1

[G.R. No. 135981. January 15, 2004]

PEOPLE OF THE PHILIPPINES, appellee,
vs. MARIVIC GENOSA, appellant.
DECISION
PANGANIBAN, J.:
Admitting she killed her husband, appellant
anchors her prayer for acquittal on a novel
theory -- the battered woman syndrome (BWS),
which allegedly constitutes self-defense. Under
the proven facts, however, she is not entitled to
complete exoneration because there was no
unlawful aggression -- no immediate and
unexpected attack on her by her battererhusband at the time she shot him.
Absent unlawful aggression, there can be no
self-defense, complete or incomplete.
But all is not lost. The severe beatings
repeatedly inflicted on appellant constituted a
form of cumulative provocation that broke down
her psychological resistance and self-control.
This psychological paralysis she suffered
diminished her will power, thereby entitling her
to the mitigating factor under paragraphs 9 and
10 of Article 13 of the Revised Penal Code.
In addition, appellant should also be credited
with the extenuating circumstance of having

acted upon an impulse so powerful as to have

naturally produced passion and obfuscation.
The acute battering she suffered that fatal night
in the hands of her batterer-spouse, in spite of
the fact that she was eight months pregnant
with their child, overwhelmed her and put her in
the aforesaid emotional and mental state, which
overcame her reason and impelled her to
vindicate her life and her unborn childs.
Considering the presence of these two
mitigating circumstances arising from BWS, as
well as the benefits of the Indeterminate
Sentence Law, she may now apply for and be
released from custody on parole, because she
has already served the minimum period of her
penalty while under detention during the
pendency of this case.
The Case
For automatic review before this Court is the
September 25, 1998 Decision[1] of the Regional
Trial Court (RTC) of Ormoc City (Branch 35) in
Criminal Case No. 5016-0, finding Marivic
Genosa guilty beyond reasonable doubt of
parricide. The decretal portion of the Decision
reads:
WHEREFORE, after all the foregoing being duly
considered, the Court finds the accused, Marivic
Genosa y Isidro, GUILTY beyond reasonable

doubt of the crime of Parricide as provided

under Article 246 of the Revised Penal Code as
restored by Sec. 5, RA No. 7659, and after
finding treachery as a generic aggravating
circumstance
and
none
of
mitigating
circumstance, hereby sentences the accused
with the penalty of DEATH.

Cadaveric spasm.
Body on the 2nd stage of decomposition.
Face, black, blownup & swollen w/ evident
post-mortem lividity. Eyes protruding
from its sockets and tongue slightly
protrudes out of the mouth.

The Court likewise penalizes the accused to pay

the heirs of the deceased the sum of fifty
thousand
pesos
(P50,000.00),
Philippine
currency as indemnity and another sum of fifty
thousand
pesos
(P50,000.00),
Philippine
[2]
currency as moral damages.
The Information[3] charged
parricide as follows:

appellant

Fracture,
open,
depressed,
circular
located at the occipital bone of the head,
resulting [in] laceration of the brain,
spontaneous rupture of the blood vessels
on the posterior surface of the brain,
laceration of the dura and meningeal
vessels producing severe intracranial
hemorrhage.

with

That on or about the 15th day of November

1995, at Barangay Bilwang, Municipality of
Isabel, Province of Leyte, Philippines and within
the jurisdiction of this Honorable Court, the
above-named accused, with intent to kill, with
treachery and evident premeditation, did then
and there wilfully, unlawfully and feloniously
attack, assault, hit and wound one BEN
GENOSA, her legitimate husband, with the use
of a hard deadly weapon, which the accused
had provided herself for the purpose, [causing]
the following wounds, to wit:

Blisters at both extrem[i]ties, anterior chest,

posterior chest, trunk w/ shedding of the
epidermis.
Abdomen distended w/ gas. Trunk bloated.
which caused his death.[4]
With the assistance of her counsel,
appellant pleaded not guilty during her
arraignment on March 3, 1997.[6] In due course,
she was tried for and convicted of parricide.
[5]

The Facts
Version of the Prosecution
The Office of the Solicitor General (OSG)
summarizes the prosecutions version of the
facts in this wise:
Appellant and Ben Genosa were united in
marriage on November 19, 1983 in Ormoc City.
Thereafter, they lived with the parents of Ben in
their house at Isabel, Leyte. For a time, Bens
younger brother, Alex, and his wife lived with
them too. Sometime in 1995, however,
appellant and Ben rented from Steban Matiga a
house at Barangay Bilwang, Isabel, Leyte where
they lived with their two children, namely: John
Marben and Earl Pierre.
On November 15, 1995, Ben and Arturo
Basobas went to a cockfight after receiving their
salary. They each had two (2) bottles of beer
before heading home. Arturo would pass Bens
house before reaching his. When they arrived at
the house of Ben, he found out that appellant
had gone to Isabel, Leyte to look for him. Ben
went inside his house, while Arturo went to a
store across it, waiting until 9:00 in the evening
for the masiao runner to place a bet. Arturo did
not see appellant arrive but on his way home
passing the side of the Genosas rented house,

he heard her say I wont hesitate to kill you to

which Ben replied Why kill me when I am
innocent? That was the last time Arturo saw
Ben alive. Arturo also noticed that since then,
the
Genosas
rented
house
appeared
uninhabited and was always closed.
On November 16, 1995, appellant asked Erlinda
Paderog, her close friend and neighbor living
about fifty (50) meters from her house, to look
after her pig because she was going to Cebu for
a pregnancy check-up. Appellant likewise asked
Erlinda to sell her motorcycle to their neighbor
Ronnie Dayandayan who unfortunately had no
money to buy it.
That same day, about 12:15 in the afternoon,
Joseph Valida was waiting for a bus going to
Ormoc when he saw appellant going out of their
house with her two kids in tow, each one
carrying a bag, locking the gate and taking her
children to the waiting area where he was.
Joseph lived about fifty (50) meters behind the
Genosas rented house. Joseph, appellant and
her children rode the same bus to Ormoc. They
had no conversation as Joseph noticed that
appellant did not want to talk to him.
On November 18, 1995, the neighbors of
Steban Matiga told him about the foul odor

emanating from his house being rented by Ben

and appellant. Steban went there to find out the
cause of the stench but the house was locked
from the inside. Since he did not have a
duplicate key with him, Steban destroyed the
gate padlock with a borrowed steel saw. He was
able to get inside through the kitchen door but
only after destroying a window to reach a hook
that locked it. Alone, Steban went inside the
unlocked bedroom where the offensive smell
was coming from. There, he saw the lifeless
body of Ben lying on his side on the bed
covered with a blanket. He was only in his briefs
with injuries at the back of his head. Seeing
this, Steban went out of the house and sent
word to the mother of Ben about his sons
misfortune. Later that day, Iluminada Genosa,
the mother of Ben, identified the dead body as
that of [her] son.
Meanwhile, in the morning of the same day,
SPO3 Leo Acodesin, then assigned at the police
station at Isabel, Leyte, received a report
regarding the foul smell at the Genosas rented
house. Together with SPO1 Millares, SPO1
Colon, and Dr. Refelina Cerillo, SPO3 Acodesin
proceeded to the house and went inside the
bedroom where they found the dead body of
Ben lying on his side wrapped with a bedsheet.
There was blood at the nape of Ben who only

had his briefs on. SPO3 Acodesin found in one

corner at the side of an aparador a metal pipe
about two (2) meters from where Ben was,
leaning against a wall. The metal pipe measured
three (3) feet and six (6) inches long with a
diameter of one and half (1 1/2) inches. It had
an open end without a stop valve with a red
stain at one end. The bedroom was not in
disarray.
About 10:00 that same morning, the cadaver of
Ben, because of its stench, had to be taken
outside at the back of the house before the
postmortem examination was conducted by Dr.
Cerillo in the presence of the police. A municipal
health officer at Isabel, Leyte responsible for
medico-legal cases, Dr. Cerillo found that Ben
had been dead for two to three days and his
body
was
already
decomposing.
The
postmortem examination of Dr. Cerillo yielded
the findings quoted in the Information for
parricide later filed against appellant. She
concluded that the cause of Bens death was
cardiopulmonary arrest secondary to severe
intracranial hemorrhage due to a depressed
fracture of the occipital [bone].
Appellant admitted killing Ben. She testified
that going home after work on November 15,
1995, she got worried that her husband who

was not home yet might have gone gambling

since it was a payday. With her cousin Ecel
Arao, appellant went to look for Ben at the
marketplace and taverns at Isabel, Leyte but
did not find him there. They found Ben drunk
upon their return at the Genosas house. Ecel
went home despite appellants request for her to
sleep in their house.

but since Ben did not have the key to it, he got
a three-inch long blade cutter from his wallet.
She however, smashed the arm of Ben with a
pipe, causing him to drop the blade and his
wallet. Appellant then smashed Ben at his nape
with the pipe as he was about to pick up the
blade and his wallet. She thereafter ran inside
the bedroom.

Then, Ben purportedly nagged appellant for

following him, even challenging her to a fight.
She allegedly ignored him and instead attended
to their children who were doing their
homework. Apparently disappointed with her
reaction, Ben switched off the light and, with
the use of a chopping knife, cut the television
antenna or wire to keep her from watching
television. According to appellant, Ben was
about to attack her so she ran to the bedroom,
but he got hold of her hands and whirled her
around. She fell on the side of the bed and
screamed for help. Ben left. At this point,
appellant
packed his clothes
because
she
wanted him to leave. Seeing his packed clothes
upon his return home, Ben allegedly flew into a
rage, dragged appellant outside of the bedroom
towards a drawer holding her by the neck, and
told her You might as well be killed so nobody
would nag me. Appellant testified that she was
aware that there was a gun inside the drawer

Appellant, however, insisted that she ended the

life of her husband by shooting him. She
supposedly distorted the drawer where the gun
was and shot Ben. He did not die on the spot,
though, but in the bedroom.[7] (Citations
omitted)
Version of the Defense
Appellant relates her version of the facts in
this manner:
1. Marivic and Ben Genosa were allegedly
married on November 19, 1983. Prior to her
marriage, Marivic had graduated from San
Carlos, Cebu City, obtaining a degree of
Bachelor of Science in Business Administration,
and was working, at the time of her husbands
death, as a Secretary to the Port Managers in

Ormoc City. The couple had three (3) children:

John Marben, Earl Pierre and Marie Bianca.
2. Marivic and Ben had known each other since
elementary school; they were neighbors in
Bilwang; they were classmates; and they were
third degree cousins. Both sets of parents were
against their relationship, but Ben was
persistent and tried to stop other suitors from
courting her. Their closeness developed as he
was her constant partner at fiestas.
3. After their marriage, they lived first in the
home of Bens parents, together with Bens
brother, Alex, in Isabel, Leyte. In the first year
of marriage, Marivic and Ben lived happily. But
apparently, soon thereafter, the couple would
quarrel often and their fights would become
violent.
4. Bens brother, Alex, testified for the
prosecution that he could not remember when
Ben and Marivic married. He said that when Ben
and Marivic quarreled, generally when Ben
would come home drunk, Marivic would inflict
injuries on him. He said that in one incident in
1993 he saw Marivic holding a kitchen knife
after Ben had shouted for help as his left hand
was covered with blood. Marivic left the house
but after a week, she returned apparently

having asked for Bens forgiveness. In another

incident in May 22, 1994, early morning, Alex
and his father apparently rushed to Bens aid
again and saw blood from Bens forehead and
Marivic holding an empty bottle. Ben and
Marivic reconciled after Marivic had apparently
again asked for Bens forgiveness.
Mrs. Iluminada Genosa, Marivics mother-in-law,
testified too, saying that Ben and Marivic
married in 1986 or 1985 more or less here in
Fatima, Ormoc City. She said as the marriage
went along, Marivic became already very
demanding. Mrs. Iluminada Genosa said that
after the birth of Marivics two sons, there were
three (3) misunderstandings. The first was
when Marivic stabbed Ben with a table knife
through his left arm; the second incident was
on November 15, 1994, when Marivic struck
Ben on the foreheadusing a sharp instrument
until the eye was also affected. It was wounded
and also the ear and her husband went to Ben
to help; and the third incident was in 1995
when the couple had already transferred to the
house in Bilwang and she saw that Bens hand
was plastered as the bone cracked.
Both mother and son claimed they brought Ben
to a Pasar clinic for medical intervention.

5. Arturo Basobas, a co-worker of Ben, testified

that on November 15, 1995 After we collected
our salary, we went to the cock-fighting place of
ISCO. They stayed there for three (3) hours,
after which they went to Uniloks and drank beer
allegedly only two (2) bottles each. After
drinking they bought barbeque and went to the
Genosa residence. Marivic was not there. He
stayed a while talking with Ben, after which he
went across the road to wait for the runner and
the usher of the masiao game because during
that time, the hearing on masiao numbers was
rampant. I was waiting for the ushers and
runners so that I can place my bet. On his way
home at about 9:00 in the evening, he heard
the Genosas arguing. They were quarreling
loudly. Outside their house was one Fredo who
is used by Ben to feed his fighting cocks.
Basobas testimony on the root of the quarrel,
conveniently overheard by him was Marivic
saying I will never hesitate to kill you, whilst
Ben replied Why kill me when I am innocent.
Basobas thought they were joking.
He did not hear them quarreling while he was
across the road from the Genosa residence.
Basobas admitted that he and Ben were always
at the cockpits every Saturday and Sunday. He
claims that he once told Ben before when he
was stricken with a bottle by Marivic Genosa

that he should leave her and that Ben would

always take her back after she would leave him
so many times.
Basobas could not remember when Marivic had
hit Ben, but it was a long time that they had
been quarreling. He said Ben even had a wound
on the right forehead. He had known the couple
for only one (1) year.
6. Marivic testified that after the first year of
marriage, Ben became cruel to her and was a
habitual drinker. She said he provoked her, he
would slap her, sometimes he would pin her
down on the bed, and sometimes beat her.
These incidents happened several times and she
would often run home to her parents, but Ben
would follow her and seek her out, promising to
change and would ask for her forgiveness. She
said after she would be beaten, she would seek
medical help from Dr. Dino Caing, Dr. Lucero
and Dra. Cerillo. These doctors would enter the
injuries inflicted upon her by Ben into their
reports. Marivic said Ben would beat her or
quarrel with her every time he was drunk, at
least three times a week.
7. In her defense, witnesses who were not so
closely related to Marivic, testified as to the

abuse and violence she received at the hands of

Ben.
7.1. Mr. Joe Barrientos, a fisherman, who was a
[neighbor] of the Genosas, testified that on
November 15, 1995, he overheard a quarrel
between Ben and Marivic. Marivic was shouting
for help and through the open jalousies, he saw
the spouses grappling with each other. Ben had
Marivic in a choke hold. He did not do anything,
but had come voluntarily to testify. (Please note
this was the same night as that testified to by
Arturo Busabos.[8])
7.2. Mr. Junnie Barrientos, also a fisherman,
and the brother of Mr. Joe Barrientos, testified
that he heard his neighbor Marivic shouting on
the night of November 15, 1995. He peeped
through the window of his hut which is located
beside the Genosa house and saw the spouses
grappling with each other then Ben Genosa was
holding with his both hands the neck of the
accused, Marivic Genosa. He said after a while,
Marivic was able to extricate he[r]self and enter
the room of the children. After that, he went
back to work as he was to go fishing that
evening. He returned at 8:00 the next morning.
(Again, please note that this was the same
night as that testified to by Arturo Basobas).

7.3. Mr. Teodoro Sarabia was a former neighbor

of the Genosas while they were living in Isabel,
Leyte. His house was located about fifty (50)
meters from theirs. Marivic is his niece and he
knew them to be living together for 13 or 14
years. He said the couple was always
quarreling. Marivic confided in him that Ben
would pawn items and then would use the
money to gamble. One time, he went to their
house and they were quarreling. Ben was so
angry, but would be pacified if somebody would
come. He testified that while Ben was alive he
used to gamble and when he became drunk, he
would go to our house and he will say, Teody
because that was what he used to call me,
mokimas ta, which means lets go and look for a
whore. Mr. Sarabia further testified that Ben
would box his wife and I would see bruises and
one time she ran to me, I noticed a wound (the
witness pointed to his right breast) as according
to her a knife was stricken to her. Mr. Sarabia
also said that once he saw Ben had been
injured too. He said he voluntarily testified only
that morning.
7.4. Miss Ecel Arano, an 18-year old student,
who is a cousin of Marivic, testified that in the
afternoon of November 15, 1995, Marivic went
to her house and asked her help to look for
Ben. They searched in the market place, several

taverns and some other places, but could not

find him. She accompanied Marivic home.
Marivic wanted her to sleep with her in the
Genosa house because she might be battered
by her husband. When they got to the Genosa
house at about 7:00 in the evening, Miss Arano
said that her husband was already there and
was drunk. Miss Arano knew he was drunk
because of his staggering walking and I can
also detect his face. Marivic entered the house
and she heard them quarrel noisily. (Again,
please note that this is the same night as that
testified to by Arturo Basobas) Miss Arano
testified that this was not the first time Marivic
had asked her to sleep in the house as Marivic
would be afraid every time her husband would
come home drunk. At one time when she did
sleep over, she was awakened at 10:00 in the
evening when Ben arrived because the couple
were very noisy in the sala and I had heard
something was broken like a vase. She said
Marivic ran into her room and they locked the
door. When Ben couldnt get in he got a chair
and a knife and showed us the knife through
the window grill and he scared us. She said that
Marivic shouted for help, but no one came. On
cross-examination, she said that when she left
Marivics house on November 15, 1995, the
couple were still quarreling.

7.5. Dr. Dino Caing, a physician testified that he

and Marivic were co-employees at PHILPHOS,
Isabel, Leyte. Marivic was his patient many
times and had also received treatment from
other doctors. Dr. Caing testified that from July
6, 1989 until November 9, 1995, there were six
(6) episodes of physical injuries inflicted upon
Marivic. These injuries were reported in his OutPatient Chart at the PHILPHOS Hospital. The
prosecution admitted the qualifications of Dr.
Caing and considered him an expert witness.
xxxxxxxxx
Dr. Caings clinical history of the tension
headache and hypertention of Marivic on
twenty-three (23) separate occasions was
marked at Exhibits 2 and 2-B. The OPD Chart of
Marivic at the Philphos Clinic which reflected all
the consultations made by Marivic and the six
(6) incidents of physical injuries reported was
marked as Exhibit 3.
On cross-examination, Dr. Caing said that he is
not a psychiatrist, he could not say whether the
injuries were directly related to the crime
committed. He said it is only a psychiatrist who
is qualified to examine the psychological makeup of the patient, whether she is capable of
committing a crime or not.

10

7.6 Mr. Panfilo Tero, the barangay captain in the

place where the Genosas resided, testified that
about two (2) months before Ben died, Marivic
went to his office past 8:00 in the evening. She
sought his help to settle or confront the Genosa
couple who were experiencing family troubles.
He told Marivic to return in the morning, but he
did not hear from her again and assumed that
they might have settled with each other or they
might have forgiven with each other.
xxxxxxxxx
Marivic said she did not provoke her husband
when she got home that night it was her
husband who began the provocation. Marivic
said she was frightened that her husband would
hurt her and she wanted to make sure she
would deliver her baby safely. In fact, Marivic
had to be admitted later at the Rizal Medical
Centre as she was suffering from eclampsia and
hypertension, and the baby was born
prematurely on December 1, 1995.
Marivic testified that during her marriage she
had tried to leave her husband at least five (5)
times, but that Ben would always follow her and
they would reconcile. Marivic said that the
reason why Ben was violent and abusive
towards her that night was because he was

crazy about his recent girlfriend, Lulu x x x

Rubillos.
On cross-examination, Marivic insisted she shot
Ben with a gun; she said that he died in the
bedroom; that their quarrels could be heard by
anyone passing their house; that Basobas lied
in his testimony; that she left for Manila the
next day, November 16, 1995; that she did not
bother anyone in Manila, rented herself a room,
and got herself a job as a field researcher under
the alias Marvelous Isidro; she did not tell
anyone that she was leaving Leyte, she just
wanted to have a safe delivery of her baby; and
that she was arrested in San Pablo, Laguna.
Answering questions from the Court, Marivic
said that she threw the gun away; that she did
not know what happened to the pipe she used
to smash him once; that she was wounded by
Ben on her wrist with the bolo; and that two (2)
hours after she was whirled by Ben, he kicked
her ass and dragged her towards the drawer
when he saw that she had packed his things.
9. The body of Ben Genosa was found on
November 18, 1995 after an investigation was
made of the foul odor emitting from the Genosa
residence. This fact was testified to by all the

11

prosecution witnesses and

witnesses during the trial.

some

defense

10. Dra. Refelina Y. Cerillo, a physician, was the

Municipal Health Officer of Isabel, Leyte at the
time of the incident, and among her
responsibilities as such was to take charge of all
medico-legal cases, such as the examination of
cadavers and the autopsy of cadavers. Dra.
Cerillo is not a forensic pathologist. She merely
took the medical board exams and passed in
1986. She was called by the police to go to the
Genosa residence and when she got there, she
saw some police officer and neighbor around.
She saw Ben Genosa, covered by a blanket,
lying in a semi-prone position with his back to
the door. He was wearing only a brief.
xxxxxxxxx
Dra. Cerillo said that there is only one injury
and that is the injury involving the skeletal area
of the head which she described as a fracture.
And that based on her examination, Ben had
been dead 2 or 3 days. Dra. Cerillo did not
testify as to what caused his death.
Dra. Cerillo was not cross-examined by defense
counsel.

