Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 203302

April 11, 2013

MAYOR EMMANUEL L. MALIKSI, Petitioner,

vs.
COMMISSION ON ELECTIONS AND HOMER T. SAQUILAVAN, Respondents.
RESOLUTION
BERSAMIN, J.:
The Court hereby resolves the Extremely Urgent Motion for Reconsideration tiled by
petitioner Emmanuel L. Maliksi against the Court's decision promulgated on March 12,
2013, dismissing his petition for certiorari assailing the resolution dated September 14,
2012 of the Commission on Elections (COMELEC) En Bane that sustained the
declaration of respondent Homer T. Saquilayan as the duly elected Mayor of Imus,
Cavite.
For clarity, we briefly restate the factual antecedents.
During the 2010 Elections, the Municipal Board of Canvassers proclaimed Saquilayan
the winner for the position of Mayor of Imus, Cavite. Maliksi, the candidate who
garnered the second highest number of votes, brought an election protest in the
Regional Trial Court (RTC) in Imus, Cavite alleging that there were irregularities in the
counting of votes in 209 clustered precincts. Subsequently, the RTC held a revision of
the votes, and, based on the results of the revision, declared Maliksi as the duly elected
Mayor of Imus commanding Saquilayan to cease and desist from performing the
functions of said office. Saquilayan appealed to the COMELEC. In the meanwhile, the
RTC granted Maliksis motion for execution pending appeal, and Maliksi was then
installed as Mayor.
In resolving the appeal, the COMELEC First Division, without giving notice to the
parties, decided to recount the ballots through the use of the printouts of the ballot
images from the CF cards. Thus, it issued an order dated March 28, 2012 requiring
Saquilayan to deposit the amount necessary to defray the expenses for the decryption
and printing of the ballot images. Later, it issued another order dated April 17, 2012 for
Saquilayan to augment his cash deposit.
On August 15, 2012, the First Division issued a resolution nullifying the RTCs decision
and declaring Saquilayan as the duly elected Mayor.1

Maliksi filed a motion for reconsideration, alleging that he had been denied his right to
due process because he had not been notified of the decryption proceedings. He
argued that the resort to the printouts of the ballot images, which were secondary
evidence, had been unwarranted because there was no proof that the integrity of the
paper ballots had not been preserved.
On September 14, 2012, the COMELEC En Banc resolved to deny Maliksis motion for
reconsideration.2
Maliksi then came to the Court via petition for certiorari, reiterating his objections to the
decryption, printing, and examination of the ballot images without prior notice to him,
and to the use of the printouts of the ballot images in the recount proceedings
conducted by the First Division.
1w phi 1

In the decision promulgated on March 12, 2013, the Court, by a vote of 8-7, dismissed
Maliksis petition for certiorari. The Court concluded that Maliksi had not been denied
due process because: (a) he had received notices of the decryption, printing, and
examination of the ballot images by the First Division referring to the orders of the
First Division directing Saquilayan to post and augment the cash deposits for the
decryption and printing of the ballot images; and (b) he had been able to raise his
objections to the decryption in his motion for reconsideration. The Court then
pronounced that the First Division did not abuse its discretion in deciding to use the
ballot images instead of the paper ballots, explaining that the printouts of the ballot
images were not secondary images, but considered original documents with the same
evidentiary value as the official ballots under the Rule on Electronic Evidence; and that
the First Divisions finding that the ballots and the ballot boxes had been tampered had
been fully established by the large number of cases of double-shading discovered
during the revision.
In his Extremely Urgent Motion for Reconsideration, Maliksi raises the following
arguments, to wit:
I.
WITH ALL DUE RESPECT, THIS HONORABLE SUPREME COURT EN BANC
GRAVELY ERRED IN DISMISSING THE INSTANT PETITION DESPITE A CLEAR
VIOLATION OF PETITIONERS CONSTITUTIONAL RIGHT TO DUE PROCESS OF
LAW CONSIDERING THAT DECRYPTION, PRINTING AND EXAMINATION OF THE
DIGITAL IMAGES OF THE BALLOTS, WHICH IS THE BASIS FOR THE ASSAILED 14
SEPTEMBER 2012 RESOLUTION OF THE PUBLIC RESPONDENT, WHICH IN TURN
AFFIRMED THE 15 AUGUST 2012 RESOLUTION OF THE COMELEC FIRST
DIVISION, WERE DONE INCONSPICUOUSLY UPON A MOTU PROPRIO DIRECTIVE
OF THE COMELEC FIRST DIVISION SANS ANY NOTICE TO THE PETITIONER,
AND FOR THE FIRST TIME ON APPEAL.
II.

WITH ALL DUE RESPECT, THIS HONORABLE SUPREME COURT EN BANC

GRAVELY ERRED IN UPHOLDING THE COMELEC FIRST DIVISIONS RULING TO
DISPENSE WITH THE PHYSICAL BALLOTS AND RESORT TO THEIR DIGITAL
IMAGES NOTWITHSTANDING THE FACT THAT THE BALLOTS ARE THE BEST
AND MOST CONCLUSIVE EVIDENCE OF THE VOTERS WILL, AND THAT BALLOT
IMAGES CAN BE RESORTED TO ONLY IF THE OFFICIAL BALLOTS ARE LOST OR
THEIR INTEGRITY WAS COMPROMISED AS DETERMINED BY THE
RECOUNT/REVISION COMMITTEE, CIRCUMSTANCES WHICH ARE WANTING IN
THIS CASE, AND IN FACT THE INTEGRITY OF THE BALLOT BOXES AND ITS
CONTENTS WAS PRESERVED AND THE ISSUE OF TAMPERING WAS ONLY
BELATEDLY RAISED BY THE PRIVATE RESPONDENT AFTER THE REVISION
RESULTS SHOWED THAT HE LOST.
III.
WITH ALL DUE RESPECT, IT IS THE HUMBLE SUBMISSION OF THE PETITIONERMOVANT THAT THE 12 MARCH 2013 RESOLUTION ISSUED BY THE HONORABLE
SUPREME COURT EN BANC IS NULL AND VOID AB INITIO AND THEREFORE OF
NO FORCE AND EFFECT, FOR HAVING BEEN PROMULGATED DESPITE THE
ABSENCE OF HONORABLE SUPREME COURT JUSTICE JOSE PORTUGAL PEREZ
AT THE TIME OF THE DELIBERATION AND VOTING ON THE 12 MARCH 2013
RESOLUTION IN THE INSTANT CASE.3
Maliksi insists: (a) that he had the right to be notified of every incident of the
proceedings and to be present at every stage thereof; (b) that he was deprived of such
rights when he was not informed of the decryption, printing, and examination of the
ballot images by the First Division; (c) that the March 28, 2012 and April 17, 2012 orders
of the First Division did not sufficiently give him notice inasmuch as the orders did not
state the date, time, and venue of the decryption and printing of the ballot images; and
(d) that he was thus completely deprived of the opportunity to participate in the
decryption proceedings.
Maliksi contends that the First Divisions motu proprio directive for the decryption,
printing, and examination of the ballot images was highly irregular. In this regard, he
asserts: (a) that the decryption, printing, and examination should have taken place
during the revision before the trial court and after the revision committee had
determined that the integrity of the official ballots had not been preserved; (b) that the
trial court did not make such determination; (c) that, in fact, Saquilayan did not allege or
present any proof in the RTC to show that the ballots or the ballot boxes had been
tampered, and had, in fact, actively participated in the revision proceedings; (d) that the
First Division should not have entertained the allegation of ballot tampering belatedly
raised on appeal; (e) that the First Division should have limited itself to reviewing the
evidence on record; and (f) that the First Division did not even explain how it had arrived
at the conclusion that the integrity of the ballots had not been preserved.

Maliksi submits that the decision promulgated on March 12, 2013 is null and void for
having been promulgated despite the absence from the deliberations and lack of
signature of Justice Jose Portugal Perez.
Ruling
The Court grants Maliksis Extremely Urgent Motion for Reconsideration, and reverses
the decision promulgated on March 12, 2013 on the ground that the First Division of the
COMELEC denied to him the right to due process by failing to give due notice on the
decryption and printing of the ballot images. Consequently, the Court annuls the recount
proceedings conducted by the First Division with the use of the printouts of the ballot
images.
It bears stressing at the outset that the First Division should not have conducted the
assailed recount proceedings because it was then exercising appellate jurisdiction as to
which no existing rule of procedure allowed it to conduct a recount in the first instance.
The recount proceedings authorized under Section 6, Rule 15 of COMELEC Resolution
No. 8804, as amended, are to be conducted by the COMELEC Divisions only in the
exercise of their exclusive original jurisdiction over all election protests involving elective
regional (the autonomous regions), provincial and city officials.4
As we see it, the First Division arbitrarily arrogated unto itself the conduct of the recount
proceedings, contrary to the regular procedure of remanding the protest to the RTC and
directing the reconstitution of the Revision Committee for the decryption and printing of
the picture images and the revision of the ballots on the basis thereof. Quite
unexpectedly, the COMELEC En Banc upheld the First Divisions unwarranted deviation
from the standard procedures by invoking the COMELECs power to "take such
measures as the Presiding Commissioner may deem proper," and even citing the
Courts minute resolution in Alliance of Barangay Concerns (ABC) Party-List v.
Commission on Elections5 to the effect that the "COMELEC has the power to adopt
procedures that will ensure the speedy resolution of its cases. The Court will not
interfere with its exercise of this prerogative so long as the parties are amply heard on
their opposing claims."
Based on the pronouncement in Alliance of Barangay Concerns (ABC) v. Commission
on Elections, the power of the COMELEC to adopt procedures that will ensure the
speedy resolution of its cases should still be exercised only after giving to all the parties
the opportunity to be heard on their opposing claims. The parties right to be heard upon
adversarial issues and matters is never to be waived or sacrificed, or to be treated so
lightly because of the possibility of the substantial prejudice to be thereby caused to the
parties, or to any of them. Thus, the COMELEC En Banc should not have upheld the
First Divisions deviation from the regular procedure in the guise of speedily resolving
the election protest, in view of its failure to provide the parties with notice of its
proceedings and an opportunity to be heard, the most basic requirements of due
process.

I.
Due process requirements
The picture images of the ballots are electronic documents that are regarded as the
equivalents of the original official ballots themselves.6 In Vinzons-Chato v. House of
Representatives Electoral Tribunal,7 the Court held that "the picture images of the
ballots, as scanned and recorded by the PCOS, are likewise official ballots that
faithfully capture in electronic form the votes cast by the voter, as defined by Section
2(3) of R.A. No. 9369. As such, the printouts thereof are the functional equivalent of the
paper ballots filled out by the voters and, thus, may be used for purposes of revision of
votes in an electoral protest."
That the two documentsthe official ballot and its picture imageare considered
"original documents" simply means that both of them are given equal probative weight.
In short, when either is presented as evidence, one is not considered as weightier than
the other.
But this juridical reality does not authorize the courts, the COMELEC, and the
Electoral Tribunals to quickly and unilaterally resort to the printouts of the picture
images of the ballots in the proceedings had before them without notice to the
parties. Despite the equal probative weight accorded to the official ballots and the
printouts of their picture images, the rules for the revision of ballots adopted for
their respective proceedings still consider the official ballots to be the primary or
best evidence of the voters will. In that regard, the picture images of the ballots
are to be used only when it is first shown that the official ballots are lost or their
integrity has been compromised.
For instance, the aforesaid Section 6, Rule 15 of COMELEC Resolution No. 8804 (In
Re: Comelec Rules of Procedure on Disputes In An Automated Election System in
Connection with the May 10, 2010 Elections), as amended by COMELEC Resolution
No. 9164, itself requires that "the Recount Committee determines that the integrity of
the ballots has been violated or has not been preserved, or are wet and otherwise in
such a condition that (the ballots) cannot be recounted" before the printing of the image
of the ballots should be made, to wit:
xxxx
(g) Only when the Recount Committee, through its chairman, determines that the
integrity of the ballots has been preserved or that no signs of tampering of the ballots
are present, will the recount proceed. In case there are signs that the ballots contained
therein are tampered, compromised, wet or are otherwise in such a condition that it
could not be recounted, the Recount Committee shall follow paragraph (l) of this rule.
xxxx

(l) In the event the Recount Committee determines that the integrity of the ballots has
been violated or has not been preserved, or are wet and otherwise in such a condition
that it cannot be recounted, the Chairman of the Committee shall request from the
Election Records and Statistics Department (ERSD), the printing of the image of the
ballots of the subject precinct stored in the CF card used in the May 10, 2010 elections
in the presence of the parties. Printing of the ballot images shall proceed only upon prior
authentication and certification by a duly authorized personnel of the Election Records
and Statistics Department (ERSD) that the data or the images to be printed are genuine
and not substitutes. (Emphases supplied.)
xxxx
Section 6, Rule 10 (Conduct of Revision) of the 2010 Rules of Procedure for Municipal
Election Contests, which governs the proceedings in the Regional Trial Courts
exercising original jurisdiction over election protests, provides:
xxxx
(m) In the event that the revision committee determines that the integrity of the ballots
and the ballot box have not been preserved, as when proof of tampering or substitution
exists, it shall proceed to instruct the printing of the picture image of the ballots stored in
the data storage device for the precinct. The court shall provide a non-partisan technical
person who shall conduct the necessary authentication process to ensure that the data
or image stored is genuine and not a substitute. Only after this determination can the
printed picture image be used for the recount. (Emphases supplied.)
xxxx
A similar procedure is found in the 2010 Rules of the Presidential Electoral Tribunal, to
wit:
Rule 43. Conduct of the revision. The revision of votes shall be done through the use
of appropriate PCOS machines or manually and visually, as the Tribunal may
determine, and according to the following procedures:
xxxx
(q) In the event that the RC determines that the integrity of the ballots and the ballot box
was not preserved, as when there is proof of tampering or substitution, it shall proceed
to instruct the printing of the picture image of the ballots of the subject precinct stored in
the data storage device for the same precinct. The Tribunal may avail itself of the
assistance of the COMELEC for the service of a non-partisan technical person who
shall conduct the necessary authentication process to ensure that the data or images
stored are genuine and not merely substitutes. It is only upon such determination that
the printed picture image can be used for the revision of votes. (Emphases supplied.)

xxxx
Also, the House of Representative Electoral Tribunals Guidelines on the Revision of
Ballots requires a preliminary hearing to be held for the purpose of determining whether
the integrity of the ballots and ballot boxes used in the May 10, 2010 elections was not
preserved, as when there is proof of tampering or substitutions, to wit:
Section 10. Revision of Ballots
xxxx
(d) When it has been shown, in a preliminary hearing set by the parties or by the
Tribunal, that the integrity of the ballots and ballot boxes used in the May 10, 2010
elections was not preserved, as when there is proof of tampering or substitutions, the
Tribunal shall direct the printing of the picture images of the ballots of the subject
precinct stored in the data storage device for the same precinct. The Tribunal shall
provide a non-partisan technical person who shall conduct the necessary authentication
process to ensure that the data or image stored is genuine and not a substitute. It is
only upon such determination that the printed picture image can be used for the
revision. (As amended per Resolution of February 10, 2011; Emphases supplied.)
xxxx
All the foregoing rules on revision of ballots stipulate that the printing of the picture
images of the ballots may be resorted to only after the proper Revision/Recount
Committee has first determined that the integrity of the ballots and the ballot boxes was
not preserved.
The foregoing rules further require that the decryption of the images stored in the CF
cards and the printing of the decrypted images take place during the revision or recount
proceedings. There is a good reason for thus fixing where and by whom the decryption
and the printing should be conducted. It is during the revision or recount conducted by
the Revision/Recount Committee when the parties are allowed to be represented, with
their representatives witnessing the proceedings and timely raising their objections in
the course of the proceedings. Moreover, whenever the Revision/Recount Committee
makes any determination that the ballots have been tampered and have become
unreliable, the parties are immediately made aware of such determination.
When, as in the present case, it was not the Revision/Recount Committee or the RTC
exercising original jurisdiction over the protest that made the finding that the ballots had
been tampered, but the First Division in the exercise of its appellate jurisdiction, the
parties should have been given a formal notice thereof.
Maliksi was not immediately made aware of that crucial finding because the First
Division did not even issue any written resolution stating its reasons for ordering the
printing of the picture images. The parties were formally notified that the First Division

had found that the ballots had been tampered only when they received the resolution of
August 15, 2012, whereby the First Division nullified the decision of the RTC and
declared Saquilayan as the duly elected Mayor. Even so, the resolution of the First
Division to that effect was unusually mute about the factual bases for the finding of
ballot box tampering, and did not also particularize how and why the First Division was
concluding that the integrity of the ballots had been compromised. All that the First
Division declared as justification was a simple generalization of the same being
apparent from the allegations of ballot and ballot box tampering and upon inspection of
the ballot boxes, viz:
xxxx
The Commission (First Division) took into consideration the allegations of ballot and
ballot box tampering and upon inspecting the ballot boxes, it is apparent that the
integrity of the ballots had been compromised so, to be able to best determine the true
will of the electorate, we decided to go over the digital image of the appealed
ballots.8 (Emphasis supplied)
xxxx
It was the COMELEC En Bancs assailed resolution of September 14, 2012 that later on
provided the explanation to justify the First Divisions resort to the picture images of the
ballots, by observing that the "unprecedented number of double-votes" exclusively
affecting the position of Mayor and the votes for Saquilayan had led to the belief that the
ballots had been tampered. However, that explanation by the COMELEC En Banc did
not cure the First Divisions lapse and did not erase the irregularity that had already
invalidated the First Divisions proceedings.
In his dissenting opinion, Justice Antonio T. Carpio advances the view that the
COMELECs finding of ballot tampering was a mere surplusage because there was
actually no need for such finding before the ballots digital counterparts could be used.
He cites Section 3, Rule 16 of COMELEC Resolution No. 8804, as amended by
Resolution No. 9164, which states:
Section 3. Printing of Ballot Images. - In case the parties deem it necessary, they may
file a motion to be approved by the Division of the Commission requesting for the
printing of ballot images in addition to those mentioned in the second paragraph of item
(e). Parties concerned shall provide the necessary materials in the printing of images
such as but not limited to copying papers, toners and printers. Parties may also secure,
upon prior approval by the Division of the Commission, a soft copy of the ballot images
contained in a secured/hashed disc on the condition that the ballot images be first
printed, at the expense of the requesting party, and that the printed copies be signed by
the parties respective revisors or representatives and by an ERSD IT-capable
representative and deposited with the Commission.

The Over-all chairman shall coordinate with the Director IV, Election Records and
Statistics Department (ERSD), for the printing of images. Said director shall in turn
designate a personnel who will be responsible in the printing of ballot images.
Justice Carpio posits that when a party files a motion for the printing of the ballots that
he or she deems necessary, there is actually no need for a finding of tampering of the
ballots or the ballot boxes before the COMELEC Division may grant the motion. He
states that a determination by the parties that the printing is necessary under Section 3
is a ground separate from Section 6(e), which in turn pertinently states that:
Section 6. Conduct of the Recount
xxxx
(e) Before the opening of the ballot box, the Recount Committee shall note its condition
as well as that of the locks or locking mechanism and record the condition in the recount
report. From its observation, the Recount Committee must also make a determination
as to whether the integrity of the ballot box has been preserved.
In the event that there are signs of tampering or if the ballot box appears to have been
compromised, the Recount Committee shall still proceed to open the ballot box and
make a physical inventory of the contents thereof. The committee shall, however, record
its general observation of the ballots and other documents found in the ballot box.
The application of Section 3 to this case is inappropriate, considering that the First
Division did not in any way suggest in its decision dated August 15, 2010 that it was
resolving Saquilayans motion to print the ballot images. Instead, the First Division made
therein a finding of tampering, thus:
The COMELEC (First Division) took into consideration the allegations of ballot and
ballot box tampering and upon inspecting the ballot boxes, it is apparent that the
integrity of the ballots had been compromised so, to be able to best determine the true
will of the electorate, we decided to go over the digital images of the appealed ballots.
Even the COMELEC En Banc did not indicate in its decision dated September 14, 2012
that the First Division merely resolved Saquilayans motion for the printing of the ballot
images; instead, it reinforced the First Divisions finding that there was tampering of the
ballots. The non-mention of Saquilayans motion was a clear indication of the
COMELECs intention to act motu proprio; and also revealed its interpretation of its very
own rules, that there must be justifiable reason, i.e. tampering, before the ballot images
could be resorted to.
The application of Section 3 would only highlight the First Divisions denial of Maliksis
right to due process. For, if the First Division was really only acting on a motion to allow
the printing of the ballot images, there was a greater reason for the First Division to

have given the parties notice of its ruling thereon. But, as herein noted, the First Division
did not issue such ruling.
To interpret Section 3 as granting to any one of the parties the right to move for the
printing of the ballot images should such party deem it necessary, and the COMELEC
may grant such motion, is contrary to its clear wording. Section 3 explicitly states: "in
case the parties deem it necessary, they may file a motion." The provision really
envisions a situation in which both parties have agreed that the ballot images should be
printed. Should only one of the parties move for the printing of the ballot images, it is not
Section 3 that applies but Section 6(e), which then requires a finding that the integrity of
the ballots has been compromised.
The disregard of Maliksis right to be informed of the decision to print the picture images
of the ballots and to conduct the recount proceedings during the appellate stage cannot
be brushed aside by the invocation of the fact that Maliksi was able to file, after all, a
motion for reconsideration. To be exact, the motion for reconsideration was actually
directed against the entire resolution of the First Division, while Maliksis claim of due
process violation is directed only against the First Divisions recount proceedings that
resulted in the prejudicial result rendered against him. Notably, the First Division did not
issue any order directing the recount. Without the written order, Maliksi was deprived of
the chance to seek any reconsideration or even to assail the irregularly-held recount
through a seasonable petition for certiorari in this Court. In that context, he had no real
opportunity to assail the conduct of the recount proceedings.
The service of the First Division orders requiring Saquilayan to post and augment the
cash deposits for the printing of the picture images did not sufficiently give Maliksi notice
of the First Divisions decision to print the picture images. The said orders did not meet
the requirements of due process because they did not specifically inform Maliksi that the
ballots had been found to be tampered. Nor did the orders offer the factual bases for the
finding of tampering. Hence, to leave for Maliksi to surmise on the factual bases for
finding the need to print the picture images still violated the principles of fair play,
because the responsibility and the obligation to lay down the factual bases and to inform
Maliksi as the party to be potentially prejudiced thereby firmly rested on the shoulders of
the First Division.
Moreover, due process of law does not only require notice of the decryption, printing,
and recount proceedings to the parties, but also demands an opportunity to be present
at such proceedings or to be represented therein. Maliksi correctly contends that the
orders of the First Division simply required Saquilayan to post and augment his cash
deposit. The orders did not state the time, date, and venue of the decryption and
recount proceedings. Clearly, the First Division had no intention of giving the parties the
opportunity to witness its proceedings.
Mendoza v. Commission on Elections9 instructs that notice to the parties and their
participation are required during the adversarial aspects of the proceedings. In that
case, after the revision of the ballots and after the election protest case was submitted

for decision, the ballots and ballot boxes were transferred to the Senate Electoral
Tribunal (SET) in connection with a protest case pending in the SET. Mendoza later
learned that the COMELEC, with the permission of the SET, had meanwhile conducted
proceedings within the SETs premises. Mendoza then claimed that his right to due
process was violated because he had not been given notice by the COMELEC that it
would be conducting further proceedings within the SET premises. The Court did not
sustain his claim, however, and pointed out:
After consideration of the respondents Comments and the petitioners petition and
Reply, we hold that the contested proceedings at the SET ("contested proceedings") are
no longer part of the adversarial aspects of the election contest that would require
notice of hearing and the participation of the parties. As the COMELEC stated in its
Comment and without any contrary or disputing claim in the petitioners Reply:
"However, contrary to the claim of petitioner, public respondent in the appreciation of
the contested ballots in EPC No. 2007-44 simultaneously with the SET in SET Case No.
001-07 is not conducting "further proceedings" requiring notice to the parties. There is
no revision or correction of the ballots because EPC No. 2007-04 was already
submitted for resolution. Public respondent, in coordinating with the SET, is simply
resolving the submitted protest case before it. The parties necessarily take no part in
said deliberation, which require utmost secrecy. Needless to state, the actual decisionmaking process is supposed to be conducted only by the designated members of the
Second Division of the public respondent in strict confidentiality."
In other words, what took place at the SET were the internal deliberations of the
COMELEC, as a quasi-judicial body, in the course of appreciating the evidence
presented and deciding the provincial election contest on the merits. These
deliberations are no different from judicial deliberations which are considered
confidential and privileged. We find it significant that the private respondents Comment
fully supported the COMELECs position and disavowed any participation in the
contested proceeding the petitioner complained about. The petitioner, on the other
hand, has not shown that the private respondent was ever present in any proceeding at
the SET relating to the provincial election contest.
1wphi1

To conclude, the rights to notice and to be heard are not material considerations in the
COMELECs handling of the Bulacan provincial election contest after the transfer of the
ballot boxes to the SET; no proceedings at the instance of one party or of COMELEC
has been conducted at the SET that would require notice and hearing because of the
possibility of prejudice to the other party. The COMELEC is under no legal obligation to
notify either party of the steps it is taking in the course of deliberating on the merits of
the provincial election contest. In the context of our standard of review for the petition,
we see no grave abuse of discretion amounting to lack or excess of jurisdiction
committed by the COMELEC in its deliberation on the Bulacan election contest and the
appreciation of ballots this deliberation entailed.10 (Emphasis supplied.)

