saw the shabu. (TSN, pp. 15-24, December 16, 1996).

CLARIFICATORY QUESTIONING OF SPO3 CRISTOBAL BY THE COURT

COURT: From your testimony and that of Police Inspector Cielito Coronel, this Court has gathered that prior to the arrest of the accused there were three (3) men that your team arrested. One of whom is a police officer.

A:

Yes, Sir. xxx xxx xxx

COURT: And on the occasion of the arrest of these three men shabu were confiscated from them? A: Yes, Sir.

Q:

And in the course of the investigation of these three men, you were able to discover that Redentor Teck and Joseph Junio were the source of the regulated drug that were confiscated from the three men that you have arrested? Yes, Sir.

A:

Q:

Now, thru entrapment base[d] on your testimony you were able to apprehend also these two men, Redentor Teck and Joseph Junio? Yes, Sir.

A:

xxx

xxx

xxx

Q:

These two men, Redentor Teck and Joseph Junio they were also investigated by your team? Yes, Sir.

A:

Q: A:

You were present while they were investigated? I was the one whom investigated them.

xxx

xxx

xxx

Q:

Did you ask Redentor and Joseph the source of shabu that you confiscated from them at the time of the (their) arrest? Yes, Sir. They refuse to say the source, however, they told me that they were working for the accused.

A:

Q:

You also testified that Redentor informed you that there was another delivery of shabu scheduled that morning of (stop) was it May 16 or 17? The other delivery that is scheduled on? On the 17th.

A:

xxx

xxx

xxx

Q: A:

Did he tell you who was to make the delivery? No, Sir. xxx xxx xxx

Q:

At that time when you decided to look for the accused to ask him to shed light on the matter concerning the arrest of these two employees in possession of shabu. Did you and did your team suspect the accused as being involved in the transaction that lead (led) to the arrest of Redentor and Joseph? Yes, Sir. We suspected that he was the source of the shabu.

A:

xxx Q:

xxx

xxx

When you saw the accused walking towards his car, did you know whether he was carrying a gun? No, Sir. It cannot be seen.

A:

Q: A:

It was concealed? Yes, Sir.

Q:

So, the only time that you and your team learned that he was in possession of the gun is when he was bodily search? Yes, Sir. That is the only time that I came to know about when Capt. Margallo handed to me the gun.

A:

Q:

Other than walking towards his car, the accused was not doing anything else? None, Sir.

A:

Q:

That would invite your suspicion or give indication that he was intending to do something unlawful or illegal? No, Sir.

A:

Q:

When you searched the car, did the accused protest or try to prevent your team from searching his car? No, Sir. (TSN pp. 3-16, Feb. 26, 1997)

A:

Clearly therefore, the warrantless arrest of the accused and the search of his person and the car were without probable cause and could not be licit. The arrest of the accused did not fall under any of the exception to the requirements of warrantless arrests, (Sec. 5, Rule 113, Rules of Court) and is therefore, unlawful and derogatory of his constitutional right of liberty. x x x

The trial court resolved the case on the basis of its findings that the arrest preceded the search, and finding no basis to rule in favor of a lawful arrest, it ruled that the incidental search is likewise unlawful. Any and all pieces of

evidence acquired as a consequence thereof are inadmissible in evidence. Thus, the trial court dismissed the case for lack of evidence.

Contrary to its position at the trial court, the People, however, now posits that inasmuch as it has been shown in the present case that the seizure without warrant of the regulated drugs and unlicensed firearms in the accuseds possession had been validly made upon probable cause and under exigent circumstances, then the warrantless arrest of the accused must necessarily have to be regarded as having been made on the occasion of the commission of the crime in flagrante delicto, and therefore constitutionally and statutorily permissible and lawful.142[28] In effect, the People now contends that the warrantless search preceded the warrantless arrest. Since the case falls under an exception to the general rule requiring search warrant prior to a valid search and seizure, the police officers were justified in requiring the private respondent to open his BMW cars trunk to see if he was carrying illegal drugs.

The conflicting versions as to whether the arrest preceded the search or vice versa, is a matter of credibility of evidence. It entails appreciation of

evidence, which may be done in an appeal of a criminal case because the entire case is thrown open for review, but not in the case of a petition for certiorari where the factual findings of the trial court are binding upon the Court. Since a dismissal order consequent to a demurrer to evidence is not subject to appeal and reviewable only by certiorari, the factual finding that the arrest preceded the search is conclusive upon this Court. The only legal basis for this Court to possibly reverse and set aside the dismissal order of the trial court upon demurrer to evidence would be if the trial court committed grave abuse of discretion in excess of jurisdiction when it ruled that there was no legal basis to lawfully effect a warrantless arrest.

The pertinent provisions of Rule 113 of the Rules on Criminal Procedure on warrantless arrest provide:

Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest a person: a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; b) When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

Section 5, above, provides three (3) instances when warrantless arrest may be lawfully effected: (a) arrest of a suspect in flagrante delicto; (b) arrest of a suspect where, based on personal knowledge of the arresting officer, there is probable cause that said suspect was the author of a crime which had just been committed; (c) arrest of a prisoner who has escaped from custody serving final judgment or temporarily confined while his case is pending.

For a warrantless arrest of an accused caught in flagrante delicto under paragraph (a) of Section 5 to be valid, two requisites must concur: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer.143[29]

The facts and circumstances surrounding the present case did not manifest any suspicious behavior on the part of private respondent Lawrence Wang that would reasonably invite the attention of the police. He was merely walking from the Maria Orosa Apartment and was about to enter the parked BMW car when the police operatives arrested him, frisked and searched his person and commanded him to open the compartment of the car, which was later on found to be owned by his friend, David Lee. He was not committing any visible offense then. Therefore, there can be no valid warrantless arrest in flagrante delicto

under paragraph (a) of Section 5. It is settled that reliable information alone, absent any overt act indicative of a felonious enterprise in the presence and within the view of the arresting officers, is not sufficient to constitute probable cause that would justify an in flagrante delicto arrest.144[30]

Neither may the warrantless arrest be justified under paragraph (b) of Section 5. What is clearly established from the testimonies of the arresting officers is that Wang was arrested mainly on the information that he was the employer of Redentor Teck and Joseph Junio who were previously arrested and charged for illegal transport of shabu. Teck and Junio did not even categorically identify Wang to be their source of the shabu they were caught with in flagrante delicto. Upon the duos declaration that there will be a delivery of shabu on the early morning of the following day, May 17, which is only a few hours thereafter, and that Wang may be found in Maria Orosa Apartment along Maria Orosa Street, the arresting officers conducted surveillance operation in front of said apartment, hoping to find a person which will match the description of one Lawrence Wang, the employer of Teck and Junio. These circumstances do not sufficiently establish the existence of probable cause based on personal knowledge as required in paragraph (b) of Section 5.

And doubtless, the warrantless arrest does not fall under paragraph (c) of Section 5.

The inevitable conclusion, as correctly made by the trial court, is that the warrantless arrest was illegal. Ipso jure, the warrantless search incidental to the illegal arrest is likewise unlawful.

In People v. Aminnudin,145[31] the Court declared as inadmissible in evidence the marijuana found in appellants possession during a search without a warrant, because it had been illegally seized, in disregard of the Bill of Rights:

In the case at bar, the accused-appellant was not, at the moment of his arrest, committing a crime nor was it shown that he was about to do so or that he had just done so. What he was doing was descending the gangplank of the M/V Wilcon 9 and there was no outward indication that called for his arrest. To all appearances, he was like any of the other passengers innocently disembarking from the vessel. It was only when the informer pointed to him as the carrier of the marijuana that he suddenly became a suspect and so subject to apprehension. It was the fugitive finger that triggered his arrest. The identification of the informer was the probable cause as determined by the officer (and not a judge) that authorized them to pounce upon Aminnudin and immediately arrest him.

The Peoples contention that Wang waived his right against unreasonable search and seizure has no factual basis. While we agree in principle that consent will validate an otherwise illegal search, however, based on the evidence on record, Wang resisted his arrest and the search on his person and belongings.146[32] The implied acquiescence to the search, if there was any, could not have been more than mere passive conformity given under intimidating or coercive circumstances and is thus considered no consent at all within the purview of the constitutional guarantee.147[33] Moreover, the continuing

objection to the validity of the warrantless arrest made of record during the arraignment bolsters Wangs claim that he resisted the warrantless arrest and search.