11. The Information, dated November 14,

1996, filed against Marivic Genosa charged her
with the crime of PARRICIDE committed with
intent to kill, with treachery and evidence
premeditation, x x x wilfully, unlawfully and
feloniously attack, assault, hit and wound x x x
her legitimate husband, with the use of a hard
deadly weapon x x x which caused his death.
12. Trial took place on 7 and 14 April 1997, 14
May 1997, 21 July 1997, 17, 22 and 23
September 1997, 12 November 1997, 15 and
16 December 1997, 22 May 1998, and 5 and 6
August 1998.
13. On 23 September 1998, or only fifty (50)
days from the day of the last trial date, the
Hon. Fortunito L. Madrona, Presiding Judge,
RTC-Branch 35, Ormoc City, rendered a
JUDGMENT finding Marivic guilty beyond
reasonable doubt of the crime of parricide, and
further found treachery as an aggravating
circumstance, thus sentencing her to the
ultimate penalty of DEATH.
14. The case was elevated to this Honorable
Court upon automatic review and, under date of
24 January 2000, Marivics trial lawyer, Atty. Gil
Marvel P. Tabucanon, filed a Motion to Withdraw
as
counsel,
attaching
thereto,
as
a

12

precautionary measure, two (2) drafts of

Appellants Briefs he had prepared for Marivic
which, for reasons of her own, were not
conformed to by her.
The Honorable Court allowed the withdrawal of
Atty. Tabucanon and permitted the entry of
appearance of undersigned counsel.
15. Without the knowledge of counsel, Marivic
Genosa wrote a letter dated 20 January 2000,
to the Chief Justice, coursing the same through
Atty. Teresita G. Dimaisip, Deputy Clerk of Court
of Chief Judicial Records Office, wherein she
submitted her Brief without counsels to the
Court.
This letter was stamp-received
Honorable Court on 4 February 2000.

by

the

16. In the meantime, under date of 17

February 2000, and stamp-received by the
Honorable Court on 19 February 2000,
undersigned counsel filed an URGENT OMNIBUS
MOTION praying that the Honorable Court allow
the exhumation of Ben Genosa and the reexamination of the cause of his death; allow the
examination of Marivic Genosa by qualified
psychologists and psychiatrists to determine her
state of mind at the time she killed her

husband; and finally, to allow a partial reopening of the case a quo to take the testimony
of said psychologists and psychiatrists.
Attached to the URGENT OMNIBUS MOTION was
a letter of Dr. Raquel Fortun, then the only
qualified forensic pathologist in the country,
who opined that the description of the death
wound (as culled from the post-mortem
findings, Exhibit A) is more akin to a gunshot
wound than a beating with a lead pipe.
17. In a RESOLUTION dated 29 September
2000, the Honorable Court partly granted
Marivics URGENT OMNIBUS MOTION and
remanded the case to the trial court for the
reception of expert psychological and/or
psychiatric opinion on the battered woman
syndrome plea, within ninety (90) days from
notice, and, thereafter to forthwith report to
this Court the proceedings taken, together with
the copies of the TSN and relevant documentary
evidence, if any, submitted.
18. On 15 January 2001, Dra. Natividad A.
Dayan appeared and testified before the Hon.
Fortunito L. Madrona, RTC-Branch 35, Ormoc
City.

13

Immediately before Dra. Dayan was sworn, the

Court a quo asked if she had interviewed
Marivic Genosa. Dra. Dayan informed the Court
that interviews were done at the Penal
Institution in 1999, but that the clinical
interviews and psychological assessment were
done at her clinic.
Dra. Dayan testified that she has been a clinical
psychologist for twenty (20) years with her own
private clinic and connected presently to the De
La Salle University as a professor. Before this,
she was the Head of the Psychology
Department of the Assumption College; a
member of the faculty of Psychology at the
Ateneo de Manila University and St. Josephs
College; and was the counseling psychologist of
the National Defense College. She has an AB in
Psychology from the University of the
Philippines, a Master of Arts in Clinical
[Counseling], Psychology from the Ateneo, and
a PhD from the U.P. She was the past president
of the Psychological Association of the
Philippines and is a member of the American
Psychological Association. She is the secretary
of the International Council of Psychologists
from about 68 countries; a member of the
Forensic Psychology Association; and a member
of the ASEAN [Counseling] Association. She is
actively involved with the Philippine Judicial

Academy, recently lecturing on the sociodemographic and psychological profile of

families involved in domestic violence and
nullity cases. She was with the Davide
Commission doing research about Military
Psychology. She has written a book entitled
Energy Global Psychology (together with Drs.
Allan Tan and Allan Bernardo). The Genosa case
is the first time she has testified as an expert
on battered women as this is the first case of
that nature.
Dra. Dayan testified that for the research she
conducted, on the socio-demographic and
psychological profile of families involved in
domestic violence, and nullity cases, she looked
at about 500 cases over a period of ten (10)
years and discovered that there are lots of
variables that cause all of this marital conflicts,
from domestic violence to infidelity, to
psychiatric disorder.
Dra. Dayan described domestic violence to
comprise of a lot of incidents of psychological
abuse, verbal abuse, and emotional abuse to
physical abuse and also sexual abuse.
xxxxxxxxx

14

Dra. Dayan testified that in her studies, the

battered woman usually has a very low opinion
of herself. She has a self-defeating and selfsacrificing characteristics. x x x they usually
think very lowly of themselves and so when the
violence would happen, they usually think that
they provoke it, that they were the one who
precipitated the violence, they provoke their
spouse to be physically, verbally and even
sexually abusive to them. Dra. Dayan said that
usually a battered x x x comes from a
dysfunctional family or from broken homes.
Dra. Dayan said that the batterer, just like the
battered woman, also has a very low opinion of
himself. But then emerges to have superiority
complex and it comes out as being very
arrogant, very hostile, very aggressive and very
angry. They also had (sic) a very low tolerance
for frustrations. A lot of times they are involved
in vices like gambling, drinking and drugs. And
they become violent. The batterer also usually
comes from a dysfunctional family which overpampers them and makes them feel entitled to
do anything. Also, they see often how their
parents abused each other so there is a lot of
modeling of aggression in the family.
Dra. Dayan testified that there are a lot of
reasons why a battered woman does not leave

her husband: poverty, self-blame and guilt that

she provoked the violence, the cycle itself which
makes her hope her husband will change, the
belief in her obligations to keep the family intact
at all costs for the sake of the children.
xxxxxxxxx
Dra. Dayan said that abused wives react
differently to the violence: some leave the
house, or lock themselves in another room, or
sometimes try to fight back triggering physical
violence on both of them. She said that in a
normal marital relationship, abuses also
happen, but these are not consistent, not
chronic, are not happening day in [and] day
out. In an abnormal marital relationship, the
abuse occurs day in and day out, is long lasting
and even would cause hospitalization on the
victim and even death on the victim.
xxxxxxxxx
Dra. Dayan said that as a result of the battery
of psychological tests she administered, it was
her opinion that Marivic fits the profile of a
battered woman because inspite of her feeling
of self-confidence which we can see at times
there are really feeling (sic) of loss, such
feelings of humiliation which she sees herself as

15

damaged and as a broken person. And at the

same time she still has the imprint of all the
abuses that she had experienced in the past.
xxxxxxxxx
Dra. Dayan said Marivic thought of herself as a
loving wife and did not even consider filing for
nullity or legal separation inspite of the abuses.
It was at the time of the tragedy that Marivic
then thought of herself as a victim.
xxxxxxxxx
19. On 9 February 2001, Dr. Alfredo Pajarillo, a
physician, who has since passed away,
appeared and testified before RTC-Branch 35,
Ormoc City.
Dr. Pajarillo was a Diplomate of the Philippine
Board of Psychiatry; a Fellow of the Philippine
Board of Psychiatry and a Fellow of the
Philippine Psychiatry Association. He was in the
practice of psychiatry for thirty-eight (38)
years. Prior to being in private practice, he was
connected with the Veterans Memorial Medical
Centre where he gained his training on
psychiatry and neurology. After that, he was
called to active duty in the Armed Forces of the
Philippines, assigned to the V. Luna Medical
Center for twenty six (26) years. Prior to his

retirement from government service, he

obtained the rank of Brigadier General. He
obtained his medical degree from the University
of Santo Tomas. He was also a member of the
World Association of Military Surgeons; the
Quezon City Medical Society; the Cagayan
Medical Society; and the Philippine Association
of Military Surgeons.
He authored The Comparative Analysis of
Nervous Breakdown in the Philippine Military
Academy from the Period 1954 1978 which was
presented twice in international congresses. He
also authored The Mental Health of the Armed
Forces of the Philippines 2000, which was
likewise published internationally and locally. He
had a medical textbook published on the use of
Prasepam on a Parke-Davis grant; was the first
to use Enanthate (siquiline), on an E.R. Squibb
grant; and he published the use of the drug
Zopiclom in 1985-86.
Dr. Pajarillo explained that psychiatry deals with
the functional disorder of the mind and
neurology deals with the ailment of the brain
and spinal cord enlarged. Psychology, on the
other hand, is a bachelor degree and a
doctorate degree; while one has to finish
medicine to become a specialist in psychiatry.

16

Even only in his 7th year as a resident in V.

Luna Medical Centre, Dr. Pajarillo had already
encountered a suit involving violent family
relations, and testified in a case in 1964. In the
Armed Forces of the Philippines, violent family
disputes abound, and he has seen probably ten
to twenty thousand cases. In those days, the
primordial
intention
of
therapy
was
reconciliation. As a result of his experience with
domestic violence cases, he became a
consultant of the Battered Woman Office in
Quezon City under Atty. Nenita Deproza.
As such consultant, he had seen around forty
(40) cases of severe domestic violence, where
there is physical abuse: such as slapping,
pushing, verbal abuse, battering and boxing a
woman even to an unconscious state such that
the woman is sometimes confined. The affliction
of Post-Traumatic Stress Disorder depends on
the vulnerability of the victim. Dr. Pajarillo said
that if the victim is not very healthy, perhaps
one episode of violence may induce the
disorder; if the psychological stamina and
physiologic constitutional stamina of the victim
is stronger, it will take more repetitive trauma
to precipitate the post-traumatic stress disorder
and this x x x is very dangerous.

In psychiatry, the post-traumatic stress disorder

is incorporated under the anxiety neurosis or
neurologic anxcietism. It is produced by
overwhelming brutality, trauma.
xxxxxxxxx
Dr. Pajarillo explained that with neurotic
anxiety, the victim relives the beating or trauma
as if it were real, although she is not actually
being beaten at that time. She thinks of nothing
but the suffering.
xxxxxxxxx
A woman who suffers battery has a tendency to
become neurotic, her emotional tone is
unstable, and she is irritable and restless. She
tends to become hard-headed and persistent.
She has higher sensitivity and her self-world is
damaged.
Dr. Pajarillo said that an abnormal family
background relates to an individuals illness,
such as the deprivation of the continuous care
and love of the parents. As to the batterer, he
normally internalizes what is around him within
the environment. And it becomes his own
personality. He is very competitive; he is aiming
high all the time; he is so macho; he shows his

17

strong faade but in it there are doubts in

himself and prone to act without thinking.
xxxxxxxxx
Dr. Pajarillo emphasized that even though
without the presence of the precipator (sic) or
the one who administered the battering, that
re-experiencing of the trauma occurred (sic)
because the individual cannot control it. It will
just come up in her mind or in his mind.
xxxxxxxxx
Dr. Pajarillo said that a woman suffering post
traumatic stress disorder try to defend
themselves, and primarily with knives. Usually
pointed weapons or any weapon that is
available in the immediate surrounding or in a
hospital x x x because that abound in the
household. He said a victim resorts to weapons
when she has reached the lowest rock bottom
of her life and there is no other recourse left on
her but to act decisively.
xxxxxxxxx
Dr. Pajarillo testified that he met Marivic Genosa
in his office in an interview he conducted for
two (2) hours and seventeen (17) minutes. He
used the psychological evaluation and social

case studies as a help in forming his diagnosis.

He came out with a Psychiatric Report, dated 22
January 2001.
xxxxxxxxx
On cross-examination by the private prosecutor,
Dr. Pajarillo said that at the time she killed her
husband Marivicc mental condition was that she
was re-experiencing the trauma. He said that
we are trying to explain scientifically that the
re-experiencing of the trauma is not controlled
by Marivic. It will just come in flashes and
probably at that point in time that things
happened when the re-experiencing of the
trauma flashed in her mind. At the time he
interviewed Marivic she was more subdued, she
was not super alert anymore x x x she is
mentally
stress
(sic)
because
of
the
predicament she is involved.
xxxxxxxxx
20. No rebuttal evidence or testimony was
presented by either the private or the public
prosecutor. Thus, in accord with the Resolution
of this Honorable Court, the records of the
partially re-opened trial a quo were elevated.[9]
Ruling of the Trial Court

18

Finding the proffered theory of self-defense

untenable, the RTC gave credence to the
prosecution evidence that appellant had killed
the deceased while he was in bed sleeping.
Further, the trial court appreciated the generic
aggravating circumstance of treachery, because
Ben Genosa was supposedly defenseless when
he was killed -- lying in bed asleep when
Marivic smashed him with a pipe at the back of
his head.
The capital penalty having been imposed,
the case was elevated to this Court for
automatic review.
Supervening Circumstances
On February 19, 2000, appellant filed an
Urgent Omnibus Motion praying that this Court
allow (1) the exhumation of Ben Genosa and
the reexamination of the cause of his death; (2)
the examination of appellant by qualified
psychologists and psychiatrists to determine her
state of mind at the time she had killed her
spouse; and (3) the inclusion of the said
experts reports in the records of the case for
purposes of the automatic review or, in the
alternative, a partial reopening of the case for

the lower court

testimonies.

to

admit

the

experts

On September 29, 2000, this Court issued a

Resolution granting in part appellants Motion,
remanding the case to the trial court for the
reception of expert psychological and/or
psychiatric opinion on the battered woman
syndrome plea; and requiring the lower court to
report thereafter to this Court the proceedings
taken as well as to submit copies of the TSN
and additional evidence, if any.
Acting on the Courts Resolution, the trial
judge authorized the examination of Marivic by
two clinical psychologists, Drs. Natividad
Dayan[10] and Alfredo Pajarillo,[11] supposedly
experts on domestic violence. Their testimonies,
along with their documentary evidence, were
then presented to and admitted by the lower
court before finally being submitted to this
Court to form part of the records of the case.[12]
The Issues
Appellant assigns the following alleged errors
of the trial court for this Courts consideration:

19

1. The trial court gravely erred in promulgating

an obviously hasty decision without reflecting
on the evidence adduced as to self-defense.
2. The trial court gravely erred in finding as a
fact that Ben and Marivic Genosa were legally
married and that she was therefore liable for
parricide.
3. The trial court gravely erred finding the
cause of death to be by beating with a pipe.
4. The trial court gravely erred in ignoring and
disregarding evidence adduced from impartial
and unbiased witnesses that Ben Genosa was a
drunk, a gambler, a womanizer and wife-beater;
and further gravely erred in concluding that Ben
Genosa was a battered husband.
5. The trial court gravely erred in not requiring
testimony from the children of Marivic Genosa.
6. The trial court gravely erred in concluding
that Marivics flight to Manila and her
subsequent apologies were indicia of guilt,
instead of a clear attempt to save the life of her
unborn child.
7. The trial court gravely erred in concluding
that there was an aggravating circumstance of
treachery.

8. The trial court gravely erred in refusing to

re-evaluate
the
traditional
elements
in
determining the existence of self-defense and
defense of foetus in this case, thereby
erroneously convicting Marivic Genosa of the
crime of parricide and condemning her to the
ultimate penalty of death.[13]
In the main, the following are the essential
legal issues: (1) whether appellant acted in selfdefense and in defense of her fetus; and (2)
whether treachery attended the killing of Ben
Genosa.
The Courts Ruling
The appeal is partly meritorious.
Collateral Factual Issues
The first six assigned errors raised by
appellant are factual in nature, if not collateral
to the resolution of the principal issues. As
consistently held by this Court, the findings of
the trial court on the credibility of witnesses and
their testimonies are entitled to a high degree
of respect and will not be disturbed on appeal in
the absence of any showing that the trial judge

20

gravely abused his discretion or overlooked,

misunderstood or misapplied material facts or
circumstances of weight and substance that
could affect the outcome of the case.[14]
In appellants first six assigned items, we find
no grave abuse of discretion, reversible error or
misappreciation of material facts that would
reverse or modify the trial courts disposition of
the case. In any event, we will now briefly
dispose of these alleged errors of the trial court.
First, we do not agree that the lower court
promulgated an obviously hasty decision
without reflecting on the evidence adduced as
to self-defense. We note that in his 17-page
Decision,
Judge
Fortunito
L.
Madrona
summarized the testimonies of both the
prosecution and the defense witnesses and -on the basis of those and of the documentary
evidence on record -- made his evaluation,
findings and conclusions. He wrote a 3-page
discourse assessing the testimony and the selfdefense theory of the accused. While she, or
even this Court, may not agree with the trial
judges conclusions, we cannot peremptorily
conclude, absent substantial evidence, that he
failed to reflect on the evidence presented.
Neither do we find the appealed Decision to
have been made in an obviously hasty manner.

The Information had been filed with the lower

court on November 14, 1996. Thereafter, trial
began and at least 13 hearings were held for
over a year. It took the trial judge about two
months from the conclusion of trial to
promulgate his judgment. That he conducted
the trial and resolved the case with dispatch
should not be taken against him, much less
used to condemn him for being unduly hasty. If
at all, the dispatch with which he handled the
case should be lauded. In any case, we find his
actions in substantial compliance with his
constitutional obligation.[15]
Second, the lower court did not err in finding
as a fact that Ben Genosa and appellant had
been legally married, despite the nonpresentation of their marriage contract.
In People v. Malabago,[16] this Court held:
The key element in parricide is the relationship
of the offender with the victim. In the case of
parricide of a spouse, the best proof of the
relationship between the accused and the
deceased is the marriage certificate. In the
absence of a marriage certificate, however, oral
evidence of the fact of marriage may be
considered by the trial court if such proof is not
objected to.

21

Two of the prosecution witnesses -- namely,

the mother and the brother of appellants
deceased spouse -- attested in court that Ben
had been married to Marivic.[17] The defense
raised no objection to these testimonies.
Moreover, during her direct examination,
appellant herself made a judicial admission of
her marriage to Ben.[18] Axiomatic is the rule
that a judicial admission is conclusive upon the
party making it, except only when there is a
showing that (1) the admission was made
through a palpable mistake, or (2) no admission
was in fact made.[19] Other than merely
attacking the non-presentation of the marriage
contract, the defense offered no proof that the
admission made by appellant in court as to the
fact of her marriage to the deceased was made
through a palpable mistake.
Third, under the circumstances of this case,
the specific or direct cause of Bens death -whether by a gunshot or by beating with a pipe
-- has no legal consequence. As the Court
elucidated in its
September
29, 2000
Resolution, [c]onsidering that the appellant has
admitted the fact of killing her husband and the
acts of hitting his nape with a metal pipe and of
shooting him at the back of his head, the Court
believes that exhumation is unnecessary, if not
immaterial, to determine which of said acts

actually caused the victims death. Determining

which of these admitted acts caused the death
is not dispositive of the guilt or defense of
appellant.
Fourth, we cannot fault the trial court for not
fully appreciating evidence that Ben was a drunk,
gambler, womanizer and wife-beater. Until this
case came to us for automatic review, appellant
had not raised the novel defense of battered
woman syndrome, for which such evidence may
have been relevant. Her theory of self-defense
was then the crucial issue before the trial court.
As will be discussed shortly, the legal requisites
of self-defense under prevailing jurisprudence
ostensibly
appear
inconsistent
with
the
surrounding facts that led to the death of the
victim. Hence, his personal character, especially
his past behavior, did not constitute vital
evidence at the time.
Fifth, the trial court surely committed no
error in not requiring testimony from appellants
children. As correctly elucidated by the solicitor
general, all criminal actions are prosecuted
under the direction and control of the public
prosecutor, in whom lies the discretion to
determine which witnesses and evidence are
necessary to present.[20] As the former further
points out, neither the trial court nor the
prosecution
prevented
appellant
from

22

presenting her children as witnesses. Thus, she

cannot now fault the lower court for not
requiring them to testify.
Finally, merely collateral or corroborative is
the matter of whether the flight of Marivic to
Manila and her subsequent apologies to her
brother-in-law are indicia of her guilt or are
attempts to save the life of her unborn child.
Any reversible error as to the trial courts
appreciation of these circumstances has little
bearing on the final resolution of the case.
First Legal Issue:
Self-Defense and Defense of a Fetus
Appellant admits killing Ben Genosa but, to
avoid criminal liability, invokes self-defense
and/or defense of her unborn child. When the
accused admits killing the victim, it is
incumbent upon her to prove any claimed
justifying circumstance by clear and convincing
evidence.[21] Well-settled is the rule that in
criminal cases, self-defense (and similarly,
defense of a stranger or third person) shifts the
burden of proof from the prosecution to the
defense.[22]
The Battered Woman Syndrome

In claiming self-defense, appellant raises the

novel theory of the battered woman syndrome.
While new in Philippine jurisprudence, the
concept has been recognized in foreign
jurisdictions as a form of self-defense or, at the
least,
incomplete
self-defense.[23] By
appreciating evidence that a victim or
defendant is afflicted with the syndrome,
foreign courts convey their understanding of the
justifiably fearful state of mind of a person who
has been cyclically abused and controlled over a
period of time.[24]
A battered woman has been defined as a
woman who is repeatedly subjected to any
forceful physical or psychological behavior by a
man in order to coerce her to do something he
wants her to do without concern for her rights.
Battered women include wives or women in any
form of intimate relationship with men.
Furthermore, in order to be classified as a
battered woman, the couple must go through
the battering cycle at least twice. Any woman
may find herself in an abusive relationship with
a man once. If it occurs a second time, and she
remains in the situation, she is defined as a
battered woman.[25]
Battered women exhibit common personality
traits, such as low self-esteem, traditional
beliefs about the home, the family and the

23

female sex role; emotional dependence upon

the dominant male; the tendency to accept
responsibility for the batterers actions; and
false hopes that the relationship will improve.[26]
More graphically, the battered woman
syndrome is characterized by the so-called cycle
of violence,[27] which has three phases: (1) the
tension-building phase; (2) the acute battering
incident; and (3) the tranquil, loving (or, at
least, nonviolent) phase.[28]
During the tension-building phase, minor
battering occurs -- it could be verbal or slight
physical abuse or another form of hostile
behavior. The woman usually tries to pacify the
batterer through a show of kind, nurturing
behavior; or by simply staying out of his way.
What actually happens is that she allows herself
to be abused in ways that, to her, are
comparatively minor. All she wants is to prevent
the escalation of the violence exhibited by the
batterer. This wish, however, proves to be
double-edged, because her placatory and
passive behavior legitimizes his belief that he
has the right to abuse her in the first place.
However, the techniques adopted by the
woman in her effort to placate him are not
usually successful, and the verbal and/or
physical abuse worsens. Each partner senses

the imminent loss of control and the growing

tension and despair. Exhausted from the
persistent stress, the battered woman soon
withdraws emotionally. But the more she
becomes emotionally unavailable, the more the
batterer becomes angry, oppressive and
abusive. Often, at some unpredictable point,
the violence spirals out of control and leads to
an acute battering incident.[29]
The acute battering incident is said to be
characterized by brutality, destructiveness and,
sometimes, death. The battered woman deems
this incident as unpredictable, yet also
inevitable. During this phase, she has no
control; only the batterer may put an end to the
violence. Its nature can be as unpredictable as
the time of its explosion, and so are his reasons
for ending it. The battered woman usually
realizes that she cannot reason with him, and
that resistance would only exacerbate her
condition.
At this stage, she has a sense of detachment
from the attack and the terrible pain, although
she may later clearly remember every detail.
Her apparent passivity in the face of acute
violence may be rationalized thus: the batterer
is almost always much stronger physically, and
she knows from her past painful experience that
it is futile to fight back. Acute battering

24

incidents are often very savage and out of

control, such that innocent bystanders or
intervenors are likely to get hurt.[30]
The final phase of the cycle of violence
begins when the acute battering incident ends.
During this tranquil period, the couple
experience profound relief. On the one hand,
the batterer may show a tender and nurturing
behavior towards his partner. He knows that he
has been viciously cruel and tries to make up
for it, begging for her forgiveness and
promising never to beat her again. On the other
hand, the battered woman also tries to convince
herself that the battery will never happen
again; that her partner will change for the
better; and that this good, gentle and caring
man is the real person whom she loves.
A battered woman usually believes that she
is the sole anchor of the emotional stability of
the batterer. Sensing his isolation and despair,
she feels responsible for his well-being. The
truth, though, is that the chances of his
reforming, or seeking or receiving professional
help, are very slim, especially if she remains
with him. Generally, only after she leaves him
does he seek professional help as a way of
getting her back. Yet, it is in this phase of
remorseful reconciliation that she is most
thoroughly tormented psychologically.