Here, the First Division denominated the proceedings it had conducted as an

"appreciation of ballots" like in Mendoza. But unlike in Mendoza, the proceedings
conducted by the First Division were adversarial, in that the proceedings included the
decryption and printing of the picture images of the ballots and the recount of the votes
were to be based on the printouts of the picture images. The First Division did not
simply review the findings of the RTC and the Revision Committee, but actually
conducted its own recount proceedings using the printouts of the picture image of the
ballots. As such, the First Division was bound to notify the parties to enable them to
participate in the proceedings.
Significantly, Section 6(l), Rule 15 of COMELEC Resolution No, 8804, as amended by
COMELEC Resolution No. 9164, requires the parties presence during the printing of
the images of the ballots, thus:
xxxx
(l) In the event the Recount Committee determines that the integrity of the ballots has
been violated or has not been preserved, or are wet and otherwise in such a condition
that it cannot be recounted, the Chairman of the Committee shall request from the
Election Records and Statistics Department (ERSD), the printing of the image of the
ballots of the subject precinct stored in the CF card used in the May 10, 2010 elections
in the presence of the parties. Printing of the ballot images shall proceed only upon prior
authentication and certification by a duly authorized personnel of the Election Records
and Statistics Department (ERSD) that the data or the images to be printed are genuine
and not substitutes.
xxxx
We should not ignore that the parties participation during the revision and recount
proceedings would not benefit only the parties, but was as vital and significant for the
COMELEC as well, for only by their participation would the COMELECs proceedings
attain credibility as to the result. The parties presence would have ensured that the
requisite procedures have been followed, including the required authentication and
certification that the images to be printed are genuine. In this regard, the COMELEC
was less than candid, and was even cavalier in its conduct of the decryption and
printing of the picture images of the ballots and the recount proceedings. The
COMELEC was merely content with listing the guidelines that the First Division had
followed in the appreciation of the ballots and the results of the recount. In short, there
was vagueness as to what rule had been followed in the decryption and printing
proceeding.
II.
Remand to the COMELEC

We are mindful of the urgent need to speedily resolve the election protest because the
term of the position involved is about to end. Thus, we overlook pro hac vice the lack of
factual basis for the COMELECs decision to use the digital images of the ballots and
sustain its decision thereon. Although a remand of the election protest to the RTC would
have been the appropriate procedure, we direct the COMELEC En Banc instead to
conduct the decryption and printing of the digital images of the ballots and to hold
recount proceedings, with due notice to all the parties and opportunity for them to be
present and to participate during such proceedings. Nothing less serves the ideal
objective safeguarded by the Constitution.
In the absence of particular rules to govern its proceedings in accordance with this
disposition, the COMELEC is urged to follow and observe Rule 15 of COMELEC
Resolution No. 8804, as amended by COMELEC Resolution No. 9164.
The Court, by this resolution, does not intend to validate the victory of any of the parties
in the 2010 Elections. That is not the concern of the Court as yet. The Court simply
does not want to countenance a denial of the fundamental right to due process, a
cornerstone of our legal system.11 After all, it is the Courts primary duty to protect the
basic rights of the people vis--vis government actions, thus:
It cannot be denied that most government actions are inspired with noble intentions, all
geared towards the betterment of the nation and its people. But then again, it is
important to remember this ethical principle: "The end does not justify the means." No
matter how noble and worthy of admiration the purpose of an act, but if the means to be
employed in accomplishing it is simply irreconcilable with constitutional parameters,
then it cannot still be allowed. The Court cannot just turn a blind eye and simply let it
pass. It will continue to uphold the Constitution and its enshrined principles. 12
WHEREFORE, the Court PARTIALLY GRANTS the Extremely Urgent Motion for
Reconsideration of petitioner Emmanuel Maliksi; REVERSES the Court's decision
promulgated on March 12, 2013; and DIRECTS the Commission on Elections En Bane
to conduct proceedings for the decryption of the picture images of the ballots involved in
the protest after due authentication, and for the recount of ballots by using the printouts
of the ballot images, with notice to and in the presence of the parties or their
representatives in accordance with the procedure laid down by Rule 15 of COMELEC
Resolution No. 8804, as amended by Resolution No. 9164.
No pronouncement on costs of suit.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:

MARIA LOURDES P. A. SERENO

Chief Justice
ANTONIO T. CARPIO
Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

TERESITA J. LEONARDO-DE
CASTRO
Associate Justice

ARTURO D. BRION
Associate Justice

DIOSDADO M. PERALTA
Associate Justice

MARIANO C. DEL CASTILLO

Associate Justice

ROBERTO A. ABAD
Associate Justice

MARTIN S. VILLARAMA, JR.

Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice

JOSE CATRAL MENDOZA

Associate Justice

BIENVENIDO L. REYES
Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice

MARVIC MARIO VICTOR F. LEONEN

Associate Justice
CERTIFICATION
I certify that the conclusions in the above Resolution had been reached in consultation
before the case was assigned to the writer of the opinion of the Court.
MARIA LOURDES P. A. SERENO
Chief Justice

Footnotes
1

Rollo, p. 125.

Id. at 63

Id. at 575-577.

COMELEC Resolution No. 8804, Rule 6, Section 1.

G.R. No. 199050, August 28, 2012.

2010 Rules of Procedure for Municipal Election Contests, Rule 1, Section 3(r)
defines "electronic document" as follows:
xxxx
(r) Electronic documentrefers to the record of information or the
representation of information, data, figures, symbols or other modes of
written expression, described or however represented, by which a fact
may be proved and affirmed, which is received, recorded, transmitted,
stored, processed, retrieved or produced electronically. It includes
digitally-signed documents and any printout or output, readable by sight or
other means that accurately reflects the electronic document.
For purposes of these Rules, an electronic document refers to either the
picture image of the ballots or the electronic copies of the electronic
returns, the statements of votes, the certificates of canvass, the audit log,
and other electronic data processed by the PCOS and consolidation
machines.
xxxx
Likewise, COMELEC Resolution No. 8804 (In Re: COMELEC Rules of
Procedure on Disputes in an Automated Election System in Connection
with the May 10, 2010 Elections), Rule 2, Section 1(q) defines "electronic
document" as follows:
xxxx
(q) Electronic document refers to information or the representation of
information, data, figures, symbols or other modes of written expression,
described or however represented, by which a fact may be proved and
affirmed, which is received, recorded, transmitted, stored, processed,
retrieved or produced electronically. It includes digitally signed documents
and any print-out or output, readable by sight or other means which
accurately reflects the electronic document.
For purposes of these Rules, electronic documents refer to either the
picture image of the ballots and the electronic copies of the electronic
returns, the statements of votes, the certificates of canvass, the audit log,
and of the other electronic data relative to the processing done by the
PCOS machines and the various consolidation machines.

xxxx
7

G.R. No. 199149, January 22, 2013.

Rollo, p. 102.

G. R. No. 188308, October 15, 2009, 603 SCRA 692.

10

Id. at 716-717.

11

Pinlac v. Court of Appeals, G.R. No. 91486, January 19, 2001, 349 SCRA 635,
653.
12

Biraogo v. Philippine Truth Commission of 2010, G.R. No. 192935, December

7, 2010, 637 SCRA 78, 177.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION
CARPIO, J.:
For the Court's consideration is the Extremely Urgent Motion for Reconsideration filed
by Emmanuel L. Maliksi (Maliksi) assailing this Court's 12 March 2013 Decision which
affirmed the 14 September 2012 Resolution of the Commission on Elections
(COMELEC) En Bane and declared Homer T. Saquilayan (Saquilayan) as the dulyelected Municipal Mayor of lmus, Cavite.
In his motion for reconsideration, Maliksi cited extensively from the Dissenting
Opinion1 and asserted that he was denied due process when the COMELEC First
Division decrypted, printed, and examined the ballot images without notice to him.
Maliksi further alleged that this Court's 12 March 2013 Decision is null and void for
having been promulgated in the absence of Associate Justice Jose Portugal Perez
(Justice Perez).
First, I will discuss the issue of the absence of Justice Perez when the Court's 12 March
2013 Decision was promulgated.
Section 4, Rule 12 of the Internal Rules of the Supreme Court allows a member of this
Court to leave his or her vote in writing. The Rule states:

SEC. 4. Leaving a vote. - A Member who goes on leave or is unable to attend the voting
on any decision, resolution, or matter may leave his or her vote in writing, addressed to
the Chief Justice or the Division Chairperson, and the vote shall be counted, provided
that he or she took part in the deliberation.
As such, there was nothing irregular when Justice Perez left his vote in writing with the
Chief Justice because he took part in the previous deliberation of the case.
Maliksi again assails the decryption and printing of the ballot images for the first time on
appeal.
I reiterate that Saquilayan first requested for the printing of the ballot images before the
trial court when he filed a Motion To Print Picture Images Of The Ballot Boxes Stored In
The Memory Cards Of The Clustered Precincts2dated 21 March 2011. In that Motion,
Saquilayan made the allegation of tampering citing that during the preliminary revision
proceedings, he noticed an unusually large number of double-voted ballots only for the
position of Mayor and that the recorded counts of all the revision committees show
significant discrepancies between the ballot counts and the results reflected in the
election returns.3 It was only on 3 May 2011 that the trial court in an Omnibus Order
granted Saquilayan's motion for the printing of the ballot images in the CF cards.4 On 16
May 2011, the COMELEC Election Records and Statistics Department (ERSD)
informed Saquilayan that the CF cards were still in the custody of the trial court. In a
Manifestation and Request5 dated 20 May 2011, Saquilayan asked the trial court to
forward the CF cards of the protested precincts to the ERSD to enable the COMELEC
to decrypt and print the ballot images. The decryption of the ballot images was set on 21
June 2011.
Maliksi then filed a Motion for Honorable Court to Request ERSD to Specify Procedure
to Decrypt Compact Flash (CF) Cards. The trial court, in an Order6 dated 17 June 2011,
requested the ERSD to specify the procedure that it would undertake during the
proceedings and set the case for conference on 27 June 2011. In a letter7 dated 20
June 2011, Maliksi wrote the ERSD requesting that further proceedings be deferred and
held in abeyance in deference to the 17 June 2011 Order of the trial court. On 27 June
2011, on the date the case was set for conference, Maliksi filed a Motion to Consider
That Period Has Lapsed to Print Ballot's Picture Images8 on the ground that Saquilayan
only had 30 days from receipt of the Omnibus Order dated 3 May 2011 to accomplish
the printing of the ballot images. Maliksi alleged that the 30-day period started on 10
May 2011 when Saquilayan received the 3 May 2011 Omnibus Order and ended on 22
June 2011. Thus, Saquilayan was already barred from having access to the electronic
data in the COMELEC's back-up server and to print the ballot images in the CF cards.
The trial court granted Maliksi's motion in its Order dated 3 August 20119 despite the
fact that the delay in the decryption could not be attributed to Saquilayan's fault alone
but also due to the failure of the trial court to turn over the CF cards to the ERSD and to
Maliksi's motion for the ERSD to specify the procedure in decrypting the CF cards.
Clearly, the issue of tampering, as well as the request for the decryption of the ballot
images, was not raised for the first time on appeal.

Maliksi also echoed the Dissenting Opinion that the printing of the ballot images may
only be resorted to after the proper Revision/Recount Committee had first determined
that the integrity of the ballots and the ballot boxes was not preserved. Citing Section 6,
Rule 15 of COMELEC Resolution No. 8804,10 as amended by Resolution No.
9164,11 Maliksi alleged that the decryption of the images stored in the CF cards and the
printing of the decrypted images must take place during the revision or recount
proceedings and that it should be the Revision/Recount Committee that determines
whether the ballots are unreliable.
Section 6, Rule 1 5 should be read together with Rule 16 of Resolution No. 8804, as
amended by Resolution No. 9164, particularly Section 3, which provides:
Section 3. Printing of Ballot Images. - In case the parties deem it necessary, they may
file a motion to be approved by the Division of the Commission requesting for the
printing of ballot images in addition to those mentioned in the second paragraph of item
(e). Parties concerned shall provide the necessary materials in the printing of images
such as but not limited to copying papers, toners and printers. Parties may also secure,
upon prior approval by the Division of the Commission, a soft copy of the ballot images
contained in a secured/hashed disc on the condition that the ballot images be first
printed, at the expense of the requesting party, and that the printed copies be signed by
the parties' respective revisors or representatives and by an ERSD IT-capable
representative and deposited with the Commission.
The Over-all chairman shall coordinate with the Director IV, Election Records and
Statistics Department (ERSD), for the printing of images. Said director shall in turn
designate a personnel who will be responsible in the printing of ballot images.
(Emphasis supplied)
Section 3, Rule 16 does not require any allegation of tampering before the
printing of ballot images may be requested by the parties. It does not require
prior determination by the Revision/Recount Committee that the integrity of the
ballots and the ballot boxes was not preserved. Under Section 3, Rule 16, the
request may be made when the parties deem the printing of the ballot images
necessary.
To repeat, the parties can request for the printing of the ballot images "in case the
parties deem it necessary." This is a ground separate from that in Section 6( e), which
refers to a determination of the integrity of the ballots by the Revision/Recount
Committee. Section 3, Rule 16 provides that "in case the parties deem it necessary,
they may file a motion to be approved by the Division of the Commission requesting for
the printing of ballot images in addition to those mentioned in t11e second paragraph of
item (e)." The second paragraph of item (e) speaks of signs of tampering, or if the ballot
box appears to have been compromised, thus:
Section 6. Conduct of the Recount- x x x.

xxxx
(e) Before the opening of the ballot box, the Recount Committee shall note its condition
as well as that of the locks or locking mechanism and record the condition in the recount
report. From its observation, the Recount Committee must also make a determination
as to whether the integrity of the ballot box has been preserved.
In the event that there are signs of tampering or if the ballot box appears to have been
compromised, the Recount Committee shall still proceed to open the ballot box and
make a physical inventory of the contents thereof. The committee shall, however, record
its general observation of the ballots and other documents found in the ballot box.
(Emphasis supplied)
Section 3, Rule 16 allows an additional ground for the printing of the ballot images: the
determination by the parties that the printing is necessary. Clearly, even without signs of
tampering or that the integrity of the ballots and the ballot boxes had been
compromised, the parties may move for the printing of the ballot images. In this case,
the COMELEC En Bane made it clear in its Comment12 that the COMELEC First
Division ordered the decryption, printing and examination of the digital images because
the COMELEC First Division "discovered upon inspection that the integrity of the ballots
themselves was compromised and that the ballot boxes were tampered." 13 However,
applying Section 3 of Rule 16, the finding of tampering was not even necessary
for the COMELEC First Division to allow the printing of the ballot images.
Saquilayan moved for the printing of the ballot images as early as 21 March 2011
before the trial court. Saquilayan reiterated his motion to have the ballot images printed
when he filed his appeal brief14 before the COMELEC First Division. Saquilayan pointed
out that he filed reiterations of his motion to print with copies furnished to Maliksi until
the COMELEC First Division ordered the printing.15 There is nothing in the records
which showed that Maliksi opposed Saquilayan's motion.
Section 3, Rule 9 of Resolution No. 8808 provides:
Section 3. No hearings on motions. - Motions shall not be set for hearing unless the
Commission directs otherwise. Oral argument in support thereof shall be allowed only
upon the discretion of the Commission. The adverse party may file opposition five days
from receipt of the motion, upon the expiration of which such motion is deemed
submitted for resolution. The Commission shall resolve the motion within five days.
(Emphasis supplied)
When Maliksi did not oppose Saquilayan's motion for the printing of the ballot images,
he is deemed to have waived his right to oppose the motion. The motion was deemed
submitted for resolution. The COMELEC En Bane categorically stated that Maliksi
"never questioned the Order of decryption of the First Division nor did he raise any
objection in any of the pleadings he filed with this Commission - a fact which already
places him under estoppel."16 Maliksi could not claim that he was denied due process

because he was not aware of the decryption proceedings. The Order17 dated 28 March
2012 where the COMELEC First Division directed Saquilayan to deposit the required
amount for expenses for the supplies, honoraria, and fee for the decryption of the CF
cards was personally delivered to Maliksi's counsel. The Order18 dated 17 April 2012
where the COMELEC First Division required Saquilayan to deposit an additional amount
for expenses for the printing of additional ballot images from four clustered precincts
was again personally delivered to Maliksi's counsel. Maliksi feigned ignorance of the
decryption proceedings until he received the COMELEC First Division's Resolution of 15
August 2012.
As regards Maliksi's claim that he was deprived of his right to be present during the
authentication process and the actual printing of the ballot images, Section 3 of
Resolution No. 8804, as amended by Resolution No. 9164, does not require the parties
or their representatives to be present during the printing of the ballot images. Maliksi
should have moved to be present at, or to observe, the decryption proceedings when he
received the 28 March 2012 Order directing the decryption. Maliksi did not, and thus he
waived whatever right he had to be present at, or to observe, the decryption
proceedings.
I emphasize that there is no denial of due process where there is opportunity to be
heard, either through oral arguments or pleadings.19 Further, the fact that a party was
heard on his motion for reconsideration negates any violation of the right to due
process.20 Maliksi's motion for reconsideration was directed against the entire resolution
of the First Division, including the recount proceedings which he claimed to have
violated his right to due process.
Maliksi alleged that the COMELEC First Division should have limited itself to reviewing
the evidence on record, meaning the physical ballots, instead of using the decrypted
images. Maliksi thus wanted the COMELEC First Division to ignore its finding of
tampering. On this issue, the COMELEC En Bane stressed:
x x x. Worth noting also is that these 8,387 ballots all came from 53 clustered precincts
specifically pinpointed by Maliksi as his pilot precincts (which is 20% of the total
precincts he protested) - thereby affecting a total of 33.38% or more than one-third (1/3)
of the total ballots cast in those precincts. We find this too massive to have not been
detected on election day, too specific to be random and too precise to be accidental which leaves a reasonable mind no other conclusion except that those 8,387 cases of
double-shading were purposely machinated. These dubious and highly suspicious
circumstances left us with no other option but to dispense with the physical ballots and
resort to their digital images. To recount the tampered ballots will only yield us tampered
results defeating the point of this appeal.21
In his Reflections submitted to this Court, Justice Perez stated that the present electoral
contest is all about over-voting. Justice Perez cited Guideline No. 5 used by the
COMELEC which states:

5. On over-voting. It has been the position of the Commission that over-voting in a

certain position will make the vote cast for that position stray but will not invalidate the
entire ballot, so in case of over-voting for the contested position, such vote shall be
considered stray and will not be credited to any of the contending parties.
Justice Perez added that "in case of over-voting which is the case at hand, Guideline
No. 5 out rightly provides- the consequence that the vote shall be considered stray and
will not be credited to any of the contending parties." Justice Perez stated that the
COMELEC disobeyed its own rule that over-voting results in a stray vote.
This case is not a case of over-voting under Guideline No. 5. In over-voting under
Guideline No. 5, one person, that is, the voter himself, votes for two or more persons for
one elective position. When the ballot is fed to the PCOS machine, the machine reads
that two or more candidates for the same position had been shaded. The digital image
will record two spaces shaded for one position. On the other hand, in double-shading,
the voter shades the space for one candidate but another person, after the ballot is fed
to the PCOS machine, surreptitiously shades another space for another candidate for
the same position. In double-shading, the digital image shows only one shaded space
for a candidate while the ballot shows two shaded spaces. In the present case, there
was actually a double-shading (although it was inaccurately referred to as over-voting in
the COMELEC First Division's Decision) which was done by person or persons other
than the voter. When the ballot was fed to the PCOS machine, the machine read only
one vote for one candidate for one position. After the double-shading, there were
already two votes for two candidates for the same position, but the digital image still
contains only one shaded space.
Here, the double-shading happened after the ballots were fed to and read by the PCOS
machines because the digital images show only one shaded space while the ballots
show two shaded spaces. Double-shading is a post-election operation. The doubleshading covered 8,387 ballots, "exclusively affecting the position of Mayor and
specifically affecting the ballots of Saquilayan"22 and the 8,387 affected ballots
surprisingly all came from 53 clustered precincts "specifically pinpointed by Maliksi as
his pilot precincts."23
The situation here is the one covered by Guideline No. 2 cited by Justice Perez which
states that "the best way to identity if a ballot has been tampered is to go to the digital
image of the ballot as the PCOS was able to capture such when the ballot was fed by
the voter into the machine when he cast his vote." This is what the COMELEC First
Division did and the COMELEC First Division discovered that there was no doubleshading in the digital images of the ballots. Obviously, the double-shading was done by
persons other than the voters.
Again, Saquilayan raised the issue of tampering of the ballots as early as 21 March
2011 before the trial court. The COMELEC First Division took into consideration the
allegation of tampering. Even without the allegation of tampering, Section 3, Rule 16 of
Resolution No. 8804, as amended by Resolution No. 9164, allows the parties to request

for the printing of the ballot images if the parties deem it necessary. It is undisputed that
Saquilayan requested the COMELEC for the printing of the ballot images and Maliksi
did not file any opposition to Saquilayan's motions. Upon inspection of the ballots and
ballot boxes, the COMELEC First Division found that the integrity of the ballots had
been compromised. When the digital images of the ballots were examined, the
COMELEC First Division found that there was no double-shading. As such, the ballots
should not be considered stray under Guideline No. 5.
ACCORDINGLY, I vote to DENY with FINALITY the Extremely Urgent Motion for
Reconsideration filed by Emmanuel L. Maliksi.
ANTONIO T. CARPIO
Associate Justice

Footnotes
1

Penned by Associate Justice Lucas P. Bersamin.

Rollo, pp. 283-285.

Id. at 283.

Id. at 293-295.

Id. at 298-300.

Id.at302-303.

Id. at 304.

Id. at 307-309.

Id. at 359. Omnibus Order elated 1 September 2011.

10

In Re: Comelec Rules of Procedure on Disputes In An Automated Election

System in Connection with the May 10, 2010 Elections.
11

In the Matter of Reinstating and Reimplementing Comelec Resolution No. 8804

with Amendments.
12

Rollo, pp. 484-516.

13

Id. at 500.

14

Id. at 237, Saquilayan's Comment, p. 25.

15

Id.

16

Id. at 61.

17

Id. at 362.

18

Id. at 366.

19

Atty. Octava v. Commission on Elections. 547 Phil 647 (2007).

20

See German Management & 5'ervices, Inc. v. Court of Appeals, 258 Phil. 289 (
1989).
21

Rollo, p. 60.

22

Id.

23

Id.