We cannot close this ponencia without a word of caution: those who are supposed to enforce the law are not justified in disregarding the rights of the individual in the name of order. Order is too high a price for the loss of liberty. As Justice Holmes once said, I think it is less evil that some criminals should escape than that the government should play an ignoble part. It is simply not allowed in

free society to violate a law to enforce another, especially if the law violated is the Constitution itself.148[34]

WHEREFORE, the instant petition is DENIED.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 169641 September 10, 2009

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. RICHARD O. SARCIA, Accused-Appellant. DECISION LEONARDO-DE CASTRO, J.: On automatic review is the decision1 dated July 14, 2005 of the Court of Appeals (CA) in CAG.R. CR-HC No. 00717 which affirmed, with modifications, an earlier decision2 of the Regional Trial Court (RTC) of Ligao City, Branch 13, in Criminal Case No. 4134, finding herein accusedappellant Richard O. Sarcia alias "Nogi" guilty beyond reasonable doubt of the crime of rape3 committed against AAA,4 and sentenced him to suffer the penalty of Reclusion Perpetua and to pay the amount of P50,000.00 as civil indemnity, P50,000.00 as moral damages, and the cost of the suit. However, the CA modified the penalties imposed by the RTC by imposing the death penalty, increasing the award of civil indemnity to P75,000.00, and awarding P25,000.00 as exemplary damages, aside from the P50,000.00 for moral damages. The crime of rape was allegedly committed sometime in 1996 against AAA, a five (5) year old girl. After almost four (4) years, AAAs father filed a complaint5 for acts of lasciviousness against herein accused-appellant on July 7, 2000. Upon review of the evidence, the Office of the

Provincial Prosecutor at Ligao, Albay upgraded the charge to rape.6 The Information7 dated September 5, 2000 reads: That sometime in 1996 at Barangay Doa Tomasa, Municipality of Guinobatan, Province of Albay, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd and unchaste design, and by means of force, threats and intimidation, did then and there willfully, unlawfully and feloniously have sexual intercourse with [AAA], who was then 6 years of age, against her will and consent, to her damage and prejudice. ACTS CONTRARY TO LAW. At his arraignment on October 25, 2000, accused-appellant, with the assistance of his counsel, entered a plea of not guilty.8 Thereafter, trial on the merits ensued. The prosecution presented the oral testimonies of the victim AAA; her minor cousin; her father; and Dr. Joana Manatlao, the Municipal Health Officer of Guinobatan, Albay. The defense presented the accused-appellant himself, who vehemently denied committing the crimes imputed to him and Manuel Casimiro, Clerk of Court II of the Municipal Trial Court at Guinobatan, Albay. On January 17, 2003, the trial court rendered its Decision9 finding the accused-appellant guilty of the crime of rape and imposed the penalty mentioned above. The record of this case was forwarded to this Court in view of the Notice of Appeal filed by the accused- appellant.10 Accused-appellant filed his Appellants Brief11 on July 15, 2004, while the People, through the Office of the Solicitor General, filed its Appellees Brief12 on December 15, 2004. Pursuant to our pronouncement in People v. Mateo,13 modifying the pertinent provisions of the Revised Rules on Criminal Procedure insofar as they provide for direct appeals from the RTC to this Court in cases in which the penalty imposed by the trial court is death, reclusion perpetua or life imprisonment, and the Resolution dated September 19, 1995 in "Internal Rules of the Supreme Court," the case was transferred, for appropriate action and disposition, to the CA where it was docketed as CA-G.R. CR-H.C. No. 00717. As stated at the beginning hereof, the CA, in its decision of July 14, 2005, in CA-G.R. CR-H.C. No. 000717, affirmed with modification the judgment of conviction pronounced by the trial court. We quote the fallo of the CA decision: WHEREFORE, the judgment of conviction is AFFIRMED. The accused, Richard Sarcia y Olivera, is ordered to suffer the penalty of DEATH, and to pay the victim, [AAA], the amount of (1) P75,000.00 as civil indemnity; (2) P50,000.00 as moral damages, and (3) P25,000.00 as exemplary damages.

Let the entire records of this case be elevated to the Supreme Court for review, pursuant to A.M. No. 00-5-03-SC (Amendments to the Revised Rules of Criminal Procedure to Govern Death Penalty Cases), which took effect on October 15, 2004. SO ORDERED. On September 30, 2005, the case was elevated to this Court for further review.14 In our Resolution15 of November 15, 2005, we required the parties to simultaneously submit their respective supplemental briefs. Accused-appellant filed his Supplemental Brief16 on April 7, 2006. Having failed to submit one, the Office of the Solicitor General (OSG) was deemed to have waived the filing of its supplemental brief. In his Brief filed before the CA, accused-appellant raised the following assignment of errors: I THE LOWER COURT GRAVELY ERRED IN GIVING CREDENCE TO THE TESTIMONY OF [AAA], [her cousin] and [her father]. II THE LOWER COURT GLARINGLY ERRED IN REJECTING THE DEFENSE OF ALIBI INTERPOSED BY THE ACCUSED WHICH IS MORE CREDIBLE. III THE LOWER COURT GRAVELY ERRED IN NOT ACQUITTING THE ACCUSED RICHARD SARCIA. The evidence for the prosecution is summarized by the OSG in the Appellee's Brief, as follows: On December 16, 1996, five-year-old [AAA], together with her [cousin and two other playmates], was playing in the yard of Saling Crisologo near a mango tree. Suddenly, appellant appeared and invited [AAA] to go with him to the backyard of Saling Crisologos house. She agreed. Unknown to appellant, [AAAs cousin] followed them. Upon reaching the place, appellant removed [AAAs] shorts and underwear. He also removed his trousers and brief. Thereafter, he ordered [AAA] to lie down on her back. Then, he lay on top of her and inserted his penis into [AAAs] private organ. Appellant made an up-and-down movement ("Nagdapadapa tabi"). [AAA] felt severe pain inside her private part and said "aray." She also felt an intense pain inside her stomach. [AAAs cousin], who positioned herself around five (5) meters away from them, witnessed appellants dastardly act. Horrified, [AAAs cousin] instinctively rushed to the house of [AAAs]

mother, her aunt Emily, and told the latter what she had seen. [AAAs] mother answered that they (referring to {AAA and her cousin} were still very young to be talking about such matters. Meanwhile, after satisfying his lust, appellant stood up and ordered [AAA] to put on her clothes. Appellant then left. Perplexed, [AAAs cousin] immediately returned to the backyard of Saling Crisologo where she found [AAA] crying. Appellant, however, was gone. [AAAs cousin] approached [AAA] and asked her what appellant had done to her. When [AAA] did not answer, [her cousin] did not ask her any further question and just accompanied her home. At home, [AAA] did not tell her mother what appellant had done to her because she feared that her mother might slap her. Later, when her mother washed her body, she felt a grating sensation in her private part. Thereafter, [AAA] called for [her cousin]. [AAAs cousin] came to their house and told [AAAs] mother again that appellant had earlier made an up-and-down movement on top of [AAA]. [AAAs mother], however did not say anything. At that time, [AAAs] father was working in Manila. Dr. Joana Manatloa is the Municipal Health Officer of Guinobatan, Albay. She testified that: (1) it was the rural health officer, Dr. Reantaso, who conducted a physical examination on [AAA]; (2) Dr. Reantaso prepared and signed a medico-legal certificate containing the result of [AAA]s examination; (3) Dr. Reantaso, however, had already resigned as rural health officer of Guinobatan, Albay; (4) as a medical doctor, she can interpret, the findings in said medico-legal certificate issued to [AAA]; (5) [AAA]s medical findings are as follows: "negative for introital vulvar laceration nor scars, perforated hymen, complete, pinkish vaginal mucosa, vaginal admits little finger with resistance; (6) the finding "negative for introital bulvar laceration nor scars" means, in laymans language, that there was no showing of any scar or wound, and (7) there is a complete perforation of the hymen which means that it could have been subjected to a certain trauma or pressure such as strenuous exercise or the entry of an object like a medical instrument or penis.17 On the other hand, the trial court summarized the version of the defense as follows: Richard Sarcia, 24 years old, single, student and a resident of Doa Tomasa, Guinobatan, Albay denied he raped [AAA]. While he knows [AAAs] parents, because sometimes they go to their house looking for his father to borrow money, he does not know [AAA] herself. His father retired as a fireman from Crispa in 1991 while his mother worked as an agriculturist in the Municipality of Teresa, Antipolo, Rizal. As an agriculturist of the Department of Agriculture, his mother would bring seedlings and attend seminars in Batangas and Baguio. They were residing in Cainta, Rizal when sometime in 1992 they transferred residence to Guinobatan, Albay. His father is from barangay Masarawag while his mother is from barangay Doa Tomasa both of Guinobatan, Albay. After their transfer in Guinobatan, his mother continued to be an agriculturist while his father tended to his 1-hectare coconut land. Richard testified he was between fourteen (14) and fifteen (15) years old in 1992 when they transferred to Guinobatan. Between 1992 and 1994 he was out of school. But from 1994 to 1998 he took his high school at Masarawag High School. His daily routine was at about 4:00 oclock in the afternoon after school before