The illusion of absolute interdependency is

well-entrenched in a battered womans psyche.
In this phase, she and her batterer are indeed
emotionally dependent on each other -- she for
his nurturant behavior, he for her forgiveness.
Underneath this miserable cycle of tension,
violence and forgiveness, each partner may
believe that it is better to die than to be
separated. Neither one may really feel
independent, capable of functioning without the
other.[31]
History of Abuse
in the Present Case
To show the history of violence inflicted upon
appellant, the defense presented several
witnesses. She herself described her heartrending experience as follows:
ATTY. TABUCANON
Q How did you describe your marriage
with Ben Genosa?
A In the first year, I lived with him happily
but in the subsequent year he was
cruel to me and a behavior of habitual
drinker.
Q You said that in the subsequent year of
your marriage, your husband was

25

abusive to you and cruel. In what way

was this abusive and cruelty
manifested to you?
A He always provoke me in everything, he
always slap me and sometimes he
pinned me down on the bed and
sometimes beat me.

behavior by your husband, were you

able to see a doctor?
A Yes, sir.
Q Who are these doctors?
A The company physician, Dr. Dino Caing,
Dr. Lucero and Dra. Cerillo.

Q How many times did this happen?

A Several times already.
Q What did you do when these things
happen to you?
A I went away to my mother and I ran to
my father and we separate each other.

xxxxxxxxx
Q You said that you saw a doctor in
relation to your injuries?
A Yes, sir.
Q Who inflicted these injuries?

Q What was the action of Ben Genosa

towards you leaving home?

A Of course my husband.

A He is following me, after that he sought

after me.

A Yes, sir.

Q What will happen when he follow you?

A He said he changed, he asked for
forgiveness and I was convinced and
after that I go to him and he said
sorry.
Q During those times that you were the
recipient of such cruelty and abusive

Q You mean Ben Genosa?

xxxxxxxxx
[Court] /to the witness
Q How frequent was the alleged cruelty
that you said?
A Everytime he got drunk.
Q No, from the time that you said the
cruelty or the infliction of injury
inflicted on your occurred, after your

26

marriage, from that time on, how

frequent was the occurrence?
A Everytime he got drunk.
Q Is it daily, weekly, monthly or how
many times in a month or in a week?
A Three times a week.
Q Do you mean three times a week he
would beat you?
A Not necessarily that he would beat me
but sometimes he will just quarrel
me. [32]
Referring to his Out-Patient Chart[33] on
Marivic Genosa at the Philphos Hospital, Dr.
Dino D. Caing bolstered her foregoing testimony
on chronic battery in this manner:
Q So, do you have a summary of those
six (6) incidents which are found in the
chart of your clinic?
A Yes, sir.

A 1. May 12, 1990 - physical findings are

as follows: Hematoma (R) lower eyelid
and redness of eye. Attending
physician: Dr. Lucero;
2. March 10, 1992 - ContusionHematoma (L) lower arbital area, pain
and contusion (R) breast. Attending
physician: Dr. Canora;
3. March 26, 1993 - Abrasion, Furuncle
(L) Axilla;
4. August 1, 1994 - Pain, mastitis (L)
breast, 2o to trauma. Attending
physician: Dr. Caing;
5. April 17, 1995 - Trauma, tenderness
(R) Shoulder. Attending physician: Dr.
Canora; and
6. June 5, 1995 - Swelling Abrasion (L)
leg, multiple contusion Pregnancy.
Attending physician: Dr. Canora.

Q Who prepared the list of six (6)

incidents, Doctor?

Q Among the findings, there were two (2)

incidents wherein you were the
attending physician, is that correct?

A I did.

A Yes, sir.

Q Will you please read the physical

findings together with the dates for the
record.

Q Did you actually physical examine the

accused?
A Yes, sir.

27

Q Now, going to your finding no. 3 where

you were the one who attended the
patient. What do you mean by
abrasion furuncle left axilla?

A As a doctor-patient relationship, we
need to know the cause of these
injuries. And she told me that it was
done to her by her husband.

A Abrasion is a skin wound usually when

it comes in contact with something
rough substance if force is applied.

Q You mean, Ben Genosa?

A Yes, sir.
xxxxxxxxx

Q What is meant by furuncle axilla?

A It is secondary of the light infection
over the abrasion.
Q What is meant by pain mastitis
secondary to trauma?
A So, in this 4th episode of physical
injuries there is an inflammation of left
breast. So, [pain] meaning there is
tenderness. When your breast is
traumatized, there is tenderness pain.
Q So, these are objective physical
injuries. Doctor?
xxxxxxxxx

ATTY. TABUCANON:
Q By the way Doctor, were you able to
physical examine the accused
sometime in the month of November,
1995 when this incident happened?
A As per record, yes.
Q What was the date?
A It was on November 6, 1995.
Q So, did you actually see the accused
physically?
A Yes, sir.

A Yes, sir.

Q On November 6, 1995, will you please

tell this Honorable Court, was the
patient pregnant?

Q What did she tell you?

A Yes, sir.

Q Were you able to talk with the patient?

28

Q Being a doctor, can you more engage at

what stage of pregnancy was she?
A Eight (8) months pregnant.
Q So in other words, it was an advance
stage of pregnancy?
A Yes, sir.
Q What was your November 6, 1995
examination, was it an examination
about her pregnancy or for some other
findings?
A No, she was admitted for hypertension
headache which complicates her
pregnancy.
Q When you said admitted, meaning she
was confined?
A Yes, sir.
Q For how many days?
A One day.
Q Where?
A At PHILPHOS Hospital.
xxxxxxxxx
Q Lets go back to the clinical history of
Marivic Genosa. You said that you

were able to examine her personally

on November 6, 1995 and she was 8
months pregnant.
What is this all about?
A Because she has this problem of
tension headache secondary to
hypertension and I think I have a
record here, also the same period from
1989 to 1995, she had a consultation
for twenty-three (23) times.
Q For what?
A Tension headache.
Q Can we say that specially during the
latter consultation, that the patient
had hypertension?
A The patient definitely had hypertension.
It was refractory to our treatment. She
does not response when the
medication was given to her, because
tension headache is more or less
stress related and emotional in nature.
Q What did you deduce of tension
headache when you said is emotional
in nature?
A From what I deduced as part of our
physical examination of the patient is

29

the family history in line of giving the

root cause of what is causing this
disease. So, from the moment you ask
to the patient all comes from the
domestic problem.
Q You mean problem in her household?
A Probably.
Q Can family trouble cause elevation of
blood pressure, Doctor?
A Yes, if it is emotionally related and
stressful it can cause increases in
hypertension which is unfortunately
does not response to the medication.
Q In November 6, 1995, the date of the
incident, did you take the blood
pressure of the accused?
A On November 6, 1995 consultation, the
blood pressure was 180/120.
Q Is this considered hypertension?
A Yes, sir, severe.
Q Considering that she was 8 months
pregnant, you mean this is dangerous
level of blood pressure?
A It was dangerous to the child or to the
fetus. [34]

Another defense witness, Teodoro Sarabia, a

former neighbor of the Genosas in Isabel,
Leyte, testified that he had seen the couple
quarreling several times; and that on some
occasions Marivic would run to him with bruises,
confiding that the injuries were inflicted upon
her by Ben.[35]
Ecel Arano also testified[36] that for a number
of times she had been asked by Marivic to sleep
at the Genosa house, because the latter feared
that Ben would come home drunk and hurt her.
On one occasion that Ecel did sleep over, she
was awakened about ten oclock at night,
because the couple were very noisy and I heard
something was broken like a vase. Then Marivic
came running into Ecels room and locked the
door. Ben showed up by the window grill atop a
chair, scaring them with a knife.
On the afternoon of November 15, 1995,
Marivic again asked her help -- this time to find
Ben -- but they were unable to. They returned
to the Genosa home, where they found him
already drunk. Again afraid that he might hurt
her, Marivic asked her to sleep at their house.
Seeing his state of drunkenness, Ecel hesitated;
and when she heard the couple start arguing,
she decided to leave.

30

On that same night that culminated in the

death of Ben Genosa, at least three other
witnesses saw or heard the couple quarreling.
[37]
Marivic relates in detail the following
backdrop of the fateful night when life was
snuffed out of him, showing in the process a
vivid picture of his cruelty towards her:

A When he arrived, I was not there, I was

in Isabel looking for him.
Q So when he arrived you were in Isabel
looking for him?
A Yes, sir.
Q Did you come back to your house?

ATTY. TABUCANON:

A Yes, sir.

Q Please tell this Court, can you recall the

incident in November 15, 1995 in the
evening?

Q By the way, where was your conjugal

residence situated this time?

A Whole morning and in the afternoon, I

was in the office working then after
office hours, I boarded the service bus
and went to Bilwang. When I reached
Bilwang, I immediately asked my son,
where was his father, then my second
child said, he was not home yet. I was
worried because that was payday, I
was anticipating that he was gambling.
So while waiting for him, my eldest
son arrived from school, I prepared
dinner for my children.
Q This is evening of November 15, 1995?
A Yes, sir.
Q What time did Ben Genosa arrive?

A Bilwang.
Q Is this your house or you are renting?
A Renting.
Q What time were you able to come back
in your residence at Bilwang?
A I went back around almost 8:00 oclock.
Q What happened when you arrived in
your residence?
A When I arrived home with my cousin
Ecel whom I requested to sleep with
me at that time because I had fears
that he was again drunk and I was
worried that he would again beat me
so I requested my cousin to sleep with
me, but she resisted because she had

31

fears that the same thing will happen

again last year.
Q Who was this cousin of yours who you
requested to sleep with you?

Q What time?
A When I arrived home, he was there
already in his usual behavior.

A Ecel Arao, the one who testified.

Q Will you tell this Court what was his

disposition?

Q Did Ecel sleep with you in your house

on that evening?

A He was drunk again, he was yelling in

his usual unruly behavior.

A No, because she expressed fears, she

said her father would not allow her
because of Ben.

Q What was he yelling all about?

Q During this period November 15, 1995,

were you pregnant?
A Yes, 8 months.
Q How advance was your pregnancy?
A Eight (8) months.
Q Was the baby subsequently born?
A Yes, sir.
Q Whats the name of the baby you were
carrying at that time?
A Marie Bianca.
Q What time were you able to meet
personally your husband?
A Yes, sir.

A His usual attitude when he got drunk.

Q You said that when you arrived, he was
drunk and yelling at you? What else
did he do if any?
A He is nagging at me for following him
and he dared me to quarrel him.
Q What was the cause of his nagging or
quarreling at you if you know?
A He was angry at me because I was
following x x x him, looking for him. I
was just worried he might be overly
drunk and he would beat me again.
Q You said that he was yelling at you,
what else, did he do to you if any?
A He was nagging at me at that time and
I just ignore him because I want to
avoid trouble for fear that he will beat

32

me again. Perhaps he was

disappointed because I just ignore him
of his provocation and he switch off
the light and I said to him, why did
you switch off the light when the
children were there. At that time I was
also attending to my children who
were doing their assignments. He was
angry with me for not answering his
challenge, so he went to the kitchen
and [got] a bolo and cut the antenna
wire to stop me from watching
television.
Q What did he do with the bolo?
A He cut the antenna wire to keep me
from watching T.V.
Q What else happened after he cut the
wire?
A He switch off the light and the children
were shouting because they were
scared and he was already holding the
bolo.

Q You said the children were scared, what

else happened as Ben was carrying
that bolo?
A He was about to attack me so I run to
the room.
Q What do you mean that he was about
to attack you?
A When I attempt to run he held my
hands and he whirled me and I fell to
the bedside.
Q So when he whirled you, what
happened to you?
A I screamed for help and then he left.
Q You said earlier that he whirled you and
you fell on the bedside?
A Yes, sir.
Q You screamed for help and he left, do
you know where he was going?
A Outside perhaps to drink more.

Q How do you described this bolo?

Q When he left what did you do in that

particular time?

A 1 1/2 feet.

A I packed all his clothes.

Q What was the bolo used for usually?

Q What was your reason in packing his

clothes?

A For chopping meat.

33

A I wanted him to leave us.

Q During this time, where were your
children, what were their reactions?
A After a couple of hours, he went back
again and he got angry with me for
packing his clothes, then he dragged
me again of the bedroom holding my
neck.
Q You said that when Ben came back to
your house, he dragged you? How did
he drag you?
COURT INTERPRETER:
The witness demonstrated to the Court by
using her right hand flexed forcibly in
her front neck)
A And he dragged me towards the door
backward.
ATTY. TABUCANON:
Q Where did he bring you?
A Outside the bedroom and he wanted to
get something and then he kept on
shouting at me that you might as well
be killed so there will be nobody to
nag me.

Q So you said that he dragged you

towards the drawer?
A Yes, sir.
Q What is there in the drawer?
A I was aware that it was a gun.
COURT INTERPRETER:
(At this juncture the witness started
crying).
ATTY. TABUCANON:
Q Were you actually brought to the
drawer?
A Yes, sir.
Q What happened when you were brought
to that drawer?
A He dragged me towards the drawer and
he was about to open the drawer but
he could not open it because he did
not have the key then he pulled his
wallet which contained a blade about 3
inches long and I was aware that he
was going to kill me and I smashed his
arm and then the wallet and the blade
fell. The one he used to open the
drawer I saw, it was a pipe about that
long, and when he was about to pick-

34

up the wallet and the blade, I smashed

him then I ran to the other room, and
on that very moment everything on
my mind was to pity on myself, then
the feeling I had on that very moment
was the same when I was admitted in
PHILPHOS Clinic, I was about to vomit.
COURT INTERPRETER:
(The witness at this juncture is crying
intensely).
xxxxxxxxx

Q You said that he dropped the blade, for

the record will you please describe this
blade about 3 inches long, how does it
look like?
A Three (3) inches long and 1/2 inch
wide.
Q Is it a flexible blade?
A Its a cutter.
Q How do you describe the blade, is it
sharp both edges?
A Yes, because he once used it to me.

ATTY. TABUCANON:

Q How did he do it?

Q Talking of drawer, is this drawer outside

your room?

A He wanted to cut my throat.

A Outside.
Q In what part of the house?
A Dining.
Q Where were the children during that
time?
A My children were already asleep.
Q You mean they were inside the room?
A Yes, sir.

Q With the same blade?

A Yes, sir, that was the object used when
he intimidate me. [38]
In addition, Dra. Natividad Dayan was called
by the RTC to testify as an expert witness to
assist it in understanding the psyche of a
battered person. She had met with Marivic
Genosa for five sessions totaling about
seventeen hours. Based on their talks, the
former briefly related the latters ordeal to the
court a quo as follows:

35

Q: What can you say, that you found

Marivic as a battered wife? Could you
in laymans term describe to this Court
what her life was like as said to you?
A: What I remember happened then was
it was more than ten years, that she
was suffering emotional anguish.
There were a lot of instances of
abuses, to emotional abuse, to verbal
abuse and to physical abuse. The
husband had a very meager income,
she was the one who was practically
the bread earner of the family. The
husband was involved in a lot of vices,
going out with barkadas, drinking,
even womanizing being involved in
cockfight and going home very angry
and which will trigger a lot of physical
abuse. She also had the experience a
lot of taunting from the husband for
the reason that the husband even
accused her of infidelity, the husband
was saying that the child she was
carrying was not his own. So she was
very angry, she was at the same time
very depressed because she was also
aware, almost like living in purgatory
or even hell when it was happening
day in and day out. [39]

In cross-examining Dra. Dayan, the public

prosecutor not merely elicited, but wittingly or
unwittingly put forward, additional supporting
evidence as shown below:
Q In your first encounter with the
appellant in this case in 1999, where
you talked to her about three hours,
what was the most relevant
information did you gather?
A The most relevant information was the
tragedy that happened. The most
important information were escalating
abuses that she had experienced
during her marital life.
Q Before you met her in 1999 for three
hours, we presume that you already
knew of the facts of the case or at
least you have substantial knowledge
of the facts of the case?
A I believe I had an idea of the case, but
I do not know whether I can consider
them as substantial.
xxxxxxxxx
Q Did you gather an information from
Marivic that on the side of her husband

36

they were fond of battering their

wives?
A I also heard that from her?
Q You heard that from her?
A Yes, sir.
Q Did you ask for a complete example
who are the relatives of her husband
that were fond of battering their
wives?
A What I remember that there were
brothers of her husband who are also
battering their wives.
Q Did she not inform you that there was
an instance that she stayed in a hotel
in Ormoc where her husband followed
her and battered [her] several times in
that room?
A She told me about that.
Q Did she inform you in what hotel in
Ormoc?
A Sir, I could not remember but I was told
that she was battered in that room.
Q Several times in that room?

A Yes, sir. What I remember was that

there is no problem about being
battered, it really happened.
Q Being an expert witness, our
jurisprudence is not complete on
saying this matter. I think that is the
first time that we have this in the
Philippines, what is your opinion?
A Sir, my opinion is, she is really a
battered wife and in this kind
happened, it was really a self-defense.
I also believe that there had been
provocation and I also believe that she
became a disordered person. She had
to suffer anxiety reaction because of
all the battering that happened and so
she became an abnormal person who
had lost shes not during the time and
that is why it happened because of all
the physical battering, emotional
battering, all the psychological abuses
that she had experienced from her
husband.
Q I do believe that she is a battered wife.
Was she extremely battered?
A Sir, it is an extreme form of battering.
Yes.[40]

37

Parenthetically, the credibility of appellant

was demonstrated as follows:
Q And you also said that you
administered [the] objective
personality test, what x x x [is this] all
about?
A The objective personality test is the
Millon Clinical Multiaxial Inventory. The
purpose of that test is to find out
about the lying prone[ne]ss of the
person.
Q What do you mean by that?
A Meaning, am I dealing with a client who
is telling me the truth, or is she
someone who can exaggerate or x x x
[will] tell a lie[?]
Q And what did you discover on the basis
of this objective personality test?
A She was a person who passed the
honesty test. Meaning she is a person
that I can trust. That the data that Im
gathering from her are the truth.[41]
The other expert witness presented by the
defense, Dr. Alfredo Pajarillo, testified on his
Psychiatric Report,[42] which was based on his
interview and examination of Marivic Genosa.
The Report said that during the first three years

of her marriage to Ben, everything looked good

-- the atmosphere was fine, normal and happy
-- until Ben started to be attracted to other girls
and was also enticed in[to] gambling[,]
especially cockfighting. x x x. At the same time
Ben was often joining his barkada in drinking
sprees.
The drinking sprees of Ben greatly changed
the attitude he showed toward his family,
particularly to his wife. The Report continued:
At first, it was verbal and emotional abuses but
as time passed, he became physically abusive.
Marivic claimed that the viciousness of her
husband was progressive every time he got
drunk. It was a painful ordeal Marivic had to
anticipate whenever she suspected that her
husband went for a drinking [spree]. They had
been married for twelve years[;] and practically
more than eight years, she was battered and
maltreated relentlessly and mercilessly by her
husband whenever he was drunk.
Marivic sought the help of her mother-in-law,
but her efforts were in vain. Further quoting
from the Report, [s]he also sought the advice
and help of close relatives and well-meaning
friends in spite of her feeling ashamed of what
was happening to her. But incessant battering
became more and more frequent and more
severe. x x x.[43]

38

From the totality of evidence presented,

there is indeed no doubt in the Courts mind that
Appellant Marivic Genosa was a severely abused
person.
Effect of Battery on Appellant
Because of the recurring cycles of violence
experienced by the abused woman, her state of
mind metamorphoses. In determining her state
of mind, we cannot rely merely on the
judgment of an ordinary, reasonable person
who is evaluating the events immediately
surrounding the incident. A Canadian court has
aptly pointed out that expert evidence on the
psychological effect of battering on wives and
common law partners are both relevant and
necessary. How can the mental state of the
appellant be appreciated without it? The
average member of the public may ask: Why
would a woman put up with this kind of
treatment? Why should she continue to live with
such a man? How could she love a partner who
beat
her
to
the
point
of
requiring
hospitalization? We would expect the woman to
pack her bags and go. Where is her selfrespect? Why does she not cut loose and make
a new life for herself? Such is the reaction of

the average person confronted with the socalled battered wife syndrome.[44]
To understand the syndrome properly,
however, ones viewpoint should not be drawn
from that of an ordinary, reasonable person.
What goes on in the mind of a person who has
been subjected to repeated, severe beatings
may
not
be
consistent
with
-nay,
comprehensible to -- those who have not been
through a similar experience. Expert opinion is
essential to clarify and refute common myths
and misconceptions about battered women.[45]
The theory of BWS formulated by Lenore
Walker, as well as her research on domestic
violence, has had a significant impact in the
United States and the United Kingdom on the
treatment and prosecution of cases, in which a
battered woman is charged with the killing of
her violent partner. The psychologist explains
that the cyclical nature of the violence inflicted
upon the battered woman immobilizes the
latters ability to act decisively in her own
interests, making her feel trapped in the
relationship with no means of escape. [46] In her
years of research, Dr. Walker found that the
abuse often escalates at the point of separation
and battered women are in greater danger of
dying then.[47]

39

Corroborating these research findings, Dra.