The Lawphil Project - Arellano Law Foundation

CONCURRING OPINION
PEREZ, J.:
The issue as basic as due process of law and the opinion of as many as seven of us
who saw that petitioner was deprived of the fundamental right highlights my duty to join
the discussion. With the present motion for reconsideration providing the opportunity to
look into the reasons that divided the Court, I do so.
1. The electoral contest is all about over-voting. Simply, it means that in the contested
ballots both the slots separately for petitioner Maliksi and respondent Saquilayan who
vied for the position of Mayor of Imus, Cavite, were shaded. The guideline in the
appreciation of ballots with over-voting is embodied in Guideline No. 5 used by the
COMELEC. Thus:
5. On over-voting. It has been the position of the Commission that over-voting in a
certain position will make the vote cast for that position STRAY but will not invalidate the
entire ballot, so IN CASE OF OVER-VOTING FOR THE CONTESTED POSITION,

SUCH VOTE SHALL BE CONSIDERED STRAY AND WILL NOT BE CREDITED TO

ANY OF THE CONTENDING PARTIES. (Emphasis supplied)
There is a correlated guideline, Guideline No. 2, in the sense that both guidelines refer
to instances of shading. However, as regards the covered matter and the consequence,
the two rules are hugely different. Guideline No. 2 is about an entire ballot that is
claimed to have been shaded by two or more persons, and it states:
2. On ballots claimed to have been shaded by two or more persons. -Unlike in manual
elections where it is easy to identify if a ballot has been written by two persons, in case
of an automated election, it would be very hard if not impossible to identify if two
persons shaded a single ballot. The best way to identify if a ballot has been tampered is
to go to the digital image of the ballot as the PCOS machine was able to capture such
when the ballot was Jed by the voter into the machine when he cast his vote. In the
absence of any circumstance showing that the ballot was shaded by persons other than
the voter, the ballots should not be rejected to give effect to the voter's intent.
Clearly, in case of a ballot claimed to have been shaded by two or more persons, there
is an inquiry to determine whether or not the ballot was shaded by person/s, other than
the voter. The Guideline implies a presumption in favor of shading by the voter whose
ballot should be rejected only if there is "any circumstance" showing shading by
somebody else.
On the contrary, in case of over-voting which is the case at hand, Guideline No. 5 out
rightly provides the consequence that the vote shall be considered stray and will not be
credited to any of the contending parties.
The reason behind the significant variance in the consequences of the two kinds of
shading can be debated endlessly. The obviousness of the difference outlined by the
COMELEC, which is the sole judge of an election contest, forecloses such a debate.
What the obviousness brings about, as it is my intention, is the grave abuse of
discretion on the part of the COMELEC.
The COMELEC disobeyed its own rule that over-voting results in a stray vote. Relying
on "allegations of ballot and ballot box tampering," which allegations are without proof
from the proponent, the COMELEC nonetheless favors the allegations through its own
inspection of the ballot boxes to support its conclusion that "it is apparent that the
integrity of the ballots had been compromised." That was done on the first review of the
appealed decision. On second review, the COMELEC resorted to the observation of
"unprecedented number of double-votes" which left it "with no other option but to
dispense with the physical ballots and resort to their digital image."
The grave abuse of discretion of the COMELEC is clear from its own words describing
what it did in this case.

It can be implied from its own decision on first review that the COMELEC agrees that
before the physical ballots can be disregarded and the digital image favored, the
tampering of the ballot box must be priorly proven. It had to allude to ballot box
tampering because without the defect, the integrity of the ballots is unassailable. No
proof of tampering came from the contestants in this case. The COMELEC relied on its
observations. And it did not even detail the circumstances of the inspection it made and
the facts that make tampering "apparent."
Indeed, the over-voting itself cannot be the proof of ballot tampering. Even if we go by
the Guideline on the claim of ballot shading by two or more persons, the presumption is
that the ballot was shaded only by the voter, and this presumption prevails absent any
circumstance showing that the ballot was shaded by persons other than the voter.
Plainly, in the instant case, there is no circumstance independent of the fact of shading
that such shading was done by someone other than the voter. Its odd reliance on the
over-voting itself underscores the applicability of the presumption that, in this case, the
voter himself/herself did the shadings.
The fact is that petitioner has in his Election Protest, come forward with an explanation
about over-voting. Thus:
4.A.6. In Official Sample Ballot with Voters Information Sheet (VIS) issued by the
Commission on Elections, the number four candidate for Mayor of lmus, Cavite is
Emmanuel L. Maliksi which appears on the first row, third column in the said COMELEC
official sample ballot, x x x. However, in the Official Ballot, the name of Emmanuel L.
Maliksi appears on the second row, second column as number four candidate and the
name of the fifth candidate Homer T. Saquilayan was moved from the first row fourth
column to first row third column where the name of Emmanuel L. Maliksi was originally
located on the sample ballot, x x x. This evidently resulted in the confusion and mistake
in the shading of the proper space for mayoralty candidate Emmanuel L. Maliksi.
This proposition was evidently found tenable by the trial court which, upon the opening
of the ballot boxes and ballots, applied the guideline that the over-votes are stray votes.
That proposition based on facts reached the COMELEC via appeal. It should have at
least merited a discussion.
2. 1 concur with the ponencia of Justice Bersamin. I discussed the lack of factual and
legal premise for the decryption done by the COMELEC to punctuate its grave abuse of
discretion that even went further and similarly characterized the process of decryption
itself.
I thus join Justice Bersamin in the remand of this case to the COMELEC for immediate
cleansing of the process, which after all, kindred to the purpose of Justice Bersamin, is
the object of my participation in the resolution of this contest, not the pleasure of anyone
of the contestants.

JOSE PORTUGAL PEREZ

Associate Justice
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-46272 June 13, 1986
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ALBERTO OPIDA y QUIAMBAO and VIRGILIO MARCELO, accused-appellants.

CRUZ, J.:
This is an automatic review of the Decision of the Circuit Criminal Court, Seventh
Judicial District, imposing the death penalty upon Alberto Opida and Virgilio Marcelo for
the crime of murder.
Unlike the victim in this case, who died from only one stab wound, the decision under
review suffers from several fatal flaws, all equally deadly. It suffices to discuss only one
of them.
Time and again this Court has declared that due process requires no less than the cold
neutrality of an impartial judge. 1 Bolstering this requirement, we have added that the judge must
not only be impartial but must also appear to be impartial, to give added assurance to the parties that his
2
decision will be just. The parties are entitled to no less than this, as a minimum guaranty of due process.
This guaranty was not observed in this case.

On July 31, 1976, in Quezon City, several persons ganged up on Fabian Galvan,
stoned and hit him with beer bottles until finally one of them stabbed him to death. The
actual knife-wielder was identified as Mario del Mundo.3 Nonetheless, Alberto Opida and
Virgilio Marcelo were charged with murder as conspirators and, after trial, sentenced to death.

The basis of their conviction by the trial court was the testimony of two prosecution
witnesses, neither of whom positively said that the accused were at the scene of the
crime, their extrajudicial confessions, which were secured without the assistance of
counsel, and corroboration of the alleged conspiracy under the theory of interlocking
confession. 5
What is striking about this case is the way the trial judge conducted his interrogation of
the two accused and their lone witness, Lilian Layug. It was hardly judicious and
certainly far from judicial, at times irrelevant, at Worst malicious. Reading the transcript,

one gathers the impression that the judge had allied himself with the prosecution to
discredit at the outset the credibility of the witnesses for the defense.
Opida is a police character, admittedly a member of the Commando gang and with a
string of convictions for robbery, theft and vagrancy. 6 It is worth noting that the judge took
special interest in his tattoos, required him to remove his shirt so they could be examined, and even
7
described them in detail for the record.

Besides belaboring Opida's criminal activities and his tattoos, the judge asked him if he
had "ever been convicted at the National Mental Hospital with what else but malice and
suggested to him that his claim of manhandling by the police was a lie because
investigators leave no mark when they torture a suspect. 8 This was a point that could have
been validly raised by the prosecution but certainly not by the court. The judge also made it of record that
the witness was gnashing his teeth, was showing signs of hostility, that he was uneasy and that he was
9
restless. "Now, whom do you want to fool the judge asked, "the prosecutor, your lawyer, or the court?

In the hearing of September 22, 1976, the interrogation of Virgilio Marcelo, the other
accused, was conducted almost wholly by the judge who started cross-examining the
witness even before the defense counsel could ask his first question, and took over
from the prosecution the task of impeaching Marcelo's credibility. 10 The judge asked him
about his drug addiction, his membership in the Commando gang, his tattoos, his parentage, his
activities, his criminal record all when he was supposed to be under direct examination by his own lawyer.
Defense counsel could hardly put in a word edgewise because the judge kept interrupting to ask his own
11
questions.

The questions were not clarificatory but adversary; and when they were not adversary,
they were irrelevant, and sometimes also cruel. At one point, the judge drew from the
witness the statement that his mother was living with another man; forthwith he
suggested that the mother was unfaithful to his father. 12 We deplore this sadistic treatment of
the witness, especially as, for all his supposed "toughness," he could not answer back. We fail to see
what possible connection the mother's infidelity could have had, by any stretch of the imagination, with
the instant prosecution.

But the judge was to save the best or worst of his spite for the third witness, Lilian
Layug, a waitress in the restaurant where the appellant Opida was working as a cook.
Noting at the outset that she spoke English, he wanted to know where she had learned
it and asked in ill-concealed insinuation if she had worked in Angeles City or Olongapo
or Sangley. 13 Because she was gesturing nervously, he asked, "Are you a conductor? 14 Of the two
accused, he asked her, "They are very proud of belonging to the Commando gang to which the witness
15
answered, putting him in his place, "That I do not know, Your Honor."

One cannot but note the mockery in the following questions put by the judge to the
witness, who was probably wondering what the interrogation was all about
Court
Q You are a very good friend of Alberto Opida?
A Yes, Your Honor.

Q You have known him for years?

A One year only, Your Honor.
Q He always feed you with his favorite menu?
A Yes, Your Honor.
Q He is a very good cook?
A Yes, Your Honor.
Q Because what he could cook, you could not cook?
A I know also how to cook, Your Honor.
Q Answer my question.
A Yes, Your Honor.
Q Whenever you try to cook what he cooked, you could not
imitate it, because he is a good cook?
A Yes, Your Honor.
Q So, your admiration developed because of his cooking?
A Yes, Your Honor.
Q What favorite dish does he cook that you like, as far as
you are concerned?
A Adobo, Your Honor.
Q Most often you request him to cook adobo for you?
A Yes, Your Honor.
Q That is precisely one of the reasons why you also admire
him?
A That is also a part, Your Honor,
Q Whenever you request him to cook adobo for you, he
always accommodate you?

A Yes, Your Honor.

Q As a matter of fact, the moment that he starts cooking
adobo, you could smell it already?
A Yes, Your Honor,
Q That starts your admiration for him.
A Yes, Your Honor.
Q And in return you reciprocate?
A Yes, Your Honor.
Q What kind of reciprocation do you give to Alberto Opida,
whenever you admire his cooking of adobo for you, cooking
just for you?
A None, Your Honor.
Q Whenever he cooks adobo, he was singing?
A Sometimes, Your Honor.
Q What kind of song?
A He is singing a song with intended for Cora, Your Honor.
Q And you were also affected by it?
A No, Your Honor.
Q You mean to say, you are not very fond of emotional
songs?
A I am not, because Cora is not minding him, Your Honor.
Q But sometimes he sings in the absence of Cora because,
as you said, he is cooking adobo for you?
A Yes, Your Honor.
Q What does he sings (sic) for you?
A He sings many songs, Your Honor.

Q For example, give the title

A Milagro, Your Honor.
Q He also sings Diyos Lamang Ang Nakakaalam?
A Sometimes, Your Honor.
Q He also sings Kapantay ay Langit?
A Yes, Your Honor.
Q He also sings Sapagkat Tayo'y Tao Lamang?
A I did not hear, Your Honor.
Q But, you said he also sings even in the absence of Cora?
A Yes, Your Honor.
Q You smell adobo while he cooks and sings. So, you
developed admiration also?
A Little only, Your Honor.
Q One way or another you have appreciated him, but the
only thing, as you know, he is related to Cora in the same
way?
A Yes, Your Honor.
Q That is why you are testifying in his favor? Because of the
smell of adobo and his songs and it is an admiration.
Therefore, there is that tendency to testify in his favor?
A Yes, Your Honor. 16
On direct examination, Opida challenged his extrajudicial confession, claiming it had
been obtained without observance of the rights available under Article IV, Section 20 of
the Constitution, particularly the right to counsel.17 Parenthetically, the extrajudicial confession
18

of Marcelo was also made without assistance of counsel. Opida also testified, under questioning from
his counsel, that he had been repeatedly hit with a "dos por dos" by a police officer while he was being
19
investigated.

We have consistently held that the rights guaranteed during a custodial investigation are
not supposed to be merely communicated to the suspect, especially if he is unlettered,
but must be painstakingly explained to him so he can understand their nature and

significance. Moreover, manhandling of any sort will vitiate any extrajudicial confession
that may be extracted from him and renders it inadmissible in evidence against him. 20
Those principles were given mere lip service by the judge, who did not bother to look
deeper into the validity of the challenged confessions.
Given the obvious hostility of the judge toward the defense, it was inevitable that all the
protestations of the accused in this respect would be, as they in fact were, dismissed.
And once the confessions were admitted, it was easy enough to employ them as
corroborating evidence of the claimed conspiracy among the accused.
The accused are admittedly notorious criminals who were probably even proud of their
membership in the Commando gang even as they flaunted their tattoos as a badge of
notoriety. 21 Nevertheless, they were entitled to be presumed innocent until the contrary was proved and
had a right not to be held to answer for a criminal offense without due process of law.

22

The judge disregarded these guarantees and was in fact all too eager to convict the
accused, who had manifestly earned his enmity. When he said at the conclusion of the
trial, "You want me to dictate the decision now?" 23, he was betraying a pre-judgment long
before made and obviously waiting only to be formalized.

The scales of justice must hang equal and, in fact, should even be tipped in favor of the
accused because of the constitutional presumption of innocence. Needless to stress,
this right is available to every accused, whatever his present circumstance and no
matter how dark and repellent his past. Despite their sinister connotations in our society,
tattoos are at best dubious adornments only and surely not under our laws indicia of
criminality. Of bad taste perhaps, but not of crime.
In any event, convictions are based not on the mere appearance of the accused but on
his actual commission of crime, to be ascertained with the pure objectivity of the true
judge who must uphold the law for all without favor or malice and always with justice.
Accused-appellants Opida and Marcelo, who have been imprisoned since 1976, have
sent us separate letters pleading for the resolution of their death sentences one way or
the other once and for all. Considering the way they were tried, we now declare that
they should not be detained in jail a minute longer. While this is not to say that the
accused are not guilty, it does mean that, because their constitutional rights have been
violated, their guilt, if it exists, has not been established beyond reasonable doubt and
so cannot be pronounced. Due process has stayed the uneven hand of the quick
condemnor and must set the defendants free.
WHEREFORE, the conviction of Alberto Opida and Virgilio Marcelo is reversed and
they are hereby ordered released immediately. No costs.
SO ORDERED.

Abad Santos, Yap, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr. and Paras, JJ.,
concur.
Feria and Fernan JJ., are on leave.

Separate Opinions

TEEHANKEE, C.J., concurring:

I concur. I wish to state that some of us are not persuaded at all that the two herein
accused should be held guilty of the single stab wound inflicted on the victim in what
appears to have been a tumultuous affray. I hail the Court'sratio decidendi that
prescinding therefrom, the accused's guilt, if it exists in reality, cannot be pronounced
because of the violation of their basic constitutional rights of due process and of the
constitutional provision outlawing uncounselled confessions.
In my dissenting opinion in the habeas corpus case of Dr. Aurora Parong, 1 wrote that "the
Court stands as the guarantor of the constitutional and human rights of all persons within its jurisdiction
and must see to it that the rights are respected and enforced. It is settled in this jurisdiction that once a
deprivation of a constitutional right is shown to exist, the court that rendered the judgment or before whom
the case is pending is ousted of jurisdiction and habeas corpus is the appropriate remedy to assail the
2
legality of the detention. So accused persons deprived of the constitutional right of speedy trial have
3
been set free. And likewise persons detained indefinitely without charges so much so that the detention
becomes punitive and not merely preventive in character are entitled to regain their freedom. The spirit
and letter of our Constitution negates as contrary to the basic precepts of human rights and freedom that
a person be detained indefinitely without any charges."

I had stressed in another case that the plain mandate of the constitutional provision
expressly adopted the exclusionary rule as the only practical means of enforcing the
constitutional injunction against uncounselled confessions obtained in violation of one's
constitutional rights by outlawing their admission in court. The outlawing of such
confessions thereby removed the incentive on the part of military or police officers to
disregard such basic constitutional rights, in the same manner that the exclusionary rule
bars admission of illegally seized evidence. 4
This fundamental rule that the court that rendered the judgment or before whom the
case is pending is ousted of jurisdiction upon showing of deprivation of a basic
constitutional right was eroded during the past authoritarian regime. I hail its vigorous
restatement in the ponencia of Mr. Justice Isagani A. Cruz.

Separate Opinions
TEEHANKEE, C.J., concurring:
I concur. I wish to state that some of us are not persuaded at all that the two herein
accused should be held guilty of the single stab wound inflicted on the victim in what
appears to have been a tumultuous affray. I hail the Court'sratio decidendi that
prescinding therefrom, the accused's guilt, if it exists in reality, cannot be pronounced
because of the violation of their basic constitutional rights of due process and of the
constitutional provision outlawing uncounselled confessions.
In my dissenting opinion in the habeas corpus case of Dr. Aurora Parong, 1 wrote that "the
Court stands as the guarantor of the constitutional and human rights of all persons within its jurisdiction
and must see to it that the rights are respected and enforced. It is settled in this jurisdiction that once a
deprivation of a constitutional right is shown to exist, the court that rendered the judgment or before whom
the case is pending is ousted of jurisdiction and habeas corpus is the appropriate remedy to assail the
2
legality of the detention. So accused persons deprived of the constitutional right of speedy trial have
3
been set free. And likewise persons detained indefinitely without charges so much so that the detention
becomes punitive and not merely preventive in character are entitled to regain their freedom. The spirit
and letter of our Constitution negates as contrary to the basic precepts of human rights and freedom that
a person be detained indefinitely without any charges."

I had stressed in another case that the plain mandate of the constitutional provision
expressly adopted the exclusionary rule as the only practical means of enforcing the
constitutional injunction against uncounselled confessions obtained in violation of one's
constitutional rights by outlawing their admission in court. The outlawing of such
confessions thereby removed the incentive on the part of military or police officers to
disregard such basic constitutional rights, in the same manner that the exclusionary rule
bars admission of illegally seized evidence. 4
This fundamental rule that the court that rendered the judgment or before whom the
case is pending is ousted of jurisdiction upon showing of deprivation of a basic
constitutional right was eroded during the past authoritarian regime. I hail its vigorous
restatement in the ponencia of Mr. Justice Isagani A. Cruz.
Footnotes
1 Gutierrez v. Santos,
2 SCRA 249; Banco Espanol Filipino vs Palanca, 37 Phil., 921; Ignacio v.
Villaluz, 90 SCRA 16; Tumey v. Ohio, 273 U.S. 510; Rule 137, Sec. 1,
Rules of Court; Article IV, Sec. 19, of the 1973 Constitution; Paderanga v.
Azura, 136 SCRA 266. Fernandez v. Presbitero, 79 SCRA 61.
3 TSN, Sept. 13, 1976, p. 142. Del Mundo was at large and could not be
prosecuted.

4 Rollo, p. 51-A; pp. 152-160.

5 Ibid
6 TSN, Oct. 4, 1976, pp. 77-78.
7 TSN, Sept. 29, 1976, p. 162.
8 TSN, Oct. 4, 1976, pp. 72-77.
9 TSN, Oct. 4, 1976, pp. 71-77.
10 TSN Sept. 22, 19-6. pp. 49-50.
11 TSN, Sept. 22, 1976, pp. 161-162.
12 TSN, Sept. 22, 1976, p. 56.
13 TSN, Oct. 4, 1976, p. 91.
14 TSN, Oct. 4, 1976, p. 93.
15 TSN, Oct. 4, 1976, pp. 107-108.
16 11 TSN, Oct. 4, 1976, pp. 110-115.
17 Rollo, p. 51-A.
18 Rollo, p. 51-A.
19 TSN, Oct. 4, 1976, pp. 75-76.
20 People v. Caguioa, 95 SCRA 2; People v. Alde, 64 SCRA 224; People
v. Holgado, 85 Phil. 752; People v. Ramos, 122 SCRA 312; People v.
Galit, 135 SCRA 465; People v. Cabrera, 134 SCRA 362,
21 TSN, Oct. 4, 1976, pp. 106-108.
22 1973 Constitution, Art. IV, Secs. 19,17.
23 TSN, Oct. 4, 1976, p. 121.
Teehankee, C.J.:
1 121 SCRA 472, 522, 531.

2 Gumabon vs. Director of Prisons, 37 SCRA 420, 427.

3 Conde vs. Diaz, 45 Phil. 173.
4 Magtoto vs. Manguera, 63 SCRA 4, 29.

Republic of the Philippines

Supreme Court
Baguio City

THIRD DIVISION
PEOPLE OF THE PHILIPPINES,
Appellee,

G.R. NO. 188104

Present:
CORONA, J., Chairperson,
VELASCO, JR.,
NACHURA,
PERALTA, and
MENDOZA, JJ.

- versus -

BENANCIO MORTERA y
BELARMINO,
Appellant.

Promulgated:
April 23, 2010

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

DECISION
MENDOZA, J.:

This is an appeal from the January 23, 2009 Decision[1] of the Court of
Appeals which affirmed with modification the Decision[2] of the Regional Trial

Court, Branch 16, Zamboanga City (RTC), in Criminal Case No. 19311, which
found accused Benancio[3] Belarmino guilty beyond reasonable doubt of the crime
of murder for the killing of one Robelyn Rojas.

The accusatory portion of the Amended Information[4] charging the accused

with murder reads:
That on or about August 25, 2002, in the City of Zamboanga,
Philippines and within the jurisdiction of this Honorable Court, the above
named accused, armed with a knife, by means of treachery and with intent
to kill, did then and there willfully, unlawfully and feloniously, assault,
attack and stab from behind with the use of said weapon that he was then
armed with, at the person of ROBELYN ROJAS y MALLARI, employing
means, manner and form which tended directly and specially to insure its
execution without any danger to the person of the accused, and as a result
of which attack, the said Robelyn Rojas y Mallari sustained stabbed wound
on the fatal part of the latters body which directly caused his death to the
damage and prejudice of the heirs of said victim.
CONTRARY TO LAW.

Upon arraignment on February 6, 2004, the accused pleaded Not Guilty.[5]

At the trial, the prosecution presented the following witnesses: (1) Ramil
Gregorio, an eyewitness; (2) Jovel Veales, another eyewitness; (3) Dr. Jamella
Marbella, examining physician; (4) Leticia Rojas, mother of Robelyn; and (5) PO1
Yaser Hakim.

The prosecutions version of the incident, as found by the trial court and
adopted by the Office of the Solicitor General, appears in the Appellees Brief[6] as
follows:
Robelyn Mallari Rojas, 23 years old, single, was stabbed and killed
on August 25, 2002 at Cabato Lane, Gov. Camins, Zamboanga City. Post
mortem examination conducted by Dr. Jamella Marbella, Medical Officer V
of Zamboanga City Health Office showed that Robelyn Rojas sustained the
following injuries:
1. Penetrating wound, clean edges, 2-5 cm width 1.5 cm. gaping
located at 5 cm. from spine below the left sub-scapular region. 19
cm. deep upward towards axilla, and 11 cm. deep downward towards
left flank region.

2. Linear abrasion 5.5 cm. in length at the left lateral aspect of left
arm (Ex. B).
The cause of his death was cardio pulmonary arrest probably secondary to
hemorrhagic shock secondary to stab wound, penetrating left back (Exh.
A-1).
Prosecution witness Ramil Gregorio y Toribio, 24 years old, single,
testified that on August 25, 2002, at about 3:00 oclock in the afternoon, he
together with Jovel Veales, Archie Saavedra, John Carpio, Plong Siano
and Alberto Rojas were drinking tuba at Cabato Lane, near Acapulco Drive,
Governor Camins,Zamboanga City. Four of them were sitting on a chair
leaning on a concrete wall while two of their companions sat on the
ground. They have just started drinking when Benancio Mortera, Jr.
arrived. He wanted to hit Alberto Rojas with a Nescafe glass. Alberto Rojas
ran away. Mortera said, Sayang. He listened while the group of Ramil
Gregorio were (sic) singing accompanied by a guitar. Jomer Diaz, brotherin-law of Alberto Diaz, arrived. He bought something from a store five
meters away from the place where Gregorio and his companions were
drinking. Mortera said, Here comes another Rojas. Gregorio and his
companions told Jomer Diaz to run away. Mortera hurled a stone at Diaz
but the latter was not hit. Mortera left but he said that he will return. After
a few minutes, Mortera came back. When Jomer Diaz ran, Robelyn Rojas,
brother of Alberto Rojas went to Jomer. Mortera met Robelyn at a distance
of about seven meters from the place where Ramil Gregorio and his
companions were drinking. Mortera and Robelyn discussed with each
other. After their discussion, Mortera and Robelyn shook hands. Robelyn

turned his face and walked three steps. Mortera suddenly stabbed Robelyn
Rojas at the back with a knife about 9 inches long. Robelyn was hit at the
back. After stabbing Robelyn, Mortera ran away. Robelyn Rojas tried to
chase Mortera but he was not able to catch up with the latter. Robelyn fell
down mortally wounded. He was brought to the hospital by his brother
Ricky but he was [pronounced] dead on arrival at the hospital (Exh. A).
Jovel Veales y Bandian, 23 years old, who was drinking together
with Ramil Gregorio, Archie Saavedra, John Carpio, Plong Siano and
Alberto Rojas, in the afternoon of August 25, 2002 corroborated Ramil
Gregorios testimony.
Mrs. Leticia Rojas y Mallari, 48 years old, married, is the mother of
Robelyn Rojas y Mallari. She testified that Robelyn is one of her eight
children. xxx She was at work at Zamboanga Puericulture Lyingin Maternity Hospital as laundry woman when her daughter Marilyn called
her by telephone informing her that Robelyn was stabbed. She went
to Western Mindanao Medical Center where she saw Robelyn already dead
with stab wound at the back. At past 6:00 oclock in the evening, Robelyns
body was brought to Remedios Funeral Parlor. Mrs. Rojas testified that
she spent a total of Php38,653.00 in connection with her sons death (Exh.
J; J-1, J-1-A to J-1-V).