proceeding home he would usually play basketball at the basketball court near the church in Doa Tomasa about 1 kilometer away from their house. When her mother suffered a stroke in 1999 he and his father took turns taking care of his mother. Richard denied molesting other girls ... and was most surprised when he was accused of raping [AAA]. He knows Saling Crisologo and the latters place which is more than half kilometer to their house. Richard claimed Salvacion Bobier, grandmother of Mae Christine Camu, whose death on May 7, 2000 was imputed to him and for which a case for Murder under Criminal Case No. 4087 was filed against him with the docile cooperation of [AAAs] parents who are related to Salvacion, concocted and instigated [AAAs] rape charge against him to make the case for Murder against him stronger and life for him miserable. He was incarcerated on May 10, 2000 for the Murder charge and two (2) months later while he already in detention, the rape case supposedly committed in 1996 was filed against him in the Municipal Trial Court (MTC) of Guinobatan, Albay. He was to learn about it from his sister, Marivic, on a Sunday afternoon sometime on July 20, 2000 when his sister visited him in jail. He naturally got angry when he heard of this rape charge because he did not do such thing and recalled telling his sister they can go to a doctor and have the child examine to prove he did not rape her. Subsequently, from his sister again he was to learn that the rape case was ordered dismissed. On cross-examination, Richard admitted [AAAs] mother, is also related to his father, [AAA mothers] father, being a second cousin of his father. Richard is convinced it is not the lending of money by his father to the AAAs family as the motive for the latter to file the rape case against him but the instigation of Salvacion Bobier. Manuel A. Casimiro, Clerk of Court II of the Municipal Trial Court (MTC), Guinobatan, Albay, testified on the records of Criminal Case No. 7078 filed in MTC Guinobatan, Albay against Richard Sarcia for Rape in relation to RA 7610 relative to the alleged withdrawal of said rape case but the accused through counsel failed to formally offer the marked exhibits relative to said case.18 Accused-appellant alleges that the trial court erred in convicting him, as the prosecution was not able to prove his guilt beyond reasonable doubt. He assailed the credibility of the prosecution witnesses, AAA, her cousin and her father on the following grounds: (1) the testimonies of AAA and her cousin were inconsistent with each other; (2) the victim was confused as to the date and time of the commission of the offense; (3) there was a four-year delay in filing the criminal case, and the only reason why they filed the said case was "to help Salvacion Bobier get a conviction of this same accused in a murder case filed by said Salvacion Bobier for the death of her granddaughter Mae Christine Camu on May 7, 2000." Accused-appellant stressed that the same Salvacion Bobier helped AAAs father in filing the said case for rape. Accused-appellant also claimed that the prosecution failed to prove that he employed force, threats or intimidation to achieve his end. Finally, accused-appellant harped on the finding in the medical certificate issued by Dr. Reantaso and interpreted by Dr. Joana Manatlao, stating "negative for introital bulvar laceration nor scar which means that there was no showing of any scar or wound." In his Appellee's Brief accused-appellant pointed out the inconsistencies between AAAs and her cousins testimonies as follows: (1) the cousin testified that she played with AAA at the time of the incident, while AAA testified that she was doing nothing before accused-appellant invited

her to the back of the house of a certain Saling; (2) the cousin testified that when she saw accused-appellant doing the push-and-pull motion while on top of AAA, the latter shouted in a loud voice contrary to AAAs testimony that when accused-appellant was inside her and started the up-and-down motion, she said "aray"; (3) when the cousin returned to AAA after telling the latters mother what accused-appellant had done to AAA, she found AAA crying. AAA however testified that, after putting on her clothes, she invited the cousin to their house; and (4) the cousin testified that other children were playing at the time of the incident, but AAA testified that there were only four of them who were playing at that time. As it is oft-repeated, inconsistencies in the testimonies of witnesses, which refer only to minor details and collateral matters, do not affect the veracity and weight of their testimonies where there is consistency in relating the principal occurrence and the positive identification of the accused. Slight contradictions in fact even serve to strengthen the credibility of the witnesses and prove that their testimonies are not rehearsed. Nor are such inconsistencies, and even improbabilities, unusual, for there is no person with perfect faculties or senses.19 The alleged inconsistencies in this case are too inconsequential to overturn the findings of the court a quo. It is important that the two prosecution witnesses were one in saying that it was accused-appellant who sexually abused AAA. Their positive, candid and straightforward narrations of how AAA was sexually abused by accused-appellant evidently deserve full faith and credence. When the rape incident happened, AAA was only five (5) years old; and when she and her cousin testified, they were barely 9 and 11 years old, respectively. This Court has had occasion to rule that the alleged inconsistencies in the testimonies of the witnesses can be explained by their age and their inexperience with court proceedings, and that even the most candid of witnesses commit mistakes and make confused and inconsistent statements. This is especially true of young witnesses, who could be overwhelmed by the atmosphere of the courtroom. Hence, there is more reason to accord them ample space for inaccuracy.20 Accused-appellant capitalizes on AAAs inability to recall the exact date when the incident in 1996 was committed. Failure to recall the exact date of the crime, however, is not an indication of false testimony, for even discrepancies regarding exact dates of rapes are inconsequential and immaterial and cannot discredit the credibility of the victim as a witness.21 In People v. Purazo,22 We ruled: We have ruled, time and again that the date is not an essential element of the crime of rape, for the gravamen of the offense is carnal knowledge of a woman. As such, the time or place of commission in rape cases need not be accurately stated. As early as 1908, we already held that where the time or place or any other fact alleged is not an essential element of the crime charged, conviction may be had on proof of the commission of the crime, even if it appears that the crime was not committed at the precise time or place alleged, or if the proof fails to sustain the existence of some immaterial fact set out in the complaint, provided it appears that the specific crime charged was in fact committed prior to the date of the filing of the complaint or information within the period of the statute of limitations and at a place within the jurisdiction of the court. Also in People v. Salalima,23 the Court held:

Failure to specify the exact dates or time when the rapes occurred does not ipso facto make the information defective on its face. The reason is obvious. The precise date or time when the victim was raped is not an element of the offense. The gravamen of the crime is the fact of carnal knowledge under any of the circumstances enumerated under Article 335 of the Revised Penal Code. As long as it is alleged that the offense was committed at any time as near to the actual date when the offense was committed an information is sufficient. In previous cases, we ruled that allegations that rapes were committed "before and until October 15, 1994," "sometime in the year 1991 and the days thereafter," "sometime in November 1995 and some occasions prior and/or subsequent thereto" and "on or about and sometime in the year 1988" constitute sufficient compliance with Section 11, Rule 110 of the Revised Rules on Criminal Procedure. In this case, AAAs declaration that the rape incident took place on December 15, 1996 was explained by the trial court, and we quote: The rape took place in 1996. As earlier noted by the Court the date December 15, 1996 mentioned by [AAA] may have been arbitrarily chosen by the latter due to the intense crossexamination she was subjected but the Court believes it could have been in any month and date in the year 1996 as in fact neither the information nor [AAAs] sworn statement mention the month and date but only the year.24 Likewise, witnesses credibility is not affected by the delay in the filing of the case against accused-appellant. Neither does the delay bolster accused-appellants claim that the only reason why this case was filed against him was "to help Salvacion Bobier get a conviction of this same accused-appellant in the case of murder filed by Salvacion Bobier for the death of her granddaughter Mae Christine Camu on May 7, 2000." The rape victims delay or hesitation in reporting the crime does not destroy the truth of the charge nor is it an indication of deceit. It is common for a rape victim to prefer silence for fear of her aggressor and the lack of courage to face the public stigma of having been sexually abused. In People v. Coloma25 we even considered an 8-year delay in reporting the long history of rape by the victims father as understandable and not enough to render incredible the complaint of a 13-year-old daughter. Thus, in the absence of other circumstances that show that the charge was a mere concoction and impelled by some ill motive, delay in the filing of the complainant is not sufficient to defeat the charge. Here, the failure of AAAs parents to immediately file this case was sufficiently justified by the complainants father in the latters testimony, thus: Q But, did you not say, please correct me if I am wrong, you got angry when your wife told you that something happened to Hazel way back in 1996? A Yes, sir. Q Yet, despite your anger you were telling us that you waited until June to file this case? A After I heard about the incident, I and my wife had a talk for which reason that during that time we had no money yet to use in filing the case, so we waited. When we were able to save enough amounts, we filed the case.26