Dayan said that the battered woman usually
has a very low opinion of herself. She has x x x
self-defeating
and
self-sacrificing
characteristics. x x x [W]hen the violence would
happen, they usually think that they provoke[d]
it, that they were the one[s] who precipitated
the violence[; that] they provoke[d] their
spouse to be physically, verbally and even
sexually abusive to them.[48]
According to Dra. Dayan, there are a lot of
reasons why a battered woman does not readily
leave an abusive partner -- poverty, self-blame
and guilt arising from the latters belief that she
provoked the violence, that she has an
obligation to keep the family intact at all cost
for the sake of their children, and that she is
the only hope for her spouse to change.[49]
The testimony of another expert witness, Dr.
Pajarillo, is also helpful. He had previously
testified in suits involving violent family
relations, having evaluated probably ten to
twenty thousand violent family disputes within
the Armed Forces of the Philippines, wherein
such cases abounded. As a result of his
experience with domestic violence cases, he
became a consultant of the Battered Woman
Office in Quezon City. As such, he got involved
in about forty (40) cases of severe domestic

violence, in which the physical abuse on the

woman would sometimes even lead to her loss
of consciousness.[50]
Dr. Pajarillo explained that overwhelming
brutality, trauma could result in posttraumatic
stress disorder, a form of anxiety neurosis or
neurologic anxietism.[51] After being repeatedly
and severely abused, battered persons may
believe that they are essentially helpless,
lacking power to change their situation. x x x
[A]cute battering incidents can have the effect
of stimulating the development of coping
responses to the trauma at the expense of the
victims ability to muster an active response to
try to escape further trauma. Furthermore, x x
x the victim ceases to believe that anything she
can do will have a predictable positive effect.[52]
A study[53] conducted by Martin Seligman, a
psychologist at the University of Pennsylvania,
found that even if a person has control over a
situation, but believes that she does not, she
will be more likely to respond to that situation
with coping responses rather than trying to
escape. He said that it was the cognitive aspect
-- the individuals thoughts -- that proved allimportant. He referred to this phenomenon as
learned helplessness. [T]he truth or facts of a
situation turn out to be less important than the
individuals set of beliefs or perceptions

40

concerning the situation. Battered women dont

attempt to leave the battering situation, even
when it may seem to outsiders that escape is
possible, because they cannot predict their own
safety; they believe that nothing they or
anyone else does will alter their terrible
circumstances.[54]
Thus, just as the battered woman believes
that she is somehow responsible for the violent
behavior of her partner, she also believes that
he is capable of killing her, and that there is no
escape.[55] Battered women feel unsafe, suffer
from pervasive anxiety, and usually fail to leave
the relationship.[56] Unless a shelter is available,
she stays with her husband, not only because
she typically lacks a means of self-support, but
also because she fears that if she leaves she
would be found and hurt even more.[57]
In the instant case, we meticulously scoured
the records for specific evidence establishing
that appellant, due to the repeated abuse she
had suffered from her spouse over a long period
of time, became afflicted with the battered
woman syndrome. We, however, failed to find
sufficient evidence that would support such a
conclusion. More specifically, we failed to find
ample evidence that would confirm the
presence of the essential characteristics of
BWS.

The defense fell short of proving all three

phases of the cycle of violence supposedly
characterizing the relationship of Ben and
Marivic Genosa. No doubt there were acute
battering incidents. In relating to the court a
quo how the fatal incident that led to the death
of Ben started, Marivic perfectly described the
tension-building phase of the cycle. She was
able to explain in adequate detail the typical
characteristics of this stage. However, that
single incident does not prove the existence of
the syndrome. In other words, she failed to
prove that in at least another battering episode
in the past, she had gone through a similar
pattern.
How did the tension between the partners
usually arise or build up prior to acute
battering? How did Marivic normally respond to
Bens relatively minor abuses? What means did
she employ to try to prevent the situation from
developing into the next (more violent) stage?
Neither did appellant proffer sufficient
evidence in regard to the third phase of the
cycle. She simply mentioned that she would
usually run away to her mothers or fathers
house;[58] that Ben would seek her out, ask for
her forgiveness and promise to change; and
that believing his words, she would return to
their common abode.

41

Did she ever feel that she provoked the

violent incidents between her and her spouse?
Did she believe that she was the only hope for
Ben to reform? And that she was the sole
support of his emotional stability and wellbeing? Conversely, how dependent was she on
him? Did she feel helpless and trapped in their
relationship? Did both of them regard death as
preferable to separation?
In sum, the defense failed to elicit from
appellant herself her factual experiences and
thoughts
that
would
clearly
and
fully
demonstrate the essential characteristics of the
syndrome.
The Court appreciates the ratiocinations
given by the expert witnesses for the defense.
Indeed, they were able to explain fully, albeit
merely theoretically and scientifically, how the
personality of the battered woman usually
evolved or deteriorated as a result of repeated
and severe beatings inflicted upon her by her
partner or spouse. They corroborated each
others testimonies, which were culled from their
numerous studies of hundreds of actual
cases. However, they failed to present in court
the factual experiences and thoughts that
appellant had related to them -- if at all -based on which they concluded that she had
BWS.

We emphasize that in criminal cases, all the

elements of a modifying circumstance must be
proven in order to be appreciated. To repeat,
the records lack supporting evidence that would
establish all the essentials of the battered
woman syndrome as manifested specifically in
the case of the Genosas.
BWS as Self-Defense
In any event, the existence of the syndrome
in a relationship does not in itself establish the
legal right of the woman to kill her abusive
partner. Evidence must still be considered in the
context of self-defense.[59]
From the expert opinions discussed earlier,
the Court reckons further that crucial to the
BWS defense is the state of mind of the
battered woman at the time of the offense [60] -she must have actually feared imminent harm
from her batterer and honestly believed in the
need to kill him in order to save her life.
Settled in our jurisprudence, however, is the
rule that the one who resorts to self-defense
must face a real threat on ones life; and the
peril sought to be avoided must be imminent
and actual, not merely imaginary.[61] Thus, the

42

Revised Penal Code provides the following

requisites and effect of self-defense:[62]

longer in a position that presented an actual

threat on her life or safety.

Art. 11. Justifying circumstances. -- The

following do not incur any criminal liability:

Had Ben still been awaiting Marivic when she

came out of their childrens bedroom -- and
based on past violent incidents, there was a
great probability that he would still have
pursued her and inflicted graver harm -- then,
the imminence of the real threat upon her life
would not have ceased yet. Where the
brutalized person is already suffering from
BWS, further evidence of actual physical assault
at the time of the killing is not required.
Incidents of domestic battery usually have a
predictable pattern. To require the battered
person to await an obvious, deadly attack
before she can defend her life would amount to
sentencing her to murder by installment.
[65]
Still, impending danger (based on the
conduct of the victim in previous battering
episodes) prior to the defendants use of deadly
force must be shown. Threatening behavior or
communication can satisfy the required
imminence
of
danger.[66]Considering
such
circumstances and the existence of BWS, selfdefense may be appreciated.

1. Anyone who acts in defense of his person or

rights,
provided
that
the
following
circumstances concur;
First. Unlawful aggression;
Second. Reasonable necessity of the
means employed to prevent or repel it;
Third. Lack of sufficient provocation on the part
of the person defending himself.
Unlawful aggression is the most essential
element of self-defense.[63] It presupposes
actual, sudden and unexpected attack -- or an
imminent danger thereof -- on the life or safety
of a person.[64] In the present case, however,
according to the testimony of Marivic herself,
there was a sufficient time interval between the
unlawful aggression of Ben and her fatal attack
upon him. She had already been able to
withdraw from his violent behavior and escape
to their childrens bedroom. During that time, he
apparently ceased his attack and went to bed.
The reality or even the imminence of the danger
he posed had ended altogether. He was no

We reiterate the principle that aggression, if

not continuous, does not warrant self-defense.
[67]
In the absence of such aggression, there can
be no self-defense -- complete or incomplete --

43

on the part of the victim.[68] Thus, Marivics

killing of Ben was not completely justified under
the circumstances.

truly experienced at the hands of her abuser

husband a state of psychological paralysis which
can only be ended by an act of violence on her
part. [70]

Mitigating Circumstances Present

Dr. Pajarillo corroborates the findings of Dra.

Dayan. He explained that the effect of
repetitious pain taking, repetitious battering,
[and] repetitious maltreatment as well as the
severity and the prolonged administration of the
battering is posttraumatic stress disorder.
[71]
Expounding thereon, he said:

In any event, all is not lost for appellant.

While she did not raise any other modifying
circumstances that would alter her penalty, we
deem it proper to evaluate and appreciate in
her favor circumstances that mitigate her
criminal liability. It is a hornbook doctrine that
an appeal in a criminal case opens it wholly for
review on any issue, including that which has
not been raised by the parties.[69]
From several psychological tests she had
administered to Marivic, Dra. Dayan, in her
Psychological
Evaluation
Report
dated
November 29, 2000, opined as follows:
This is a classic case of a Battered Woman
Syndrome. The repeated battering Marivic
experienced with her husband constitutes a
form of [cumulative] provocation which broke
down her psychological resistance and natural
self-control. It is very clear that she developed
heightened sensitivity to sight of impending
danger her husband posed continuously. Marivic

Q What causes the trauma, Mr. Witness?

A What causes the trauma is probably the
repetitious battering. Second, the
severity of the battering. Third, the
prolonged administration of battering
or the prolonged commission of the
battering and the psychological and
constitutional stamina of the victim
and another one is the public and
social support available to the victim.
If nobody is interceding, the more she
will go to that disorder....
xxxxxxxxx
Q You referred a while ago to severity.
What are the qualifications in terms of

44

severity of the postraumatic stress

disorder, Dr. Pajarillo?
A The severity is the most severe
continuously to trig[g]er this
post[t]raumatic stress disorder is
injury to the head, banging of the
head like that. It is usually the very
very severe stimulus that precipitate
this post[t]raumatic stress disorder.
Others are suffocating the victim like
holding a pillow on the face,
strangulating the individual,
suffocating the individual, and boxing
the individual. In this situation
therefore, the victim is heightened to
painful stimulus, like for example she
is pregnant, she is very susceptible
because the woman will not only
protect herself, she is also to protect
the fetus. So the anxiety is heightened
to the end [sic] degree.
Q But in terms of the gravity of the
disorder, Mr. Witness, how do you
classify?
A We classify the disorder as [acute], or
chronic or delayed or [a]typical.

Q Can you please describe this

pre[-]classification you called delayed
or [atypical]?
A The acute is the one that usually
require only one battering and the
individual will manifest now a severe
emotional instability, higher irritability
remorse, restlessness, and fear and
probably in most [acute] cases the
first thing will be happened to the
individual will be thinking of suicide.
Q And in chronic cases, Mr. Witness?
A The chronic cases is this repetitious
battering, repetitious maltreatment,
any prolonged, it is longer than six (6)
months. The [acute] is only the first
day to six (6) months. After this six
(6) months you become chronic. It is
stated in the book specifically that
after six (6) months is chronic. The
[a]typical one is the repetitious
battering but the individual who is
abnormal and then become normal.
This is how you get neurosis from
neurotic personality of these cases of
post[t]raumatic stress disorder. [72]
Answering the questions propounded by the
trial judge, the expert witness clarified further:

45

Q But just the same[,] neurosis especially

on battered woman syndrome x x x
affects x x x his or her mental
capacity?
A Yes, your Honor.
Q As you were saying[,] it x x x
obfuscated her rationality?
A Of course obfuscated.[73]
In sum, the cyclical nature and the severity
of the violence inflicted upon appellant resulted
in cumulative provocation which broke down her
psychological resistance and natural selfcontrol, psychological paralysis, and difficulty in
concentrating or impairment of memory.
Based on the explanations of the expert
witnesses, such manifestations were analogous
to an illness that diminished the exercise by
appellant of her will power without, however,
depriving her of consciousness of her
acts. There was, thus, a resulting diminution of
her freedom of action, intelligence or intent.
Pursuant to paragraphs 9[74] and 10[75] of Article
13 of the Revised Penal Code, this circumstance
should be taken in her favor and considered as
a mitigating factor. [76]
In addition, we also find in favor of appellant
the extenuating circumstance of having acted

upon an impulse so powerful as to have

naturally produced passion and obfuscation. It
has been held that this state of mind is present
when a crime is committed as a result of an
uncontrollable burst of passion provoked by
prior unjust or improper acts or by a legitimate
stimulus so powerful as to overcome reason.
[77]
To appreciate
this
circumstance,
the
following requisites should concur: (1) there is
an act, both unlawful and sufficient to produce
such a condition of mind; and (2) this act is not
far removed from the commission of the crime
by a considerable length of time, during which
the accused might recover her normal
equanimity.[78]
Here, an acute battering incident, wherein
Ben Genosa was the unlawful aggressor,
preceded his being killed by Marivic. He had
further threatened to kill her while dragging her
by the neck towards a cabinet in which he had
kept a gun. It should also be recalled that she
was eight months pregnant at the time. The
attempt on her life was likewise on that of her
fetus.[79] His abusive and violent acts, an
aggression which was directed at the lives of
both Marivic and her unborn child, naturally
produced passion and obfuscation overcoming
her reason. Even though she was able to retreat
to a separate room, her emotional and mental

46

state continued. According to her, she felt her

blood pressure rise; she was filled with feelings
of self-pity and of fear that she and her baby
were about to die. In a fit of indignation, she
pried open the cabinet drawer where Ben kept a
gun, then she took the weapon and used it to
shoot him.
The confluence of these events brings us to
the conclusion that there was no considerable
period of time within which Marivic could have
recovered her normal equanimity. Helpful is Dr.
Pajarillos testimony[80] that with neurotic anxiety
-- a psychological effect on a victim of
overwhelming brutality [or] trauma -- the
victim relives the beating or trauma as if it were
real, although she is not actually being beaten
at the time. She cannot control re-experiencing
the whole thing, the most vicious and the
trauma that she suffered. She thinks of nothing
but the suffering. Such reliving which is beyond
the control of a person under similar
circumstances, must have been what Marivic
experienced during the brief time interval and
prevented her from recovering her normal
equanimity. Accordingly, she should further be
credited with the mitigating circumstance of
passion and obfuscation.
It should be clarified that these two
circumstances -- psychological paralysis as well

as passion and obfuscation -- did not arise from

the same set of facts.
On the one hand, the first circumstance
arose from the cyclical nature and the severity
of the battery inflicted by the batterer-spouse
upon appellant. That is, the repeated beatings
over a period of time resulted in her
psychological paralysis, which was analogous to
an illness diminishing the exercise of her will
power without depriving her of consciousness of
her acts.
The second circumstance, on the other hand,
resulted from the violent aggression he had
inflicted on her prior to the killing. That the
incident occurred when she was eight months
pregnant with their child was deemed by her as
an attempt not only on her life, but likewise on
that of their unborn child. Such perception
naturally produced passion and obfuscation on
her part.
Second Legal Issue:
Treachery
There is treachery when one commits any of
the crimes against persons by employing
means, methods or forms in the execution
thereof without risk to oneself arising from the
defense that the offended party might make.

47

In order to qualify an act as treacherous, the

circumstances invoked must be proven as
indubitably as the killing itself; they cannot be
deduced from mere inferences, or conjectures,
which have no place in the appreciation of
evidence.[82] Because of the gravity of the
resulting offense, treachery must be proved as
conclusively as the killing itself.[83]
[81]

Ruling that treachery was present in the

instant case, the trial court imposed the penalty
of death upon appellant. It inferred this
qualifying circumstances merely from the fact
that the lifeless body of Ben had been found
lying in bed with an open, depressed, circular
fracture located at the back of his head. As to
exactly how and when he had been fatally
attacked, however, the prosecution failed to
establish indubitably. Only the following
testimony of appellant leads us to the events
surrounding his death:
Q You said that when Ben came back to
your house, he dragged you? How did
he drag you?
COURT:
The witness demonstrated to the Court by
using her right hand flexed forcibly in
her front neck)

A And he dragged me towards the door

backward.
ATTY. TABUCANON:
Q Where did he bring you?
A Outside the bedroom and he wanted to
get something and then he kept on
shouting at me that you might as well
be killed so there will be nobody to
nag me
Q So you said that he dragged you
towards the drawer?
A Yes, sir.
Q What is there in the drawer?
A I was aware that it was a gun.
COURT INTERPRETER
(At this juncture the witness started
crying)
ATTY. TABUCANON:
Q Were you actually brought to the
drawer?
A Yes, sir.
Q What happened when you were brought
to that drawer?

48

A He dragged me towards the drawer and

he was about to open the drawer but
he could not open it because he did
not have the key then he pulled his
wallet which contained a blade about 3
inches long and I was aware that he
was going to kill me and I smashed his
arm and then the wallet and the blade
fell. The one he used to open the
drawer I saw, it was a pipe about that
long, and when he was about to pickup the wallet and the blade, I smashed
him then I ran to the other room, and
on that very moment everything on
my mind was to pity on myself, then
the feeling I had on that very moment
was the same when I was admitted in
PHILPHOS Clinic, I was about to vomit.
COURT INTERPRETER
(The witness at this juncture is crying
intensely).
xxxxxxxxx
Q You said that he dropped the blade, for
the record will you please describe this
blade about 3 inches long, how does it
look like?
A Three (3) inches long and inch wide.

Q It is a flexible blade?
A Its a cutter.
Q How do you describe the blade, is it
sharp both edges?
A Yes, because he once used it to me.
Q How did he do it?
A He wanted to cut my throat.
Q With the same blade?
A Yes, sir, that was the object used when
he intimidate me.
xxxxxxxxx
ATTY. TABUCANON:
Q You said that this blade fell from his
grip, is it correct?
A Yes, because I smashed him.
Q What happened?
A Ben tried to pick-up the wallet and the
blade, I pick-up the pipe and I
smashed him and I ran to the other
room.
Q What else happened?
A When I was in the other room, I felt the
same thing like what happened before

49

when I was admitted in PHILPHOS

Clinic, I was about to vomit. I know
my blood pressure was raised. I was
frightened I was about to die because
of my blood pressure.
COURT INTERPRETER:
(Upon the answer of the witness getting
the pipe and smashed him, the witness
at the same time pointed at the back
of her neck or the nape).
ATTY. TABUCANON:
Q You said you went to the room, what
else happened?
A Considering all the physical sufferings
that Ive been through with him, I took
pity on myself and I felt I was about to
die also because of my blood pressure
and the baby, so I got that gun and I
shot him.
COURT
/to Atty. Tabucanon
Q You shot him?
A Yes, I distorted the drawer.[84]
The above testimony is insufficient to
establish the presence of treachery. There is no

showing of the victims position relative to

appellants at the time of the shooting. Besides,
equally axiomatic is the rule that when a killing
is preceded by an argument or a quarrel,
treachery cannot be appreciated as a qualifying
circumstance, because the deceased may be
said to have been forewarned and to have
anticipated aggression from the assailant.[85]
Moreover,
in
order
to
appreciate alevosia, the method of assault
adopted by the aggressor must have been
consciously and deliberately chosen for the
specific purpose of accomplishing the unlawful
act without risk from any defense that might be
put up by the party attacked.[86] There is no
showing, though, that the present appellant
intentionally chose a specific means of
successfully attacking her husband without any
risk to herself from any retaliatory act that he
might make. To the contrary, it appears that the
thought of using the gun occurred to her only at
about the same moment when she decided to
kill her batterer-spouse. In the absence of any
convincing proof that she consciously and
deliberately employed the method by which she
committed the crime in order to ensure its
execution, this Court resolves the doubt in her
favor.[87]

50

Proper Penalty
The penalty for parricide imposed by Article
246 of the Revised Penal Code is reclusion
perpetua to death. Since two mitigating
circumstances and no aggravating circumstance
have been found to have attended the
commission of the offense, the penalty shall be
lowered by one (1) degree, pursuant to Article
64 of paragraph 5[88] of the same Code.[89] The
penalty of reclusion temporal in its medium
period is imposable, considering that two
mitigating circumstances are to be taken into
account in reducing the penalty by one degree,
and no other modifying circumstances were
shown to have attended the commission of the
offense.[90] Under the Indeterminate Sentence
Law, the minimum of the penalty shall be within
the range of that which is next lower in degree
-- prision mayor -- and the maximum shall be
within the range of the medium period
of reclusion temporal.
Considering all the circumstances of the
instant case, we deem it just and proper to
impose the penalty of prision mayor in its
minimum period, or six (6) years and one (1)
day in prison as minimum; to reclusion
temporal in its medium period, or 14 years 8
months and 1 day as maximum. Noting that

appellant has already served the minimum

period, she may now apply for and be released
from detention on parole.[91]
Epilogue
Being a novel concept in our jurisprudence,
the battered woman syndrome was neither easy
nor simple to analyze and recognize vis--vis the
given set of facts in the present case. The Court
agonized on how to apply the theory as a
modern-day reality. It took great effort beyond
the normal manner in which decisions are made
-- on the basis of existing law and jurisprudence
applicable to the proven facts. To give a just
and proper resolution of the case, it endeavored
to take a good look at studies conducted here
and abroad in order to understand the
intricacies of the syndrome and the distinct
personality of the chronically abused person.
Certainly, the Court has learned much. And
definitely, the solicitor general and appellants
counsel, Atty. Katrina Legarda, have helped it in
such learning process.
While our hearts empathize with recurrently
battered persons, we can only work within the
limits of law, jurisprudence and given facts. We
cannot make or invent them. Neither can we

51

amend the Revised Penal Code. Only Congress,

in its wisdom, may do so.
The Court, however, is not discounting the
possibility of self-defense arising from the
battered woman syndrome. We now sum up our
main points. First, each of the phases of the
cycle of violence must be proven to have
characterized at least two battering episodes
between the appellant and her intimate
partner. Second, the final acute battering
episode preceding the killing of the batterer
must have produced in the battered persons
mind an actual fear of an imminent harm from
her batterer and an honest belief that she
needed to use force in order to save her
life. Third, at the time of the killing, the batterer
must have posed probable -- not necessarily
immediate and actual -- grave harm to the
accused, based on the history of violence
perpetrated by the former against the latter.
Taken altogether, these circumstances could
satisfy the requisites of self-defense. Under the
existing facts of the present case, however, not
all of these elements were duly established.
WHEREFORE, the conviction of Appellant
Marivic
Genosa
for
parricide
is
hereby AFFIRMED. However, there being two
(2)
mitigating
circumstances
and
no
aggravating
circumstance
attending
her

commission of the offense, her penalty

is REDUCED to six (6) years and one (1) day
of prision mayor as minimum; to 14 years, 8
months and 1 day of reclusion temporal as
maximum.
Inasmuch as appellant has been detained for
more than the minimum penalty hereby imposed
upon her, the director of the Bureau of Corrections
may immediately RELEASE her from custody
upon due determination that she is eligible for
parole, unless she is being held for some other
lawful cause. Costs de oficio.
SO ORDERED.

52

THIRD DIVISION
[G.R. No. 111709. August 30, 2001]
PEOPLE OF THE PHILIPPINES, plaintiffappellee,
vs.
ROGER
P.
TULIN,
VIRGILIO I. LOYOLA, CECILIO O.
CHANGCO,
ANDRES
C.
INFANTE,
CHEONG SAN HIONG, and JOHN
DOES, accused-appellants.
DECISION
MELO, J.:
This is one of the older cases which
unfortunately has remained in docket of the
Court for sometime. It was reassigned, together
with
other
similar
cases,
to
undersigned ponente in pursuance of A.M. No.
00-9-03-SC dated February 27, 2001.
In the evening of March 2, 1991, M/T
Tabangao, a cargo vessel owned by the PNOC
Shipping and Transport Corporation, loaded with
2,000 barrels of kerosene, 2,600 barrels of
regular gasoline, and 40,000 barrels of diesel

oil, with a total value of P40,426,793,87. was

sailing off the coast of Mindoro near Silonay
Island.
The vessel, manned by 21 crew members,
including Captain Edilberto Libo-on, Second
Mate Christian Torralba, and Operator Isaias
Ervas, was suddenly boarded, with the use of
an aluminum ladder, by seven fully armed
pirates led by Emilio Changco, older brother of
accused-appellant Cecilio Changco. The pirates,
including accused-appellants Tulin, Loyola, and
Infante, Jr. were armed with M-16 rifles, .45
and .38 caliber handguns, and bolos. They
detained the crew and took complete control of
the vessel. Thereafter, accused-appellant Loyola
ordered three crew members to paint over,
using black paint, the name "M/T Tabangao" on
the front and rear portions of the vessel, as well
as the PNOC logo on the chimney of the vessel.
The vessel was then painted with the name
"Galilee," with registry at San Lorenzo,
Honduras. The crew was forced to sail to
Singapore, all the while sending misleading

53

radio messages to PNOC that the ship was

undergoing repairs.

an interruption, with both vessels leaving the

area, was completed on March 30,1991.