Although the accused pleaded not guilty when arraigned,[7] during the trial,
he admitted having stabbed the victim whom he referred to as Tonying, but
claimed self-defense.[8] By his account, after leaving his uncles house at Gov.
Camins, he passed by a corner and saw a group of people drinking. They were
Ramil Gregorio, Jonel Veales and Tonying. Upon seeing him, Tonying ran away
and called his brother, Alberto Rojas. When the accused was about to reach the
main road, Alberto Rojas, Tonying and a certain Duk (brother-in-law of
Tonying) accosted him and asked him for liquor money. When he refused, the
three men got angry. After telling them that he had to go, Tonying hit him with a
spray gun (for painting), causing him to fall down. While he was in a supine
position, Tonying attempted to hit him again. It was at that point that he was able

to get hold of his knife and thrust it forward and hit someone. He did not know
who got stabbed. He then immediately fled to Ayala and later to Lintangan,
Zamboanga del Norte.[9]
The defense witness, Roden Macasantos, claimed that he was drinking with
the group of Alberto Rojas when he saw the accused having an argument with
Jomer Diaz. After they had pacified the two, he saw Diaz run away. Later, he
returned with Robelyn Rojas. Robelyn also argued with the accused, and they
were likewise pacified by the others in the group. The dispute apparently settled,
the group left Robelyn and the accused alone. After about five minutes, they heard
women shouting. When they went to find out what it was all about, they saw
Robelyn wounded. He, however, did not see the person who stabbed him.[10]
On January 23, 2007, the RTC rendered judgment finding the accused guilty
of murder. The trial court disposed of the case as follows:

WHEREFORE, the Court finds the accused BENANCIO MORTERA,

JR. Y BELARMINO GUILTY BEYOND REASONABLE DOUBT of the
crime of murder, as principal, for the unjustified killing of Robelyn Rojas y
Mallari and SENTENCES said accused to suffer the penalty of
RECLUSION PERPETUA and its accessory penalties, to pay the heirs of
the victim Php50, 000.00 as indemnity for his death; Php50,000.00 as
moral damages; Php30,000.00 as exemplary damages; Php38,653.00 as
actual damages; and to pay the costs.
SO ORDERED.

In rejecting the claim of self-defense, the trial court stated that it was not
worthy of belief as it was belied by the credible testimonies of the prosecution
witnesses.[11]
The accused appealed to the Court of Appeals raising the issues of denial of
due process of law and his right to an impartial trial. He claimed that the trial court
judge, Judge Jesus Carbon, was hostile towards him and prejudged his guilt as
could be inferred from his prosecutor-like conduct. The accused likewise
reiterated his claim of self-defense.
In its decision, the Court of Appeals affirmed the decision of the RTC with
modification as to the civil liability of the accused. The CA ruled that the trial
judge did not transgress the standard of cold neutrality required of a magistrate
and added that the questions he propounded were substantially clarificatory. The
claim of self-defense was rejected for failure to prove the element of unlawful
aggression by clear and convincing evidence. With respect to his civil liability,
temperate damages in the amount of P25,000.00 was awarded, in lieu of the actual
damages awarded by the trial court, for failure of Leticia Rojas to substantiate her
claim with official receipts. The amount of exemplary damages was likewise
reduced to P25,000.00. Specifically, the dispositive portion of the decision of the
Court of Appeals reads:

WHEREFORE, in view of the foregoing, the Decision dated January

16, 2007 in Criminal Case No. 19311 finding accused-appellant guilty
beyond reasonable doubt of the crime of Murder and sentencing him to
suffer the penalty of reclusion perpetua and its accessory penalties is
hereby AFFIRMED WITH MODIFICATION that accused-appellant is
ORDERED to pay the heirs of victim Robelyn Rojas the amounts
of P50,000.00
as
civil
indemnity, P50,000.00
as
moral

damages, P25,000.00 as temperate damages in lieu of actual damages,

and P25,000 as exemplary damages; and costs.
SO ORDERED.

Still not satisfied, the accused now comes before this Court.[12] In seeking his
acquittal, he has assigned three errors for the courts resolution, to wit: (i) there
was a denial of his right to due process and of his right to have an impartial trial;
(ii) there was no appreciation of the justifying circumstance of self defense; and
(iii) assuming that not all the requirements of self-defense were present, there was
no appreciation of the special mitigating circumstance of incomplete self-defense.
After an assiduous assessment of the records, the Court finds no reason to
reverse the judgment of conviction or even appreciate the special mitigating
circumstance of incomplete self-defense. We, thus, affirm.
For a better grasp of the assertion of the defense that he was denied his right
to due process of law and his right to an impartial trial, we quote at length the
transcript of stenographic notes. Thus:
DIRECT EXAMINATION ON THE WITNESS VENANCIO MORTERA,
JR.
COURT:
Q:
A:

During the arraignment you said you did not kill this Robelyn
Rojas. Did you say that?
Yes, Your Honor.

COURT:
And, its here where the accused interposed a negative defense
because, you said you have nothing to do with the death of Robelyn
Rojas.
WITNESS:

As far as I could remember Your Honor, he hit me then I fell down

then he still approached me so what I did, I was able to thrust my
knife.
COURT:
Q: You were suggesting that you might have killed him in selfdefense?
A: Yes, Your Honor.
Q:
A:
Q:
A:

As if there is something wrong to your story last February 6, 2004,

you invoked a negative defense?
Not intentional.
So, you are changing your story now? From a negative defense
you are now asserting affirmative defense?
He hit me first then I fell down just the same he continued
approaching me so I was able to do it?

COURT:
In effect, while you were in the middle of the river you are
changing boat and when you change boat in the middle of the
river, sometimes you get drowned. Because you told even your
own lawyer Atty. Mendoza, said that you interpose a negative
defense that is why we did not have reverse trial. You were not
even telling the truth to Atty. Mendoza. Because had you told him
the truth, it could have been
Q:
A:

Why did Atty. Mendoza, invoke negative defense?

Yes, Your Honor.

ATTY. MENDOZA:
Yes, Your Honor, I insisted that, in fact, he told me that he dont
[sic] know that person by that name
COURT:
Well, if he had nothing to do with the death of said person,
negative defense. So, if you are not telling the truth to your
lawyer, how would I know now that you are telling the truth?
Anyway if you killed a person you will have to pay for it Mr.
Mortera, do you agree also?

WITNESS:
Yes, Your Honor.
COURT:
So, cross-examination.
PROSECUTOR LEDESMA: CROSS EXAMINATION ON THE WITNESS
VENANCIO MORTERA, Jr.
Prosecutor Ledesma:
xxx
Q:
A:

And you said earlier that it was this Tingay [deceased] who attacked
you with this spray gun then you fell down?
Yes. Then he still approached me and at the same time asked
money and I asked for what? Then he said, for their vices.

Q:
A:

You were having this conversation while you were down?

Not yet.

Q:
A:

He was holding the spray gun on his hand, correct?

Yes.

Q:

Then you said while you were down you were able to thrust your
knife upward, correct?
Well, after hitting me, when I was already down he was still
approaching me and wanted to hit me again.

A:
Q:
A:
Q:
A:

Yes, approaching you and in the process of hitting you, that was the
time that you thrusted [sic] the knife, correct?
Yes.
And it was you, who advanced personally that you were able to hit
him, correct?
Yes.

COURT:
Q:
A:

You felt the blade of the knife slicing a person?

Yes, Your Honor.

Q:
A:

As if the knife hit a pig you were used to selling?

That knife is stainless used in cutting rope.

Q:
A:

Its a long white knife?

Not so long Your Honor

Q:
A:

But, enough to kill a person?

Somewhat like that Your Honor.

Q:
A:

But, not enough to kill a pig?

No, Your Honor. That is only used in cutting rope.

Q:
A:

Where is that evil knife?

Well, it is in the place at Bagsakan where we are having a place.

COURT:
You tell them to throw it away or bury that knife because that is a
bad knife. So long as that knife is there the one in possession of
that will always have bad luck. It is cursed. Eventually, Tingay is
already dead.
Q:
A:

Did your uncle also tell you that Tingay, sustained a single wound
at his back?
Yes.

COURT:
Q:
A:
Q:
A:

So, when you stabbed him he was trying to hit you with a very
small spray gun. How was it that he was hit at the back?
Well, when he was in the act of hitting me again, I
thrusted [sic] the knife to shall we say towards him Your Honor.
That is why, it is impossible because if he was trying to hit you
with a spray gun, you thrusted [sic] the knife towards him, how
was it that he was hit at the back?
He was hit Your Honor, when he was in the act of hitting me again.

COURT:
Proceed, Atty. Ledesma.
xxx
COURT:
Robelyn Rojas, was 23 years old when you killed him.
WITNESS:
I do not know the age.

COURT:
Of course, you do not know. The life span of a Filipino now is about
70 years old, Fiscal? .. Because we expect that long. So, if you did
not kill him he will still have 47 years to live.

PROSECUTOR LEDESMA:
I believed [sic] 80 years Your Honor.
COURT:
80 for purposes of compensation.
PROSECUTOR LEDESMA:
Yes.
COURT:
He has 57 years more to live. That is the trouble of killing people
because you are depriving the person of his right to live and even if
what you are saying is true, you could not have been killed with that
small spray gun You have no right to stab him. Besides, that is
not what your witness said even your own witness here is not
supporting your story. Who is that witness?
WITNESS:
Denden Macasantos
COURT:
Yes, Denden Macasantos. He did not declare what you are saying
now. You are just making a story.
Q:
A:
Q:

So, even the story of your witness who I think was telling the truth,
dont [sic] support your story Mr. Mortera Your story now is
different Did you hear Denden?
Yes.
They did not tell the same story as you are saying now about the
spray gun being used to hit you?

A:

I do not know with them Your Honor, but in my case I was really hit
with that spray gun.

Q:
A:

Were you injured?

No.

Q:
A:

Thats the whole trouble. Why will you have injury when you were
not hit?
I was hit Your Honor.

Q:
A:

You were hit?

Yes, I fell down and he continued approaching me.

COURT:
You did more than what Robelyn, did to you. You killed him.
Proceed.
PROSECUTOR LEDESMA:
Q:
A:

You did not report to the police that incident involving Tingay and
his group, correct?
Yes, I did not.

Q:
A:

Instead, you immediately left for Ayala?

Well, after the incident I ran away towards Ayala.

COURT:
Q:
A:
Q:
A:
Q:
A:

By your running away because you were afraid, you were

committing something wrong?
That is why, I ran away I have done something I was able to kill
somebody.
Why did you run to Ayala then run to Lintangan then return
to Acapulco Drive, knowing that you have a Warrant of Arrest, you
went back to Lintangan? Because you felt guilty?
Yes, Your Honor.
Robelyn, has seven brothers and sisters? So, maybe you should
have some vacation in Jail you are supposed to serve?
Yes. (Italics supplied)

Citing the foregoing as basis, the accused argues that Judge Jesus Carbon, Jr.
displayed his hostility towards him and condemned him even before the defense
could rest its presentation of evidence. By saying that he was just making a
story, the judge already concluded his guilt during trial.
The

Court

is

not

unaware

Sandiganbayan,[13] where it was written:

of

the

case

of Tabuena

v.

The Court has acknowledged the right of a trial judge to question

witnesses with a view to satisfying his mind upon any material point which
presents itself during the trial of a case over which he presides. But not
only should his examination be limited to asking clarificatory questions,
the right should be sparingly and judiciously used; for the rule is that the
court should stay out of it as much as possible, neither interfering nor
intervening in the conduct of trial hardly in fact can one avoid the
impression that the Sandiganbayan had allied itself with, or to be more
precise, had taken the cudgels for the prosecution in proving the case
against Tabuena and Peralta. The cold neutrality of an impartial judge
requirement of due process was certainly denied Tabuena and Peralta
when the court, with its overzealousness, assumed the dual role of
magistrate and advocate A substantial portion of the TSN was
incorporated in the majority opinion not to focus on numbers alone, but
more importantly to show that the court questions were in the interest of
the prosecution and which thus depart from the common standard of
fairness and impartiality. (emphasis added)

The situation in the case at bench is, however, different.

As correctly pointed out by the Court of Appeals, although the trial judge
might have made improper remarks and comments, it did not amount to a denial of
his right to due process or his right to an impartial trial. Upon perusal of the
transcript as a whole, it cannot be said that the remarks were reflective of his
partiality. They were not out of context. Not only did the accused mislead the
court by initially invoking a negative defense only to claim otherwise during trial,
he was also not candid to his own lawyer, who was kept in the dark as to his
intended defense.
The accused having admitted the killing, a reverse order of trial could have
proceeded.[14] As it turned out, the prosecution undertook to discharge the burden
of proving his guilt, when the burden of proof to establish that the killing was
justified should have been his.[15]

Most probably, the trial judge was peeved at the strategy he adopted. The
trial judge cannot be faulted for having made those remarks, notwithstanding the
sarcastic tone impressed upon it. The sarcasm alone cannot lead us to conclude
that the trial judge had taken the cudgels for the prosecution.

The invocation of Opida[16] fails to persuade us either. The facts therein are
not at all fours with the case at bench. In Opida, we did not fail to notice the
malicious, sadistic and adversarial manner of questioning by the trial judge
of the accused therein, including their defense witness. In Opida, the accused
never admitted the commission of the crime, and so the burden of proof remained
with the prosecution.
In his second assigned error, the accused invokes self-defense. By asserting
it, however, it became incumbent upon him to prove by clear and convincing
evidence that he indeed had acted in defense of himself. The requisites of selfdefense are: (1) unlawful aggression; (2) reasonable necessity of the means
employed to repel or prevent it; and (3) lack of sufficient provocation on the part of
the person defending himself.[17]
The issue of whether or not the accused acted in self-defense is undoubtedly
a question of fact, and it is well entrenched in jurisprudence that findings of fact of
the trial court command great weight and respect unless patent inconsistencies are
ignored or where the conclusions reached are clearly unsupported by
evidence.[18] In the present case, we find no cogent reason to disturb the decision

of the trial court, as modified by the CA. In debunking his claim, we quote with
approval the ruling of the CA.
In the instant case, accused-appellant claims that there was unlawful
aggression on the part Robelyn Rojas when the latter allegedly hit him with
a spray gun. However, except this self-serving statement, no other
evidence was presented to prove that indeed he was hit by
Robelyn. Accused-appellant failed to show where he was hit and what
injuries he sustained, if any. Moreover, his own defense witness Roden
Macasantos did not see him being hit by a spray gun. On the contrary, the
prosecution has clearly shown that before Robelyn was stabbed, the two
even discussed with each other and accused-appellant even shook hands
with him. Moreover, if indeed it was true that Robelyn was carrying a
spray gun and tried to hit him, accused-appellant, while he was in a supine
position, could have easily just flaunted his knife to scare his alleged
attackers away. On the other hand, even if we assume to be true that he was
in a supine position when he thrust the knife at his attacker, it is however
impossible that the back of Robelyn would be hit, unless the latter could
also fell (sic) on his back, which is again far from reality. In a myriad of
cases, it has been ruled that the location, number or seriousness of the stab
or hack wounds inflicted on the victim are important indicia which may
disprove accuseds plea of self defense. In the instant case, it is clear that
the victim was stabbed at the back negating any indication that accusedappellant acted in self defense.

Finding the primordial requisite of unlawful aggression wanting, the Court

cannot appreciate the mitigating circumstance of incomplete self-defense.
As regards damages, we affirm the modification made by the Court of
Appeals. Considering that only P14,653.50 of the P38,653.00 actual damages
awarded by the trial court is supported by receipts, the award of P25,000.00 as
temperate damages is proper.[19] We, however, reinstate the amount of exemplary
damages toP30,000.00 to be in accord with current jurisprudence.[20]
WHEREFORE, the January 23, 2009 Decision of the Court of Appeals in
CA-G.R. CR-H.C. No. 00518-MIN is AFFIRMED.

SO ORDERED.

JOSE CATRAL MENDOZA

Associate Justice

WE CONCUR:

RENATO C. CORONA
Associate Justice

PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA

Associate Justice
Associate Justice

DIOSDADO M. PERALTA
Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the write5r of the opinion of the
Courts Division.

RENATO C. CORONA
Associate Justice
Chairperson, Third Division

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution and the Division
Chairpersons Attestation, I certify that the conclusions in the above Decision had

been reached in consultation before the case was assigned to the writer of the
opinion of the Courts Division.

REYNATO S. PUNO
Chief Justice

[1]

Penned by Justice Rodrigo F. Lim Jr. and concurred in by Justices Michael P. Elbinias and Ruben C. Ayson,
CA rollo, pp.126-146.
[2]
Penned by Judge Jesus C. Carbon, Jr.
[3]
Appellants Brief, CA rollo, p. 1, supra note 1.
[4]
Records, p. 1.
[5]
Id. at 19.
[6]
CA rollo, pp. 55-57.
[7]
Records, p. 20.
[8]
TSN, February 17, 2005, p. 14.
[9]
Id. at 4-9.
[10]
TSN, November 25, 2004, pp. 2-10.
[11]
Records, pp. 107-108.
[12]
Both the accused and the OSG manifested that they were dispensing with the filing of supplemental briefs and
submitting the case for decision based on the briefs they had filed with the CA.
[13]

G.R. Nos. 103501-03, G.R. No. 103507, February 17, 1997, 268 SCRA 332.
Rule 119, Section 11. The trial shall proceed in the following order:
xxxx
(e) When the accused admits the act or omission charged in the complaint or information but interposes a
lawful defense, the order of trial may be modified.
[15]
People v. Unarce, G.R. No. 120549, April 4, 1997, 270 SCRA 756.
[16]
G.R. No. L-46272, June 13, 1986, 142 SCRA 295.
[17]
Novicio v. People, G.R. No. 163331, August 29, 2008, 563 SCRA 680.
[18]
People v. Barriga, G.R. No. 178545 September 29, 2008, 567 SCRA 65.
[19]
People v. Se, G.R. No. 152966, March 17, 2004, 425 SCRA 725.
[20]People v. Elmer Peralta y Hidalgo, G..R. No. 187531, October 16, 2009; and People v. Antonio Dalisay y
Destresa, G.R. No. 188100, November 25, 2009.
[14]

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 190171

March 14, 2011

ALEN ROSS RODRIGUEZ and REGIDOR TULALI, Petitioners,

vs.
The Hon. BIENVENIDO BLANCAFLOR, in his capacity as the Acting Presiding
Judge of the Regional Trial Court of Palawan, Branch 52, and PEOPLE OF THE
PHILIPPINES, Respondents.
DECISION
MENDOZA, J.:
This is a petition for certiorari and prohibition under Rule 65 of the Revised Rules of
Court filed by Alen Ross Rodriguez (Rodriguez), the Provincial Prosecutor of Palawan;
and Regidor Tulali (Tulali), Prosecutor I of the Office of the Provincial Prosecutor of
Palawan, seeking to annul and set aside the October 13, 2009 Decision 1 of respondent
Judge Bienvenido Blancaflor (Judge Blancaflor), Acting Presiding Judge of Branch 52,
Regional Trial Court, Palawan (RTC). The petition likewise seeks to prohibit Judge
Blancaflor from implementing the said decision.
In his October 13, 2009 Decision, Judge Blancaflor found petitioners Rodriguez and
Tulali guilty of direct contempt and ordered them to issue a public apology to the court.
In the same decision, Judge Blancaflor suspended them indefinitely from the practice of
law. The dispositive portion of the decision reads:
WHEREFORE, premises considered, judgment is hereby rendered finding respondents
PROVINCIAL PROSECUTORS OF PALAWAN ALEN ROSS B. RODRIGUEZ and
PROSECUTOR REGIDOR TULALI as both guilty of direct contempt and for violation of
their oath of office as member of the bar and as officer of the Court, and hereby
sentence them to suffer the penalty of INDEFINITE SUSPENSION from practice of law
and for each to pay a fine of P100,000.00.
Respondents are further directed to issue a public apology to the Court for the above
grave offenses and should they fail to do so after the finality of this Sentence, a warrant
for their arrest will be issued, and they will not be released unless they comply with the
order of this Court.
Let a copy of this Order be furnished the Secretary of Justice for appropriate action.
IT IS SO ORDERED.2
The Facts
Previously pending before Judge Blancaflor was Criminal Case No. 22240 for
arson (arson case), entitled People of the Philippines v. Teksan Ami, in which Tulali was
the trial prosecutor.