Accused-appellant also contends that he could not be liable for rape because there is no proof that he employed force, threats or intimidation in having carnal knowledge of AAA. Where the girl is below 12 years old, as in this case, the only subject of inquiry is whether "carnal knowledge" took place. Proof of force, intimidation or consent is unnecessary, since none of these is an element of statutory rape. There is a conclusive presumption of absence of free consent when the rape victim is below the age of twelve.27 Accused-appellant harps on the medical report, particularly the conclusion quoted as follows: "negative for introital bulvar laceration nor scars, which means, in layman language, that there was no showing of any scar or wound." The Court has consistently ruled that the presence of lacerations in the victims sexual organ is not necessary to prove the crime of rape and its absence does not negate the fact of rape. A medical report is not indispensable in a prosecution for rape.28 What is important is that AAAs testimony meets the test of credibility, and that is sufficient to convict the accused. Accused-appellants defense of denial was properly rejected. Time and time again, we have ruled that denial like alibi is the weakest of all defenses, because it is easy to concoct and difficult to disprove. Furthermore, it cannot prevail over the positive and unequivocal identification of appellant by the offended party and other witnesses. Categorical and consistent positive identification, absent any showing of ill motive on the part of the eyewitness testifying on the matter, prevails over the appellants defense of denial and alibi.29 The shallow hypothesis put forward by accused-appellant that he was accused of raping AAA due to the instigation of Salvacion Bobier hardly convinces this Court. On this score, the trial court aptly reached the following conclusion: True, Salvacion Bobier actively assisted AAAs family file the instant case against the accused, but the Court believes [AAAs] parents finally decided to file the rape case because after they have come to realize after what happened to Mae Christine Camu that what previously [AAA and her cousin] told her mother and which the latter had continually ignored is after all true. AAA was barely 9 years of age when she testified. It has been stressed often enough that the testimony of rape victims who are young and immature deserve full credence. It is improbable for a girl of complainants age to fabricate a charge so humiliating to herself and her family had she not been truly subjected to the painful experience of sexual abuse. At any rate, a girl of tender years, innocent and guileless, cannot be expected to brazenly impute a crime so serious as rape to any man if it were not true.30 Parents would not sacrifice their own daughter, a child of tender years at that, and subject her to the rigors and humiliation of public trial for rape, if they were not motivated by an honest desire to have their daughters transgressor punished accordingly.31 Hence, the logical conclusion is that no such improper motive exists and that her testimony is worthy of full faith and credence. The guilt of accused-appellant having been established beyond reasonable doubt, we discuss now the proper penalty to be imposed on him.

Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659,32 was the governing law at the time the accused-appellant committed the rape in question. Under the said law, the penalty of death shall be imposed when the victim of rape is a child below seven years of age. In this case, as the age of AAA, who was five (5) years old at the time the rape was committed, was alleged in the information and proven during trial by the presentation of her birth certificate, which showed her date of birth as January 16, 1991, the death penalty should be imposed. However, this Court finds ground for modifying the penalty imposed by the CA. We cannot agree with the CAs conclusion that the accused-appellant cannot be deemed a minor at the time of the commission of the offense to entitle him to the privileged mitigating circumstance of minority pursuant to Article 68(2)33 of the Revised Penal Code. When accused appellant testified on March 14, 2002, he admitted that he was 24 years old, which means that in 1996, he was 18 years of age. As found by the trial court, the rape incident could have taken place "in any month and date in the year 1996." Since the prosecution was not able to prove the exact date and time when the rape was committed, it is not certain that the crime of rape was committed on or after he reached 18 years of age in 1996. In assessing the attendance of the mitigating circumstance of minority, all doubts should be resolved in favor of the accused, it being more beneficial to the latter. In fact, in several cases, this Court has appreciated this circumstance on the basis of a lone declaration of the accused regarding his age.34 Under Article 68 of the Revised Penal Code, when the offender is a minor under 18 years, the penalty next lower than that prescribed by law shall be imposed, but always in the proper period. However, for purposes of determining the proper penalty because of the privileged mitigating circumstance of minority, the penalty of death is still the penalty to be reckoned with.35 Thus, the proper imposable penalty for the accused-appellant is reclusion perpetua. It is noted that the Court is granted discretion in awarding damages provided in the Civil Code, in case a crime is committed. Specifically, Article 2204 of the Civil Code provides that "in crimes, the damages to be adjudicated may be respectively increased or lessened according to the aggravating or mitigating circumstances." The issue now is whether the award of damages should be reduced in view of the presence here of the privileged mitigating circumstance of minority of the accused at the time of the commission of the offense. A review of the nature and purpose of the damages imposed on the convicted offender is in order. Article 107 of the Revised Penal Code defines the term "indemnification," which is included in the civil liability prescribed by Article 104 of the same Code, as follows: Art. 107. Indemnification-What is included. Indemnification for consequential damages shall include not only those caused the injured party, but also those suffered by his family or by a third person by reason of the crime. Relative to civil indemnity, People v. Victor36 ratiocinated as follows: The lower court, however, erred in categorizing the award of P50,000.00 to the offended party as being in the nature of moral damages. We have heretofore explained in People v. Gementiza that

the indemnity authorized by our criminal law as civil liability ex delicto for the offended party, in the amount authorized by the prevailing judicial policy and aside from other proven actual damages, is itself equivalent to actual or compensatory damages in civil law. It is not to be considered as moral damages thereunder, the latter being based on different jural foundations and assessed by the court in the exercise of sound discretion. One other point of concern has to be addressed. Indictments for rape continue unabated and the legislative response has been in the form of higher penalties. The Court believes that, on like considerations, the jurisprudential path on the civil aspect should follow the same direction. Hence, starting with the case at bar, if the crime of rape is committed or effectively qualified by any of the circumstances under which the death penalty is authorized by the present amended law, the indemnity for the victim shall be in the increased amount of not less than P75,000.00. This is not only a reaction to the apathetic societal perception of the penal law, and the financial fluctuations over time, but also an expression of the displeasure of the Court over the incidence of heinous crimes against chastity. (Emphasis Supplied) The Court has had the occasion to rule that moral damages are likewise compensatory in nature. In San Andres v. Court of Appeals,37 we held: x x x Moral damages, though incapable of pecuniary estimation, are in the category of an award designed to compensate the claimant for actual injury suffered and not to impose a penalty on the wrongdoer. (Emphasis Supplied) In another case, this Court also explained: What we call moral damages are treated in American jurisprudence as compensatory damages awarded for mental pain and suffering or mental anguish resulting from a wrong (25 C.J.S. 815).38 (Emphasis Supplied) Thus, according to law and jurisprudence, civil indemnity is in the nature of actual and compensatory damages for the injury caused to the offended party and that suffered by her family, and moral damages are likewise compensatory in nature. The fact of minority of the offender at the time of the commission of the offense has no bearing on the gravity and extent of injury caused to the victim and her family, particularly considering the circumstances attending this case. Here, the accused-appelant could have been eighteen at the time of the commission of the rape. He was accorded the benefit of the privileged mitigating circumstance of minority because of a lack of proof regarding his actual age and the date of the rape rather than a moral or evidentiary certainty of his minority. In any event, notwithstanding the presence of the privileged mitigating circumstance of minority, which warrants the lowering of the public penalty by one degree, there is no justifiable ground to depart from the jurisprudential trend in the award of damages in the case of qualified rape, considering the compensatory nature of the award of civil indemnity and moral damages. This was the same stance this Court took in People v. Candelario,39 a case decided on July 28, 1999, which did not reduce the award of damages. At that time, the damages amounted to P75,000.00 for civil indemnity and P50,000.00 for moral damages, even if the public penalty imposed on the

accused was lowered by one degree, because of the presence of the privileged mitigating circumstance of minority. The principal consideration for the award of damages, under the ruling in People v. Salome40 and People v. Quiachon41 is the penalty provided by law or imposable for the offense because of its heinousness, not the public penalty actually imposed on the offender. Regarding the civil indemnity and moral damages, People v. Salome explained the basis for increasing the amount of said civil damages as follows: The Court, likewise, affirms the civil indemnity awarded by the Court of Appeals to Sally in accordance with the ruling in People v. Sambrano which states: "As to damages, we have held that if the rape is perpetrated with any of the attending qualifying circumstances that require the imposition of the death penalty, the civil indemnity for the victim shall P75,000.00 Also, in rape cases, moral damages are awarded without the need proof other than the fact of rape because it is assumed that the victim has suffered moral injuries entitling her to such an award. However, the trial courts award of P50,000.00 as moral damages should also be increased to P75,000 pursuant to current jurisprudence on qualified rape." It should be noted that while the new law prohibits the imposition of the death penalty, the penalty provided for by law for a heinous offense is still death and the offense is still heinous. Consequently, the civil indemnity for the victim is still P75,000.00. People v. Quiachon also ratiocinates as follows: With respect to the award of damages, the appellate court, following prevailing jurisprudence, correctly awarded the following amounts; P75,000.00 as civil indemnity which is awarded if the crime is qualified by circumstances warranting the imposition of the death penalty; P75,000.00.00 as moral damages because the victim is assumed to have suffered moral injuries, hence, entitling her to an award of moral damages even without proof thereof, x x x Even if the penalty of death is not to be imposed on the appellant because of the prohibition in R.A. No. 9346, the civil indemnity of P75,000.00 is still proper because, following the ratiocination in People v. Victor, the said award is not dependent on the actual imposition of the death penalty but on the fact that qualifying circumstances warranting the imposition of the death penalty attended the commission of the offense. The Court declared that the award of P75,000.00 shows "not only a reaction to the apathetic societal perception of the penal law and the financial fluctuations over time but also the expression of the displeasure of the court of the incidence of heinous crimes against chastity." The litmus test therefore, in the determination of the civil indemnity is the heinous character of the crime committed, which would have warranted the imposition of the death penalty, regardless of whether the penalty actually imposed is reduced to reclusion perpetua.