PNOC, after losing radio contact with the

vessel, reported the disappearance of the vessel
to the Philippine Coast Guard and secured the
assistance of the Philippine Air Force and the
Philippine Navy. However, search and rescue
operations yielded negative results. On March 9,
1991, the ship arrived in the vicinity of
Singapore and cruised around the area
presumably to await another vessel which,
however, failed to arrive. The pirates were thus
forced to return to the Philippines on March 14,
1991, arriving at Calatagan, Batangas on March
20, 1991 where it remained at sea.

On March 30, 1991, "M/T Tabangao"

returned to the same area and completed the
transfer of cargo to "Navi Pride."

On March 28, 1991, the "M/T Tabangao"

again sailed to and anchored about 10 to 18
nautical miles from Singapore's shoreline where
another vessel called "Navi Pride" anchored
beside it. Emilio Changco ordered the crew of
"M/T Tabangao" to transfer the vessel's cargo to
the hold of "Navi Pride". Accused-appellant
Cheong San Hiong supervised the crew of "Navi
Pride" in receiving the cargo. The transfer, after

On April 8, 1991, "M/T Tabangao" arrived at

Calatagan, Batangas, but the vessel remained
at sea. On April 10, 1991, the members of the
crew were released in three batches with the
stern warning not to report the incident to
government authorities for a period of two days
or until April 12, 1991, otherwise they would be
killed. The first batch was fetched from the
shoreline by a newly painted passenger jeep
driven by accused-appellant Cecilio Changco,
brother of Emilio Changco, who brought them to
Imus, Cavite and gave P20,000.00 to Captain
Libo-on for fare of the crew in proceeding to
their respective homes. The second batch was
fetched by accused-appellant Changco at
midnight of April 10, 1991 and were brought to
different places in Metro Manila.
On April 12, 1991, the Chief Engineer,
accompanied by the members of the crew,

54

called the PNOC Shipping and Transport

Corporation office to report the incident. The
crew members were brought to the Coast Guard
Office for investigation. The incident was also
reported to the National Bureau of Investigation
where the officers and members of the crew
executed sworn statements regarding the
incident.
A series of arrests was thereafter effected as
follows:
a. On May 19, 1991, the NBI received
verified information that the pirates were
present at U.K. Beach, Balibago, Calatagan,
Batangas. After three days of surveillance,
accused-appellant Tulin was arrested and
brought to the NBI headquarters in Manila.
b. Accused-appellants Infante, Jr. and Loyola
were arrested by chance at Aguinaldo Hi-way by
NBI agents as the latter were pursuing the
mastermind, who managed to evade arrest.
c. On May 20, 1991, accused-appellants
Hiong and Changco were arrested at the lobby
of Alpha Hotel in Batangas City.

On October 24 1991, an Information

charging qualified piracy or violation of
Presidential Decree No. 532 (piracy in Philippine
Waters) was filed against accused-appellants,
as follows:
The undersigned State Prosecutor accuses
ROGER P. TULIN, VIRGILIO I. LOYOLA, CECILIO
O. CHANGCO, ANDRES C. INFANTE, and
CHEONG SAN HIONG, and nine (9) other JOHN
DOES of qualified piracy (Violation of P.D. No.
532), committed as follows:
That on or about and during the period from
March 2 to April 10, 1991, both dates inclusive,
and for sometime prior and subsequent thereto,
and within the jurisdiction of this Honorable
Court, the said accused, then manning a motor
launch and armed with high powered guns,
conspiring and confederating together and
mutually helping one another, did then and
there, wilfully, unlawfully and feloniously fire
upon, board and seize while in the Philippine
waters M/T PNOC TABANGCO loaded with
petroleum products, together with the
complement and crew members, employing

55

violence against or intimidation of persons or

force upon things, then direct the vessel to
proceed to Singapore where the cargoes were
unloaded and thereafter returned to the
Philippines on April 10, 1991, in violation of the
aforesaid law.
CONTRARY TO LAW.
(pp. 11920, Rollo.)
This was docketed as Criminal Case No. 9194896 before Branch 49 of the Regional Trial
Court of the National Capital Judicial Region
stationed
in
Manila.
Upon
arraignment,
accused-appellants pleaded not guilty to the
charge. Trial thereupon ensued.
Accused-appellants Tulin, Infante, Jr., and
Loyola, notwithstanding some inconsistencies in
their testimony as to where they were on March
1, 1991, maintained the defense of denial, and
disputed the charge, as well as the transfer of
any cargo from "M/T Tabangao" to the "Navi
Pride." All of them claimed having their own
respective sources of livelihood. Their story is to

the effect that on March 2, 1991, while they

were conversing by the beach, a red speedboat
with Captain Edilberto Liboon and Second Mate
Christian Torralba on board, approached the
seashore. Captain Liboon inquired from the
three if they wanted to work in a vessel. They
were told that the work was light and that each
worker was to be paid P3,000.00 a month with
additional compensation if they worked beyond
that period. They agreed even though they had
no sea-going experience. On board, they
cooked, cleaned the vessel, prepared coffee,
and ran errands for the officers. They denied
having gone to Singapore, claiming that the
vessel only went to Batangas. Upon arrival
thereat in the morning of March 21, 1991, they
were paid P1,000.00 each as salary for nineteen
days of work, and were told that the balance
would be remitted to their addresses. There was
neither receipt nor contracts of employment
signed by the parties.
Accused-appellant
Changco
categorically
denied the charge, averring that he was at
home sleeping on April 10, 1991. He testified

56

that he is the younger brother of Emilio

Changco, Jr.
Accused-appellant Cheong San Hiong, also
known as Ramzan Ali, adduced evidence that he
studied in Sydney, Australia, obtaining the
"Certificate" as Chief Officer, and later
completed the course as a "Master" of a vessel,
working as such for two years on board a
vessel. He was employed at Navi Marine
Services, Pte., Ltd. as Port Captain. The
company was engaged in the business of
trading petroleum, including shipoil, bunker
lube oil, and petroleum to domestic and
international markets. It owned four vessels,
one of which was "Navi Pride."
On March 2, 1991, the day before "M/T
Tabangao" was seized by Emilio Changco and
his cohorts, Hiong's name was listed in the
company's letter to the Mercantile Section of
the Maritime Department of the Singapore
government as the radio telephone operator on
board the vessel "Ching Ma."
The company was then dealing for the first
time with Paul Gan, a Singaporean broker, who

offered to sell to the former bunker oil for the

amount of 300,000.00 Singapore dollars. After
the company paid over one-half of the aforesaid
amount to Paul Gan, the latter, together with
Joseph Ng, Operations Superintendent of the
firm, proceeded to the high seas on board "Navi
Pride" but failed to locate the contact vessel.
The transaction with Paul Gan finally pushed
through on March 27, 1991. Hiong, upon his
return on board the vessel "Ching Ma," was
assigned to supervise a ship-to-ship transfer of
diesel oil off the port of Singapore, the contact
vessel to be designated by Paul Gan. Hiong was
ordered to ascertain the quantity and quality of
the oil and was given the amount of 300,000.00
Singapore Dollars for the purchase. Hiong,
together with Paul Gan, and the surveyor
William Yao, on board "Navi Pride" sailed toward
a vessel called "M/T Galilee". Hiong was told
that "M/T Galilee" would be making the transfer.
Although no inspection of "Navi Pride" was
made by the port authorities before departure,
Navi Marine Services, Pte., Ltd. was able to
procure a port clearance upon submission of
General Declaration and crew list. Hiong, Paul

57

Gan, and the brokers were not in the crew list

submitted and did not pass through the
immigration. The General Declaration falsely
reflected that the vessel carried 11,900 tons.
On March 28, 1991, "Navi Pride" reached the
location of "M/T Galilee". The brokers then told
the Captain of the vessel to ship-side with "M/T
Galilee" and then transfer of the oil transpired.
Hiong and the surveyor William Yao met the
Captain of "M/T Galilee," called "Captain Bobby"
(who later turned out to be Emilio Changco).
Hiong claimed that he did not ask for the full
name of Changco nor did he ask for the latter's
personal card.
Upon completion of the transfer, Hiong took
the soundings of the tanks in the "Navi Pride"
and took samples of the cargo. The surveyor
prepared the survey report which "Captain
Bobby" signed under the name "Roberto
Castillo." Hiong then handed the payment to
Paul Gan and William Yao. Upon arrival at
Singapore in the morning of March 29, 1991,
Hiong reported the quantity and quality of the
cargo to the company.

Thereafter, Hiong was again asked to

supervise another transfer of oil purchased by
the firm " from "M/T Galilee" to "Navi Pride."
The same procedure as in the first transfer was
observed. This time, Hiong was told that that
there were food and drinks, including beer,
purchased by the company for the crew of "M/T
Galilee. The transfer took ten hours and was
completed on March 30, 1991. Paul Gan was
paid in full for the transfer.
On April 29 or 30, 1991, Emilio Changco
intimated to Hiong that he had four vessels and
wanted to offer its cargo to cargo operators.
Hiong was asked to act as a broker or ship
agent for the sale of the cargo in Singapore.
Hiong went to the Philippines to discuss the
matter with Emilio Changco, who laid out the
details of the new transfer, this time with "M/T
Polaris" as contact vessel. Hiong was told that
the vessel was scheduled to arrive at the port of
Batangas that weekend. After being billeted at
Alpha Hotel in Batangas City, where Hiong
checked in under the name "SONNY CSH." A
person by the name of "KEVIN OCAMPO," who
later turned out to be Emilio Changco himself,

58

also checked in at Alpha Hotel. From accusedappellant Cecilio Changco, Hiong found out that
the vessel was not arriving. Hiong was
thereafter arrested by NBI agents.
After trial, a 95-page decision was rendered
convicting accused-appellants of the crime
charged. The dispositive portion of said decision
reads:
WHEREFORE, in the light of the foregoing
considerations, judgment is hereby rendered by
this Court finding the accused Roger Tulin,
Virgilio Loyola, Andres Infante, Jr. and Cecilio
Changco guilty beyond reasonable doubt, as
principals, of the crime of piracy in Philippine
Waters defined in Section 2(d) of Presidential
Decree No. 532 and the accused Cheong San
Hiong, as accomplice, to said crime. Under
Section 3(a) of the said law, the penalty for the
principals of said crime is mandatory death.
However, considering that, under the 1987
Constitution, the Court cannot impose the death
penalty, the accused Roger Tulin, Virgilio Loyola,
Andres Infante, ]r., and Cecilio Changco are
hereby each meted the penalty of RECLUSION

PERPETUA, with all the accessory penalties of

the law. The accused Cheong San Hiong is
hereby meted the penalty of RECLUSION
PERPETUA, pursuant to Article 52 of the Revised
Penal Code in relation to Section 5 of PD 532.
The accused Roger Tulin, Virgilio Loyola, Andres
Infante, Jr. and Cecilio Changco are hereby
ordered to return to the PNOC Shipping and
Transport Corporation the "M/T Tabangao" or if
the accused can no longer return the same, the
said accused are hereby ordered to remit,
jointly and severally, to said corporation the
value thereof in the amount of P11,240,000.00
Philippine Currency, with interests thereon, at
the rate of 6% per annum from March 2, 1991
until the said amount is paid in full. All the
accused including Cheong San Hiong are hereby
ordered to return to the Caltex Philippines, Inc.
the cargo of the "M/T Tabangao", or if the
accused can no longer return the said cargo to
said corporation, all the accused are hereby
condemned to pay, jointly and severally, to the
Caltex Refinery, Inc., the value of said cargo in
the amount of P40,426,793.87, Philippine
Currency plus interests until said amount is paid
in full. After the accused Cheong San Hiong has

59

served his sentence, he shall be deported to

Singapore.
All the accused shall be credited for the full
period of their detention at the National Bureau
of Investigation and the City Jail of Manila
during the pendency of this case provided that
they agreed in writing to abide by and comply
strictly with the rules and regulations of the City
Jail of Manila and the National Bureau of
Investigation. With costs against all the
accused.
SO ORDERED.

represented by Mr. Tomas Posadas, a nonlawyer, thereby depriving them of their

constitutional right to procedural due process.
In this regard, said accused-appellants
narrate that Mr. Posadas entered his appearance
as counsel for all of them. However, in the
course of the proceedings, or on February 11,
1992, the trial court discovered that Mr.
Posadas was not a member of the Philippine
Bar. This was after Mr. Posadas had presented
and examined seven witnesses for the accused.

Roger P. Tulin Virgilio Loyola Andres C. Infante

Jr., and Cecilio O. Changco

Further, accused-appellants Tulin, Loyola,

Infante, Cecilio, Changco uniformly contend
that during the custodial investigation, they
were subjected to physical violence; were
forced to sign statements without being given
the opportunity to read the contents of the
same; were denied assistance of counsel, and
were not informed of their rights, in violation of
their constitutional rights,

Accused-appellants Tulin, Loyola, Infante, Jr.,

and Cecilio Changco assert that the trial court
erred in allowing them to adopt the proceedings
taken during the time they were being

Said accused-appellants also argue that the

trial court erred in finding that the prosecution
proved beyond reasonable doubt that they
committed the crime of qualified piracy. They

(pp. 149-150, Rollo.)

The matter was then elevated to this Court.
The arguments of accused-appellants may be
summarized as follows:

60

allege that the pirates were outnumbered by

the crew who totaled 22 and who were not
guarded at all times. The crew, so these
accused-appellants
conclude,
could
have
overpowered the alleged pirates.
Cheong San Hiong
In his brief, Cheong argues that: (1)
Republic Act No. 7659 in effect obliterated the
crime committed by him; (2) the trial court
erred in declaring that the burden is lodged on
him to prove by clear and convincing evidence
that he had no knowledge that Emilio Changco
and his cohorts attacked and seized the "M/T
Tabangao" and/or that the cargo of the vessel
was stolen or the subject of theft or robbery or
piracy; (3) the trial court erred in finding him
guilty as an accomplice to the crime of qualified
piracy under Section 4 of Presidential Decree
No. 532 (Anti-Piracy and Anti-Robbery Law of
1974); (4) the trial court erred in convicting
and punishing him as an accomplice when the
acts allegedly committed by him were done or
executed outside of Philippine waters and
territory, stripping the Philippine courts of

jurisdiction to hold him for trial, to convict, and

sentence; (5) the trial court erred in making
factual conclusions without evidence on record
to prove the same and which in fact are
contrary to the evidence adduced during trial;
(6) the trial court erred in convicting him as an
accomplice under Section 4 of Presidential
Decree No. 532 when he was charged as a
principal by direct participation under said
decree, thus violating his constitutional right to
be informed of the nature and cause of the
accusation against him.
Cheong also posits that the evidence against
the other accused-appellants do not prove any
participation on his part in the commission of
the crime of qualified piracy. He further argues
that he had not in any way participated in the
seajacking of "M/T Tabangao" and in committing
the crime of qualified piracy, and that he was
not aware that the vessel and its cargo were
pirated.
As legal basis for his appeal, he explains that
he was charged under the information with
qualified piracy as principal under Section 2 of

61

Presidential Decree No. 532 which refers to

Philippine waters. In the case at bar, he argues
that he was convicted for acts done outside
Philippine waters or territory. For the State to
have criminal jurisdiction, the act must have
been committed within its territory.
We affirm the conviction of all the accusedappellants.
The issues of the instant case may be
summarized as follows: (1) what are the legal
effects and implications of the fact that a nonlawyer represented accused-appellants during
the trial?; (2) what are the legal effects and
implications of the absence of counsel during
the custodial investigation?; (3) did the trial
court err in finding that the prosecution was
able to prove beyond reasonable doubt that
accused-appellants committed the crime of
qualified piracy?; (4) did Republic Act No. 7659
obliterate the crime committed by accusedappellant Cheong?; and (5) can accusedappellant Cheong be convicted as accomplice
when he was not charged as such and when the
acts allegedly committed by him were done or

executed
territory?

outside

Philippine

waters

and

On the first issue, the record reveals that a

manifestation (Exhibit "20", Record) was
executed by accused-appellants Tulin, Loyola,
Changco, and Infante, Jr. on February 11, 1991,
stating that they were adopting the evidence
adduced when they were represented by a nonlawyer. Such waiver of the right to sufficient
representation during the trial as covered by
the due process clause shall only be valid if
made with the full assistance of a bona fide
lawyer. During the trial, accused-appellants, as
represented by Atty. Abdul Basar, made a
categorical manifestation that said accusedappellants were apprised of the nature and legal
consequences of the subject manifestation, and
that they voluntarily and intelligently executed
the same. They also affirmed the truthfulness of
its contents when asked in open court (tsn,
February 11, 1992, pp. 7-59). It is true that an
accused person shall be entitled to be present
and to defend himself in person and by counsel
at every stage of the proceedings, from
arraignment to promulgation of judgment

62

(Section 1, Rule 115, Revised Rules of Criminal

Procedure). This is hinged on the fact that a
layman is not versed on the technicalities of
trial. However, it is also provided by law that
"[r]ights may be waived, unless the waiver is
contrary to law, public order, public policy,
morals, or good customs or prejudicial to a third
person with right recognized by law." (Article 6,
Civil Code of the Philippines). Thus, the same
section of Rule 115 adds that "[u]pon motion,
the accused may be allowed to defend himself
in person when it sufficiently appears to the
court that he can properly protect his rights
without the assistance of counsel." By analogy ,
but without prejudice to the sanctions imposed
by law for the illegal practice of law, it is amply
shown that the rights of accused-appellants
were sufficiently and properly protected by the
appearance of Mr. Tomas Posadas. An
examination of the record will show that he
knew the technical rules of procedure. Hence,
we rule that there was a valid waiver of the
right to sufficient representation during the
trial, considering that it was unequivocally,
knowingly, and intelligently made and with the
full assistance of a bona fide lawyer, Atty. Abdul

Basar. Accordingly, denial of due process cannot

be successfully invoked where a valid waiver of
rights has been made (People vs. Serzo, 274
SCRA 553 [1997]; Sayson vs. People, 166
SCRA 680 [1988]).
However, we must quickly add that the right
to counsel during custodial investigation may
not be waived except in writing and in the
presence of counsel.
Section 12, Article III of the Constitution
reads:
SEC. 12. (1) Any person under investigation for
the commission of an offense shall have the
right to be informed of his right to remain silent
and to have competent and independent
counsel preferably of his own choice. If the
person cannot afford the services of counsel, he
must be provided with one. These rights cannot
be waived except in writing and in the presence
of counsel.
(2) No torture, force, violence, threat,
intimidation, or any other means which vitiate
the free will shall be used against him. Secret

63

detention places, solitary, incommunicado, or

other similar forms of detention are prohibited.
(3) Any confession or admission obtained in
violation of this or Section 17 hereof shall be
inadmissible in evidence against him.
(4) The law shall provide for penal and civil
sanctions for violations of this section as well as
compensation to and rehabilitation of victims of
torture or similar practices, and their families.
Such rights originated from Miranda v.
Arizona (384 U. S. 436 [1966]) which gave
birth to the so-called Miranda doctrine which is
to the effect that prior to any questioning
during custodial investigation, the person must
be warned that he has a right to remain silent,
that any statement he gives may be used as
evidence against him, and that he has the right
to the presence of an attorney, either retained
or appointed. The defendant may waive
effectuation of these rights, provided the waiver
is made voluntarily, knowingly, and intelligently.
The Constitution even adds the more stringent
requirement that the waiver must be in writing
and made in the presence of counsel.

Saliently, the absence of counsel during the

execution of the so-called confessions of the
accused-appellants make them invalid. In fact,
the very basic reading of the Miranda rights was
not even shown in the case at bar. Paragraph
[3] of the aforestated Section 12 sets forth the
so-called "fruit from the poisonous tree
doctrine," a phrase minted by Mr. Justice Felix
Frankfurter in the celebrated case of Nardone
vs. United States (308 U.S. 388 [1939]).
According to this rule, once the primary source
(the "tree") is shown to have been unlawfully
obtained, any secondary or derivative evidence
(the "fruit") derived from it is also inadmissible.
The rule is based on the principle that evidence
illegally obtained by the State should not be
used to gain other evidence because the
originally illegally obtained evidence taints all
evidence subsequently obtained (People vs.
Alicando, 251 SCRA 293 [1995]). Thus, in this
case, the uncounselled extrajudicial confessions
of accused-appellants, without a valid waiver of
the right to counsel, are inadmissible and
whatever information is derived therefrom shall
be regarded as likewise inadmissible in evidence
against them.

64

However, regardless of the inadmissibility of

the subject confessions, there is sufficient
evidence to convict accused-appellants with
moral certainty. We agree with the sound
deduction of the trial court that indeed, Emilio
Changco (Exhibits "U" and "UU") and accusedappellants Tulin, Loyola, .and Infante, Jr. did
conspire and confederate to commit the crime
charged. In the words of then trial judge, now
Justice Romeo J. Callejo of the Court of Appeals
...The Prosecution presented to the Court an
array of witnesses, officers and members of the
crew of the "M/T Tabangao" no less, who
identified and pointed to the said Accused as
among those who attacked and seized, the "M/T
Tabangao" on March 2, 1991, at about 6:30
o'clock in the afternoon, off Lubang Island,
Mindoro, with its cargo, and brought the said
vessel, with its cargo, and the officers and crew
of the vessel, in the vicinity of Horsebough
Lighthouse, about sixty-six nautical miles off
the shoreline of Singapore and sold its cargo to
the Accused Cheong San Hiong upon which the
cargo was discharged from the "M/T Tabangao"

to the "Navi Pride" for the price of about

$500,000.00 (American Dollars) on March 29,
and 30, 1991...
xxx
xxx
xxx
The Master, the officers and members of the
crew of the "M/T Tabangao" were on board the
vessel with the Accused and their cohorts from
March 2, 1991 up to April 10, 1991 or for more
than one (1) month. There can be no scintilla of
doubt in the mind of the Court that the officers
and crew of the vessel could and did see and
identify the seajackers and their leader. In fact,
immediately after the Accused were taken into
custody by the operatives of the National
Bureau of Investigation, Benjamin Suyo,
Norberto Senosa, Christian Torralba and Isaias
Wervas executed their "Joint Affidavit" (Exhibit
"B") and pointed to and identified the said
Accused as some of the pirates.
xxx

65

xxx
xxx
Indeed, when they testified before this Court on
their defense, the three (3) Accused admitted
to the Court that they, in fact, boarded the said
vessel in the evening of March 2 1991 and
remained on board when the vessel sailed to
its, destination, which turned out to be off the
port of Singapore.
(pp. 106-112, Rollo.)
We also agree with the trial court's finding
that accused-appellants' defense of denial is not
supported by any hard evidence but their bare
testimony. Greater weight is given to the
categorical identification of the accused by the
prosecution witnesses than to the accused's
plain denial of participation in the commission
of the crime (People v. Baccay, 284 SCRA 296
[1998]). Instead,
accused-appellants
Tulin,
Loyola, and Infante, Jr. narrated a patently
desperate tale that they were hired by three
complete strangers (allegedly Captain Edilberto
Liboon, Second Mate Christian Torralba, and

their companion) while said accused-appellants

were conversing with one another along the
seashore at Apkaya, Balibago, Calatagan,
Batangas, to work on board the "M/T Tabangao"
which was then anchored off-shore. And readily,
said accused-appellants agreed to work as
cooks and handymen for an indefinite period of
time without even saying goodbye to their
families, without even knowing their destination
or the details of their voyage, without the
personal effects needed for a long voyage at
sea. Such evidence is incredible and clearly not
in accord with human experience. As pointed
out by the trial court, it is incredible that
Captain Liboon, Second Mate Torralba, and their
companion "had to leave the vessel at 9:30
o'clock in the evening and venture in a
completely unfamiliar place merely to recruit
five (5) cooks or handymen (p. 113, Rollo)."
Anent accused-appellant Changco's defense
of denial with the alibi that on May 14 and 17,
he was at his place of work and that on April
10, 1991, he was in his house in Bacoor, Cavite,
sleeping, suffice it to state that alibi is
fundamentally and inherently a weak defense,

66

much more so when uncorroborated by other

witnesses (People v. Adora, 275 SCRA 441
[1997]) considering that it is easy to fabricate
and concoct, and difficult to disprove. Accusedappellant must adduce clear and convincing
evidence that, at about midnight on April 10,
1991, it was physically impossible for him to
have been in Calatagan, Batangas. Changco not
only failed to do this, he was likewise unable to
prove that he was in his place of work on the
dates aforestated.