During the pendency of the case, Tulali was implicated in a controversy involving an
alleged bribery initiated by Randy Awayan (Awayan), the driver assigned to Judge
Blancaflor under the payroll of the Office of the Governor of Palawan, and one Ernesto
Fernandez (Fernandez), to assure the acquittal of the accused, Rolly Ami (Ami), and the
dismissal of the arson case.
On June 29, 2009, a day before the scheduled promulgation of the decision in the arson
case, Tulali filed an Ex-Parte Manifestation withdrawing his appearance in the said case
to prevent any suspicion of misdemeanor and collusion. He attached to the said
manifestation a copy of the administrative complaint against Awayan filed (but
eventually withdrawn) by his superior, Rodriguez, before the Office of the Governor of
Palawan.
On June 30, 2009, Judge Blancaflor rendered his decision acquitting Ami of the crime of
arson.
Purportedly on the basis of the administrative complaint filed against Awayan and
Rodriguez, Judge Blancaflor summoned several witnesses including Tulali and heard
their testimonies. On July 30, 2009, he issued an order summoning Rodriguez to
appear before him for the purpose of holding an inquiry on matters pertaining to his
possible involvement in Tulalis filing of the ex-parte manifestation and the
administrative complaint against Awayan, among others.
On August 7, 2009, Rodriguez filed his Motion for Clarification as to the purpose of
Judge Blancaflors continued inquiries considering that the decision in the arson case
had already been promulgated.
In an order dated August 13, 2009, Judge Blancaflor informed the petitioners that he
was proceeding against them for direct contempt and violation of their oath of office on
the basis of Tulalis Ex-Parte Manifestation.
As earlier recited, after the submission of petitioners respective position papers, Judge
Blancaflor issued the assailed October 13, 2009 Decision finding petitioners guilty of
direct contempt. The penalty of indefinite suspension from the practice of law and a fine
of P100,000.00 each were imposed upon them.
The petitioners filed a motion for reconsideration of the decision but it was denied in the
assailed November 6, 2009 Order.3
Hence, the petitioners interpose the present special civil action before this Court
anchored on the following
GROUNDS
(A)

RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING

TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE ASSAILED
DECISION AND ORDER CONSIDERING THAT PETITIONERS WERE DENIED
THEIR RIGHT TO DUE PROCESS.
(B)
RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE ASSAILED
DECISION AND ORDER CONSIDERING THAT HE GROSSLY VIOLATED THE
RULES ON CONTEMPT.
(C)
SINCE THE ASSAILED DECISION AND ORDER ARE VOID, A WRIT OF
PROHIBITION MUST BE ISSUED AGAINST RESPONDENT.4
Petitioners argue that the contempt proceedings are null and void for contravening their
rights to due process of law. They claim that they were denied their rights to be
informed of the nature and cause of the accusation against them, to confront the
witnesses and present their own evidence. According to petitioners, Judge Blancaflors
disregard of due process constituted grave abuse of discretion which was further
aggravated by the unlawful manner of simultaneously conducting suspension and
contempt proceedings against them.
Petitioners further argue that the penalty imposed upon them in the "direct contempt"
proceeding is clearly oppressive and without basis.
In its Manifestation in Lieu of Comment,5 the Office of the Solicitor
General (OSG) stated that Judge Blancaflor committed grave abuse of discretion
amounting to lack or excess of jurisdiction in holding petitioners guilty of direct contempt
as the judgment was not based on law and evidence.
The petition is impressed with merit.
The power to punish a person in contempt of court is inherent in all courts to preserve
order in judicial proceedings and to uphold the orderly administration of justice.
However, judges are enjoined to exercise the power judiciously and sparingly, with
utmost restraint, and with the end in view of utilizing the same for correction and
preservation of the dignity of the court, and not for retaliation or vindictiveness. It bears
stressing that the power to declare a person in contempt of court must be exercised on
the preservative, not the vindictive principle; and on the corrective, not the retaliatory,
idea of punishment.6 Such power, being drastic and extraordinary in its nature, should
not be resorted to unless necessary in the interest of justice.7

In this case, the Court cannot sustain Judge Blancaflors order penalizing petitioners for
direct contempt on the basis of Tulalis Ex-Parte Manifestation.
Direct contempt is any misbehavior in the presence of or so near a court as to obstruct
or interrupt the proceedings before the same, including disrespect toward the court,
offensive personalities toward others, or refusal to be sworn or to answer as a witness,
or to subscribe an affidavit or deposition when lawfully required to do so. 8
Based on the foregoing definition, the act of Tulali in filing the Ex-Parte Manifestation
cannot be construed as contumacious within the purview of direct contempt. It must be
recalled that the subject manifestation bore Tulalis voluntary withdrawal from the arson
case to dispel any suspicion of collusion between him and the accused. Its filing on the
day before the promulgation of the decision in the pending criminal case, did not in any
way disrupt the proceedings before the court. Accordingly, he should not be held
accountable for his act which was done in good faith and without malice.
Neither should Rodriguez be liable for direct contempt as he had no knowledge of, or
participation in, the preparation and filing of the subject manifestation. It was signed and
filed by Tulali alone in his capacity as the trial prosecutor in the arson case. The
attached complaint against Awayan was filed with the Office of the Palawan Governor,
and not with the RTC.
Apparently, Judge Blancaflors conclusion, that the subject manifestation containing
derogatory matters was purposely filed to discredit the administration of justice in court,
is unfounded and without basis. There being no factual or legal basis for the charge of
direct contempt, it is clear that Judge Blancaflor gravely abused his discretion in finding
petitioners guilty as charged.
Such grave abuse of authority is likewise manifested from the penalty imposed on the
petitioners. Under Section 1, Rule 71 of the Revised Rules of Court, direct contempt
before the RTC or a court of equivalent or higher rank is punishable by a fine not
exceeding P2,000.00 or imprisonment not exceeding ten (10) days, or both.
The penalty of indefinite suspension from the practice of law and to pay a fine
of P100,000.00 each with the additional order to issue a public apology to the Court
under pain of arrest, is evidently unreasonable, excessive and outside the bounds of the
law.
Petitioners also fault Judge Blancaflor for non-observance of due process in conducting
the contempt proceedings. It must be emphasized that direct contempt is adjudged and
punished summarily pursuant to Section 1, Rule 71 of the Rules. Hence, hearings and
opportunity to confront witnesses are absolutely unnecessary.
In the same vein, the petitioners alleged "vilification campaign" against Judge
Blancaflor cannot be regarded as direct contempt. At most, it may constitute indirect
contempt, as correctly concluded by the OSG. For indirect contempt citation to prosper,

however, the requirements under Sections 3 and 4, Rule 71 of the Rules must be
satisfied, to wit:
Sec. 3. Indirect contempt to be punished after charge and hearing. After a charge in
writing has been filed, and an opportunity given to the respondent to comment thereon
within such period as may be fixed by the court and to be heard by himself or counsel, a
person guilty of any of the following acts may be punished for indirect contempt:
xxx
(d) any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade
the administration of justice;
x x x.
Sec. 4. How proceedings commenced. Proceedings for indirect contempt may be
initiated motu proprio by the court against which the contempt was committed by an
order or any other formal charge requiring the respondent to show cause why he should
not be punished for contempt.
In all other cases, charges for indirect contempt shall be commenced by a verified
petition with supporting particulars and certified true copies of documents or papers
involved therein, and upon full compliance with the requirements for filing initiatory
pleadings for civil actions in the court concerned. If the contempt charges arose out of
or are related to a principal action pending in the court, the petition for contempt shall
allege that fact but said petition shall be docketed, heard and decided separately,
unless the court in its discretion orders the consolidation of the contempt charge and the
principal action for joint hearing and decision.
In the present case, Judge Blancaflor failed to observe the elementary procedure which
requires written charge and due hearing. There was no order issued to petitioners.
Neither was there any written or formal charge filed against them. In fact, Rodriguez
only learned of the contempt proceedings upon his receipt of the July 30, 2009 Order,
requiring him to appear before the Court in order to clarify certain matters contained in
the said order. Tulali, on the other hand, only learned of the proceedings when he was
ordered to submit his compliance to explain how he came in possession of the
administrative complaint against Awayan.
The fact that petitioners were afforded the opportunity to file their appropriate pleadings
is not sufficient as the proceedings ex-parte to hear the witnesses testimonies had
already been completed.
In the course of his investigation, Judge Blancaflor showed that he no longer had the
cold impartiality expected of a magistrate. He had clearly prejudged petitioners as
manifested in the questions propounded in his July 30, 2009 Order, as follows:

a. Your [petitioner Rodriguezs] participation, if any, in the filing of the ex-parte

manifestation by Prosecutor Tulali together with the attachment of your letter to
Gov. Joel T. Reyes dated May 8, 2009 filed on June 29, 2009 with the Clerk of
Court, Branch 52, Regional Trial Court, Palawan;
b. Whether or not the letter was received and read by Gov. Joel T. Reyes, if you
know, and if so what was the official action thereon;
c. Before Randy Awayan was terminated on June 30, 2009 was he allowed to
answer the charges against him, i.e., calling him bag man and facilitator and
Ernesto Fernandez, calling him "extortionist."
Aside from the allegations of Salam Ami, any other evidentiary basis for your
conclusion that Ernesto Fernandez was an extortionist and that Awayan was a
bag man and facilitator;
What was your role in obtaining the release of accused Rolly Ami from the City
Jail without permission from the Court on June 29, 2009 at 2:00 0clock in the
afternoon and having been interviewed in the Office of the Provincial Prosecutor
(c/o Prosecutor Tulali) and how long was Rolly Ami interviewed?
d. Rolly Ami is publicly known as illiterate (cannot read or write) but he was made
to sign affidavits in the absence of his lawyer on June 29, 2009 at 2:00 oclock in
the afternoon, why?
e. Rolly Ami was fetched upon his release by SPO4 Efren Guinto, a close
associate of yours, and directly went to the Palawan Pawnshop to pawn
expensive jewelry (watch and ring), why?
What is your participation in the media coverage Re: VILIFICATION CAMPAIGN of the
Judge of Branch 52 RTC-Palawan from July 1 to 10, 2009. Do you recognize that as a
member of the Bar and as an officer of the Court, pursuant to the rules of judicial ethics
and your oath of office as a lawyer, your loyalty and fidelity is primarily to the Court? Do
you still recognize this duty and obligation?9
Indeed, Judge Blancaflor failed to conform to the standard of honesty and impartiality
required of judges as mandated under Canon 3 of the Code of Judicial Conduct.
As a public servant, a judge should perform his duties in accordance with the dictates of
his conscience and the light that God has given him. A judge should never allow himself
to be moved by pride, prejudice, passion, or pettiness in the performance of his duties.
He should always bear in mind that the power of the court to punish for contempt should
be exercised for purposes that are impersonal, because that power is intended as a
safeguard not for the judges as persons but for the functions that they exercise. 10

Contempt and suspension proceedings are supposed to be separate and distinct. They
have different objects and purposes for which different procedures have been
established. Judge Blancaflor should have conducted separate proceedings. As held in
the case of People v. Godoy,11 thus:
A contempt proceeding for misbehavior in court is designed to vindicate the authority of
the court; on the other hand, the object of a disciplinary proceeding is to deal with the
fitness of the court's officer to continue in that office, to preserve and protect the court
and the public from the official ministrations of persons unfit or unworthy to hold such
office. The principal purpose of the exercise of the power to cite for contempt is to
safeguard the functions of the court and should thus be used sparingly on a
preservative and not, on the vindictive principle. The principal purpose of the exercise of
disciplinary authority by the Supreme Court is to assure respect for orders of such court
by attorneys who, as much as judges, are responsible for the orderly administration of
justice.
x x x. It has likewise been the rule that a notice to a lawyer to show cause why he
should not be punished for contempt cannot be considered as a notice to show cause
why he should not be suspended from the practice of law, considering that they have
distinct objects and for each of them a different procedure is established. Contempt of
court is governed by the procedures laid down under Rule 71 of the Rules of Court,
whereas disciplinary actions in the practice of law are governed by file 138 and 139
thereof.
Thus, it was grossly improper for Judge Blancaflor to consider his July 30, 2009 Order
on the contempt charge as the notice required in the disciplinary proceedings
suspending petitioners from the practice of law.
1av vphi1

Granting that the simultaneous conduct of contempt and suspension proceedings is

permitted, the suspension of petitioners must still fail.
This Court is not unmindful of a judges power to suspend an attorney from practice for
just cause pursuant to Section 28, Rule 138 of the Revised Rules of Court. Judge
Blancaflor, however, must be reminded that the requirements of due process must be
complied with, as mandated under Section 30, Rule 138 of the same Rules which
specifically provides, viz:
Sec. 30. Attorney to be heard before removal or suspension. No attorney shall be
removed or suspended from the practice of his profession, until he has had full
opportunity upon reasonable notice to answer the charges against him, to produce
witnesses in his own behalf, and to be heard by himself or counsel. But if upon
reasonable notice he fails to appear and answer the accusation, the court may proceed
to determine the matterex parte.
Indeed, a lawyer may be disbarred or suspended for any misconduct showing any fault
or deficiency in his moral character, honesty, probity or good demeanor. His guilt,

however, cannot be presumed. It must indicate the dubious character of the acts done,
as well as the motivation thereof. Furthermore, a disbarred lawyer must have been
given full opportunity upon reasonable notice to answer the charges against him,
produce witnesses in his own behalf, and to be heard by himself and counsel. 12
In the case at bench, there was no prior and separate notice issued to petitioners
setting forth the facts constituting the misconduct and requiring them, within a specified
period from receipt thereof, to show cause why they should not be suspended from the
practice of their profession. Neither were they given full opportunity to defend
themselves, to produce evidence on their behalf and to be heard by themselves and
counsel. Undoubtedly, the suspension proceedings against petitioners are null and void,
having violated their right to due process.
Likewise, Judge Blancaflors suspension order is also void as the basis for suspension
is not one of the causes that will warrant disciplinary action. Section 27, Rule 138 of the
Rules enumerates the grounds for disbarment or suspension of a member of the Bar
from his office as attorney, to wit: (1) deceit, (2) malpractice, (3) gross misconduct in
office, (4) grossly immoral conduct, (5) conviction of a crime involving moral turpitude,
(6) violation of the lawyer's oath, (7) willful disobedience of any lawful order of a superior
court, and for (8) willfully appearing as an attorney for a party without authority to do so.
Judge Blancaflor failed to show that the suspension was for any of the foregoing
grounds.
In fine, having established that Judge Blancaflor committed grave abuse of discretion
amounting to lack or excess of jurisdiction, petitioners are entitled to the remedy of
prohibition under Section 2, Rule 71 of the Rules on Contempt which provides:
SEC. 2. Remedy therefrom. - The person adjudged in direct contempt by any court may
not appeal therefrom, but may avail himself of the remedies of certiorari or prohibition.
The execution of the judgment shall be suspended pending resolution of such petition,
provided such person files a bond fixed by the court which rendered the judgment and
conditioned that he will abide by and perform the judgment should the petition be
decided against him.
Accordingly, an order of direct contempt is not immediately executory or enforceable.
The contemnor must be afforded a reasonable remedy to extricate or purge himself of
the contempt. Where the person adjudged in direct contempt by any court avails of the
remedy of certiorari or prohibition, the execution of the judgment shall be suspended
pending resolution of such petition provided the contemnor files a bond fixed by the
court which rendered the judgment and conditioned that he will abide by and perform
the judgment should the petition be decided against him.13
WHEREFORE, the petition is GRANTED. The October 13, 2009 Decision and
November 6, 2009 Order are hereby annulled and set aside. Judge Bienvenido
Blancaflor is hereby permanently enjoined from implementing the said decision and
order. This injunctive order is immediately executory.

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 154042

April 11, 2011

JOSE T. TUBOLA, JR., Petitioner,

vs.
SANDIGANBAYAN AND PEOPLE OF THE PHILIPPINES, Respondents.
DECISION
CARPIO MORALES, J.:
Jose Tubola, Jr. (petitioner) appeals the December 7, 2000 Decision1 and June 10,
2002 Resolution of the Sandiganbayan in Criminal Case No. 12015 which found him
guilty of Malversation of Public Funds penalized under Article 217 of the Revised Penal
Code, committed as follows:
That within the period from June 25, 1982 up to November 8, 1982, and for sometime
prior thereto, in Iloilo City, Philippines and within the jurisdiction of this Honorable Court,
the said accused who was a duly appointed cashier/collecting officer of the National
Irrigation System, Iloilo City and as such was an accountable public officer for public
funds that were in his official custody by reason of his official position, did then and
there, wilfully, unlawfully and feloniously, with grave abuse of confidence misappropriate
and convert to his own personal use and benefit the amount of NINE THREE
THOUSAND FIFTY ONE PESOS AND EIGHTY- EIGHT CENTAVOSP93,051.88 to the
damage and prejudice of the government.
CONTRARY TO LAW.2 (emphasis and underscoring supplied)
Petitioner was the cashier of the National Irrigation Administration (NIA)-Aganan, Sta.
Barbara River Irrigation System in Iloilo City. On November 8, 1982, Commission on
Audit (COA) State Auditing Examiners Yvonne Gotera (Gotera) and Theresita Cajita
(Cajita) conducted an audit examination of petitioners account which indicated a
shortage of P93,051.88.3
Gotera and Cajita thus sent a letter of demand dated November 23, 1982 to petitioner
directing him to account for the shortage.4 Petitioner refused to receive the letter,
however, hence, Gotera and Cajita sent it by registered mail.5

Petitioner was thereupon charged of committing malversation of public funds before the
Sandiganbayan to which he pleaded "not guilty."6
By the account of Gotera, the lone witness for the prosecution, petitioner had an
account balance of P30,162.46 prior to June 25, 1982; that from June 25 to November
8, 1982, the date petitioners account was audited, his cash collections
totaled P347,995.64; that his remittances from June 25 to November 8, 1982
totaledP285,105.41; and that the total collections less total remittances amounted
to P93,051.88 as of November 8, 1982.7
Still by Goteras account, the audit team found in petitioners drawer "vales/chits" or
promissory notes or receivables signed by NIA employees involving the total amount
of P79,044.51.8
Petitioner, who claimed that he was assigned as cashier since 1978 and was also in
charge of payment of salaries of more than 2,000 field employees in the NIA Jalaur
Project, declared that his task of keeping the collected irrigation fees was temporarily
assigned to Editha Valeria (Valeria) upon instruction of his superior, Regional Director
Manuel Hicao,9 for he (petitioner) was also handling the payroll of around 2,000
employees.
Petitioner further declared that no accounting of the collected fees was undertaken
since he trusted Valeria, who directly remitted them to the bank, after he signed the
statement of collection without reading the contents thereof. 10
Petitioner presented "vales" and "chits" involving the total amount of P115,661.66
representing loans extended by Valeria to certain NIA employees and even COA
auditors.11 And he identified "chits" and "vales" dated 1975 to 1981 inclusive
representing loans extended prior to the audit period.12
By Decision of December 7, 2000,13 the Sandiganbayan convicted petitioner as
charged, disposing as follows:
WHEREFORE, the guilt of the accused, JOSE TUBOLA, JR., having been proven
beyond reasonable doubt, the Court hereby CONVICTS him of the crime of
Malversation of Public Funds penalized under Article 217 of the Revised Penal Code.
Appreciating in his favor the mitigating circumstance of voluntary surrender, without any
aggravating circumstance to offset the same, and applying the Indeterminate Sentence
Law, the accused is hereby sentenced to suffer the indeterminate penalty of TEN (10)
years and ONE (1) day of Prision Mayor as Minimum, to SEVENTEEN (17) years,
FOUR (4) months of Reclusion Temporal as Maximum, and the accessory penalties
provided for by law.
He is likewise ordered to indemnify the Republic of the Philippines the amount of Ninety
Three Thousand Fifty One Pesos and Eighty Eight Centavos (P93,051.88); to pay a fine

in the same amount, which is the amount of money malversed and the costs of suit, and
finally to suffer perpetual disqualification to hold public office.
SO ORDERED.14 (Capitalization, italics and emphasis in the original)
His motion for reconsideration having been denied,15 petitioner lodged the present
appeal, imputing error on the Sandiganbayan for
I
. . . CONCLUD[ING] THAT [HE] FAILED TO REBUT THE PRESUMPTION UNDER
ARTICLE 217 OF THE REVISED PENAL CODE . . .
II
. . . CONCLUDING THAT [HE] HAS COMMITTED INEXCUSABLE NEGLIGENCE IN
DELEGATING THE CUSTODY OF THE ACCOUNT TO [AN]OTHER PERSON.
III
. . . RENDERING JUDGMENT OF CONVICTION NOTWITHSTANDING THE FACT
THAT IT HAS BEEN CLEARLY ESTABLISHED THAT [HE] IS NOT AN ACTUAL AND
POTENTIAL WRONGDOER.
IV
. . . VIOLAT[ING] [HIS] BASIC CONSTITUTIONAL RIGHT TO DUE PROCESS WHEN
IT ACTIVELY TOOK PART IN THE QUESTIONING OF THE ACCUSED WHEN HE
WAS PRESENTED AS A WITNESS.16
To petitioner, the evidence adduced at the trial had overcome the legal presumption that
he put the missing funds to his personal use. There is, he argues, "incontrovertible fact
that [he] ha[d] not received any single centavo in the form of irrigation fees" since the
collections were actually received by Valeria.17
According to petitioner, he being the superior of Valeria, he had to rely on her honesty
and competence in the performance of her duties. He cites Arias v.
Sandiganbayan,18 which ruled that a head of office is not required to examine every
single detail of any transaction from its inception until it is finally approved, to deem it no
longer necessary for him to examine all the details each time a remittance of the fees
was made.
Petitioner even posits that the Sandiganbayan was unsure whether he was guilty of
malversation intentionally or through negligence.

In fine, petitioner insists that as the primary task of collecting the irrigation fees was the
responsibility of Valeria, he cannot be faulted for negligence.19
Further, petitioner posits that he was neither an actual or potential wrongdoer and,
absent criminal intent, he should not be convicted with the full harshness of the law. 20
Finally, petitioner points out that his right to due process was violated, the Justices of
the Sandiganbayan having actively participated in the criminal proceedings by "tak[ing]
into their own hands in proving the case against [him]."21
The People, through the Special Prosecutor, draws attention to the failure of petitioner
to present Valeria to shed light on her actual duties, or to at least present a certification
from then Regional Director Manuel Hicao, who allegedly ordered Valeria to take over
from petitioner the duty of collecting irrigation fees. To the People, petitioners selfserving testimony failed to controvert the legal presumption of misappropriation. 22
The People goes on to contend that petitioner may still be convicted of malversation by
negligence even if the Information alleged the commission of intentional malversation
since the "dolo or culpa present in the offense is only a modality in the perpetration of
the felony."23
Respecting the supposed violation of petitioners right to due process in light of the
alleged "active" participation of the Sandiganbayan Justices in questioning him during
the hearing of the case, the People underscores that it is the duty of a trial judge to
examine a witness "to secure a full and clear understanding of the facts or to test to his
satisfaction the credibility of the witness"24
Article 217 of the Revised Penal Code provides:
Art. 217. Malversation of public funds or property. Presumption of malversation. - Any
public officer who, by reason of the duties of his office, is accountable for public funds or
property, shall appropriate the same, or shall take or misappropriate or shall consent, or
through abandonment or negligence, shall permit any other person to take such public
funds or property, wholly or partially, or shall otherwise be guilty of the misappropriation
or malversation of such funds or property, shall suffer:
1. The penalty of prision correccional in its medium and maximum periods, if the
amount involved in the misappropriation or malversation does not exceed two
hundred pesos.
2. The penalty of prision mayor in its minimum and medium periods, if the
amount involved is more than two hundred pesos but does not exceed six
thousand pesos.

3. The penalty of prision mayor in its maximum period to reclusion temporal in its
minimum period, if the amount involved is more than six thousand pesos but is
less than twelve thousand pesos.
4. The penalty of reclusion temporal in its medium and maximum periods, if the
amount involved is more than twelve thousand pesos but is less than twenty-two
thousand pesos. If the amount exceeds the latter, the penalty shall be reclusion
temporal in its maximum period to reclusion perpetua.
In all cases, persons guilty of malversation shall also suffer the penalty of perpetual
special disqualification and a fine equal to the amount of the funds malversed or equal
to the total value of the property embezzled.
The failure of a public officer to have duly forthcoming any public fund or property with
which he is chargeable,upon demand by any duly authorized officer, shall be prima
facie evidence that he has put such missing funds or property to personal uses. (italics
in the original, emphasis and underscoring supplied)
The elements of malversation of public funds are thus:
1. that the offender is a public officer;
2. that he had the custody or control of funds or property by reason of the duties
of his office;
3. that those funds or property were public funds or property for which he was
accountable; and
4. that he appropriated, took, misappropriated or consented or, through
abandonment or negligence, permitted another person to take them. 25
All the above-mentioned elements are here present. Petitioner was a public officer 26
he occupied the position of cashier at the NIA. By reason of his position, he was tasked
to regularly handle irrigation fees, which are indubitably public funds pertaining to the
NIA, and to remit them to the depositary bank.
As established by the prosecution, petitioner was the one who remitted irrigation fees
collected from June 25, 1982 to October 31, 198327 inclusive, so that even if the Court
were to credit petitioners allegation that Valeria had actually taken over his function of
collecting the irrigation fees, the collections were still, in fact by his admission, turned
over to him.
Q: How about the money after this payment for irrigation fees are entered in the
Collection Book for which Ms. Edita Valeria is the one in charge, who keeps the money
being paid for irrigation fees?