As to the award of exemplary damages, Article 2229 of the Civil Code provides that exemplary or corrective damages are imposed in addition to the moral, temperate, liquidated or compensatory damages. Exemplary damages are not recoverable as a matter of right. The requirements of an award of exemplary damagees are: (1) they may be imposed by way of example in addition to compensatory damages, and only after the claimants right to them has been established; (2) they cannot be recovered as a matter of right, their determination depending upon the amount of compensatory damages that may be awarded to the claimant; (3) the act must be accompanied by bad faith or done in a wanton, fraudulent, oppressive or malevolent manner.42 Since the compensatory damages, such as the civil indemnity and moral damages, are increased when qualified rape is committed, the exemplary damages should likewise be increased in accordance with prevailing jurisprudence.43 In sum, the increased amount of P75,000.00 each as civil indemnity and moral damages should be maintained. It is also proper and appropriate that the award of exemplary damages be likewise increased to the amount of P30,000.00 based on the latest jurisprudence on the award of damages on qualified rape. Thus, the CA correctly awarded P75,000.00 as civil indemnity. However the award of P50,000.00 as moral damages is increased to P75,000.0044 and that of P25,000.00 as exemplary damages is likewise increased to P30,000.00.45 Meanwhile, when accused-appellant was detained at the New Bilibid Prison pending the outcome of his appeal before this Court, Republic Act (R.A.) No. 9344, the Juvenile Justice and Welfare Act of 2006 took effect on May 20, 2006. The RTC decision and CA decision were promulgated on January 17, 2003 and July 14, 2005, respectively. The promulgation of the sentence of conviction of accused-appellant handed down by the RTC was not suspended as he was about 25 years of age at that time, in accordance with Article 192 of Presidential Decree (P.D.) No. 603, The Child and Youth Welfare Code46 and Section 32 of A.M. No. 02-1-18-SC, the Rule on Juveniles in Conflict with the Law.47 Accused-appellant is now approximately 31 years of age. He was previously detained at the Albay Provincial Jail at Legaspi City and transferred to the New Bilibid Prison, Muntinlupa City on October 13, 2003. R.A. No. 9344 provides for its retroactive application as follows: Sec. 68. Children Who Have Been Convicted and are Serving Sentence. Persons who have been convicted and are serving sentence at the time of the effectivity of this Act, and who were below the age of eighteen (18) years at the time of the commission of the offense for which they were convicted and are serving sentence, shall likewise benefit from the retroactive application of this Act. x x x The aforequoted provision allows the retroactive application of the Act to those who have been convicted and are serving sentence at the time of the effectivity of this said Act, and who were below the age of 18 years at the time of the commission of the offense. With more reason, the Act should apply to this case wherein the conviction by the lower court is still under review. Hence, it is necessary to examine which provisions of R.A. No. 9344 shall apply to accusedappellant, who was below 18 years old at the time of the commission of the offense.

Sec. 38 of R.A. No. 9344 provides for the automatic suspension of sentence of a child in conflict with the law, even if he/she is already 18 years of age or more at the time he/she is found guilty of the offense charged. It reads: Sec. 38. Automatic Suspension of Sentence. Once the child who is under eighteen (18) years of age at the time of the commission of the offense is found guilty of the offense charged, the court shall determine and ascertain any civil liability which may have resulted from the offense committed. However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict with the law under suspended sentence, without need of application: Provided, however, That suspension of sentence shall still be applied even if the juvenile is already eighteen (18) of age or more at the time of the pronouncement of his/her guilt. Upon suspension of sentence and after considering the various circumstances of the child, the court shall impose the appropriate disposition measures as provided in the Supreme Court on Juvenile in Conflict with the Law. The above-quoted provision makes no distinction as to the nature of the offense committed by the child in conflict with the law, unlike P.D. No. 603 and A.M. No. 02-1-18-SC.48 The said P.D. and Supreme Court (SC) Rule provide that the benefit of suspended sentence would not apply to a child in conflict with the law if, among others, he/she has been convicted of an offense punishable by death, reclusion perpetua or life imprisonment. In construing Sec. 38 of R.A. No. 9344, the Court is guided by the basic principle of statutory construction that when the law does not distinguish, we should not distinguish.49 Since R.A. No. 9344 does not distinguish between a minor who has been convicted of a capital offense and another who has been convicted of a lesser offense, the Court should also not distinguish and should apply the automatic suspension of sentence to a child in conflict with the law who has been found guilty of a heinous crime. Moreover, the legislative intent, to apply to heinous crimes the automatic suspension of sentence of a child in conflict with the law can be gleaned from the Senate deliberations50 on Senate Bill No. 1402 (Juvenile Justice and Delinquency Prevention Act of 2005), the pertinent portion of which is quoted below: If a mature minor, maybe 16 years old to below 18 years old is charged, accused with, or may have committed a serious offense, and may have acted with discernment, then the child could be recommended by the Department of Social Welfare and Development (DSWD), by the Local Council for the Protection of Children (LCPC), or by my proposed Office of Juvenile Welfare and Restoration to go through a judicial proceeding; but the welfare, best interests, and restoration of the child should still be a primordial or primary consideration. Even in heinous crimes, the intention should still be the childs restoration, rehabilitation and reintegration. xxx (Italics supplied)1avvphi1 Nonetheless, while Sec. 38 of R.A. No. 9344 provides that suspension of sentence can still be applied even if the child in conflict with the law is already eighteen (18) years of age or more at the time of the pronouncement of his/her guilt, Sec. 40 of the same law limits the said suspension of sentence until the said child reaches the maximum age of 21, thus:

Sec. 40. Return of the Child in Conflict with the Law to Court. If the court finds that the objective of the disposition measures imposed upon the child in conflict with the law have not been fulfilled, or if the child in conflict with the law has willfully failed to comply with the condition of his/her disposition or rehabilitation program, the child in conflict with the law shall be brought before the court for execution of judgment. If said child in conflict with the law has reached eighteen (18) years of age while under suspended sentence, the court shall determine whether to discharge the child in accordance with this Act, to order execution of sentence, or to extend the suspended sentence for a certain specified period or until the child reaches the maximum age of twenty-one (21) years. (emphasis ours) To date, accused-appellant is about 31 years of age, and the judgment of the RTC had been promulgated, even before the effectivity of R.A. No. 9344. Thus, the application of Secs. 38 and 40 to the suspension of sentence is now moot and academic.51 However, accused-appellant shall be entitled to appropriate disposition under Sec. 51 of R.A. No. 9344, which provides for the confinement of convicted children as follows: Sec. 51. Confinement of Convicted Children in Agricultural Camps and Other Training Facilities. A child in conflict with the law may, after conviction and upon order of the court, be made to serve his/her sentence, in lieu of confinement in a regular penal institution, in an agricultural camp and other training facilities that may be established, maintained, supervised and controlled by the BUCOR, in coordination with the DSWD. The civil liability resulting from the commission of the offense is not affected by the appropriate disposition measures and shall be enforced in accordance with law.52 WHEREFORE, the decision of the CA dated July 14, 2005 in CA-G.R. CR-H.C. No. 00717 is hereby AFFIRMED with the following MODIFICATIONS: (1) the penalty of death imposed on accused-appellant is reduced to reclusion perpetua;53 and (2) accused-appellant is ordered to pay the victim the amount of P75,000.00 and P30,000.00 as moral damages and exemplary damages, respectively. The award of civil indemnity in the amount of P75,000.00 is maintained. However, the case shall be REMANDED to the court a quo for appropriate disposition in accordance with Sec. 51 of R.A. 9344. SO ORDERED.

Republic of the Philippines Supreme Court Manila

THIRD DIVISION

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

G.R. No. 186227

Present:

CARPIO,* J. VELASCO, JR., J., Chairperson, - versus PERALTA, ABAD, and MENDOZA, JJ.

Promulgated: ALLEN UDTOJAN MANTALABA, Accused-Appellant. July 20, 2011

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

DECISION

PERALTA, J.:

For this Court's consideration is the Decision149[1] dated July 31, 2008 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 00240-MIN, affirming the Omnibus Judgment150[2] dated September 14, 2005, of the Regional Trial Court, Branch 1, Butuan City in Criminal Case No. 10250 and Criminal Case No. 10251, finding appellant Allen Udtojan Mantalaba, guilty beyond reasonable doubt of violation of Sections 5 and 11, Article II of Republic Act (RA) 9165.