Code). To be a conspirator, one need not

participate in every detail of execution; he need
not even take part in every act or need not
even know the exact part to be performed by
the others in the execution of the conspiracy. As
noted by the trial court, there are times when
conspirators are assigned separate and different
tasks which may appear unrelated to one
another, but in fact, constitute a whole and
collective effort to achieve a common criminal
design.

It is doctrinal that the trial court's evaluation

of the credibility of a testimony is accorded the
highest respect, for trial courts have an
untrammeled opportunity to observe directly
the demeanor of witnesses and, thus, to
determine whether a certain witness is telling
the truth (People v. Obello, 284 SCRA 79
[1998]).

We affirm the trial court's finding that Emilio

Changco, accused- appellants Tulin, Loyola, and
Infante, Jr. and others, were the ones assigned
to attack and seize the "M/T Tabangao" off
Lubang, Mindoro, while accused-appellant
Cecilio Changco was to fetch the master and the
members of the crew from the shoreline of
Calatagan, Batangas after the transfer, and
bring them to Imus, Cavite, and to provide the
crew and the officers of the vessel with money
for their fare and food provisions on their way
home. These acts had to be well-coordinated.
Accused-appellant Cecilio Changco need not be
present at the time of the attack and seizure of

We likewise uphold the trial court's finding of

conspiracy. A conspiracy exists when two or
more
persons
come
to
an
agreement
concerning the commission of a felony and
decide to commit it (Article 8, Revised Penal

67

"M/T Tabangao" since he performed his task in

view of an objective common to all other
accused- appellants.
Of notable importance is the connection of
accused-appellants to one another. Accusedappellant Cecilio Changco is the younger
brother of Emilio Changco (aka Captain
Bobby/Captain Roberto Castillo/Kevin Ocampo),
owner of Phil-Asia Shipping Lines. Cecilio
worked for his brother in said corporation. Their
residences are approximately six or seven
kilometers away from each other. Their families
are close. Accused-appellant Tulin, on the other
hand, has known Cecilio since their parents
were neighbors in Aplaya, Balibago, Calatagan,
Batangas. Accused-appellant Loyola's wife is a
relative of the Changco brothers by affinity
.Besides, Loyola and Emilio Changco had both
been accused in a seajacking case regarding
"M/T Isla Luzon" and its cargo of steel coils and
plates off Cebu and Bohol in 1989. Emilio
Changco (aka Kevin Ocampo) was convicted of
the crime while Loyola at that time remained at
large.

As
for
accused-appellant
Hiong,
he
ratiocinates that he can no longer be convicted
of piracy in Philippine waters as defined and
penalized
in
Sections
2[d]
and
3[a],
respectively of Presidential Decree No. 532
because Republic Act No. 7659 (effective
January 1, 1994) which amended Article 122 of
the Revised Penal Code, has impliedly
superseded Presidential Decree No. 532. He
reasons out that Presidential Decree No. 532
has been rendered "superfluous or duplicitous"
because both Article 122 of the Revised Penal
Code, as amended, and Presidential Decree No.
532 punish piracy committed in Philippine
waters. He maintains that in order to reconcile
the two laws, the word "any person" mentioned
in Section 1 [d] of Presidential Decree No. 532
must be omitted such that Presidential Decree
No. 532 shall only apply to offenders who are
members of the complement or to passengers
of the vessel, whereas Republic Act No. 7659
shall apply to offenders who are neither
members of the complement or passengers of
the vessel, hence, excluding him from the
coverage of the law.

68

Article 122 of the Revised Penal Code, used

to provide:
Article 122. Piracy in general and mutiny on the
high seas. -The penalty of reclusion temporal
shall be inflicted upon any person who, on the
high seas, shall attack or seize a vessel or, not
being a member of its complement nor a
passenger, shall seize the whole or part of the
cargo of said vessel, its equipment, or personal
belongings of its complement or passengers.
(Und
erscoring supplied.)
Article 122, as amended by Republic Act No.
7659 January 1, 1994), reads:
Article 122. Piracy in general and mutiny on the
high seas or in Philippine waters. -The penalty
of reclusion perpetua shall be inflicted upon any
person who, on the high seas, or in Philippine
waters, shall attack or seize a vessel or, being
a member of its complement nor a
passenger, shall seize the whole or part of the
cargo of said vessel, its equipment, or personal
belongings of its complement or passengers.

(Unders
coring ours)
On the other hand, Section 2 of Presidential
Decree No. 532 provides:
SEC. 2. Definition of Terms. - The following shall
mean and be understood, as follows:
d. Piracy. -Any attack upon or seizure of any
vessel, or the taking away of the whole or part
thereof or its cargo, equipment, or the personal
belongings of its complement or passengers,
irrespective of the value thereof, by means of
violence against or intimidation of persons or
force upon things, committed by any person.
including a passenger or member of the
complement of said vessel in Philippine waters,
shall be considered as piracy. The offenders
shall be considered as pirates and punished as
hereinafter provided (underscoring supplied).
To summarize, Article 122 of the Revised
Penal Code, before its amendment, provided
that piracy must be committed on the high seas
by any person not a member of its complement
nor a passenger thereof. Upon its amendment

69

by Republic Act No. 7659, the coverage of the

pertinent provision was widened to include
offenses committed "in Philippine waters." On
the other hand, under Presidential Decree No.
532 (issued in 1974), the coverage of the law
on piracy embraces any person including "a
passenger or member of the complement of
said vessel in Philippine waters." Hence,
passenger or not, a member of the complement
or not, any person is covered by the law.
Republic Act No. 7659 neither superseded
nor amended the provisions on piracy under
Presidential Decree No. 532. There is no
contradiction between the two laws. There is
likewise no ambiguity and hence, there is no
need to construe or interpret the law. All the
presidential decree did was to widen the
coverage of the law, in keeping with the intent
to protect the citizenry as well as neighboring
states from crimes against the law of nations.
As expressed in one of the "whereas" clauses of
Presidential Decree No. 532, piracy is "among
the highest forms of lawlessness condemned by
the penal statutes of all countries." For this
reason, piracy under the Article 122, as

amended, and piracy under Presidential Decree

No. 532 exist harmoniously as separate laws.
As regards the contention that the trial court
did not acquire jurisdiction over the person of
accused-appellant Hiong since the crime was
committed outside Philippine waters, suffice it
to state that unquestionably, the attack on and
seizure of "M/T Tabangao" (renamed "M/T
Galilee" by the pirates) and its cargo were
committed in Philippine waters, although the
captive vessel was later brought by the pirates
to Singapore where its cargo was off-loaded,
transferred, and sold. And such transfer was
done under accused-appellant Hiong's direct
supervision. Although Presidential Decree No.
532 requires that the attack and seizure of the
vessel and its cargo be committed in Philippine
waters, the disposition by the pirates of the
vessel and its cargo is still deemed part of the
act of piracy, hence, the same need not be
committed in Philippine waters.
Moreover, piracy falls under Title One of
Book Two of the Revised Penal Code. As such, it
is an exception to the rule on territoriality in

70

criminal law. The same principle applies even if

Hiong, in the instant case, were charged, not
with a violation of qualified piracy under the
penal code but under a special law, Presidential
Decree No. 532 which penalizes piracy in
Philippine waters. Verily, Presidential Decree No.
532 should be applied with more force here
since its purpose is precisely to discourage and
prevent piracy in Philippine waters (People v.
Catantan, 278 SCRA 761 [1997]). It is likewise,
well-settled that regardless of the law
penalizing the same, piracy is a reprehensible
crime against the whole world (People v. Lol-lo,
43 Phil. 19 [1922]).
However, does this constitute a violation of
accused-appellant's constitutional right to be
informed of the nature and cause of the
accusation against him on the ground that he
was convicted as an accomplice under Section 4
of Presidential Decree No. 532 even though he
was charged as a principal by direct
participation under Section 2 of said law?
The trial court found that
insufficiency of evidence showing:

there

was

(a) that accused-appellant Hiong directly

participated in the attack and seizure of "M/T
Tabangao" and its cargo; (b) that he induced
Emilio Changco and his group in the attack and
seizure of "M/T Tabangao" and its cargo; ( c)
and that his act was indispensable in the attack
on and seizure of "M/T Tabangao" and its cargo.
Nevertheless, the trial court found that
accused-appellant Hiong's participation was
indisputably one which aided or abetted Emilio
Changco and his band of pirates in the
disposition of the stolen cargo under Section 4
of Presidential Decree No. 532 which provides:
SEC. 4. Aiding pirates or highway
robbers/brigands or abetting piracy or highway
robbery brigandage. -Any person who
knowingly and in any manner aids or protects
pirates or highway robbers/brigands, such as
giving them information about the movement of
police or other peace officers of the
government, or acquires or receives property
taken by such pirates or brigands or in any
manner derives any benefit therefrom; or any
person who directly or indirectly abets the
commission of piracy or highway robbery or

71

brigandage, shall be considered as an

accomplice of the principal officers and be
punished in accordance with Rules prescribed
by the Revised Penal Code.
It shall be presumed that any person who does
any of the acts provided in this Section has
performed them knowingly, unless the contrary
is proven.
The ruling of the trial court is Within wellsettle jurisprudence that if there is lack of
complete evidence of conspiracy, the liability is
that of an accomplice and not as principal
(People v. Tolentino, 40 SCRA 514 [1971]). Any
doubt as to the participation of an individual in
the commission of the crime is always resolved
in favor of lesser responsibility (People v.
Corbes, 270 SCRA 465 [1997]; People vs.
Elfano, Jr., 125 SCRA 792 [1983]; People v.
Pastores, 40 SCRA 498 [1971]).
Emphasis must also be placed on the last
paragraph of Section 4 of Presidential Decree
No 532 which presumes that any person who
does any of the acts provided in said section
has performed them knowingly, unless the

contrary is proven. In the case at bar, accusedappellant Hiong had failed to overcome the
legal presumption that he knowingly abetted or
aided in the commission of piracy, received
property taken by such pirates and derived
benefit therefrom.
The record discloses that accused-appellant
Hiong aided the pirates in disposing of the
stolen cargo by personally directing its transfer
from "M/T Galilee" to "M/T Navi Pride". He
profited therefrom by buying the hijacked cargo
for Navi Marine Services, Pte., Ltd. (tsn, June 3,
1992, pp. 15-23). He even tested the quality
and verified the quantity of the petroleum
products, connived with Navi Marine Services
personnel in falsifying the General Declarations
and Crew List to ensure that the illegal transfer
went through, undetected by Singapore Port
Authorities, and supplied the pirates with food,
beer, and other provisions for their maintenance
while in port (tsn, June 3, 1992, pp. 133-134).
We believe that the falsification of the
General Declaration (Arrival and Departure) and
Crew List was accomplished and utilized by

72

accused-appellant Hiong and Navi Marine

Services personnel in the execution of their
scheme to avert detection by Singapore Port
Authorities. Hence, had accused-appellant
Hiong not falsified said entries, the Singapore
Port Authorities could have easily discovered
the illegal activities that took place and this
would have resulted in his arrest and
prosecution in Singapore. Moreover, the transfer
of the stolen cargo from "M/T Galilee" to "Navi
Pride" could not have been effected.
We completely uphold the factual findings of
the trial court showing in detail accusedappellant Hiong's role in the disposition of the
pirated goods summarized as follows: that on
March 27, 1991, Hiong with Captain Biddy
Santos boarded the "Navi Pride," one of the
vessels of the Navi Marine, to rendezvous with
the "M/T Galilee"; that the firm submitted the
crew list of the vessel (Exhibit "8-CSH", Record)
to the port authorities, excluding the name of
Hiong; that the "General Declaration" (for
departure) of the "Navi Pride" for its voyage off
port of Singapore (Exhibits "HH" and "8-A CSH",
Record) falsely stated that the vessel was

scheduled to depart at 2200 (10 o'clock in the

evening), that there were no passengers on
board, and the purpose of the voyage was for
"cargo operation" and that the vessel was to
unload and transfer 1,900 tons of cargo; that
after the transfer of the fuel from "M/T Galilee"
with' Emilio Changco a. k. a. Captain Bobby a.
k. a. Roberto Castillo at the helm, the surveyor
prepared the "Quantity Certificate" (Exhibit "11C CSH, Record) stating that the cargo
transferred to the "Navi Pride" was 2,406 gross
cubic meters; that although Hiong was not the
Master of the vessel, he affixed his signature on
the "Certificate" above the word "Master"
(Exhibit "11-C-2 CSH", Record); that he then
paid $150,000.00 but did not require any
receipt for the amount; that Emilio Changco
also did not issue one; and that in the requisite
"General Declaration" upon its arrival at
Singapore on March 29, 1991, at 7 o'clock in
the evening, (Exhibits "JJ" and "13-A CSH",
Record), it was made to falsely appear that the
"Navi Pride" unloaded 1,700 tons of cargo on
the high seas during said voyage when in fact it
acquired from the "M/T Galilee" 2,000 metric
tons of diesel oil. The second transfer transpired

73

with the same irregularities as discussed above.

It was likewise supervised by accusedappellant Cheong from his end while Emilio
Changco supervised the transfer from his end.
Accused-appellant Hiong maintains that he
was merely following the orders of his superiors
and that he has no knowledge of the illegality of
the source of the cargo.
First and foremost, accused-appellant Hiong
cannot deny knowledge of the source and
nature of the cargo since he himself received
the same from "M/T Tabangao". Second,
considering that he is a highly educated
mariner, he
should
have
avoided
any
participation in the cargo transfer given the
very suspicious circumstances under which it
was acquired. He failed to show a single piece
of deed or bill of sale or even a purchase order
or any contract of sale for the purchase by the
firm; he never bothered to ask for and
scrutinize the papers and documentation
relative to the "M/T Galilee"; he did not even
verify the identity of Captain Robert Castillo
whom he met for the first time nor did he check

the source of the cargo; he knew that the

transfer took place 66 nautical miles off
Singapore in the dead of the night which a
marine vessel of his firm did not ordinarily do; it
was also the first time Navi Marine transacted
with Paul Gan involving a large sum of money
without any receipt issued therefor; he was not
even aware if Paul Gan was a Singaporean
national and thus safe to deal with. It should
also be noted that the value of the cargo was
P40,426,793.87
or
roughly
more
than
US$l,000,000.00 (computed at P30.00 to $1,
the exchange rate at that time). Manifestly, the
cargo was sold for less than one-half of its
value. Accused-appellant Hiong should have
been aware of this irregularity. Nobody in his
right mind would go to far away Singapore,
spend much time and money for transportation
-only to sell at the aforestated price if it were
legitimate sale involved. This, in addition to the
act of falsifying records, clearly shows that
accused-appellant Hiong was well aware that
the cargo that his firm was acquiring was
purloined.

74

Lastly, it cannot be correctly said that

accused-appellant was "merely following the
orders of his superiors." An individual is justified
in performing an act in obedience to an order
issued by a superior if such order, is for some
lawful purpose and that the means used by the
subordinate to carry out said order is lawful
(Reyes, Revised Penal Code, Vol. 1, 1981 ed., p.
212). Notably, the alleged order of Hiong's
superior Chua Kim Leng Timothy, is a patent
violation not only of Philippine, but of
international law. Such violation was committed
on
board
a
Philippine-operated
vessel.
Moreover, the means used by Hiong in carrying
out said order was equally unlawful. He misled
port and immigration authorities, falsified
records, using a mere clerk, Frankie Loh, to
consummate said acts. During the trial, Hiong
presented himself, and the trial court was
convinced, that he was an intelligent and
articulate Port Captain. These circumstances
show that he must have realized the nature and
the implications of the order of Chua Kim Leng
Timothy. Thereafter, he could have refused to
follow orders to conclude the deal and to effect
the transfer of the cargo to the Navi Pride. He

did not do so, for which reason, he must now

suffer the consequences of his actions.
WHEREFORE, finding the conviction of
accused-appellants justified by the evidence on
record, the Court hereby AFFIRMS the
judgment of the trial court in toto.
SO ORDERED.

75

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 122846

January 20, 2009

WHITE LIGHT CORPORATION, TITANIUM

CORPORATION and STA. MESA TOURIST &
DEVELOPMENT CORPORATION, Petitioners,
vs.
CITY OF MANILA, represented by DE
CASTRO, MAYOR ALFREDO S.
LIM, Respondent.
DECISION
Tinga, J.:
With another city ordinance of Manila also
principally involving the tourist district as
subject, the Court is confronted anew with the
incessant clash between government power and
individual liberty in tandem with the archetypal
tension between law and morality.

In City of Manila v. Laguio, Jr.,1 the Court

affirmed the nullification of a city ordinance
barring the operation of motels and inns,
among other establishments, within the ErmitaMalate area. The petition at bar assails a
similarly-motivated city ordinance that prohibits
those same establishments from offering shorttime admission, as well as pro-rated or "wash
up" rates for such abbreviated stays. Our earlier
decision tested the city ordinance against our
sacred constitutional rights to liberty, due
process and equal protection of law. The same
parameters apply to the present petition.
This Petition2 under Rule 45 of the Revised
Rules on Civil Procedure, which seeks the
reversal of the Decision3 in C.A.-G.R. S.P. No.
33316 of the Court of Appeals, challenges the
validity of Manila City Ordinance No. 7774
entitled, "An Ordinance Prohibiting Short-Time
Admission, Short-Time Admission Rates, and
Wash-Up Rate Schemes in Hotels, Motels, Inns,
Lodging Houses, Pension Houses, and Similar
Establishments in the City of Manila" (the
Ordinance).

76

I.
The facts are as follows:
On December 3, 1992, City Mayor Alfredo S.
Lim (Mayor Lim) signed into law the
Ordinance.4 The Ordinance is reproduced in full,
hereunder:
SECTION 1. Declaration of Policy. It is hereby
the declared policy of the City Government to
protect the best interest, health and welfare,
and the morality of its constituents in general
and the youth in particular.
SEC. 2. Title. This ordinance shall be known as
"An Ordinance" prohibiting short time admission
in hotels, motels, lodging houses, pension
houses and similar establishments in the City of
Manila.
SEC. 3. Pursuant to the above policy, short-time
admission and rate [sic], wash-up rate or other
similarly concocted terms, are hereby prohibited
in hotels, motels, inns, lodging houses, pension
houses and similar establishments in the City of
Manila.

SEC. 4. Definition of Term[s]. Short-time

admission shall mean admittance and charging
of room rate for less than twelve (12) hours at
any given time or the renting out of rooms
more than twice a day or any other term that
may be concocted by owners or managers of
said establishments but would mean the same
or would bear the same meaning.
SEC. 5. Penalty Clause. Any person or
corporation who shall violate any provision of
this ordinance shall upon conviction thereof be
punished by a fine of Five Thousand
(P5,000.00) Pesos or imprisonment for a period
of not exceeding one (1) year or both such fine
and imprisonment at the discretion of the court;
Provided, That in case of [a] juridical person,
the president, the manager, or the persons in
charge of the operation thereof shall be liable:
Provided, further, That in case of subsequent
conviction for the same offense, the business
license of the guilty party shall automatically be
cancelled.
SEC. 6. Repealing Clause. Any or all provisions
of City ordinances not consistent with or

77

contrary to this measure or any portion hereof

are hereby deemed repealed.

time basis as well as to charge customers wash

up rates for stays of only three hours.

SEC. 7. Effectivity. This ordinance shall take

effect immediately upon approval.