A: She is the one holding the money turned over to her by the farmers who paid their
irrigation fees, sir. I am just reporting in my office every 7th, 15th.
PJ GARCHITORENA
Confine your answer to the question. Who keeps the irrigation fees being collected?
A: Edita Valeria, your Honor.
PJ GARCHITORENA
Q: Is that part of her functions?
WITNESS
A: No, your Honor.
Q: Whose function is it to keep the irrigation fees?
A: My function, your Honor.
x x x x.
Q: After Edita Valeria receives the money representing the irrigation fees of
farmers, does she turn over the collections to you?
A: Yes, sir.28 (Emphasis and underscoring supplied)
In fact, petitioners admission that his signature was required before remitting the
irrigation fees to the depositary bank reinforces the fact that he had complete control
and custody thereof.
WITNESS
A: Everytime she reported to me, she just fold [sic] the page of the collection book and
he [sic] tells [sic] me, this is okay and you can just sign this statement of collection.
PJ GARCHITORENA
Q: So you are being made to sign a statement of collection without looking at the
supporting documents to validate the correctness of the figures nor even to determine
whether the figures there and the ones remitted to the Philippine National Bank?
A: Yes, your Honor. I just asked her, "Is this accounting okay?" and she said
"Yes".29 (emphasis and underscoring supplied)

As to the element of misappropriation, indeed petitioner failed to rebut the legal

presumption that he had misappropriated the fees to his personal use, his disclaimer
being self-serving.
Why, indeed, Valeria, whom petitioner had pointed to as having full responsibility for the
collections, including their deposit to the bank, covered by the audit period, was never
presented to corroborate his claim dents his defense as does his failure to present the
Regional Director or a certification from him for the same purpose.
As for petitioners explanation that the unaccounted fees were extended as loans to
employees as evidenced by "vales" and "chits" found in his drawer which involved a
total of P79,044.51, it fails. If this claim were true, petitioner could have at least promptly
collected them, and/or offered the testimonies of the employees-obligors to prove good
faith on his part.
As for the "vales" and "chits" that he offered in evidence, as the same were admittedly
incurred before the period of audit, they are immaterial, as correctly observed by the
Sandiganbayan:
PROS GALINDEZ
Q: Mr. Witness, since these chits and vales were incurred before the period [covered by
the ] audit, you could not have possibly used the money collected by you in your
capacity as Cashier for the period from June 25, 1982 to November 8, 1982.
A: Yes, sir. I have told you before that Mrs. Valeria is the one handling my collections. I
am just concentrating on my disbursements. I have two disbursement books and my
collection book is handled by Mrs. Valeria including the payments and
x x x x.
Q: So that these chits and vales which were merely listed by the Auditing Examiners as
they were found inside your safe are irrelevant to the accusation?
WITNESS
A: Where can Mrs. Valeria get the cash to extend vales, sir? Because my collection
book is balance as found by the examiners. So, she herself extended vales from her
collections.
Q: Mr. Witness, we are speaking about the chits and vales which you extended.
PJ GARCHITORENA

It is clear that the accused is being charged for shortage covered by the period June 25,
1982 to November 8, 1982 and that Exhibit "1" series refers to accounts prior to that
period of audit so that you have a point. You have covered that point already.
PROS GALINDEZ
Q: This inventory of cash and cash items which is from 1975 to 1981, did you attempt to
collect this from the payees?
A: No, sir.30 (emphasis and underscoring supplied)
Petitioners assertion, vis--vis his citation of the ruling in Arias, that he was the superior
of Valeria was later belied by him:
Q: But she [referring to Valeria] is under your direct supervision?
A: Under the Chief of Office, the Irrigation Superintendent.31
Aside then from the lack of a superior-subordinate relationship with Valeria, the
circumstances obtaining in Arias and the present case are entirely different. Arias
involved the culpability of a final approving authority on the basis of criminal conspiracy,
whereas the present case involves petitioners culpability on the basis of his
being theaccountable public officer.
1avvphil

On petitioners assertion that the Sandiganbayan erred in concluding that he committed

malversation through inexcusable negligence when the Information alleges intentional
malversation, it does not impress.
To be sure, the Sandiganbayan convicted petitioner for intentional malversation on the
basis of his failure to refute the presumption that he converted the money to his
personal use. Petitioner misreads the assailed Decision since the discussion about his
culpability for malversation through inexcusable negligence was merely academic in
light of the postulation that a subordinate (Valeria) was at fault.32
Nonetheless, in Cabello v. Sandiganbayan,33 the Court ratiocinated that:
On the other hand, petitioner contends that the bulk of said amount represented "vales"
he granted to the postal employees and the minor portion consisted of unremitted,
unreimbursed or uncollected amounts. His very own explanation, therefore, shows that
the embezzlement, as claimed by the prosecution, or the expenditures, as posited by
him, were not only unauthorized but intentionally and voluntarily made. Under no stretch
of legal hermeneutics can it be contended that these funds were lost through
abandonment or negligence without petitioner's knowledge as to put the loss within a
merely culpable category. From the contention of either party, the misappropriation was
intentional and not through negligence.

Besides, even on the putative assumption that the evidence against petitioner yielded a
case of malversation by negligence but the information was for intentional malversation,
under the circumstances of this case his conviction under the first mode of
misappropriation would still be in order. Malversation is committed either intentionally or
by negligence. The dolo or the culpa present in the offense is only a modality in the
perpetration of the felony. Even if the mode charged differs from the mode proved, the
same offense of malversation is involved and conviction thereof is proper. A possible
exception would be when the mode of commission alleged in the particulars of the
indictment is so far removed from the ultimate categorization of the crime that it may be
said due process was denied by deluding the accused into an erroneous
comprehension of the charge against him. That no such prejudice was occasioned on
petitioner nor was he beleaguered in his defense is apparent from the records of this
case.34 (italics in the original, emphasis and underscoring supplied)
Finally, petitioners claim of violation of his right to due process vis--vis the
Sandiganbayan Justices active "participation" during the trial fails too. For he has not
specified any instance of supposed bias of the Justices, or cited what questions
adversely affected him. The record does not reflect any question or objection raised by
petitioners counsel during the trial to the Justices questions or the tenor or manner
they were propounded. Nor does the record reflect any move to inhibit the Justices if
petitioner perceived that they were biased against him.
That a magistrate may propound clarificatory questions to secure a full and clear
understanding of the facts in the case is not proscribed.35
WHEREFORE, the petition is DENIED. The December 7, 2000 Decision and June 10,
2002 Resolution of the Sandiganbayan in Criminal Case No. 12015 are AFFIRMED.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 175991

August 31, 2011

JOSE R. CATACUTAN, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
DEL CASTILLO, J.:

It is well within the Courts discretion to reject the presentation of evidence which it
judiciously believes irrelevant and impertinent to the proceeding on hand.
Before us is a Petition for Review on Certiorari filed by petitioner Jose R. Catacutan
seeking to set aside and reverse the Decision1 dated December 7, 2006 of the
Sandiganbayan which affirmed the Decision2 dated July 25, 2005 of the Regional Trial
Court (RTC), Branch 30, Surigao City convicting him of the crime of violation of Section
3(e) of Republic Act (RA) No. 3019 otherwise known as the Anti-Graft and Corrupt
Practices Act.
Factual Antecedents
The antecedent facts are clear and undisputed.
Private complainant Georgito Posesano was an Instructor II with Salary Grade 13 while
private complainant Magdalena Divinagracia was an Education Program Specialist II
with Salary Grade 16, both at the Surigao del Norte School of Arts and Trades
(SNSAT).3
On June 2, 1997, the Commission on Higher Education (CHED) Caraga Administrative
Region, appointed and promoted private complainants as Vocational Instruction
Supervisor III with Salary Grade 18 at SNSAT.4 These promotional appointments were
duly approved and attested as permanent by the Civil Service Commission (CSC) on
June 3, 1997.5 Being then the Officer-In-Charge of SNSAT, the approved appointments
were formally transmitted to the petitioner on June 6, 1997,6 copy furnished the
concerned appointees. Despite receipt of the appointment letter, the private
complainants were not able to assume their new position since petitioner made known
that he strongly opposed their appointments and that he would not implement them
despite written orders from CHED7 and the CSC, Caraga Regional Office.8 Thus, on
August 2, 1997, private complainants lodged a formal complaint against petitioner for
grave abuse of authority and disrespect of lawful orders before the Office of the
Ombudsman for Mindanao.9
In an Information dated February 27, 1998, petitioner was charged before the RTC of
Surigao City with violation of Section 3(e) of RA 3019 as amended, committed in the
following manner, to wit:
That in June 1997 or sometime thereafter, in Surigao City, Philippines and within the
jurisdiction of this Honorable Court, the accused JOSE R. CATACUTAN, OIC Principal
of Surigao del Norte School of Arts and Trades (SNSAT), Surigao City, with salary
grade below 27, while in the performance of his official duties, thus committing the act in
relation to his office, willfully, feloniously and unlawfully did then and there, with grave
abuse of authority and evident bad faith, refuse to implement the
promotion/appointments of Georgito Posesano and Magdalena A. Divinagracia as
Vocational Supervisors III notwithstanding the issuance of the valid appointments by the
appointing authority and despite the directive of the Regional Director of the

Commission on Higher Education and the Civil Service Commission in the region,
thereby causing undue injury to complainants who were supposed to receive a higher
compensation for their promotion, as well as [to] the school and the students who were
deprived of the better services which could have been rendered by Georgito Posesano
and Magdalena A. Divinagracia as Vocational Instruction Supervisors [III].
CONTRARY TO LAW.10
During arraignment on September 22, 1998, petitioner pleaded "not guilty."
For his defense, petitioner admitted that he did not implement the promotional
appointments of the private complainants because of some procedural lapses or
infirmities attending the preparation of the appointment papers. According to him, the
appointment papers were prepared by SNSAT Administrative Officer, Crispin Noguera,
using blank forms bearing the letterhead of SNSAT and not of the CHED Regional
Office who made the appointments. He also averred that the appointment papers cited
the entire plantilla11 (1996 Plantilla-OSEC-DECSB-VOCIS3-19, Pages 1-16) instead of
only the particular page on which the vacant item occurs. He likewise claimed that he
received only the duplicate copies of the appointments contrary to the usual procedure
where the original appointment papers and other supporting documents are returned to
his office. Finally, he asserted that the transmittal letter from the CHED did not specify
the date of effectivity of the appointments. These alleged infirmities, he contended, were
formally brought to the attention of the CHED Regional Director on June 20, 1997 12 who,
however, informed him that the subject appointments were regular and valid and
directed him to implement the same. Still not satisfied, petitioner sought the intercession
of CHED Chairman Angel C. Alcala in the settlement of this administrative problem13 but
the latter did not respond. Petitioner alleged that his refusal to implement the
appointments of the private complainants was not motivated by bad faith but he just
wanted to protect the interest of the government by following strict compliance in the
preparation of appointment papers.
Ruling of the Regional Trial Court
On July 25, 2005, the RTC rendered its Decision14 holding that the act of the petitioner
in defying the orders of the CHED and the CSC to implement the subject promotional
appointments despite the rejection of his opposition, demonstrates his palpable and
patent fraudulent and dishonest purpose to do moral obliquity or conscious wrongdoing
for some perverse motive or ill will. The trial court ruled that petitioners refusal to
implement the appointments of the private complainants had caused undue injury to
them. Thus, it held petitioner guilty of the crime charged and accordingly sentenced him
to suffer the penalty of imprisonment of six (6) years and one (1) month and perpetual
disqualification from public office.
The RTC disposed of the case as follows:

WHEREFORE, finding the accused JOSE R. CATACUTAN guilty beyond reasonable

doubt [of] VIOLATION OF SECTION 3(e) of R.A. 3019, otherwise known as the AntiGraft and Corrupt Practices Act, this Court hereby imposes upon him the penalty of
imprisonment [of] SIX (6) YEARS and ONE (1) MONTH and PERPETUAL
DISQUALIFICATION FROM PUBLIC OFFICE, and to pay the costs.
The aforementioned accused is hereby ordered to pay private complainants Georgito
Posesano and Magdalena Divinagracia the sum of Fifty Thousand Pesos (P50,000.00)
each, for moral damages.
SO ORDERED.15
Petitioner moved for reconsideration16 but it was denied in an Order17 dated
October 13, 2005.
Ruling of the Sandiganbayan
On appeal, petitioners conviction was affirmed in toto by the Sandiganbayan.18 The
appellate court ruled that the Decision of the trial court, being supported by evidence
and firmly anchored in law and jurisprudence, is correct. It held that petitioner failed to
show that the trial court committed any reversible error in judgment.
Hence, this petition.
In the Courts Resolution19 dated February 26, 2007, the Office of the Solicitor General
(OSG) was required to file its Comment. The OSG filed its Comment20 on June 5, 2007
while the Office of the Special Prosecutor filed the Comment21 for respondent People of
the Philippines on February 22, 2008.
Issue
The sole issue for consideration in this present petition is:
Whether the [petitioners] constitutional right[s] to due process x x x and x x x equal
protection of [the] law x x x were violated x x x [when he was denied] the opportunity to
present [in] evidence [the Court of Appeals] Decision dated April 18, 2001 x x x in CAG.R. SP No. 51795 entitled "Jose R. Catacutan, petitioner, versus Office of the
Ombudsman for Mindanao, et al., respondents."22
Invoking the constitutional provision on due process,23 petitioner argues that the
Decision rendered by the trial court is flawed and is grossly violative of his right to be
heard and to present evidence. He contends that he was not able to controvert the
findings of the trial court since he was not able to present the Court of Appeals (CAs)
Decision in CA-G.R. SP No. 51795 which denied the administrative case filed against

him and declared that his intention in refusing to implement the promotions of the
private complainants falls short of malice or wrongful intent.
Our Ruling
The petition lacks of merit.
Petitioner was not deprived of his right to due process.
"Due process simply demands an opportunity to be heard."24 "Due process is satisfied
when the parties are afforded a fair and reasonable opportunity to explain their
respective sides of the controversy."25 "Where an opportunity to be heard either through
oral arguments or through pleadings is accorded, there is no denial of procedural due
process."26
Guided by these established jurisprudential pronouncements, petitioner can hardly
claim denial of his fundamental right to due process. Records show that petitioner was
able to confront and cross-examine the witnesses against him, argue his case
vigorously, and explain the merits of his defense. To reiterate, as long as a party was
given the opportunity to defend his interests in due course, he cannot be said to have
been denied due process of law for the opportunity to be heard is the better accepted
norm of procedural due process.
There is also no denial of due process when the trial court did not allow petitioner to
introduce as evidence the CA Decision in CA-G.R. SP No. 51795. It is well within the
courts discretion to reject the presentation of evidence which it judiciously believes
irrelevant and impertinent to the proceeding on hand. This is specially true when the
evidence sought to be presented in a criminal proceeding as in this case, concerns an
administrative matter. As the Sandiganbayan aptly remarked:
The RTC committed no error in judgment when it did not allow the Accused-appellant to
present the Decision of the Court of Appeals in CA-G.R. SP No. 51795 (Jose R.
Catacutan vs. Office of the Ombudsman). The findings in administrative cases are not
binding upon the court trying a criminal case, even if the criminal proceedings are based
on the same facts and incidents which gave rise to the administrative matter. The
dismissal of a criminal case does not foreclose administrative action or necessarily
gives the accused a clean bill of health in all respects. In the same way, the dismissal of
an administrative case does not operate to terminate a criminal proceeding with the
same subject matter. x x x27
This action undertaken by the trial court and sustained by the appellate court was not
without legal precedent. In Paredes v. Court of Appeals,28 this Court ruled:
It is indeed a fundamental principle of administrative law that administrative cases are
independent from criminal actions for the same act or omission. Thus, an absolution
from a criminal charge is not a bar to an administrative prosecution, or vice versa. One

thing is administrative liability; quite another thing is the criminal liability for the same
act.
xxxx
Thus, considering the difference in the quantum of evidence, as well as the procedure
followed and the sanctions imposed in criminal and administrative proceedings, the
findings and conclusions in one should not necessarily be binding on the other. Notably,
the evidence presented in the administrative case may not necessarily be the same
evidence to be presented in the criminal cases. x x x
In Nicolas v. Sandiganbayan,29 the Court reiterated:
This Court is not unmindful of its rulings that the dismissal of an administrative case
does not bar the filing of a criminal prosecution for the same or similar acts subject of
the administrative complaint and that the disposition in one case does not inevitably
govern the resolution of the other case/s and vice versa. x x x
On the basis of the afore-mentioned precedents, the Court has no option but to declare
that the courts below correctly disallowed the introduction in evidence of the CA
Decision. "Due process of law is not denied by the exclusion of irrelevant, immaterial, or
incompetent evidence, or testimony of an incompetent witness. It is not an error to
refuse evidence which although admissible for certain purposes, is not admissible for
the purpose which counsel states as the ground for offering it." 30
At any rate, even assuming that the trial court erroneously rejected the introduction as
evidence of the CA Decision, petitioner is not left without legal recourse. Petitioner could
have availed of the remedy provided in Section 40, Rule 132 of the Rules of Court
which provides:
Section 40. Tender of excluded evidence. If documents or things offered in evidence
are excluded by the court, the offeror may have the same attached to or made part of
the record. If the evidence excluded is oral, the offeror may state for the record the
name and other personal circumstances of the witness and the substance of the
proposed testimony.
As observed by the appellate court, if the petitioner is keen on having the RTC admit the
CAs Decision for whatever it may be worth, he could have included the same in his
offer of exhibits. If an exhibit sought to be presented in evidence is rejected, the party
producing it should ask the courts permission to have the exhibit attached to the record.
As things stand, the CA Decision does not form part of the records of the case, thus it
has no probative weight. Any evidence that a party desires to submit for the
consideration of the court must be formally offered by him otherwise it is excluded and
rejected and cannot even be taken cognizance of on appeal. The rules of procedure

and jurisprudence do not sanction the grant of evidentiary value to evidence which was
not formally offered.
Section 3(e) of RA 3019, as amended, provides:
Section 3. Corrupt practices of public officers. In addition to acts or omissions of public
officers already penalized by existing law, the following shall constitute corrupt practices
of any public officer and are hereby declared to be unlawful.
xxxx
(e) Causing any undue injury to any party, including the Government or giving any
private party any unwarranted benefits, advantage or preference in the discharge of his
official, administrative or judicial functions through manifest partiality, evident bad faith
or gross inexcusable negligence. This provision shall apply to officers and employees of
offices or government corporations charged with the grant of licenses or permits or
other concessions.
Under said provision of law, three essential elements must thus be satisfied, viz:
1. The accused must be a public officer discharging administrative, judicial or
official functions;
2. He must have acted with manifest partiality, evident bad faith or inexcusable
negligence; and
3. His action caused any undue injury to any party, including the government or
gave any private party unwarranted benefits, advantage or preference in the
discharge of his functions.31
All the above enumerated elements of the offense charged have been successfully
proven by the prosecution.
First, petitioner could not have committed the acts imputed against him during the time
material to this case were it not for his being a public officer, that is, as the Officer-InCharge (Principal) of SNSAT. As such public officer, he exercised official duties and
functions, which include the exercise of administrative supervision over the school such
as taking charge of personnel management and finances, as well as implementing
instruction as far as appointment of teachers.32
Second, petitioner acted with evident bad faith in refusing to implement the
appointments of private complainants. As the Sandiganbayan aptly remarked:
1awphil

The records clearly indicate that the refusal of Catacutan to implement the subject
promotion was no longer anchored on any law or civil service rule as early [as] the July
14, 1997 letter of the CHED Regional Director addressing the four issues raised by the

Accused-appellant in the latters protest letter. x x x In light of the undisputed evidence

presented to the trial court that Catacutans reason for not implementing the
appointments was a personal dislike or ill feelings towards Posesano, this Court
believes that Catacutans refusal was impelled by an ill motive or dishonest purpose
characteristic of bad faith. x x x
xxxx
In the August 1, 1997 [m]emorandum issued by the CHED Regional Director, Catacutan
was once again directed, in strong words, to cease and desist from further questioning
what has been lawfully acted upon by competent authorities. Catacutan deliberately
ignored the memorandum and even challenged the private complainants to file a case
against him. Such arrogance is indicative of the bad faith of the accused-appellant.
Yet again, the [CSC] Regional Director wrote the Accused-appellant on September 5,
1997, clarifying with finality the validity of the appointment. Still, Accused-appellant
failed to implement the subject promotions. This stubborn refusal to implement the clear
and repeated directive of competent authorities established the evident bad faith of
Catacutan and belies any of his claims to the contrary.33
While petitioner may have laudable objectives in refusing the implementation of private
complainants valid appointments, the Court fails to see how he can still claim good faith
when no less than the higher authorities have already sustained the validity of the
subject appointments and have ordered him to proceed with the implementation. "It is
well to remember that good intentions do not win cases, evidence does." 34
Third, undue injury to the private complainants was duly proven to the point of moral
certainty. Here, the private complainants suffered undue injury when they were not able
to assume their official duties as Vocational Supervisors III despite the issuance of their
valid appointments. As borne out by the records, they were able to assume their new
positions only on November 19, 1997. So in the interregnum from June to November
1997, private complainants failed to enjoy the benefits of an increased salary
corresponding to their newly appointed positions. Likewise established is that as a result
of petitioners unjustified and inordinate refusal to implement their valid appointments
notwithstanding clear and mandatory directives from his superiors, the private
complainants suffered mental anguish, sleepless nights, serious anxiety warranting the
award of moral damages under Article 2217 of the New Civil Code.
At this point, the Court just needs to stress that the foregoing are factual matters that
were threshed out and decided upon by the trial court which were subsequently affirmed
by the Sandiganbayan. Where the factual findings of both the trial court and the
appellate court coincide, the same are binding on this Court. In any event, apart from
these factual findings of the lower courts, this Court in its own assessment and review of
the records considers the findings in order.

WHEREFORE, the petition is DENIED and the assailed Decision of the Sandiganbayan
promulgated on December 7, 2006 is AFFIRMED.
SO ORDERED.
MARIANO C. DEL CASTILLO
Associate Justice

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
A.M.
No.
MTJ-09-1729
January
20,
2009
(Formerly OCA I.P.I. No. 07-1910-MTJ)
NORYN S. TAN, Petitioner,
vs.
JUDGE MARIA CLARITA CASUGA-TABIN, Municipal Trial Court in Cities, Branch 4,
Baguio City,Respondent.
RESOLUTION
AUSTRIA-MARTINEZ, J.:
Noryn S. Tan (complainant) filed a Complaint dated April 2, 2007 against Judge Maria
Clarita Casuga-Tabin (respondent) of the Municipal Trial Court in Cities (MTCC),
Branch 4, Baguio City for denial of due process relative to Criminal Case No. 118628.
Complainant avers: On November 9, 2006, the Philippine National Police (PNP)
Quezon City Police District (QCPD) served her a warrant of arrest dated October 13,
2006, issued by the MTCC Baguio City, Branch 4, presided by respondent, relative to
Criminal Case No. 118628 for alleged violation of Batas Pambansa Blg. 22. It was only
then that she learned for the first time that a criminal case was filed against her before
the court. She was detained at the Quezon City Hall Complex Police Office and had to
post bail of P1,000.00 before the Office of the Executive Judge of the Regional Trial
Court (RTC) of Quezon City for her temporary release. Upon verification, she learned
that respondent issued on August 8, 2006 an Order directing her to appear before the
court on October 10, 2006 for arraignment. It was sent by mail to PNP Quezon City for
service to her. However, she did not receive any copy of the Order and up to the
present has not seen the same; hence, she was not able to attend her arraignment. She
also found out that there was no proof of service of the Order or any notice to her of the
arraignment. This notwithstanding, respondent issued a warrant for her arrest.
Complainant alleges that she was deeply aggrieved and embarrassed by the issuance
of the warrant for her arrest despite the fact that she was never notified of her
arraignment. Complainant prayed that the appropriate investigation be conducted as to
the undue issuance of a warrant for her arrest.
1

In her Comment dated July 5, 2007, respondent answered: She issued the warrant of
arrest because when the case was called for appearance, the complainant, as accused
therein, failed to appear. Prior to the issuance of the warrant of arrest, her staff sent by
registered mail the courts Order dated August 8, 2006 addressed to complainant
through the Chief of Police, PNP, 1104, Quezon City directing complainant to appear
on October 10, 2006 at 8:30 a.m. for the arraignment and preliminary conference in
Criminal Case No. 118628, as proven by Registry Receipt No. 0310. It is true that the
return on the courts Order dated August 8, 2006 had not yet been made by the QC
Police on or before October 10, 2006. Nonetheless, she issued the warrant of arrest in
good faith and upon the following grounds: (a) under Sec. 3 of Rule 131 of the Rules of
Court, the court was entitled to presume that on October 10, 2006, after the lapse of a
little over two months, official duty had been regularly performed and a letter duly
directed and mailed had been received in the regular course of mail; and (b) Sec. 12 of
the 1983 Rule on Summary Procedure in Special Cases provides that bail may be
required where the accused does not reside in the place where the violation of the law
or ordinance was committed. The warrant of arrest she issued was meant to implement
this provision, which was not repealed by the 1991 Revised Rule on Summary
Procedure, since complainant is a resident of Quezon City and not of Baguio City. If her
interpretation was erroneous, she (respondent) believes that an administrative sanction
for such error would be harsh and unsympathetic. She has nothing personal against
complainant and did not want to embarrass or humiliate her. She issued the warrant in
the honest belief that her act was in compliance with the rules. She prays that the case
against her be dismissed and that a ruling on the interpretation of Secs. 10 & 12, of the
1983 Rule on Summary Procedure in Special Cases, in relation to Sec. 16 of the 1991
Revised Rule on Summary Procedure be made for the guidance of the bench and bar.
The OCA, in its agenda report dated September 28, 2007, recommended that the case
be dismissed for lack of merit. It held: Prior to the filing of the information, a preliminary
investigation was conducted by the provincial prosecutor resulting in the Resolution
dated July 11, 2006 recommending the filing of the case; it was incredulous for
complainant to claim that she came to learn for the first time of the filing of the criminal
case when the warrant of arrest was served on her; furthermore, there was already a
complete service of notice as contemplated in Sec. 10, Rule 13 of the Rules of Court;
hence the requirement of notice was fully satisfied by the service of the Order dated
August 8, 2006 and the completion of the service thereof.
Adopting the recommendation of the OCA, the Court on November 12, 2007 issued a
Resolution dismissing the case for lack of merit.
Complainant filed a Motion for Reconsideration dated January 8, 2008 alleging: The
issue in this case was not whether complainant was aware of the criminal complaint
against her, but whether the issuance of a warrant of arrest against her despite the
absence of notice should be administratively dealt with; complainant was never notified
of the arraignment; thus, she was not able to attend the same; respondent admitted in
her Comment that no return had yet been made on or before October 10, 2006, the date
2

respondent ordered the warrant to be issued; her explanation of good faith was
therefore unjustifiable; neither could respondent invoke the presumption of regularity of
performance of official duty, since the complainant did not actually receive any notice;
respondent in an Order dated March 14, 2007 admitted that since she did not usually
wear eyeglasses during hearings, she thought that the acknowledgment receipt at the
back of the Order referred to the copy sent to complainant; later scrutiny, however,
showed that it pertained to the one sent to the prosecutors office; Section 10, Rule 13
of the Rules of Court did not apply to the instant case; the Order was addressed and
sent to PNP Quezon City; assuming that the Order was properly served on the PNP, it
was not equivalent to a service on complainant; there was no actual delivery of the
Order to the complainant; hence, there was no personal service; neither was it served
by ordinary mail or by registered mail; thus, the rule on completeness of service had not
been satisfied; complainant was not aware of and therefore did not attend the
preliminary investigation of her case; no proof can be shown that she was ever notified
of the said preliminary investigation, much less of the filing of the same.
In a Resolution dated April 16, 2008, the Court required respondent to Comment on
complainants Motion for Reconsideration.
Complainant filed a Comment stating: Complainants motion did not raise any new issue
or ground that would merit the reconsideration of the Courts November 12, 2007
Resolution; complainant failed to rebut the presumption that she was notified of the
scheduled arraignment; what complainant propounded was a mere self-serving denial
that she never received the subpoena intended for her; there was no explanation why
she would be able to receive a warrant of arrest; which was coursed in the same
manner as the subpoena, in a little less than a month, but allegedly to receive the
subpoena in almost two months; if complainants assertion was to be believed, the
effect would be to paralyze the operation of courts in the provinces that had to inevitably
rely on the police resources of Metro Manila; arraignments could not proceed and trials
could not go on; it was reasonable to follow as a rule that once a pleading or any other
official document was received in the ordinary course of sending them, it must be
presumed that others of the same nature were also delivered to the named addressees;
to believe otherwise would be to delay justice for those residing outside Metro Manila.
The Court finds the Motion for Reconsideration to be impressed with merit.
Whenever a criminal case falls under the Summary Procedure, the general rule is that
the court shall not order the arrest of the accused, unless the accused fails to appear
whenever required. This is clearly provided in Section 16 of the 1991 Revised Rule on
Summary Procedure which states:
Sec. 16. Arrest of accused. The court shall not order the arrest of the accused
except for failure to appear whenever required. Release of the person arrested shall
either be in bail or on recognizance by a responsible citizen acceptable to the court.
(Emphasis supplied)
In this case, respondent claims that the issuance of a warrant for the arrest of
complainant was justified, since complainant failed to appear during the arraignment in
8