The facts, as culled from the records, are the following: The Task Force Regional Anti-Crime Emergency Response (RACER) in Butuan City received a report from an informer that a certain Allen Mantalaba,

who was seventeen (17) years old at the time, was selling shabu at Purok 4, Barangay 3, Agao District, Butuan City. Thus, a buy-bust team was organized, composed of PO1 Randy Pajo, PO1 Eric Simon and two (2) poseur-buyers who were provided with two (2) pieces of P100 marked bills to be used in the purchase.

Around 7 o'clock in the evening of October 1, 2003, the team, armed with the marked money, proceeded to Purok 4, Barangay 3, Agao District, Butuan City for the buy-bust operation. The two poseur-buyers approached Allen who was sitting at a corner and said to be in the act of selling shabu. PO1 Pajo saw the poseur-buyers and appellant talking to each other. Afterwards, the appellant handed a sachet of shabu to one of the poseur-buyers and the latter gave the marked money to the appellant. The poseur-buyers went back to the police officers and told them that the transaction has been completed. Police officers Pajo and Simon rushed to the place and handcuffed the appellant as he was leaving the place.

The police officers, still in the area of operation and in the presence of barangay officials Richard S. Tandoy and Gresilda B. Tumala, searched the appellant and found a big sachet of shabu. PO1 Simon also pointed to the barangay officials the marked money, two pieces of P100 bill, thrown by the appellant on the ground.

After the operation, and in the presence of the same barangay officials, the police officers made an inventory of the items recovered from the appellant which are: (1) one big sachet of shabu which they marked as RMP-1-10-01-03; (2) one small sachet of shabu which they marked as RMP 2-10-01-03; and (3) two (2) pieces of one hundred pesos marked money and a fifty peso (P50) bill. Thereafter, a letter-request was prepared by Inspector Ferdinand B. Dacillo for the laboratory examination of the two (2) sachets containing a crystalline substance, ultra-violet examination on the person of the appellant as well as the two (2) pieces of one hundred pesos marked money. The request was brought by PO1 Pajo and personally received by Police Inspector Virginia Sison-Gucor, Forensic Chemical Officer of the Regional Crime Laboratory Office XII Butuan City, who immediately conducted the examination. The laboratory examination

revealed that the appellant tested positive for the presence of bright orange ultra-violet fluorescent powder; and the crystalline substance contained in two sachets, separately marked as RMP-1-10-01-03 and RMP-2-10-01-03, were positively identified as methamphetamine hydrochloride.

Thereafter, two separate Informations were filed before the RTC of Butuan City against appellant for violation of Sections 5 and 11 of RA 9165, stating the following:

Criminal Case No. 10250

That on or about the evening of October 1, 1003 at Purok 4, Barangay 3, Agao, Butuan City, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, without authority of law, did then and there willfully, unlawfully, and feloniously sell zero point zero four one two (0.0412) grams of methamphetamine hydrochloride, otherwise known as shabu which is a dangerous drug.

CONTRARY TO LAW : (Violation of Sec. 5, Art. II of R.A. No. 9165).151[3]

Criminal Case No. 10251 That on or about the evening of October 1, 2003 at Purok 4, Barangay 3, Agao, Butuan City, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, without authority of law, did then and there willfully, unlawfully and feloniously possess zero point six one three one (0.6131) grams of methamphetamine hydrochloride, otherwise known as shabu, which is a dangerous drug.

CONTRARY TO LAW: (Violation of Section 11, Art. II of R.A. No. 9165).152[4]

Eventually, the cases were consolidated and tried jointly. Appellant pleaded NOT GUILTY to the charges against him. Thereafter, trial on the merits ensued.

In its Omnibus Judgment153[5] dated September 14, 2005, the RTC found the appellant guilty beyond reasonable doubt of the offense charged, the dispositive portion of which, reads:

WHEREFORE, the Court hereby finds accused Allen Mantalaba y Udtojan GUILTY beyond reasonable doubt in Criminal Case No. 10250 for selling shabu, a dangerous drug, as defined and penalized under Section 5, Article II of Republic Act No. 9165. As provided for in Sec. 98 of R.A. 9165, where the offender is a minor, the penalty for acts punishable by life imprisonment to death shall be reclusion perpetua to death. As such, Allen Mantalaba y Udtojan is hereby sentenced to RECLUSION PERPETUA and to pay a fine of Five Hundred Thousand Pesos (P500,000.00).

In Criminal Case No. 10251, the Court likewise finds accused Allen Mantalaba y Udtojan GUILTY beyond reasonable doubt for illegally possessing shabu, a dangerous drug, weighing 0.6131 gram as defined and penalized under Section 11, Article II of Republic Act No. 9165 and accused being a minor at the time of the commission of the offense, after applying the Indeterminate Sentence Law, he is accordingly sentenced to six (6) years and one (1) day, as minimum, to eight (8) years, as maximum of prision mayor and to pay a fine of Three Hundred Thousand Pesos (P300,000.00).

SO ORDERED.154[6]

The CA affirmed in toto the decision of the RTC. It disposed of the case as follows:

WHEREFORE, the Decision of the Regional Trial Court, Branch 1, Butuan City dated September 14, 2005 appealed from finding the accused-appellant Allen Udtojan Mantalaba guilty beyond reasonable doubt with the crime of Violation of Section 5 and Section 11, Article II of Republic Act 9165, otherwise known as the Comprehensive Dangerous Drugs Act, is AFFIRMED in toto, with costs against accused-appellant.

SO ORDERED.155[7]

Thus, the present appeal.

Appellant states the lone argument that the lower court gravely erred in convicting him of the crime charged despite failure of the prosecution to prove his guilt beyond reasonable doubt.

According to appellant, there was no evidence of actual sale between him and the poseur-buyer. He also argues that the chain of custody of the seized shabu was not established. Finally, he asserts that an accused should be presumed innocent and that the burden of proof is on the prosecution.

The petition is unmeritorious.

Appellant insists that the prosecution did not present any evidence that an actual sale took place. However, based on the testimony of PO1 Randy Pajo, there is no doubt that the buy-bust operation was successfully conducted, thus:
PROS. RUIZ: Q: Will you explain to this Honorable Court why did you conduct and how did you conduct your buy-bust operation at the time? A: We conducted a buy-bust operation because of the report from our civilian assets that Allen Mantalaba was engaged in drug trade and selling shabu. And after we evaluated this Information we informed Inspector Dacillo that we will operate this accused for possible apprehension.

Q: Before you conducted your buy-bust operation, what procedure did you take? A: We prepared the operational plan for buy-bust against the suspect. We prepared a request for powder dusting for our marked moneys to be used for the operation.

Q: Did you use marked moneys in this case?

xxxx

Q: Then armed with these marked moneys, what steps did you take next? A: After briefing of our team, we proceeded immediately to the area.

Q: You mentioned of poseur-buyer, what would the poseur-buyer do? A: We made an arrangement with the poseur-buyer that during the buying of shabu there should be a pre-arranged signal of the poseur-buyer to the police officer.

Q: What happened when your poseur-buyer who, armed with this marked moneys, approached the guy who was selling shabu at that time? A: The poseur-buyer during that time gave the marked moneys to the suspect.

Q: Where were you when this poseur-buyer gave the moneys to the suspect? A: We positioned ourselves about 10 meters away from the area of the poseur-buyer and the suspect.

Q: You mentioned of the pre-arranged signal, what would this be? A: This is a case-to-case basis, your Honor, in the pre-arrangement signal because in the pre-arranged signal we used a cap and a towel. (sic) In the case, of this suspect, there was no towel there was no cap at the time of giving the shabu and the marked moneys to the suspect and considering also that that was about 7:00 o'clock in the evening. The poseur-buyer immediately proceeded to us and informed us that the shabu was already given by the suspect.

Q: What did you do next after that? A: After examining the sachet of shabu that it was really the plastic containing white [crystalline] substance, we immediately approached the suspect.

Q: Who was with a (sic) suspect when you conducted the buy-bust operation[?] Was he alone or did he had (sic) any companion at that time? A: He was alone.

Q: When you rushed up to the suspect what did you do? A: We informed the suspect that we are the police officers and he has this constitutional rights and we immediately handcuffed him.

Q: Where were the marked moneys? A: The marked moneys were thrown on the ground. After we handcuffed the suspect, we did not immediately searched in. We called the attention of the barangay officials to witness the search of the suspect.

Q: How many sachets of shabu have you taken from the suspect during the buy-bust operation? A: We took from the possession of the suspect one big sachet of shabu.

xxxx

Q: What was the result of the searched (sic) for him? A: We confiscated one big sachet of suspected shabu and the retrieval of 2 pieces of 100 peso bills as marked moneys.156[8]

What determines if there was, indeed, a sale of dangerous drugs in a buybust operation is proof of the concurrence of all the elements of the offense, to wit: (1) the identity of the buyer and the seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment therefor.157[9] From the above testimony of the prosecution witness, it was well established that the

elements have been satisfactorily met. The seller and the poseur-buyer were properly identified. The subject dangerous drug, as well as the marked money used, were also satisfactorily presented. The testimony was also clear as to the manner in which the buy-bust operation was conducted.