On December 21, 1992, petitioners White Light

Corporation (WLC), Titanium Corporation (TC)
and Sta. Mesa Tourist and Development
Corporation (STDC) filed a motion to intervene
and to admit attached complaint-inintervention7 on the ground that the Ordinance
directly affects their business interests as
operators of drive-in-hotels and motels in
Manila.8 The three companies are components
of the Anito Group of Companies which owns
and operates several hotels and motels in Metro
Manila.9

Enacted by the city Council of Manila at its

regular session today, November 10, 1992.
Approved by His Honor, the Mayor on December
3, 1992.
On December 15, 1992, the Malate Tourist and
Development Corporation (MTDC) filed a
complaint for declaratory relief with prayer for a
writ of preliminary injunction and/or temporary
restraining order ( TRO)5 with the Regional Trial
Court (RTC) of Manila, Branch 9 impleading as
defendant, herein respondent City of Manila
(the City) represented by Mayor Lim.6 MTDC
prayed that the Ordinance, insofar as it includes
motels and inns as among its prohibited
establishments, be declared invalid and
unconstitutional. MTDC claimed that as owner
and operator of the Victoria Court in Malate,
Manila it was authorized by Presidential Decree
(P.D.) No. 259 to admit customers on a short

On December 23, 1992, the RTC granted the

motion to intervene.10 The RTC also notified the
Solicitor General of the proceedings pursuant to
then Rule 64, Section 4 of the Rules of Court.
On the same date, MTDC moved to withdraw as
plaintiff.11
On December 28, 1992, the RTC granted
MTDC's motion to withdraw.12 The RTC issued a
TRO on January 14, 1993, directing the City to
cease and desist from enforcing the

78

Ordinance.13 The City filed an Answer dated

January 22, 1993 alleging that the Ordinance is
a legitimate exercise of police power.14
On February 8, 1993, the RTC issued a writ of
preliminary injunction ordering the city to desist
from the enforcement of the Ordinance.15 A
month later, on March 8, 1993, the Solicitor
General filed his Comment arguing that the
Ordinance is constitutional.
During the pre-trial conference, the WLC, TC
and STDC agreed to submit the case for
decision without trial as the case involved a
purely legal question.16 On October 20, 1993,
the RTC rendered a decision declaring the
Ordinance null and void. The dispositive portion
of the decision reads:
WHEREFORE, in view of all the foregoing,
[O]rdinance No. 7774 of the City of Manila is
hereby declared null and void.
Accordingly, the preliminary injunction heretofor
issued is hereby made permanent.
SO ORDERED.17

The RTC noted that the ordinance "strikes at the

personal liberty of the individual guaranteed
and jealously guarded by the
Constitution."18 Reference was made to the
provisions of the Constitution encouraging
private enterprises and the incentive to needed
investment, as well as the right to operate
economic enterprises. Finally, from the
observation that the illicit relationships the
Ordinance sought to dissuade could nonetheless
be consummated by simply paying for a 12hour stay, the RTC likened the law to the
ordinance annulled in Ynot v. Intermediate
Appellate Court,19 where the legitimate purpose
of preventing indiscriminate slaughter of
carabaos was sought to be effected through an
inter-province ban on the transport of carabaos
and carabeef.
The City later filed a petition for review
on certiorari with the Supreme Court.20 The
petition was docketed as G.R. No. 112471.
However in a resolution dated January 26,
1994, the Court treated the petition as a
petition forcertiorari and referred the petition to
the Court of Appeals.21

79

Before the Court of Appeals, the City asserted

that the Ordinance is a valid exercise of police
power pursuant to Section 458 (4)(iv) of the
Local Government Code which confers on cities,
among other local government units, the
power:
[To] regulate the establishment, operation and
maintenance of cafes, restaurants, beerhouses,
hotels, motels, inns, pension houses, lodging
houses and other similar establishments,
including tourist guides and transports.22
The Ordinance, it is argued, is also a valid
exercise of the power of the City under Article
III, Section 18(kk) of the Revised Manila
Charter, thus:
"to enact all ordinances it may deem necessary
and proper for the sanitation and safety, the
furtherance of the prosperity and the promotion
of the morality, peace, good order, comfort,
convenience and general welfare of the city and
its inhabitants, and such others as be necessary
to carry into effect and discharge the powers
and duties conferred by this Chapter; and to fix
penalties for the violation of ordinances which

shall not exceed two hundred pesos fine or six

months imprisonment, or both such fine and
imprisonment for a single offense.23
Petitioners argued that the Ordinance is
unconstitutional and void since it violates the
right to privacy and the freedom of movement;
it is an invalid exercise of police power; and it is
an unreasonable and oppressive interference in
their business.
The Court of Appeals reversed the decision of
the RTC and affirmed the constitutionality of the
Ordinance.24 First, it held that the Ordinance did
not violate the right to privacy or the freedom
of movement, as it only penalizes the owners or
operators of establishments that admit
individuals for short time stays. Second, the
virtually limitless reach of police power is only
constrained by having a lawful object obtained
through a lawful method. The lawful objective
of the Ordinance is satisfied since it aims to
curb immoral activities. There is a lawful
method since the establishments are still
allowed to operate. Third, the adverse effect on
the establishments is justified by the well-being

80

of its constituents in general. Finally, as held

in Ermita-Malate Motel Operators Association v.
City Mayor of Manila, liberty is regulated by law.
TC, WLC and STDC come to this Court via
petition for review on certiorari.25 In their
petition and Memorandum, petitioners in
essence repeat the assertions they made before
the Court of Appeals. They contend that the
assailed Ordinance is an invalid exercise of
police power.
II.
We must address the threshold issue of
petitioners standing. Petitioners allege that as
owners of establishments offering "wash-up"
rates, their business is being unlawfully
interfered with by the Ordinance. However,
petitioners also allege that the equal protection
rights of their clients are also being interfered
with. Thus, the crux of the matter is whether or
not these establishments have the requisite
standing to plead for protection of their patrons'
equal protection rights.

Standing or locus standi is the ability of a party

to demonstrate to the court sufficient
connection to and harm from the law or action
challenged to support that party's participation
in the case. More importantly, the doctrine of
standing is built on the principle of separation of
powers,26 sparing as it does unnecessary
interference or invalidation by the judicial
branch of the actions rendered by its co-equal
branches of government.
The requirement of standing is a core
component of the judicial system derived
directly from the Constitution.27The
constitutional component of standing doctrine
incorporates concepts which concededly are not
susceptible of precise definition.28 In this
jurisdiction, the extancy of "a direct and
personal interest" presents the most obvious
cause, as well as the standard test for a
petitioner's standing.29 In a similar vein, the
United States Supreme Court reviewed and
elaborated on the meaning of the three
constitutional standing requirements of injury,
causation, and redressability in Allen v.
Wright.30

81

Nonetheless, the general rules on standing

admit of several exceptions such as the
overbreadth doctrine, taxpayer suits, third party
standing and, especially in the Philippines, the
doctrine of transcendental importance.31

constitutional litigation of such special interest

groups in our nation such as the American Civil
Liberties Union in the United States may also be
construed as a hindrance for customers to bring
suit.34

For this particular set of facts, the concept of

third party standing as an exception and the
overbreadth doctrine are appropriate.
In Powers v. Ohio,32 the United States Supreme
Court wrote that: "We have recognized the right
of litigants to bring actions on behalf of third
parties, provided three important criteria are
satisfied: the litigant must have suffered an
injury-in-fact, thus giving him or her a
"sufficiently concrete interest" in the outcome of
the issue in dispute; the litigant must have a
close relation to the third party; and there must
exist some hindrance to the third party's ability
to protect his or her own interests."33 Herein, it
is clear that the business interests of the
petitioners are likewise injured by the
Ordinance. They rely on the patronage of their
customers for their continued viability which
appears to be threatened by the enforcement of
the Ordinance. The relative silence in

American jurisprudence is replete with

examples where parties-in-interest were
allowed standing to advocate or invoke the
fundamental due process or equal protection
claims of other persons or classes of persons
injured by state action. In Griswold v.
Connecticut,35 the United States Supreme Court
held that physicians had standing to challenge a
reproductive health statute that would penalize
them as accessories as well as to plead the
constitutional protections available to their
patients. The Court held that:
"The rights of husband and wife, pressed here,
are likely to be diluted or adversely affected
unless those rights are considered in a suit
involving those who have this kind of
confidential relation to them."36
An even more analogous example may be found
in Craig v. Boren,37 wherein the United States

82

Supreme Court held that a licensed beverage

vendor has standing to raise the equal
protection claim of a male customer challenging
a statutory scheme prohibiting the sale of beer
to males under the age of 21 and to females
under the age of 18. The United States High
Court explained that the vendors had standing
"by acting as advocates of the rights of third
parties who seek access to their market or
function."38
Assuming arguendo that petitioners do not have
a relationship with their patrons for the former
to assert the rights of the latter, the
overbreadth doctrine comes into play. In
overbreadth analysis, challengers to
government actionare in effect permitted to
raise the rights of third parties. Generally
applied to statutes infringing on the freedom of
speech, the overbreadth doctrine applies when
a statute needlessly restrains even
constitutionally guaranteed rights.39 In this
case, the petitioners claim that the Ordinance
makes a sweeping intrusion into the right to
liberty of their clients. We can see that based on

the allegations in the petition, the Ordinance

suffers from overbreadth.
We thus recognize that the petitioners have a
right to assert the constitutional rights of their
clients to patronize their establishments for a
"wash-rate" time frame.
III.
To students of jurisprudence, the facts of this
case will recall to mind not only the recent City
of Manila ruling, but our 1967 decision
in Ermita-Malate Hotel and Motel Operations
Association, Inc., v. Hon. City Mayor of
Manila.40Ermita-Malate concerned the City
ordinance requiring patrons to fill up a
prescribed form stating personal information
such as name, gender, nationality, age, address
and occupation before they could be admitted
to a motel, hotel or lodging house. This earlier
ordinance was precisely enacted to minimize
certain practices deemed harmful to public
morals. A purpose similar to the annulled
ordinance in City of Manila which sought a
blanket ban on motels, inns and similar
establishments in the Ermita-Malate area.

83

However, the constitutionality of the ordinance

in Ermita-Malate was sustained by the Court.
The common thread that runs through those
decisions and the case at bar goes beyond the
singularity of the localities covered under the
respective ordinances. All three ordinances
were enacted with a view of regulating public
morals including particular illicit activity in
transient lodging establishments. This could be
described as the middle case, wherein there is
no wholesale ban on motels and hotels but the
services offered by these establishments have
been severely restricted. At its core, this is
another case about the extent to which the
State can intrude into and regulate the lives of
its citizens.
The test of a valid ordinance is well established.
A long line of decisions including City of
Manila has held that for an ordinance to be
valid, it must not only be within the corporate
powers of the local government unit to enact
and pass according to the procedure prescribed
by law, it must also conform to the following
substantive requirements: (1) must not

contravene the Constitution or any statute; (2)

must not be unfair or oppressive; (3) must not
be partial or discriminatory; (4) must not
prohibit but may regulate trade; (5) must be
general and consistent with public policy; and
(6) must not be unreasonable.41
The Ordinance prohibits two specific and distinct
business practices, namely wash rate
admissions and renting out a room more than
twice a day. The ban is evidently sought to be
rooted in the police power as conferred on local
government units by the Local Government
Code through such implements as the general
welfare clause.
A.
Police power, while incapable of an exact
definition, has been purposely veiled in general
terms to underscore its comprehensiveness to
meet all exigencies and provide enough room
for an efficient and flexible response as the
conditions warrant.42 Police power is based upon
the concept of necessity of the State and its
corresponding right to protect itself and its
people.43 Police power has been used as

84

justification for numerous and varied actions by

the State. These range from the regulation of
dance halls,44 movie theaters,45 gas
stations46 and cockpits.47 The awesome scope of
police power is best demonstrated by the fact
that in its hundred or so years of presence in
our nations legal system, its use has rarely
been denied.
The apparent goal of the Ordinance is to
minimize if not eliminate the use of the covered
establishments for illicit sex, prostitution, drug
use and alike. These goals, by themselves, are
unimpeachable and certainly fall within the
ambit of the police power of the State. Yet the
desirability of these ends do not sanctify any
and all means for their achievement. Those
means must align with the Constitution, and our
emerging sophisticated analysis of its
guarantees to the people. The Bill of Rights
stands as a rebuke to the seductive theory of
Macchiavelli, and, sometimes even, the political
majorities animated by his cynicism.
Even as we design the precedents that establish
the framework for analysis of due process or

equal protection questions, the courts are

naturally inhibited by a due deference to the coequal branches of government as they exercise
their political functions. But when we are
compelled to nullify executive or legislative
actions, yet another form of caution emerges. If
the Court were animated by the same passing
fancies or turbulent emotions that motivate
many political decisions, judicial integrity is
compromised by any perception that the
judiciary is merely the third political branch of
government. We derive our respect and good
standing in the annals of history by acting as
judicious and neutral arbiters of the rule of law,
and there is no surer way to that end than
through the development of rigorous and
sophisticated legal standards through which the
courts analyze the most fundamental and farreaching constitutional questions of the day.
B.
The primary constitutional question that
confronts us is one of due process, as
guaranteed under Section 1, Article III of the
Constitution. Due process evades a precise

85

definition.48 The purpose of the guaranty is to

prevent arbitrary governmental encroachment
against the life, liberty and property of
individuals. The due process guaranty serves as
a protection against arbitrary regulation or
seizure. Even corporations and partnerships are
protected by the guaranty insofar as their
property is concerned.
The due process guaranty has traditionally been
interpreted as imposing two related but distinct
restrictions on government, "procedural due
process" and "substantive due process."
Procedural due process refers to the procedures
that the government must follow before it
deprives a person of life, liberty, or
property.49 Procedural due process concerns
itself with government action adhering to the
established process when it makes an intrusion
into the private sphere. Examples range from
the form of notice given to the level of formality
of a hearing.
If due process were confined solely to its
procedural aspects, there would arise absurd
situation of arbitrary government action,

provided the proper formalities are followed.

Substantive due process completes the
protection envisioned by the due process
clause. It inquires whether the government has
sufficient justification for depriving a person of
life, liberty, or property.50
The question of substantive due process,
moreso than most other fields of law, has
reflected dynamism in progressive legal thought
tied with the expanded acceptance of
fundamental freedoms. Police power,
traditionally awesome as it may be, is now
confronted with a more rigorous level of
analysis before it can be upheld. The vitality
though of constitutional due process has not
been predicated on the frequency with which it
has been utilized to achieve a liberal result for,
after all, the libertarian ends should sometimes
yield to the prerogatives of the State. Instead,
the due process clause has acquired potency
because of the sophisticated methodology that
has emerged to determine the proper metes
and bounds for its application.
C.

86

The general test of the validity of an ordinance

on substantive due process grounds is best
tested when assessed with the evolved footnote
4 test laid down by the U.S. Supreme Court in
U.S. v. Carolene Products.51 Footnote 4 of the
Carolene Products case acknowledged that the
judiciary would defer to the legislature unless
there is a discrimination against a "discrete and
insular" minority or infringement of a
"fundamental right."52 Consequently, two
standards of judicial review were established:
strict scrutiny for laws dealing with freedom of
the mind or restricting the political process, and
the rational basis standard of review for
economic legislation.
A third standard, denominated as heightened or
immediate scrutiny, was later adopted by the
U.S. Supreme Court for evaluating
classifications based on gender53 and
legitimacy.54 Immediate scrutiny was adopted
by the U.S. Supreme Court in Craig,55 after the
Court declined to do so in Reed v. Reed.56 While
the test may have first been articulated in equal
protection analysis, it has in the United States

since been applied in all substantive due

process cases as well.
We ourselves have often applied the rational
basis test mainly in analysis of equal protection
challenges.57 Using the rational basis
examination, laws or ordinances are upheld if
they rationally further a legitimate
governmental interest.58 Under intermediate
review, governmental interest is extensively
examined and the availability of less restrictive
measures is considered.59 Applying strict
scrutiny, the focus is on the presence of
compelling, rather than substantial,
governmental interest and on the absence of
less restrictive means for achieving that
interest.
In terms of judicial review of statutes or
ordinances, strict scrutiny refers to the standard
for determining the quality and the amount of
governmental interest brought to justify the
regulation of fundamental freedoms.60 Strict
scrutiny is used today to test the validity of laws
dealing with the regulation of speech, gender,
or race as well as other fundamental rights as

87

expansion from its earlier applications to equal

protection.61 The United States Supreme Court
has expanded the scope of strict scrutiny to
protect fundamental rights such as
suffrage,62 judicial access63 and interstate
travel.64
If we were to take the myopic view that an
Ordinance should be analyzed strictly as to its
effect only on the petitioners at bar, then it
would seem that the only restraint imposed by
the law which we are capacitated to act upon is
the injury to property sustained by the
petitioners, an injury that would warrant the
application of the most deferential standard
the rational basis test. Yet as earlier stated, we
recognize the capacity of the petitioners to
invoke as well the constitutional rights of their
patrons those persons who would be deprived
of availing short time access or wash-up rates
to the lodging establishments in question.
Viewed cynically, one might say that the
infringed rights of these customers were are
trivial since they seem shorn of political
consequence. Concededly, these are not the

sort of cherished rights that, when proscribed,

would impel the people to tear up their cedulas.
Still, the Bill of Rights does not shelter gravitas
alone. Indeed, it is those "trivial" yet
fundamental freedoms which the people
reflexively exercise any day without the
impairing awareness of their constitutional
consequence that accurately reflect the
degree of liberty enjoyed by the people. Liberty,
as integrally incorporated as a fundamental
right in the Constitution, is not a Ten
Commandments-style enumeration of what may
or what may not be done; but rather an
atmosphere of freedom where the people do
not feel labored under a Big Brother presence
as they interact with each other, their society
and nature, in a manner innately understood by
them as inherent, without doing harm or injury
to others.
D.
The rights at stake herein fall within the same
fundamental rights to liberty which we upheld in
City of Manila v. Hon. Laguio, Jr. We expounded
on that most primordial of rights, thus:

88

Liberty as guaranteed by the Constitution was

defined by Justice Malcolm to include "the right
to exist and the right to be free from arbitrary
restraint or servitude. The term cannot be
dwarfed into mere freedom from physical
restraint of the person of the citizen, but is
deemed to embrace the right of man to enjoy
the facilities with which he has been endowed
by his Creator, subject only to such restraint as
are necessary for the common welfare."[65] In
accordance with this case, the rights of the
citizen to be free to use his faculties in all lawful
ways; to live and work where he will; to earn
his livelihood by any lawful calling; and to
pursue any avocation are all deemed embraced
in the concept of liberty.[66]
The U.S. Supreme Court in the case of Roth v.
Board of Regents, sought to clarify the meaning
of "liberty." It said:
While the Court has not attempted to define
with exactness the liberty . . . guaranteed [by
the Fifth and Fourteenth Amendments], the
term denotes not merely freedom from bodily
restraint but also the right of the individual to

contract, to engage in any of the common

occupations of life, to acquire useful knowledge,
to marry, establish a home and bring up
children, to worship God according to the
dictates of his own conscience, and generally to
enjoy those privileges long recognized . . . as
essential to the orderly pursuit of happiness by
free men. In a Constitution for a free people,
there can be no doubt that the meaning of
"liberty" must be broad indeed.67[Citations
omitted]
It cannot be denied that the primary animus
behind the ordinance is the curtailment of
sexual behavior. The City asserts before this
Court that the subject establishments "have
gained notoriety as venue of prostitution,
adultery and fornications in Manila since they
provide the necessary atmosphere for
clandestine entry, presence and exit and thus
became the ideal haven for prostitutes and
thrill-seekers."68 Whether or not this depiction
of a mise-en-scene of vice is accurate, it cannot
be denied that legitimate sexual behavior
among willing married or consenting single
adults which is constitutionally protected69 will

89

be curtailed as well, as it was in the City of

Manila case. Our holding therein retains
significance for our purposes:
The concept of liberty compels respect for the
individual whose claim to privacy and
interference demands respect. As the case
of Morfe v. Mutuc, borrowing the words of
Laski, so very aptly stated:
Man is one among many, obstinately refusing
reduction to unity. His separateness, his
isolation, are indefeasible; indeed, they are so
fundamental that they are the basis on which
his civic obligations are built. He cannot
abandon the consequences of his isolation,
which are, broadly speaking, that his
experience is private, and the will built out of
that experience personal to himself. If he
surrenders his will to others, he surrenders
himself. If his will is set by the will of others, he
ceases to be a master of himself. I cannot
believe that a man no longer a master of
himself is in any real sense free.
Indeed, the right to privacy as a constitutional
right was recognized in Morfe, the invasion of

which should be justified by a compelling state

interest. Morfe accorded recognition to the right
to privacy independently of its identification
with liberty; in itself it is fully deserving of
constitutional protection. Governmental powers
should stop short of certain intrusions into the
personal life of the citizen.70
We cannot discount other legitimate activities
which the Ordinance would proscribe or impair.
There are very legitimate uses for a wash rate
or renting the room out for more than twice a
day. Entire families are known to choose pass
the time in a motel or hotel whilst the power is
momentarily out in their homes. In transit
passengers who wish to wash up and rest
between trips have a legitimate purpose for
abbreviated stays in motels or hotels. Indeed
any person or groups of persons in need of
comfortable private spaces for a span of a few
hours with purposes other than having sex or
using illegal drugs can legitimately look to
staying in a motel or hotel as a convenient
alternative.
E.

90

That the Ordinance prevents the lawful uses of

a wash rate depriving patrons of a product and
the petitioners of lucrative business ties in with
another constitutional requisite for the
legitimacy of the Ordinance as a police power
measure. It must appear that the interests of
the public generally, as distinguished from those
of a particular class, require an interference
with private rights and the means must be
reasonably necessary for the accomplishment of
the purpose and not unduly oppressive of
private rights.71 It must also be evident that no
other alternative for the accomplishment of the
purpose less intrusive of private rights can
work. More importantly, a reasonable relation
must exist between the purposes of the
measure and the means employed for its
accomplishment, for even under the guise of
protecting the public interest, personal rights
and those pertaining to private property will not
be permitted to be arbitrarily invaded.72
Lacking a concurrence of these requisites, the
police measure shall be struck down as an
arbitrary intrusion into private rights. As held in
Morfe v. Mutuc, the exercise of police power is

subject to judicial review when life, liberty or

property is affected.73 However, this is not in
any way meant to take it away from the
vastness of State police power whose exercise
enjoys the presumption of validity.74
Similar to the Comelec resolution requiring
newspapers to donate advertising space to
candidates, this Ordinance is a blunt and heavy
instrument.75 The Ordinance makes no
distinction between places frequented by
patrons engaged in illicit activities and patrons
engaged in legitimate actions. Thus it prevents
legitimate use of places where illicit activities
are rare or even unheard of. A plain reading of
section 3 of the Ordinance shows it makes no
classification of places of lodging, thus deems
them all susceptible to illicit patronage and
subject them without exception to the
unjustified prohibition.
The Court has professed its deep sentiment and
tenderness of the Ermita-Malate area, its
longtime home,76 and it is skeptical of those
who wish to depict our capital city the Pearl of
the Orient as a modern-day Sodom or

91

Gomorrah for the Third World set. Those still

steeped in Nick Joaquin-dreams of the grandeur
of Old Manila will have to accept that Manila like
all evolving big cities, will have its problems.
Urban decay is a fact of mega cities such as
Manila, and vice is a common problem
confronted by the modern metropolis wherever
in the world. The solution to such perceived
decay is not to prevent legitimate businesses
from offering a legitimate product. Rather, cities
revive themselves by offering incentives for new
businesses to sprout up thus attracting the
dynamism of individuals that would bring a new
grandeur to Manila.
The behavior which the Ordinance seeks to
curtail is in fact already prohibited and could in
fact be diminished simply by applying existing
laws. Less intrusive measures such as curbing
the proliferation of prostitutes and drug dealers
through active police work would be more
effective in easing the situation. So would the
strict enforcement of existing laws and
regulations penalizing prostitution and drug
use. These measures would have minimal
intrusion on the businesses of the petitioners

and other legitimate merchants. Further, it is

apparent that the Ordinance can easily be
circumvented by merely paying the whole day
rate without any hindrance to those engaged in
illicit activities. Moreover, drug dealers and
prostitutes can in fact collect "wash rates" from
their clientele by charging their customers a
portion of the rent for motel rooms and even
apartments.
IV.
We reiterate that individual rights may be
adversely affected only to the extent that may
fairly be required by the legitimate demands of
public interest or public welfare. The State is a
leviathan that must be restrained from
needlessly intruding into the lives of its citizens.
However well-intentioned the Ordinance may
be, it is in effect an arbitrary and whimsical
intrusion into the rights of the establishments
as well as their patrons. The Ordinance
needlessly restrains the operation of the
businesses of the petitioners as well as
restricting the rights of their patrons without
sufficient justification. The Ordinance rashly

92

equates wash rates and renting out a room

more than twice a day with immorality without
accommodating innocuous intentions.
The promotion of public welfare and a sense of
morality among citizens deserves the full
endorsement of the judiciary provided that such
measures do not trample rights this Court is
sworn to protect.77 The notion that the
promotion of public morality is a function of the
State is as old as Aristotle.78 The advancement
of moral relativism as a school of philosophy
does not de-legitimize the role of morality in
law, even if it may foster wider debate on which
particular behavior to penalize. It is conceivable
that a society with relatively little shared
morality among its citizens could be functional
so long as the pursuit of sharply variant moral
perspectives yields an adequate accommodation
of different interests.79
To be candid about it, the oft-quoted American
maxim that "you cannot legislate morality" is
ultimately illegitimate as a matter of law, since
as explained by Calabresi, that phrase is more
accurately interpreted as meaning that efforts

to legislate morality will fail if they are widely at

variance with public attitudes about right and
wrong.80 Our penal laws, for one, are founded
on age-old moral traditions, and as long as
there are widely accepted distinctions between
right and wrong, they will remain so oriented.
Yet the continuing progression of the human
story has seen not only the acceptance of the
right-wrong distinction, but also the advent of
fundamental liberties as the key to the
enjoyment of life to the fullest. Our democracy
is distinguished from non-free societies not with
any more extensive elaboration on our part of
what is moral and immoral, but from our
recognition that the individual liberty to make
the choices in our lives is innate, and protected
by the State. Independent and fair-minded
judges themselves are under a moral duty to
uphold the Constitution as the embodiment of
the rule of law, by reason of their expression of
consent to do so when they take the oath of
office, and because they are entrusted by the
people to uphold the law.81

93

Even as the implementation of moral norms

remains an indispensable complement to
governance, that prerogative is hardly absolute,
especially in the face of the norms of due
process of liberty. And while the tension may
often be left to the courts to relieve, it is
possible for the government to avoid the
constitutional conflict by employing more
judicious, less drastic means to promote
morality.
WHEREFORE, the Petition is GRANTED. The
Decision of the Court of Appeals is REVERSED,
and the Decision of the Regional Trial Court of
Manila, Branch 9, is REINSTATED. Ordinance
No. 7774 is hereby declared
UNCONSTITUTIONAL. No pronouncement as to
costs.
SO ORDERED.