10

11

spite of an order requiring her to do so. Respondent admits, however, that a copy of the
Order dated August 8, 2006, was sent to complainant through the Chief of Police, PNP,
1104, Quezon City.
While it is true that the Rules of Court provides for presumptions, one of which is that
official duty has been regularly performed, such presumption should not be the sole
basis of a magistrate in concluding that a person called to court has failed to appear as
required, which in turn justifies the issuance of a warrant for her arrest, when such
notice was not actually addressed to her residence but to the police in her city. So basic
and fundamental is a persons right to liberty that it should not be taken lightly or
brushed aside with the presumption that the police through which the notice had been
sent, actually served the same on complainant whose address was not even specified.
Respondent further admitted in her Comment dated July 5, 2007 that when she
proceeded with the arraignment on October 10, 2006 as scheduled, no return had yet
been made by the Quezon City Police. Nevertheless, she issued the warrant of arrest,
arguing that she did so on the presumption that regular duty had been performed, and
that the Order had been received in the regular course of mail; and since Sec. 12 of the
1983 Rules on Summary Procedure provides that bail may be required where the
accused does not reside in the place where the violation of the law or ordinance was
committed, the warrant of arrest she issued was justified since complainant is a resident
of Quezon City and not of Baguio City.
The Court disagrees.
Sections 10 and 12 of the 1983 Rules on Summary Procedure in Special Cases (As
Amended) state:
Sec. 10. Duty of the Court. On the basis of the complaint of information and the
affidavits accompanying the same, the court shall make a preliminary determination
whether to dismiss the case outright for being patently without basis or merit, or to
require further proceedings to be taken. In the latter case, the court may set the case for
immediate arraignment of an accused under custody, and if he pleads guilty, may
render judgment forthwith. If he pleads not guilty, and in all other cases, the court shall
issue an order, accompanied by copies of all the affidavits submitted by the
complainant, directing the defendant(s) to appear and submit his counter-affidavit and
those of his witnesses at a specified date not later than ten (10) days from receipt
thereof.
Failure on the part of the defendant to appear whenever required, shall cause the
issuance of a warrant for his arrest if the court shall find that a probable cause exists
after an examination in writing and under oath or affirmation of the complainant and his
witnesses. (Emphasis supplied)
xxxx
Sec. 12. Bail not required; Exception. No bail shall be required except when a
warrant of arrest is issued in accordance with Section 10 hereon or where the accused
(a) is a recidivist; (b) is fugitive from justice; (c) is charged with physical injuries; (d)
12

does not reside in the place where the violation of the law or ordinance was committed,
or (e) has no known residence.
Section 12 of the 1983 Rules on Summary Procedure was not reproduced in the 1991
Revised Rules on Summary Procedure, while Section 10 was revised and portions
thereof reproduced in Sections 12 and 16 of the 1991 Rules on Summary Procedure.
Granting, arguendo, that Sections 10 and 12 of the 1983 Rules on Summary Procedure
in Special Cases were not repealed by the 1991 Revised Rules, still it does not justify
the warrant of arrest issued in this case. Section 12 talks of instances when bails are
required, one of which is when the accused does not reside in the place where the
violation of the law or ordinance was committed. It does not state, however, that a
warrant of arrest shall immediately issue even without actual notice to the accused.
Respondents interpretation ascribes to the rules those which were not expressly stated
therein and unduly expands their meaning.
The Court also notes that in an Order dated March 14, 2007, a copy of which was
attached by complainant to her Motion for Reconsideration, respondent admitted that:
As a point of clarification, during the hearing on October 10, 2006, when the case
was called and the accused failed to appear, the Court verified from the staff if the
Accused was notified to which said staff answered in the affirmative, showing to
the Court a copy of the Order dated August 8, 2006, setting this case for Appearance of
the Accused on October 10, 2006. At the back of the Order was an attached
Acknowledgment Receipt. A quick glance of the said receipt, and without
eyeglasses of the Presiding Judge, as she does not usually wear one during
Court sessions, made this Court believed that indeed, that was the
Acknowledgment Receipt proving that the Accused was served with a copy of the
said Order.
The attention of the Court was called upon receipt of the Accuseds Motion for
Clarification and a closer look on the Acknowledgment Receipt shows that the
same was for the City Prosecutors Office. x x x (Emphasis supplied)
From this, it can be inferred that respondent issued the warrant of arrest on the
mistaken belief that complainant was actually notified of the arraignment. A closer
scrutiny of the records however showed that the Acknowledgment Receipt pertained to
the copy of the City Prosecutors Office and not that of complainants.
Whatever the real reasons behind respondents issuance of complainants warrant of
arrest whether from the mistaken belief that complainant was actually notified, or the
presumption that the police had served a copy of the order on complainant or that the
rules allow immediate issuance of warrants of arrests whenever the accused does not
reside in the locality where the crime was committed the fact is, respondent failed to
uphold the rules, for which she should be held administratively liable.
The Court has held that a judge commits grave abuse of authority when she hastily
issues a warrant of arrest against the accused in violation of the summary procedure
rule that the accused should first be notified of the charges against him and given the
opportunity to file his counter-affidavits and countervailing evidence.
13

14

15

While judges may not always be subjected to disciplinary action for every erroneous
order or decision they render, that relative immunity is not a license to be negligent,
abusive and arbitrary in their prerogatives. If judges wantonly misuse the powers vested
in them by law, there will not only be confusion in the administration of justice but also
oppressive disregard of the basic requirements of due process. While there appears to
be no malicious intent on the part of respondent, such lack of intent, however, cannot
completely free her from liability. When the law is sufficiently basic, a judge owes it to
her office to know and simply apply it.
Considering that this is respondents first administrative infraction in her more than 8
years of service in the judiciary, which serves to mitigate her liability, the Court holds
the imposition of a fine in the amount of P10,000.00 to be proper in this case.
WHEREFORE, Judge Maria Clarita Casuga-Tabin, Municipal Trial Court in Cities,
Branch 4, Baguio City is hereby found guilty of abuse of authority for which she is fined
in the sum of P10,000.00.
SO ORDERED.
16

17

18

19

20

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 167139

February 25, 2010

SUSIE CHAN-TAN, Petitioner,

vs.
JESSE C. TAN, Respondent.
DECISION
CARPIO, J.:
The Case
This is a petition for review1 of (i) the 17 May 2004 Resolution2 amending the 30 March
2004 Decision3 and (ii) the 15 February 2005 Resolution4 of the Regional Trial Court of
Quezon City, Branch 107, in Civil Case No. Q-01-45743. In its 30 March 2004 Decision,
the trial court declared the marriage between petitioner Susie Chan-Tan and respondent
Jesse Tan void under Article 36 of the Family Code. Incorporated as part of the decision
was the 31 July 2003 Partial Judgment5 approving the Compromise Agreement6 of the
parties. In its 17 May 2004 Resolution, the trial court granted to respondent custody of
the children, ordered petitioner to turn over to respondent documents and titles in the
latter's name, and allowed respondent to stay in the family dwelling. In its 15 February
2005 Resolution, the trial court denied petitioner's motion for reconsideration of the 28
December 2004 Resolution7 denying petitioner's motion to dismiss and motion for

reconsideration of the 12 October 2004 Resolution,8 which in turn denied for late filing
petitioner's motion for reconsideration of the 17 May 2004 resolution.
The Facts
Petitioner and respondent were married in June of 1989 at Manila Cathedral in
Intramuros, Manila.9 They were blessed with two sons: Justin, who was born in Canada
in 1990 and Russel, who was born in the Philippines in 1993.10
In 2001, twelve years into the marriage, petitioner filed a case for the annulment of the
marriage under Article 36 of the Family Code. The parties submitted to the court a
compromise agreement, which we quote in full:
1. The herein parties mutually agreed that the two (2) lots located at Corinthian Hills,
Quezon City and more particularly described in the Contract to Sell, marked in open
court as Exhibits "H" to "H-3" shall be considered as part of the presumptive legitimes of
their two (2) minor children namely, Justin Tan born on October 12, 1990 and Russel
Tan born on November 28, 1993. Copies of the Contract to Sell are hereto attached as
Annexes "A" and "B" and made integral parts hereof.
2. Susie Tan hereby voluntarily agrees to exclusively shoulder and pay out of her own
funds/assets whatever is the remaining balance or unpaid amounts on said lots
mentioned in paragraph 1 hereof directly with Megaworld Properties, Inc., until the
whole purchase or contract amounts are fully paid.
Susie Tan is hereby authorized and empowered to directly negotiate, transact, pay and
deal with the seller/developer Megaworld Properties, Inc., in connection with the
Contract to Sell marked as Annexes "A" and "B" hereof.
The property covered by CCT No. 3754 of the Registry of Deeds of Quezon City and
located at Unit O, Richmore Town Homes 12-B Mariposa St., Quezon City shall be
placed in co-ownership under the name of Susie Tan (1/3), Justin Tan (1/3) and Russel
Tan (1/3) to the exclusion of Jesse Tan.
The property covered by TCT No. 48137 of the Registry of Deeds of Quezon City and
located at View Master Town Homes, 1387 Quezon Avenue, Quezon City shall be
exclusively owned by Jesse Tan to the exclusion of Susie Tan.
The undivided interest in the Condominium Unit in Cityland Shaw. Jesse Tan shall
exclusively own blvd. to the exclusion of Susie Tan.
The shares of stocks, bank accounts and other properties presently under the
respective names of Jesse Tan and Susie Tan shall be exclusively owned by the
spouse whose name appears as the registered/account owner or holder in the
corporate records/stock transfer books, passbooks and/or the one in possession
thereof, including the dividends/fruits thereof, to the exclusion of the other spouse.

Otherwise stated, all shares, bank accounts and properties registered and under the
name and/or in the possession of Jesse Tan shall be exclusively owned by him only and
all shares, accounts and properties registered and/or in the possession and under the
name of Susie Tan shall be exclusively owned by her only.
However, as to the family corporations of Susie Tan, Jesse Tan shall execute any and
all documents transferring the shares of stocks registered in his name in favor of Susie
Tan, or Justin Tan/Russel Tan. A copy of the list of the corporation owned by the family
of Susie Tan is hereto attached as Annex "C" and made an integral part hereof.
The parties shall voluntarily and without need of demand turn over to the other spouse
any and all original documents, papers, titles, contracts registered in the name of the
other spouse that are in their respective possessions and/or safekeeping.
3. Thereafter and upon approval of this Compromise Agreement by the Honorable
Court, the existing property regime of the spouses shall be dissolved and shall now be
governed by "Complete Separation of Property". Parties expressly represent that there
are no known creditors that will be prejudiced by the present compromise agreement.
The parties shall have joint custody of their minor children. However, the two (2) minor
children shall stay with their mother, Susie Tan at 12-B Mariposa St., Quezon City.
The husband, Jesse Tan, shall have the right to bring out the two (2) children every
Sunday of each month from 8:00 AM to 9:00 PM. The minor children shall be returned
to 12-B Mariposa Street, Quezon City on or before 9:00 PM of every Sunday of each
month.
The husband shall also have the right to pick up the two (2) minor children in school/or
in the house every Thursday of each month. The husband shall ensure that the children
be home by 8:00 PM of said Thursdays.
During the summer vacation/semestral break or Christmas vacation of the children, the
parties shall discuss the proper arrangement to be made regarding the stay of the
children with Jesse Tan.
Neither party shall put any obstacle in the way of the maintenance of the love and
affection between the children and the other party, or in the way of a reasonable and
proper companionship between them, either by influencing the children against the
other, or otherwise; nor shall they do anything to estrange any of them from the other.
The parties agreed to observe civility, courteousness and politeness in dealing with
each other and shall not insult, malign or commit discourteous acts against each other
and shall endeavor to cause their other relatives to act similarly.

4. Likewise, the husband shall have the right to bring out and see the children on the
following additional dates, provided that the same will not impede or disrupt their
academic schedule in Xavier School, the dates are as follows:
a. Birthday of Jesse Tan
b. Birthday of Grandfather and Grandmother, first cousins and uncles and
aunties
c. Father's Day
d. Death Anniversaries of immediate members of the family of Jesse Tan
e. During the Christmas seasons/vacation the herein parties will agree on such
dates as when the children can stay with their father. Provided that if the children
stay with their father on Christmas Day from December 24th to December 25th
until 1:00 PM the children will stay with their mother on December 31 until
January 1, 1:00 PM, or vice versa.
The husband shall always be notified of all school activities of the children and shall see
to it that he will exert his best effort to attend the same.
5. During the birthdays of the two (2) minor children, the parties shall as far as
practicable have one celebration.
Provided that if the same is not possible, the Husband (Jesse Tan) shall have the right
to see and bring out the children for at least four (4) hours during the day or the day
immediately following/or after the birthday, if said visit or birthday coincides with the
school day.
6. The existing Educational Plans of the two children shall be used and utilized for their
High School and College education, in the event that the Educational Plans are
insufficient to cover their tuition, the Husband shall shoulder the tuition and other
miscellaneous fees, costs of books and educational materials, uniform, school bags,
shoes and similar expenses like summer workshops which are taken in Xavier School,
which will be paid directly by Jesse Tan to the children's school when the same fall due.
Jesse Tan, if necessary, shall pay tutorial expenses, directly to the tutor concerned.
The husband further undertake to pay P10,000.00/monthly support pendente lite to be
deposited in the ATM Account of SUSIE CHAN with account no. 3-189-53867-8 Boni
Serrano Branch effective on the 15th of each month. In addition Jesse Tan undertakes
to give directly to his two (2) sons every Sunday, the amount needed and necessary for
the purpose of the daily meals of the two (2) children in school.

7. This Compromise Agreement is not against the law, customs, public policy, public
order and good morals. Parties hereby voluntarily agree and bind themselves to
execute and sign any and all documents to give effect to this Compromise Agreement. 11
On 31 July 2003, the trial court issued a partial judgment12 approving the compromise
agreement. On 30 March 2004, the trial court rendered a decision declaring the
marriage void under Article 36 of the Family Code on the ground of mutual
psychological incapacity of the parties. The trial court incorporated in its decision the
compromise agreement of the parties on the issues of support, custody, visitation of the
children, and property relations.
Meanwhile, petitioner cancelled the offer to purchase the Corinthian Hills Subdivision
Lot No. 12, Block 2. She authorized Megaworld Corp. to allocate the amount
of P11,992,968.32 so far paid on the said lot in the following manner:
(a) P3,656,250.04 shall be transferred to fully pay the other lot in Corinthian Hills
on Lot 11, Block 2;
(b) P7,783,297.56 shall be transferred to fully pay the contract price in Unit 9H of
the 8 Wack Wack Road Condominium project; and
(c) P533,420.72 shall be forfeited in favor of Megaworld Corp. to cover the
marketing and administrative costs of Corinthian Hills Subdivision Lot 12, Block
2.13
Petitioner authorized Megaworld Corp. to offer Lot 12, Block 2 of Corinthian Hills to
other interested buyers. It also appears from the records that petitioner left the country
bringing the children with her.
Respondent filed an omnibus motion seeking in the main custody of the children. The
evidence presented by respondent established that petitioner brought the children out of
the country without his knowledge and without prior authority of the trial court; petitioner
failed to pay the P8,000,000 remaining balance for the Megaworld property which, if
forfeited would prejudice the interest of the children; and petitioner failed to turn over to
respondent documents and titles in the latter's name.
1avvphi1

Thus, the trial court, in its 17 May 2004 resolution, awarded to respondent custody of
the children, ordered petitioner to turn over to respondent documents and titles in the
latter's name, and allowed respondent to stay in the family dwelling in Mariposa,
Quezon City.
Petitioner filed on 28 June 2004 a motion for reconsideration 14 alleging denial of due
process on account of accident, mistake, or excusable negligence. She alleged she was
not able to present evidence because of the negligence of her counsel and her own fear
for her life and the future of the children. She claimed she was forced to leave the
country, together with her children, due to the alleged beating she received from

respondent and the pernicious effects of the latter's supposed gambling and
womanizing ways. She prayed for an increase in respondent's monthly support
obligation in the amount of P150,000.
Unconvinced, the trial court, in its 12 October 2004 Resolution,15 denied petitioner's
motion for reconsideration, which was filed beyond the 15-day reglementary period. It
also declared petitioner in contempt of court for non-compliance with the partial
judgment and the 17 May 2004 resolution. The trial court also denied petitioner's prayer
for increase in monthly support. The trial court reasoned that since petitioner took it
upon herself to enroll the children in another school without respondent's knowledge,
she should therefore defray the resulting increase in their expenses.
On 4 November 2004, petitioner filed a motion to dismiss16 and a motion for
reconsideration17 of the 12 October 2004 Resolution. She claimed she was no longer
interested in the suit. Petitioner stated that the circumstances in her life had led her to
the conclusion that withdrawing the petition was for the best interest of the children. She
prayed that an order be issued vacating all prior orders and leaving the parties at
the status quo ante the filing of the suit.
In its 28 December 2004 Resolution,18 the trial court denied both the motion to dismiss
and the motion for reconsideration filed by petitioner. It held that the 30 March 2004
decision and the 17 May 2004 resolution had become final and executory upon the
lapse of the 15-day reglementary period without any timely appeal having been filed by
either party.
Undeterred, petitioner filed a motion for reconsideration of the 28 December 2004
resolution, which the trial court denied in its 15 February 2005 resolution.19 The trial
court then issued a Certificate of Finality20 of the 30 March 2004 decision and the 17
May 2004 resolution.
The Trial Court's Rulings
The 30 March 2004 Decision21 declared the marriage between the parties void under
Article 36 of the Family Code on the ground of mutual psychological incapacity. It
incorporated the 31 July 2003 Partial Judgment22approving the Compromise
Agreement23 between the parties. The 17 May 2004 Resolution24 amended the earlier
partial judgment in granting to respondent custody of the children, ordering petitioner to
turn over to respondent documents and titles in the latter's name, and allowing
respondent to stay in the family dwelling in Mariposa, Quezon City. The 15 February
2005 Resolution25 denied petitioner's motion for reconsideration of the 28 December
2004 Resolution26 denying petitioner's motion to dismiss and motion for reconsideration
of the 12 October 2004 Resolution,27 which in turn denied for late filing petitioner's
motion for reconsideration of the 17 May 2004 resolution.
The Issue

Petitioner raises the question of whether the 30 March 2004 decision and the 17 May
2004 resolution of the trial court have attained finality despite the alleged denial of due
process.
The Court's Ruling
The petition has no merit.
Petitioner contends she was denied due process when her counsel failed to file
pleadings and appear at the hearings for respondent's omnibus motion to amend the
partial judgment as regards the custody of the children and the properties in her
possession. Petitioner claims the trial court issued the 17 May 2004 resolution relying
solely on the testimony of respondent. Petitioner further claims the trial court erred in
applying to her motion to dismiss Section 7 of the Rule on the Declaration of Absolute
Nullity of Void Marriages and Annulment of Voidable Marriages. Petitioner argues that if
indeed the provision is applicable, the same is unconstitutional for setting an obstacle to
the preservation of the family.
Respondent maintains that the 30 March 2004 decision and the 17 May 2004 resolution
of the trial court are now final and executory and could no longer be reviewed, modified,
or vacated. Respondent alleges petitioner is making a mockery of our justice system in
disregarding our lawful processes. Respondent stresses neither petitioner nor her
counsel appeared in court at the hearings on respondent's omnibus motion or on
petitioner's motion to dismiss.
The issue raised in this petition has been settled in the case of Tuason v. Court of
Appeals.28 In Tuason, private respondent therein filed a petition for the annulment of her
marriage on the ground of her husband's psychological incapacity. There, the trial court
rendered judgment declaring the nullity of the marriage and awarding custody of the
children to private respondent therein. No timely appeal was taken from the trial court's
judgment.
We held that the decision annulling the marriage had already become final and
executory when the husband failed to appeal during the reglementary period. The
husband claimed that the decision of the trial court was null and void for violation of his
right to due process. He argued he was denied due process when, after failing to
appear on two scheduled hearings, the trial court deemed him to have waived his right
to present evidence and rendered judgment based solely on the evidence presented by
private respondent. We upheld the judgment of nullity of the marriage even if it was
based solely on evidence presented by therein private respondent.
We also ruled in Tuason that notice sent to the counsel of record is binding upon the
client and the neglect or failure of the counsel to inform the client of an adverse
judgment resulting in the loss of the latter's right to appeal is not a ground for setting
aside a judgment valid and regular on its face.29

In the present case, the 30 March 2004 decision and the 17 May 2004 resolution of the
trial court had become final and executory upon the lapse of the reglementary period to
appeal.30 Petitioner's motion for reconsideration of the 17 May 2004 resolution, which
the trial court received on 28 June 2004, was clearly filed out of time. Applying the
doctrine laid down in Tuason, the alleged negligence of counsel resulting in petitioner's
loss of the right to appeal is not a ground for vacating the trial court's judgments.
Further, petitioner cannot claim that she was denied due process. While she may have
lost her right to present evidence due to the supposed negligence of her counsel, she
cannot say she was denied her day in court. Records show petitioner, through counsel,
actively participated in the proceedings below, filing motion after motion. Contrary to
petitioner's allegation of negligence of her counsel, we have reason to believe the
negligence in pursuing the case was on petitioner's end, as may be gleaned from her
counsel's manifestation dated 3 May 2004:
Undersigned Counsel, who appeared for petitioner, in the nullity proceedings,
respectfully informs the Honorable Court that she has not heard from petitioner since
Holy Week. Attempts to call petitioner have failed.
Undersigned counsel regrets therefore that she is unable to respond in an intelligent
manner to the Motion (Omnibus Motion) filed by respondent. 31
Clearly, despite her counsel's efforts to reach her, petitioner showed utter disinterest in
the hearings on respondent's omnibus motion seeking, among others, custody of the
children. The trial judge was left with no other recourse but to proceed with the hearings
and rule on the motion based on the evidence presented by respondent. Petitioner
cannot now come to this Court crying denial of due process.
As for the applicability to petitioner's motion to dismiss of Section 7 of the Rule on the
Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages,
petitioner is correct. Section 7 of the Rule on the Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable Marriages provides:
SEC. 7. Motion to dismiss. - No motion to dismiss the petition shall be allowed except
on the ground of lack of jurisdiction over the subject matter or over the parties; provided,
however, that any other ground that might warrant a dismissal of the case may be
raised as an affirmative defense in an answer. (Emphasis supplied)
The clear intent of the provision is to allow the respondent to ventilate all possible
defenses in an answer, instead of a mere motion to dismiss, so that judgment may be
made on the merits. In construing a statute, the purpose or object of the law is an
important factor to be considered.32 Further, the letter of the law admits of no other
interpretation but that the provision applies only to a respondent, not a petitioner. Only a
respondent in a petition for the declaration of absolute nullity of void marriage or the
annulment of voidable marriage files an answer where any ground that may warrant a
dismissal may be raised as an affirmative defense pursuant to the provision. The only

logical conclusion is that Section 7 of the Rule does not apply to a motion to dismiss
filed by the party who initiated the petition for the declaration of absolute nullity of void
marriage or the annulment of voidable marriage.
Since petitioner is not the respondent in the petition for the annulment of the marriage,
Section 7 of the Rule does not apply to the motion to dismiss filed by her. Section 7 of
the Rule not being applicable, petitioner's claim that it is unconstitutional for allegedly
setting an obstacle to the preservation of the family is without basis.
Section 1 of the Rule states that the Rules of Court applies suppletorily to a petition for
the declaration of absolute nullity of void marriage or the annulment of voidable
marriage. In this connection, Rule 17 of the Rules of Court allows dismissal of the action
upon notice or upon motion of the plaintiff, to wit:
Section 1. Dismissal upon notice by plaintiff. - A complaint may be dismissed by the
plaintiff by filing a notice of dismissal at any time before service of the answer or of a
motion for summary judgment. Upon such notice being filed, the court shall issue an
order confirming the dismissal. x x x
Section 2. Dismissal upon motion of plaintiff. - Except as provided in the preceding
section, a complaint shall not be dismissed at the plaintiff's instance save upon approval
of the court and upon such terms and conditions as the court deems proper. x x x
(Emphasis supplied)
However, when petitioner filed the motion to dismiss on 4 November 2004, the 30
March 2004 decision and the 17 May 2004 resolution of the trial court had long become
final and executory upon the lapse of the 15-day reglementary period without any timely
appeal having been filed by either party. The 30 March 2004 decision and the 17 May
2004 resolution may no longer be disturbed on account of the belated motion to dismiss
filed by petitioner. The trial court was correct in denying petitioner's motion to dismiss.
Nothing is more settled in law than that when a judgment becomes final and executory,
it becomes immutable and unalterable. The same may no longer be modified in any
respect, even if the modification is meant to correct what is perceived to be an
erroneous conclusion of fact or law.33 The reason is grounded on the fundamental
considerations of public policy and sound practice that, at the risk of occasional error,
the judgments or orders of courts must be final at some definite date fixed by law. Once
a judgment has become final and executory, the issues there should be laid to rest. 34
WHEREFORE, we DENY the petition for review. We AFFIRM the (i) 17 May 2004
Resolution amending the 30 March 2004 Decision and (ii) the 15 February 2005
Resolution of the Regional Trial Court of Quezon City, Branch 107, in Civil Case No. Q01-45743.
Costs against petitioner.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 119712 January 29, 1999

DEVELOPMENT BANK OF THE PHILIPPINES and ASSET PRIVATIZATION
TRUST, petitioners,
vs.
COURT OF APPEALS and CONTINENTAL CEMENT CORPORATION, respondents.