To corroborate the testimony of PO2 Pajo, the prosecution presented the testimony of Police Inspector Virginia Sison-Gucor, a forensic chemical officer, who confirmed that the plastic containing white crystalline substance was positive for methamphetamine hydrochloride and that the petitioner was in possession of the marked money used in the buy-bust operation, thus:

PROS. RUIZ: Q: What was the result of your examination or what were your findings on the sachets of suspected shabu? A: After the preliminary and confirmatory tests were conducted on the stated specimen, the result was positive for methamphetamine hydrochloride, a dangerous drug.

xxxx

Q: What were your findings when you examined the living person of the accused, as well as the marked money mentioned in this report? A: According to my report, the findings for the living person of Allen Udtojan Mantalaba is positive to the test for the presence of bright orange ultra-violet flourescent powder. x x x158[10]

The above only confirms that the buy-bust operation really occurred. Once again, this Court stresses that a buy-bust operation is a legally effective and proven procedure, sanctioned by law, for apprehending drug peddlers and distributors.159[11] It is often utilized by law enforcers for the purpose of trapping and capturing lawbreakers in the execution of their nefarious activities.160[12] In People v. Roa,161[13] this Court had the opportunity to expound on the nature and importance of a buy-bust operation, ruling that:

In the first place, coordination with the PDEA is not an indispensable requirement before police authorities may carry out a buy-bust operation. While it is true that Section 86162[14] of Republic Act No. 9165 requires the National Bureau of Investigation, PNP and the Bureau of Customs to maintain "close coordination with the PDEA on all drug-related matters," the provision does not, by so saying, make PDEA's participation a condition sine qua non for every buy-bust operation. After all, a buy-bust is just a form of an in flagrante arrest sanctioned by Section 5, Rule 113163[15] of the

Rules of the Court, which police authorities may rightfully resort to in apprehending violators of Republic Act No. 9165 in support of the PDEA.164[16] A buy-bust operation is not invalidated by mere non-coordination with the PDEA. Neither is the lack of prior surveillance fatal. The case of People v. Lacbanes165[17] is quite instructive:

In People v. Ganguso,166[18] it has been held that prior surveillance is not a prerequisite for the validity of an entrapment operation, especially when the buy-bust team members were accompanied to the scene by their informant. In the instant case, the arresting officers were led to the scene by the poseur-buyer. Granting that there was no surveillance conducted before the buy-bust operation, this Court held in People v. Tranca,167[19] that there is no rigid or textbook method of conducting buy-bust operations. Flexibility is a trait of good police work. The police officers may decide that time is of the essence and dispense with the need for prior surveillance.168[20]

The rule is that the findings of the trial court on the credibility of witnesses are entitled to great respect because trial courts have the advantage of observing the demeanor of the witnesses as they testify. This is more true if such findings were affirmed by the appellate court. When the trial court's findings have been affirmed by the appellate court, said findings are generally binding upon this Court.169[21]

In connection therewith, the RTC, as affirmed by the CA, was also correct in finding that the appellant is equally guilty of violation of Section 11 of RA 9165, or the illegal possession of dangerous drug. As an incident to the lawful arrest of the appellant after the consummation of the buy-bust operation, the arresting officers had the authority to search the person of the appellant. In the said search, the appellant was caught in possession of 0.6131 grams of shabu. In illegal possession of dangerous drugs, the elements are: (1) the accused is in possession of an item or object which is identified to be a prohibited drug; (2) such possession is not authorized by law; and (3) the accused freely and consciously possessed the said drug.170[22]

As a defense, appellant denied that he owns the shabu and the marked money confiscated from him. However, based on his cross-examination, such denial was not convincing enough to merit reasonable doubt, thus:

PROS. RUIZ: Q: So it is true now that when these police officers passed you by they recovered from your possession one sachet of shabu? A: Yes, sir.

Q: And it is true that after you were arrested and when you were searched they also found another sachet of shabu also in your pocket? A: Yes, sir.

Q: And you mentioned in your counter-affidavit marked as Exhibit H for the prosecution that no money was taken from you because you have none at that time, is it not? A: None sir, only the P250.00 which Jonald Ybanoso left to me.

Q: This P250.00 which Jonald left to you was also confiscated from your possession? A: Yes, sir.

Q: Were not P200 of the P250.00 was thrown to the ground during the time you were arrested by the police? A: No, sir.

Q: It was taken from your possession? A: Yes, sir.

Q: And when the policemen brought you to the crime laboratory and had your hands tested for ultra-violet fluorescent powder, your hands tested positively for the presence of the said powder? A: Yes, sir.171[23]

Incidentally, the defenses of denial and frame-up have been invariably viewed by this Court with disfavor for it can easily be concocted and is a common and standard defense ploy in prosecutions for violation of the Dangerous Drugs Act. In order to prosper, the defenses of denial and frame-up must be proved with strong and convincing evidence.172[24]

Another contention raised by the appellant is the failure of the prosecution to show the chain of custody of the recovered dangerous drug. According to him, while it was Inspector Ferdinand B. Dacillo who signed the request for laboratory examination, only police officers Pajo and Simon were present in the buy-bust operation.

Section 21 of RA 9165 reads:

SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:

(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof.

Non-compliance by the apprehending/buy-bust team with Section 21 is not fatal as long as there is justifiable ground therefor, and as long as the integrity and the evidentiary value of the confiscated/seized items are properly preserved by the apprehending officer/team.173[25] Its non-compliance will not render an accuseds arrest illegal or the items seized/confiscated from him

inadmissible.174[26] What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused.175[27] In this particular case, it is undisputed that police officers Pajo and Simon were members of the buy-bust operation team. The fact that it was Inspector Ferdinand B. Dacillo who signed the letter-request for laboratory examination does not in any way affect the integrity of the items confiscated. All the requirements for the proper chain of custody had been observed. As testified to by PO2 Pajo regarding the procedure undertaken after the consummation of the buy-bust operation:

Prosecutor Q: What did you do next after that? A: After examining the sachet of shabu that it was really the plastic containing white [crystalline] in substance, we immediately approached the suspect.

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Q: When you rushed up to the suspect, what did you do? A: We informed the suspect that we are the police officers and he has this [constitutional] rights and immediately handcuffed him.

Q: Where were the marked moneys? A: The marked moneys were thrown on the ground. After we handcuffed the suspect, we did not immediately searched in. We called the attention of the barangay officials to witness the search of the suspect.

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Q: Now, before you searched the suspect you requested the presence of the barangay officials. Now, when these barangay officials were present, what did you do on the suspect? A: We immediately searched the suspect.

Q: What was the result of the searched for him? (sic) A: We confiscated one big sachet of suspected shabu and the retrieval of 2 pieces of P100.00 peso bills as marked moneys.

Q: You said the suspect threw the marked moneys when you searched him, where were the marked moneys? A: On the ground.

Q: Who picked these marked moneys? A: I was the one who picked the marked moneys.

Q: And then after you had picked the marked moneys and after you had the 2 pieces of sachets of shabu; one during the buy-bust and the other one during the search, what did you do [with] these 2 pieces of sachets of shabu and the marked moneys?

A: I recorded those items recovered, sir, during the search to the Certificate of Inventory.176[28]

As ruled by this Court, what is crucial in the chain of custody is the marking of the confiscated item which, in the present case, was complied with, thus:

Crucial in proving chain of custody is the marking177[29] of the seized drugs or other related items immediately after they are seized from the accused. Marking after seizure is the starting point in the custodial link, thus, it is vital that the seized contraband are immediately marked because succeeding handlers of the specimens will use the markings as reference. The marking of the evidence serves to separate the marked evidence from the corpus of all other similar or related evidence from the time they are seized from the accused until they are disposed of at the end of criminal proceedings, obviating switching, "planting," or contamination of evidence.178[30]

Anent the age of the appellant when he was arrested, this Court finds it appropriate to discuss the effect of his minority in his suspension of sentence. The appellant was seventeen (17) years old when the buy-bust operation took place or when the said offense was committed, but was no longer a minor at the time of the promulgation of the RTC's Decision.

It must be noted that RA 9344 took effect on May 20, 2006, while the RTC promulgated its decision on this case on September 14, 2005, when said appellant was no longer a minor. The RTC did not suspend the sentence in accordance with Article 192 of P.D. 603, The Child and Youth Welfare Code179[31] and Section 32 of A.M. No. 02-1-18-SC, the Rule on Juveniles in Conflict with the Law,180[32] the laws that were applicable at the time of the promulgation of judgment, because the imposable penalty for violation of Section 5 of RA 9165 is life imprisonment to death.

It may be argued that the appellant should have been entitled to a suspension of his sentence under Sections 38 and 68 of RA 9344 which provide for its retroactive application, thus:

SEC. 38. Automatic Suspension of Sentence. - Once the child who is under eighteen (18) years of age at the time of the commission of the offense is found guilty of the offense charged, the court shall determine and ascertain any civil liability which may have resulted from the offense committed. However, instead of pronouncing the judgment of conviction, the court shall place the child in conflict with the law under suspended sentence, without need of application: Provided, however, That suspension

of sentence shall still be applied even if the juvenile is already eighteen years (18) of age or more at the time of the pronouncement of his/her guilt.

Upon suspension of sentence and after considering the various circumstances of the child, the court shall impose the appropriate disposition measures as provided in the Supreme Court [Rule] on Juveniles in Conflict with the Law. xxxx

Sec. 68. Children Who Have Been Convicted and are Serving Sentence. Persons who have been convicted and are serving sentence at the time of the effectivity of this Act, and who were below the age of eighteen (18) years at the time of the commission of the offense for which they were convicted and are serving sentence, shall likewise benefit from the retroactive application of this Act. x x x

However, this Court has already ruled in People v. Sarcia181[33] that while Section 38 of RA 9344 provides that suspension of sentence can still be applied even if the child in conflict with the law is already eighteen (18) years of age or more at the time of the pronouncement of his/her guilt, Section 40 of the same law limits the said suspension of sentence until the child reaches the maximum age of 21. The provision states:

SEC. 40. Return of the Child in Conflict with the Law to Court. - If the court finds that the objective of the disposition measures imposed upon the child in conflict with the law have not been fulfilled, or if the child in conflict with the law has willfully failed to comply with the condition of his/her disposition or rehabilitation program, the child in conflict with the law shall be brought before the court for execution of judgment.

If said child in conflict with the law has reached eighteen (18) years of age while under suspended sentence, the court shall determine whether to discharge the child in accordance with this Act, to order execution of sentence, or to extend the suspended sentence for a certain specified period or until the child reaches the maximum age of twenty-one (21) years.

Hence, the appellant, who is now beyond the age of twenty-one (21) years can no longer avail of the provisions of Sections 38 and 40 of RA 9344 as to his suspension of sentence, because such is already moot and academic. It is highly noted that this would not have happened if the CA, when this case was under its jurisdiction, suspended the sentence of the appellant. The records show that the appellant filed his notice of appeal at the age of 19 (2005), hence, when RA 9344 became effective in 2006, appellant was 20 years old, and the case having been elevated to the CA, the latter should have suspended the sentence of the appellant because he was already entitled to the provisions of Section 38 of the same law, which now allows the suspension of sentence of minors regardless of the penalty imposed as opposed to the provisions of Article 192 of P.D. 603.182[34]

Nevertheless, the appellant shall be entitled to appropriate disposition under Section 51 of RA No. 9344, which provides for the confinement of convicted children as follows:183[35]
SEC. 51. Confinement of Convicted Children in Agricultural Camps and other Training Facilities. - A child in conflict with the law may, after conviction and upon order of the court, be made to serve his/her sentence, in lieu of

confinement in a regular penal institution, in an agricultural camp and other training facilities that may be established, maintained, supervised and controlled by the BUCOR, in coordination with the DSWD.

In finding the guilt beyond reasonable doubt of the appellant for violation of Section 5 of RA 9165, the RTC imposed the penalty of reclusion perpetua as mandated in Section 98184[36] of the same law. A violation of Section 5 of RA 9165 merits the penalty of life imprisonment to death; however, in Section 98, it is provided that, where the offender is a minor, the penalty for acts punishable by life imprisonment to death provided in the same law shall be reclusion perpetua to death. Basically, this means that the penalty can now be graduated as it has adopted the technical nomenclature of penalties provided for in the Revised Penal Code. The said principle was enunciated by this Court in People v. Simon,185[37] thus:
We are not unaware of cases in the past wherein it was held that, in imposing the penalty for offenses under special laws, the rules on mitigating or aggravating circumstances under the Revised Penal Code cannot and should not be applied. A review of such doctrines as applied in said cases, however, reveals that the reason therefor was because the special laws involved provided their own specific penalties for the offenses punished thereunder, and which penalties were not taken from or with reference to those in the Revised Penal Code. Since the penalties then provided by the special laws concerned did not provide for the minimum, medium or maximum periods, it would consequently be impossible to consider the aforestated modifying circumstances whose main function is to determine the period of the penalty in accordance with the rules in Article 64 of the Code.

This is also the rationale for the holding in previous cases that the provisions of the Code on the graduation of penalties by degrees could not be given supplementary application to special laws, since the penalties in the latter were not components of or contemplated in the scale of penalties provided by Article 71 of the former. The suppletory effect of the Revised Penal Code to special laws, as provided in Article 10 of the former, cannot be invoked where there is a legal or physical impossibility of, or a prohibition in the special law against, such supplementary application.

The situation, however, is different where although the offense is defined in and ostensibly punished under a special law, the penalty therefor is actually taken from the Revised Penal Code in its technical nomenclature and, necessarily, with its duration, correlation and legal effects under the system of penalties native to said Code. When, as in this case, the law involved speaks of prision correccional, in its technical sense under the Code, it would consequently be both illogical and absurd to posit otherwise.

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Prefatorily, what ordinarily are involved in the graduation and consequently determine the degree of the penalty, in accordance with the rules in Article 61 of the Code as applied to the scale of penalties in Article 71, are the stage of execution of the crime and the nature of the participation of the accused. However, under paragraph 5 of Article 64, when there are two or more ordinary mitigating circumstances and no aggravating circumstance, the penalty shall be reduced by one degree. Also, the presence of privileged mitigating circumstances, as provided in Articles 67 and 68, can reduce the penalty by one or two degrees, or even more. These provisions of Articles 64(5), 67 and 68 should not apply in toto in the determination of the proper penalty under the aforestated second paragraph of section 20 of Republic Act No. 6425, to avoid anomalous results which could not have been contemplated by the legislature.

Thus, paragraph 5 of Article 61 provides that when the law prescribes a penalty in some manner not specially provided for in the four preceding paragraphs thereof, the courts shall proceed by analogy therewith. Hence, when the penalty prescribed for the crime consists of one or two penalties to be imposed in their full extent, the penalty next lower in degree shall likewise consist of as many penalties which follow the former in the scale in Article 71. If this rule were to be applied, and since the complex penalty in this case consists of three discrete penalties in their full extent, that is, prision correccional, prision mayor and reclusion temporal, then one degree lower would be

arresto menor, destierro and arresto mayor. There could, however, be no further reduction by still one or two degrees, which must each likewise consist of three penalties, since only the penalties of fine and public censure remain in the scale.

The Court rules, therefore, that while modifying circumstances may be appreciated to determine the periods of the corresponding penalties, or even reduce the penalty by degrees, in no case should such graduation of penalties reduce the imposable penalty beyond or lower than prision correccional. It is for this reason that the three component penalties in the second paragraph of Section 20 shall each be considered as an independent principal penalty, and that the lowest penalty should in any event be prision correccional in order not to depreciate the seriousness of drug offenses. Interpretatio fienda est ut res magis valeat quam pereat. Such interpretation is to be adopted so that the law may continue to have efficacy rather than fail. A perfect judicial solution cannot be forged from an imperfect law, which impasse should now be the concern of and is accordingly addressed to Congress.186[38]

Consequently, the privileged mitigating circumstance of minority187[39] can now be appreciated in fixing the penalty that should be imposed. The RTC, as affirmed by the CA, imposed the penalty of reclusion perpetua without considering the minority of the appellant. Thus, applying the rules stated above, the proper penalty should be one degree lower than reclusion perpetua, which is reclusion temporal, the privileged mitigating circumstance of minority having been appreciated. Necessarily, also applying the Indeterminate Sentence Law (ISLAW), the minimum penalty should be taken from the penalty next lower in degree which is prision mayor and the maximum penalty shall be taken from the medium period of reclusion temporal, there being no other mitigating

circumstance nor aggravating circumstance.188[40] The ISLAW is applicable in the present case because the penalty which has been originally an indivisible penalty (reclusion perpetua to death), where ISLAW is inapplicable, became a divisible penalty (reclusion temporal) by virtue of the presence of the privileged mitigating circumstance of minority. Therefore, a penalty of six (6) years and one (1) day of prision mayor, as minimum, and fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum, would be the proper imposable penalty.

WHEREFORE, the Decision dated July 31, 2008 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 00240-MIN, affirming the Omnibus Judgment dated September 14, 2005 of the Regional Trial Court, Branch 1, Butuan City in Criminal Case No. 10250 and Criminal Case No. 10251, finding appellant Allen Udtojan Mantalaba, guilty beyond reasonable doubt of violation of Sections 5 and 11, Article II of RA 9165 is hereby AFFIRMED with the MODIFICATION that the penalty that should be imposed on appellant's conviction of violation of Section 5 of RA 9165, is six (6) years and one (1) day of prision mayor, as minimum, and fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum. SO ORDERED.