MARTINEZ, J.:
This petition for review on certiorari assails the decision 1 rendered by the Court of Appeals
dated March 28, 1995 in Ca-G.R. CV No. 42596 affirming the decision of the Regional Trial Court-Branch
9 of Malolos, Bulacan dated October 9, 1992 and adopting in toto the orders rendered by the same trial
court dated August 25 and December 14, 1992.

On November 18, 1985, the Development Bank of the Philippines (DBP), a government
owned and controlled corporation, filed with the Office of the Sheriff of Malolos an
application for extra-judicial foreclosure of real and personal properties situated at San
Jose del Monte and Norzagaray, Bulacan involving several real and/or chattel
mortgages executed by Continental Cement Corporation (CCC), a corporation
organized and existing under Philippine laws, engaged mainly in the manufacture of
cement, in favor of DBP on August 20, 1968; September 4, 1968; May 7, 1969;
September 19, 1969; October 24, 1969 and November 13, 1969.
On December 11, 1985, Continental Cement filed a complaint with the Regional Trial
Court Of Malolos, Bulacan. The suit principally sought to enjoin the then defendants
DBP and the Sheriff of Malolos, Bulacan from commencing the foreclosure proceedings
on CCC's mortgages which were executed in favor of DBP to secure various loans
obtained by CCC. In addition, CCC also prayed that a new term for its loan obligation be
established, and that the court declare the interest escalation clause contained in DBP's
promissory notes as null and void.
A temporary restraining order (TRO) was issued and subsequently a Writ of Preliminary
Injunction was likewise issued on January 17, 1986, despite opposition thereto by DBP.
Sometime in December 1986, Proclamation No. 50 2 was promulgated by then President
Corazon C. Aquino pursuant to Administrative Order No. 14. The proclamation established the

privatization program of the National Government and created the Committee on Privatization and herein
petitioner ASSET PRIVATIZATION TRUST (APT) as the privatization arm for the government.

Several non-performing assets of the government financial institutions, including DBP,

were transferred to the National Government. The transfer was implemented through a
Deed of Transfer executed on February 27, 1987 between DBP and the National
Government, which in turn, designated petitioner APT to act as its trustee over the
assets. Among the non-performing assets identified and transferred to the APT was the
account of CCC. A Trust Agreement was thereafter executed between the National
Government and APT, wherein the latter was to take title to and possession of liabilities
and non- performing assets.
On September 18, 1987, DBP filed a motion to dismiss contending (1) that the case has
become moot and academic because CCC could no longer secure reliefs from DBP as
a result of the transfer of DBP's claim against CCC to APT; and (2) that the court lost
jurisdiction over the subject matter considering that Section 31 of Proc. No 50 prohibits
the issuance of any restraining order or injunction against APT in connection with the
acquisition, sale, or disposition of assets transferred to it. However the motion of DBP
was denied by the trial court on January 27, 1988, and APT was eventually allowed to
join the defendant DBP pursuant to Proclamation No. 50 as amended.
In July 1989, the accounting firm of J.C. Laya 3 was designated by the lower court as
Commissioner to resolve the main issue in the case, that is, the determination of the actual arrearages of
respondent CCC to petitioner APT and DBP arising from loan accommodations obtained by CCC from
DBP.

To aid the Commissioner and to expedite his task of determining the actual
indebtedness of CCC, both CCC and DBP provided the representatives of the
Commissioner with the pertinent data and documents which were within their custody
and possession. Among the documents provided was a copy of the Memorandum of
Agreement 4executed between CCC and DBP which pegged CCC's total indebtedness to DBP at
P133,717,286.95 as of August 31, 1979.

The Commissioner was unable to accomplish his assigned task within the period set by
the court. He was initially given an extension of sixty (60) days. This proved to be
insufficient thus he was granted another forty-five (45) days from December 18, 1989.
Despite several extensions given to the Commissioner to complete his report, he failed
to do so. This prompted the trial court to issue an Order dated April 23, 1990 directing
Atty. Jose Leynes 5 to explain why he should not be cited for contempt for his unexplained omission to
perform and accomplish his duties as the court appointed Commissioner. This was followed by another
Order dated July 2, 1990 citing Atty. Leynes in contempt of court and ordered his imprisonment for his
non-compliance with the April 23, 1990 order.

To avoid the consequences of the contempt order, Atty. Leynes submitted a draft report
on July 11, 1990 entitled "Summary of Initial Findings." The contempt order was
subsequently lifted by the trial court on August 20, 1990.

After several months of work had passed, the Commissioner, this time known as "Laya
Manabat Salgado & Co.," submitted to the lower court its report entitled
"Commissioner's Report on Loan Proceeds and Payments" dated January 11, 1991.
The findings of the Commissioner as cited by the Court of Appeals in its decision were
as follows:
It bears emphasis that the report is confined to a determination of CCC's
indebtedness to DBP in relation only to four (4) straight peso loans,
namely, a 12% ten-year loan of P3,867,291 signed on August 20, 1968; a
10% ten-year loan of P7,784,000 signed on September 19, 1969; a 10%
ten-year loan signed on October 23, 1969 and a P5.5 million not covered
by any promissory note but released to the extent of P1.0 million in March
1972, and two (2) guaranteed foreign exchange loans consisting of
US$2,000,000 contracted on September 4, 1968 by CCC but guaranteed
by DBP in favor of Somex Ltd. and DM11,233.115 (German Deutsche
Marks) in favor of consortium of West German Manufacturers headed by
Klockner-Humboldt-Deutz, A.G. dated May 9, 1969 (Report, p 3). The
Report excludes the implications of, firstly, an industrial fund loan
extended by DBP for CCC's acquisition of coal conversion equipment
appearing in DBP's books of accounts as US$2,558,347 and, secondly,
DBP's advances for insurance, management fees and miscellaneous
charges in the total amount of P4,436,807 (Report, pp, 8-9 pars. 4.8, 4.9).
...6
As a result of the report, the parties filed their respective comments and objections
thereto. During the trial, former Central Bank Governor Jaime C. Laya and a
representative of the Commissioner were called upon to testify. The parties also had the
opportunity to cross-examine the witnesses on matters touched upon in the report as
well as those disregarded by the Commissioner in its report.
After having cross-examined the representative of the Commissioner, the parties were
then allowed to submit their respective Position Papers. Contained in their respective
position papers was their own computation of the outstanding liabilities of CCC. CCC's
computation of its exact indebtedness to DBP as of December 1990, covering the
straight peso loans and foreign guarantees stood at P43,601,192.73. The
Commissioner reported that the indebtedness amounted to P61,698,849.00 while DBP
and APT computed CCC's total indebtedness in the sum of P2,656,573,716.11. 7
On July 23, 1992, hearing was scheduled for the sole purpose of examining three (3) of
CCC's witnesses, namely, Gregorio Lim, Urbano Cruz and Jessica Alonzo. The crossexamination was to be conducted by APT as DBP had previously conducted its own
cross-examination. The counsel for CCC failed to appear as he was allegedly ill. On that
same date, the court issued an order resetting the cross-examination for CCC's
witnesses on August 24, 25 and 26, 1992 Again, the counsel for APT was not able to
attend due to an alleged serious illness (Dengue Hemorrhagic Fever). Also absent
during the hearing was DBP's counsel and DBP/APT's lone witness, Mr. Jaime V. Cruz.

On August 25, 1992, the trial court issued an order which considered the case
submitted for decision. The final paragraph of the order reads as follows:
In the light of the foregoing developments, and conformably with the
agreement entered into much earlier by the contending parties to the
effect that after the affiants to the position papers shall have been crossexamined, the parties shall dispense with the presentation of further
evidence, the case at bar is considered henceforth submitted for
adjudication on the merits. 8
It is claimed by petitioner APT that when the above-mentioned order was issued, APT
did not yet have the opportunity to cross-examine the affiants of respondent CCC; nor
did it have the chance to present any of their affiants to support their allegations as
contained in their Joint Position Papers.
On September 18, 1992, APT filed a "Motion for Reconsideration." In an order dated
October 13, 1992, the trial court declared that such motion became moot and academic
by reason of the decision rendered on October 5, 1992.
On that earlier date, the lower court rendered the assailed decision, the dispositive
portion of which as follows:
WHEREFORE, premises considered, judgment is hereby rendered:
1. fixing the total indebtedness of plaintiff Continental Cement Corporation
in favor of defendant Development Bank of the Philippines on the straight
peso loans and foreign guarantees at P61,498,849.00 as of December 31,
1990;
2. fixing the indebtedness of plaintiff Continental Cement Corporation in
favor of defendant Development Bank of the Philippines on the coal
conversion loan at US$977,000.00, or P7,347,890.00 which is its
equivalent in pesos at the official rate of exchange prevailing in August
1979;
3. ordering the plaintiff to pay unto either of the defendants DBP or APT,
within six (6) months from the finality of this judgment, the aforementioned
amount of P61,498,849.00 with interest thereon at 10% per annum from
January 1, 1991 until the same shall have been fully paid and the
aforementioned amount of US$997,000.00/P7,347,890.00 without interest
thereon;
4. declaring premature and without legal basis the application for extra
judicial foreclosure (Annex A of the Complaint) filed on November 18,
1985 by defendant Development Bank of the Philippines with the office of
the defendant Sheriff of Malolos, Bulacan;

5. making permanent the writ of preliminary injunction issued by this Court

on January 17, 1986 in the case at bar enjoining proceedings on the
aforementioned application for extrajudicial foreclosure, without prejudice
to such rights (including the institution of eventual foreclosure
proceedings) as the defendants may opt to pursue against the plaintiff in
the event that the directive specified in the preceding paragraph hereof
shall not have been complied with; and
6. dismissing the plaintiff's claim for unspecified attorney's fees and
expenses of litigation.
No pronouncement as to costs.
SO ORDERED. 9
After having learned of the decision of the trial court, APT and DBP filed their respective
Omnibus Motions. APT, in its Omnibus Motion dated October 27, 1992, prayed for the
issuance of the following orders by the trial court:
1) vacating and nullifying its Decision dated October 5, 1992;
2) granting APT an opportunity to cross-examine plaintiff's witness;
3) allowing DBP and APT to present their witnesses and evidence;
4) after trial, requiring the parties to submit their respective Memoranda. 10
The trial court, on December 14, 1992, issued an Order denying the separate Omnibus
Motions of APT and DBP. Both APT and DBP appealed the trial court's decision dated
October 5, 1992 and orders dated August 25, 1992 and December 14, 1992.
On June 7, 1993, APT and DBP filed with the Court of Appeals a petition
for certiorari and prohibition with prayer for an ex-parte issuance of a restraining order
and a writ of preliminary injunction docketed as CA-G.R. SP No. 32853. However, on
January 31, 1994, the Court of Appeals dismissed the petition for lack of merit.
Thus, on March 28, 1995, the Court of Appeals, in CA-G.R. CV No. 42596 rendered the
assailed decision, the dispositive portion of which reads as follows:
WHEREFORE, premises considered, judgment is hereby rendered
AFFIRMING the Decision dated October 5, 1992 and the orders dated
August 25 and December 14, 1992 in toto. The order dated January 22,
1993 is hereby annulled and set aside insofar as it directs the partial
release of collateral's by defendants-appellant DBP and APT. 11

In the instant Petition for Review, APT assigns the following errors committed by the
appellate court:
I
THE COURT OF APPEALS IN AFFIRMING THE LOWER COURT'S
DECISION, DISREGARDED THE PRINCIPLES EMBODIED IN THE DUE
PROCESS CLAUSE OF THE CONSTITUTION, THUS:
A
THE COURT OF APPEALS ERRED IN FINDING THAT
PETITIONER HAS WAIVED ITS RIGHT TO CROSSEXAMINE RESPONDENT'S WITNESS.
II
THE COURT OF APPEALS ERRED WHEN IT AFFIRMED THE TRIAL
COURT'S DECISION ADOPTING IN TOTO THE REPORT OF THE
COMMISSIONER.
A
THE COURT OF APPEALS ERRED IN AFFIRMING THE
TRIAL COURT'S DECISION THAT THE MEMORANDUM
OF AGREEMENT IS UNENFORCEABLE.
B
THE COURT OF APPEALS ERRED IN AFFIRMING THE
TRIAL COURT'S DECISION LIMITING THE LIABILITY OF
RESPONDENT IN THE AMOUNT OF P61,498,849.00 AS
OF DECEMBER 31, 1990 INSTEAD OF P2,656,573,716.11
III
THE COURT OF APPEALS ERRED IN AFFIRMING THE TRIAL
COURT'S ISSUANCE OF A TEMPORARY RESTRAINING ORDER AND
WRITS OF PRELIMINARY AND PERMANENT INJUNCTION.
Anent the first assigned error, petitioner APT insists that the lower court as well as the
Court of Appeals disregarded the principles of the due process clause embodied in the
Constitution when it found APT to have waived its right to cross-examine respondent's
witnesses. On the other hand, respondent CCC counters that the findings of the lower
court may be attributed to the fault of APT's counsel. CCC alleges that the counsel for

APT often absented himself on scheduled hearing dates, resulting in the failure to
cross-examine the witnesses of respondent CCC.
The insistence of the petitioner is without basis.
Long ingrained in our jurisprudence is the principle that there can be no denial of due
process where a party had the opportunity to participate in the proceedings but did not
do so. 12
As shown from the records, the counsel for APT was absent on several occasions,
specifically on April 7, May 5, June 2, June 16, August 24 and 25, 1992. Several
reasons were raised by APT's counsel to justify his absence, such as withdrawal of
previous counsel, unreadiness to conduct the cross-examinations, and serious illness.
These flimsy excuses do not warrant consideration from this Court. The withdrawal of
APT's previous counsel in the thick of the proceedings would be a reasonable ground to
seek postponement of the hearing. However, such reason necessitates a duty, nay an
obligation, on the part of the new counsel to prepare himself for the next scheduled
hearing. The excuse that it was due to the former counsel's failure to turn over the
records of the case to APT, shows the negligence of the new counsel to actively recover
the records of the case. Mere demands are not sufficient. Counsel should have taken
adequate steps to fully protect the interest of his client, rather than pass the blame on
the previous counsel.
A motion to postpone trial on the ground that counsel is unprepared for trial
demonstrates indifference and disregard of a client's interest. A new counsel who
appears in a case in midstream is presumed and obliged to acquaint himself with all the
antecedent processes and proceedings that have transpired prior to his takeover. 13
As regards the serious illness suffered by counsel during the trial dates of August 24
and 25, 1992, we take note that Dengue Hemorrhagic Fever, if not treated at its early
stage, could cause serious illness, sometimes even death. This Court is not unmindful
of the fact that counsel's absence was due to this deadly disease. What baffles this
Court is the reason offered by counsel that "although two other APT lawyers were
mentioned in the pleadings, only one was actively involved in the handling of the
case. 14 Counsel further adds that he could not have possibly appraised the two other lawyers to appear
during the scheduled hearing in his absence.

We cannot understand why it would be difficult for counsel to appraise his two other
collaborating counsels. Counsel himself readily admits that of the two, only one is
actively handling the case. It would take a mere phone call to inform his co-counsels
than he would be unable to attend rather than be declared absent during trial. Yet,
counsel failed to do so.
In view of the foregoing, we find the Court of Appeals did not commit error, when it
declared that petitioner waived its right to cross-examine the respondent's witnesses.
The due process requirement is satisfied where the parties are given the opportunity to

submit position papers, 15 as in this case. Both parties, CCC and DBP/APT, were given opportunity
to submit their respective position papers after, the Commissioner rendered his report. Contained in their
position papers were their respective comments and objections to the said report. Furthermore, the
parties were also given the chance to cross-examine the Commissioner and his representative. They
were likewise granted opportunity to cross-examine the witnesses of the other party, however, like in
APT's case, they were deemed to have waived their right, as previously discussed.

The essence of due process is that a party be afforded a reasonable opportunity to be

heard and to support any evidence he may have in support of his defense. 16 What the law
prohibits is absolute absence of the opportunity to be heard, hence, a party cannot feign denial of due
17
process when he had been afforded the opportunity to present his side.

As to the second assigned error, petitioner avers that the Court of Appeals erred when it
affirmed the trial court's decision adopting in toto the report of the Commissioner and
the decision of the trial court declaring the Memorandum of Agreement as
unenforceable.
The above-mentioned issues involve matters which are factual in nature. As a general
rule, findings of fact of the Court of Appeals are binding and conclusive upon this Court,
and we will not normally disturb such factual findings unless the findings of the court are
palpably unsupported by the evidence on record or unless the judgment itself is based
on a misapprehension of facts. 18
In the case at bar, we find no such error that would warrant a reversal of the assailed
decision. As to the matter of the memorandum of agreement, we concur with the
decision of the Court of Appeals. The Memorandum of Agreement itself stated that
"failure of Continental to meet this deadline shall be construed as its objection to this
new restructuring scheme." 19 Moreover, CCC did not execute nor submit all the documents needed
to make said agreement effective. The fact that CCC did not comply with the requirements of the
Memorandum of Agreement at the expiration of the period set by DBP, only shows CCC's non-conformity
to the agreement.

Since CCC did not express its conformity to the agreement, it was only proper for the
Commissioner to consider the amount of indebtedness of CCC based on actual loan
releases. The Commissioner did consider the Memorandum of Agreement as a source
document, however, no one was able to satisfactorily explain how the figure was arrived
at. It must be emphasized that the Commissioner's report was limited in relation to four
(4) straight peso loans and two (2) guaranteed foreign exchange loans. It is, therefore,
erroneous for APT and DBP to conclude that CCC's entire outstanding obligations stood
at P2,656,573,716.11.
As regards the determination of the Commissioner as to the actual indebtedness of
CCC, we uphold the ruling of the respondent court. The very reason why the
Commissioner was appointed as such was due to the complex nature of the issues
involved in the case which required the technical know-how and expertise possessed by
the Commissioner. The records also bear the fact that said Commissioner was chosen
by both parties.

As we have previously ruled in Quebral vs. CA 20 that factual findings of the Court of Appeals
normally are not reviewable by this Court under Rule 45 of the Rules of Court, except when the findings
of the appellate court are at variance with those of the trial court. Since the trial court and the Court of
Appeals were in unison with the findings of the Commissioner, this Court is of the opinion that it finds no
compelling reason to reverse the same.

Lastly, petitioner APT argues that the Court of Appeals erred in affirming the trial court's
issuance of a temporary restraining order and a writ of preliminary and permanent
injunction against it (APT), despite the express provisions of Proclamation No. 50. On
the other hand, CCC asseverates that since APT was a mere transfereependente lite, it
was bound by the preliminary injunction previously issued against DBP.
We find merit in the assigned error of petitioner APT.
It must be recalled that the trial court did in fact issue a Writ of Preliminary Injunction
against petitioner APT. The particular section which contains the "non-injunction rule" is
quoted hereunder:
Courts may not substitute their judgment for that of APT, nor block by an
injunction the discharge of its function and the implementation of its
decision in connection with the acquisition, sale, or disposition of assets
transferred to it. 21
Furthermore, we reiterate the ruling held in that case that Proclamation No. 50 does not
infringe any provision of the Constitution. Thus
The President, in the exercise of his legislative power under the Freedom
Constitution, issued Proclamation No. 50-A prohibiting the courts from
issuing restraining orders and writ of injunction against the APT and the
purchasers of any asset sold by it, to prevent courts from interfering in the
discharge, by this instrumentality of the executive branch of the
Government, of its task of carrying out the expeditious disposition and
privatization of certain government corporations and/or the assets thereof
(Proc. No. 50), absent any grave abuse of discretion amounting to excess
or lack of jurisdiction on its part. This proclamation, not being inconsistent
with the Constitution and not having been repealed or revoke by
Congress, has remained operative (Section 3. Art. XVIII, 1987
Constitution). 22
The records of the case at bar does not disclose any grave abuse of discretion
committed by petitioner APT amounting to excess or lack of jurisdiction in its effort to
take possession of the assets transferred to it by DBP. We are of the opinion that
petitioners simply availed of judicial processes to recover the transferred assets
formerly owned by DBP. We hold respondent Court of Appeals liable of committing the
assigned error.

In sum, petitioner APT was not denied its right to due process when it failed to crossexamine respondent's witnesses as this was due to its own counsel's failure and
negligence. A party cannot feign denial of due process when he had the opportunity to
present his side. 23 A careful review of the records reveal that DBP had the opportunity to exhaustively
cross-examine respondent's witnesses. Furthermore, as transferee pendente lite, APT merely stepped
into the shoes of DBP.

As regards the indebtedness of CCC, petitioners APT/DBP must be reminded that all is
not lost when the Commissioner ruled that the outstanding loans amounted to
P61,498,849.00 only. As manifested by the Commissioner, the report limited itself to
four (4) straight peso loans and two (2) guaranteed foreign exchange loans, This was
due to the insufficiency of supporting documents submitted by both parties. We wish to
state that the affirmation by this Court of the rulings of the Court of Appeals as to the
indebtedness of CCC, does not in any way prejudice APT/DBP's right to recover from
CCC, provided they are fully able to substantiate their claim.
WHEREFORE, the petition is hereby DENIED and the assailed decision is hereby
AFFIRMED but with modification as follows:
The writ of preliminary injunction issued on January 17, 1986, and the writ of permanent
injunction issued on October 5, 1992 are hereby declared NULL AND VOID pursuant to
Section 31, Proclamation No. 50.
1wphi 1.nt

SO ORDERED.