94

EN BANC

[A.M. No. P-02-1651. August 4, 2003]

ALEJANDRO
ESTRADA, complainant, vs.
SOLEDAD S. ESCRITOR, respondent.
DECISION
PUNO, J.:
The case at bar takes us to a most difficult
area of constitutional law where man stands
accountable to an authority higher than the
state. To be held on balance are the states
interest and the respondents religious freedom.
In this highly sensitive area of law, the task of
balancing between authority and liberty is most
delicate because to the person invoking
religious freedom, the consequences of the case
are not only temporal. The task is not made
easier by the American origin of our religion
clauses and the wealth of U.S. jurisprudence on
these clauses for in the United States, there is
probably no more intensely controverted area of
constitutional interpretation than the religion
clauses.[1] The U.S. Supreme Court itself has
acknowledged that in this constitutional area,

there is considerable internal inconsistency in

the opinions of the Court.[2] As stated by a
professor of law, (i)t is by now notorious that
legal doctrines and judicial decisions in the area
of religious freedom are in serious disarray. In
perhaps no other area of constitutional law have
confusion and inconsistency achieved such
undisputed
sovereignty.[3]Nevertheless,
this
thicket is the only path to take to conquer the
mountain of a legal problem the case at bar
presents. Both the penetrating and panoramic
view this climb would provide will largely chart
the course of religious freedom in Philippine
jurisdiction. That the religious freedom question
arose in an administrative case involving only
one person does not alter the paramount
importance of the question for the constitution
commands
the
positive
protection
by
government of religious freedom -not only for a
minority, however small- not only for a
majority, however large- but for each of us.[4]
I. Facts
The facts of the case will determine whether
respondent will prevail in her plea of religious
freedom. It is necessary therefore to lay down

95

the facts in detail, careful not to omit the

essentials.
In a sworn letter-complaint dated July 27,
2000, complainant Alejandro Estrada wrote to
Judge Jose F. Caoibes, Jr., presiding judge of
Branch 253, Regional Trial Court of Las Pias
City, requesting for an investigation of rumors
that
respondent
Soledad
Escritor, court
interpreter in said court, is living with a man
not her husband. They allegedly have a child of
eighteen to twenty years old. Estrada is not
personally related either to Escritor or her
partner and is a resident not of Las Pias City but
of Bacoor, Cavite. Nevertheless, he filed the
charge against Escritor as he believes that she
is committing an immoral act that tarnishes the
image of the court, thus she should not be
allowed to remain employed therein as it might
appear that the court condones her act.[5]
Judge Caoibes referred the letter to Escritor
who stated that there is no truth as to the
veracity of the allegation and challenged
Estrada to appear in the open and prove his
allegation in the proper forum.[6] Judge Caoibes
set a preliminary conference on October 12,
2000. Escritor moved for the inhibition of Judge
Caoibes from hearing her case to avoid
suspicion and bias as she previously filed an
administrative complaint against him and said

case was still pending in the Office of the Court

Administrator (OCA). Escritors motion was
denied. The preliminary conference proceeded
with
both
Estrada
and
Escritor
in
attendance. Estrada confirmed that he filed the
letter-complaint for immorality against Escritor
because in his frequent visits to the Hall of
Justice of Las Pias City, he learned from
conversations therein that Escritor was living
with a man not her husband and that she had
an eighteen to twenty-year old son by this
man. This prompted him to write to Judge
Caoibes as he believed that employees of the
judiciary should be respectable and Escritors
live-in arrangement did not command respect.
[7]

Respondent Escritor testified that when she

entered the judiciary in 1999,[8] she was
already a widow, her husband having died in
1998.[9] She admitted that she has been living
with Luciano Quilapio, Jr. without the benefit of
marriage for twenty years and that they have a
son. But as a member of the religious sect
known as the Jehovahs Witnesses and the
Watch Tower and Bible Tract Society, their
conjugal arrangement is in conformity with their
religious beliefs. In fact, after ten years of living
together, she executed on July 28, 1991 a
Declaration of Pledging Faithfulness, viz:

96

DECLARATION OF PLEDGING FAITHFULNESS

I, Soledad S. Escritor, do hereby declare that I
have accepted Luciano D. Quilapio, Jr., as my
mate in marital relationship; that I have done
all within my ability to obtain legal recognition
of this relationship by the proper public
authorities and that it is because of having been
unable to do so that I therefore make this
public declaration pledging faithfulness in this
marital relationship.
I recognize this relationship as a binding tie
before Jehovah God and before all persons to
be held to and honored in full accord with the
principles of Gods Word. I will continue to seek
the means to obtain legal recognition of this
relationship by the civil authorities and if at any
future time a change in circumstances make
this possible, I promise to legalize this union.
Signed this 28th day of July 1991.[10]
Escritors partner, Quilapio, executed a similar
pledge on the same day.[11] Both pledges were
executed in Atimonan, Quezon and signed by
three witnesses. At the time Escritor executed
her pledge, her husband was still alive but living
with another woman. Quilapio was likewise
married at that time, but had been separated in

fact from his wife. During her testimony,

Escritor volunteered to present members of her
congregation to confirm the truthfulness of their
Declarations of Pledging Faithfulness, but Judge
Caoibes deemed it unnecessary and considered
her identification of her signature and the
signature of Quilapio sufficient authentication of
the documents.[12]
Judge Caoibes endorsed the complaint to
Executive Judge Manuel B. Fernandez, Jr., who,
in turn, endorsed the same to Court
Administrator Alfredo L. Benipayo. On July 17,
2001, the Court, upon recommendation of
Acting Court Administrator Zenaida N. Elepao,
directed Escritor to comment on the charge
against her. In her comment, Escritor reiterated
her religious congregations approval of her
conjugal arrangement with Quilapio, viz:
Herein respondent does not ignore alleged
accusation but she reiterates to state with
candor that there is no truth as to the veracity
of same allegation. Included herewith are
documents denominated as Declaration of
Pledging Faithfulness (Exhibit 1 and Exhibit 2)
duly signed by both respondent and her mate in
marital relationship with the witnesses
concurring their acceptance to the arrangement

97

as approved by the WATCH TOWER BIBLE and

TRACT SOCIETY, Philippine Branch.
Same marital arrangement is recognized as a
binding tie before JEHOVAH God and before all
persons to be held to and honored in full accord
with the principles of Gods Word.
xxx xxx xxx
Undersigned submits to the just, humane and
fair discretion of the Court with verification from
the WATCH TOWER BIBLE and TRACT SOCIETY,
Philippine Branch . . . to which undersigned
believes to be a high authority in relation to her
case.[13]
Deputy Court Administrator Christopher O.
Lock recommended that the case be referred to
Executive Judge Bonifacio Sanz Maceda, RTC
Branch 255, Las Pias City for investigation,
report and recommendation. In the course of
Judge Macedas investigation, Escritor again
testified that her congregation allows her
conjugal arrangement with Quilapio and it does
not consider it immoral. She offered to supply
the investigating judge some clippings which
explain the basis of her congregations belief
and
practice
regarding
her
conjugal
arrangement. Escritor
started
living
with

Quilapio twenty years ago when her husband

was still alive but living with another
woman. She met this woman who confirmed to
her that she was living with her (Escritors)
husband.[14]
Gregorio Salazar, a member of the Jehovahs
Witnesses since 1985, also testified. He had
been a presiding minister since 1991 and in
such capacity is aware of the rules and
regulations of their congregation. He explained
the import of and procedure for executing a
Declaration of Pledging Faithfulness, viz:
Q: Now, insofar as the pre-marital
relationship is concern (sic), can you
cite some particular rules and
regulations in your congregation?
A: Well, we of course, talk to the persons
with regards (sic) to all the parties
involved and then we request them to
execute a Public Declaration of Pledge
of faithfulness.
Q: What is that document?
A: Declaration of Pledge of faithfulness.
Q: What are the relations of the
document Declaration of Pledge of
faithfulness, who are suppose (sic) to
execute this document?

98

A: This must be signed, the document

must be signed by the elders of the
congregation; the couple, who is a
member (sic) of the congregation,
baptized member and true member of
the congregation.
Q: What standard rules and regulations
do you have in relation with this
document?
A: Actually, sir, the signing of that
document, ah, with the couple has
consent to marital relationship (sic)
gives the Christian Congregation view
that the couple has put themselves on
record before God and man that they
are faithful to each other. As if that
relation is validated by God.
Q: From your explanation, Minister, do
you consider it a pledge or a document
between the parties, who are
members of the congregation?
A: It is a pledge and a document. It is a
declaration, pledge of a (sic) pledge of
faithfulness.
Q: And what does pledge mean to you?
A: It means to me that they have
contracted, let us say, I am the one

who contracted with the opposite

member of my congregation, opposite
sex, and that this document will give
us the right to a marital relationship.
Q: So, in short, when you execute a
declaration of pledge of faithfulness, it
is a preparation for you to enter a
marriage?
A: Yes, Sir.
Q: But it does not necessarily mean that
the parties, cohabiting or living under
the same roof?
A: Well, the Pledge of faithfulness
document is (sic) already approved as
to the marital relationship.
Q: Do you mean to say, Minister, by
executing this document the
contracting parties have the right to
cohabit?
A: Can I sir, cite, what the Bible says, the
basis of that Pledge of Faithfulness as
we Christians follow. The basis is
herein stated in the Book of Matthew,
Chapter Five, Verse Twenty-two. So, in
that verse of the Bible, Jesus said that
everyone divorcing his wife, except on
account of fornication, makes her a

99

subject for adultery, and whoever

marries a divorced woman commits
adultery.[15]
Escritor and Quilapio transferred to Salazars
Congregation, the Almanza Congregation in Las
Pias, in May 2001. The declarations having been
executed in Atimonan, Quezon in 1991, Salazar
had no personal knowledge of the personal
circumstances of Escritor and Quilapio when
they executed their declarations. However,
when the two transferred to Almanza, Salazar
inquired about their status from the Atimonan
Congregation, gathered comments of the elders
therein, and requested a copy of their
declarations. The
Almanza
Congregation
assumed that the personal circumstances of the
couple had been considered by the Atimonan
Congregation when they executed their
declarations.
Escritor and Quilapios declarations are
recorded
in
the
Watch
Tower
Central
office. They were executed in the usual and
approved form prescribed by the Watch Tower
Bible and Tract Society which was lifted from
the article, Maintaining Marriage in Honor
Before God and Men, [16] in the March 15, 1977
issue
of
the
Watch
Tower
magazine,
entitled The Watchtower.

The declaration requires the approval of the

elders of the Jehovahs Witnesses congregation
and is binding within the congregation all over
the world except in countries where divorce is
allowed. The Jehovahs congregation requires
that at the time the declarations are executed,
the couple cannot secure the civil authorities
approval of the marital relationship because of
legal impediments. It is thus standard practice
of the congregation to check the couples marital
status before giving imprimatur to the conjugal
arrangement. The execution of the declaration
finds scriptural basis in Matthew 5:32 that when
the spouse commits adultery, the offended
spouse can remarry. The marital status of the
declarants and their respective spouses
commission of adultery are investigated before
the declarations are executed. Thus, in the case
of Escritor, it is presumed that the Atimonan
Congregation conducted an investigation on her
marital status before the declaration was
approved
and
the
declaration
is
valid
everywhere,
including
the
Almanza
Congregation. That Escritors and Quilapios
declarations were approved are shown by the
signatures of three witnesses, the elders in the
Atimonan Congregation. Salazar confirmed from
the congregations branch office that these three
witnesses
are
elders
in
the
Atimonan
Congregation. Although in 1998 Escritor was

100

widowed, thereby lifting the legal impediment

to marry on her part, her mate is still not
capacitated to remarry. Thus, their declarations
remain valid. Once all legal impediments for
both are lifted, the couple can already register
their marriage with the civil authorities and the
validity of the declarations ceases. The elders in
the congregations can then solemnize their
marriage as authorized by Philippine law. In
sum, therefore, insofar as the congregation is
concerned, there is nothing immoral about the
conjugal arrangement between Escritor and
Quilapio and they remain members in good
standing in the congregation.[17]
Salvador Reyes, a minister at the General de
Leon, Valenzuela City Congregation of the
Jehovahs Witnesses since 1974 and member of
the headquarters of the Watch Tower Bible and
Tract Society of the Philippines, Inc., presented
the original copy of the magazine article
entitled, Maintaining Marriage Before God and
Men to which Escritor and Minister Salazar
referred in their testimonies. The article
appeared in the March 15, 1977 issue of
theWatchtower magazine
published
in
Pennsylvania, U.S.A. Felix S. Fajardo, President
of the Watch Tower Bible and Tract Society of
the Philippines, Inc., authorized Reyes to
represent him in authenticating the article. The

article is distributed to the Jehovahs Witnesses

congregations which also distribute them to the
public.[18]
The parties submitted their respective
memoranda to the investigating judge. Both
stated that the issue for resolution is whether or
not the relationship between respondent
Escritor and Quilapio is valid and binding in
their own religious congregation, the Jehovahs
Witnesses. Complainant Estrada adds however,
that the effect of the relationship to Escritors
administrative
liability
must
likewise
be
determined. Estrada argued, through counsel,
that the Declaration of Pledging Faithfulness
recognizes the supremacy of the proper public
authorities such that she bound herself to seek
means to . . . legalize their union. Thus, even
assuming arguendo that the declaration is valid
and binding in her congregation, it is binding
only to her co-members in the congregation
and serves only the internal purpose of
displaying to the rest of the congregation that
she and her mate are a respectable and morally
upright couple. Their religious belief and
practice, however, cannot override the norms of
conduct required by law for government
employees. To rule otherwise would create a
dangerous precedent as those who cannot
legalize their live-in relationship can simply join

101

the Jehovahs Witnesses congregation and use

their religion as a defense against legal liability.
[19]

On the other hand, respondent Escritor

reiterates
the
validity
of
her
conjugal
arrangement with Quilapio based on the belief
and practice of her religion, the Jehovahs
Witnesses. She quoted portions of the magazine
article entitled, Maintaining Marriage Before
God and Men, in her memorandum signed by
herself, viz:
The Declaration of Pledging of Faithfulness
(Exhibits 1 and 2) executed by the respondent
and her mate greatly affect the administrative
liability of respondent. Jehovahs Witnesses
admit and recognize (sic) the supremacy of the
proper public authorities in the marriage
arrangement. However, it is helpful to
understand the relative nature of Caesars
authority regarding marriage. From country to
country, marriage and divorce legislation
presents a multitude of different angles and
aspects. Rather than becoming entangled in a
confusion of technicalities, the Christian, or the
one desiring to become a disciple of Gods Son,
can be guided by basic Scriptural principles that
hold true in all cases.

Gods view is of first concern. So, first of all the

person must consider whether that ones
present relationship, or the relationship into
which he or she contemplates entering, is one
that could meet with Gods approval, or whether
in itself, it violates the standards of Gods
Word. Take, for example, the situation where a
man lives with a wife but also spends time
living with another woman as a concubine. As
long as such a state of concubinage prevails,
the relationship of the second woman can never
be harmonized with Christian principles, nor
could any declaration on the part of the woman
or the man make it so. The only right course is
cessation of the relationship. Similarly with an
incestuous relationship with a member of ones
immediate family, or a homosexual relationship
or other such situation condemned by Gods
Word. It is not the lack of any legal validation
that makes such relationships unacceptable;
they are in themselves unscriptural and hence,
immoral. Hence, a person involved in such a
situation could not make any kind of Declaration
of Faithfulness, since it would have no merit in
Gods eyes.
If the relationship is such that it can have Gods
approval, then, a second principle to consider is
that one should do all one can to establish the
honorableness of ones marital union in the eyes

102

of all. (Heb. 13:4). If divorce is possible, then

such step should now be taken so that, having
obtained the divorce (on whatever legal
grounds may be available), the present union
can receive civil validation as a recognized
marriage.
Finally, if the marital relationship is not one out
of harmony with the principles of Gods Word,
and if one has done all that can reasonably be
done to have it recognized by civil authorities
and has been blocked in doing so, then, a
Declaration Pledging Faithfulness can be
signed. In some cases, as has been noted, the
extreme slowness of official action may make
accomplishing of legal steps a matter of many,
many years of effort. Or it may be that the
costs represent a crushingly heavy burden that
the individual would need years to be able to
meet. In such cases, the declaration pledging
faithfulness will provide the congregation with
the basis for viewing the existing union as
honorable while the individual continues
conscientiously to work out the legal aspects to
the best of his ability.
Keeping in mind the basic principles presented,
the respondent as a Minister of Jehovah God,
should be able to approach the matter in a
balanced way, neither underestimating nor

overestimating the validation offered by the

political state. She always gives primary
concern to Gods view of the union. Along with
this, every effort should be made to set a fine
example of faithfulness and devotion to ones
mate, thus, keeping the marriage honorable
among all. Such course will bring Gods blessing
and result to the honor and praise of the author
of marriage, Jehovah God. (1 Cor. 10:31-33)[20]
Respondent also brought to the attention of
the investigating judge that complainants
Memorandum came from Judge Caoibes
chambers[21] whom she claims was merely
using petitioner to malign her.
In
his
Report
and
Recommendation,
investigating judge Maceda found Escritors
factual allegations credible as they were
supported by testimonial and documentary
evidence. He also noted that (b)y strict Catholic
standards, the live-in relationship of respondent
with her mate should fall within the definition of
immoral conduct, to wit: that which is willful,
flagrant, or shameless, and which shows a
moral indifference to the opinion of the good
and respectable members of the community (7
C.J.S. 959) (Delos Reyes vs. Aznar, 179 SCRA,
at p. 666). He pointed out, however, that the
more relevant question is whether or not to

103

exact from respondent Escritor, a member of

Jehovahs Witnesses, the strict moral standards
of the Catholic faith in determining her
administrative responsibility in the case at bar.
[22]
The investigating judge acknowledged that
religious freedom is a fundamental right which
is entitled to the highest priority and the
amplest protection among human rights, for it
involves the relationship of man to his Creator
(at p. 270, EBRALINAG supra, citing Chief
Justice Enrique M. Fernandos separate opinion
in German vs. Barangan, 135 SCRA 514, 530531) and thereby recommended the dismissal
of the complaint against Escritor.[23]
After
considering
the
Report
and
Recommendation of Executive Judge Maceda,
the Office of the Court Administrator, through
Deputy Court Administrator (DCA) Lock and
with the approval of Court Administrator
Presbitero Velasco, concurred with the factual
findings of Judge Maceda but departed from his
recommendation to dismiss the complaint. DCA
Lock stressed that although Escritor had
become capacitated to marry by the time she
joined the judiciary as her husband had died a
year before, it is due to her relationship with a
married man, voluntarily carried on, that
respondent may still be subject to disciplinary
action.[24] Considering the ruling of the Court

inDicdican v. Fernan, et al.[25] that court

personnel have been enjoined to adhere to the
exacting standards of morality and decency in
their professional and private conduct in order
to preserve the good name and integrity of the
court of justice, DCA Lock found Escritors
defense of freedom of religion unavailing to
warrant
dismissal
of
the
charge
of
immorality. Accordingly, he recommended that
respondent be found guilty of immorality and
that she be penalized with suspension of six
months and one day without pay with a warning
that a repetition of a similar act will be dealt
with more severely in accordance with the Civil
Service Rules.[26]
II. Issue
Whether or not respondent should be found
guilty of the administrative charge of gross and
immoral conduct. To resolve this issue, it is
necessary to determine the sub-issue of
whether or not respondents right to religious
freedom should carve out an exception from the
prevailing jurisprudence on illicit relations for
which
government
employees
are
held
administratively liable.

104

III. Applicable Laws

Respondent is charged with committing
gross and immoral conduct under Book V, Title
I, Chapter VI, Sec. 46(b)(5) of the Revised
Administrative Code which provides, viz:
Sec. 46. Discipline: General Provisions. - (a) No
officer or employee in the Civil Service shall be
suspended or dismissed except for cause as
provided by law and after due process.
(b) The following shall be grounds for
disciplinary action:
xxx xxx xxx
(5) Disgraceful and immoral conduct; xxx.
Not represented by counsel, respondent, in
laymans terms, invokes the religious beliefs and
practices and moral standards of her religion,
the Jehovahs Witnesses, in asserting that her
conjugal arrangement with a man not her legal
husband does not constitute disgraceful and
immoral conduct for which she should be held
administratively liable. While not articulated by
respondent, she invokes religious freedom
under Article III, Section 5 of the Constitution,
which provides, viz:

Sec. 5. No law shall be made respecting an

establishment of religion, or prohibiting the free
exercise thereof. The free exercise and
enjoyment of religious profession and worship,
without discrimination or preference, shall
forever be allowed. No religious test shall be
required for the exercise of civil or political
rights.
IV. Old World Antecedents of the American
Religion Clauses
To understand the life that the religion
clauses have taken, it would be well to
understand not only its birth in the United
States, but its conception in the Old World. One
cannot understand, much less intelligently
criticize the approaches of the courts and the
political branches to religious freedom in the
recent past in the United States without a deep
appreciation of the roots of these controversies
in the ancient and medieval world and in the
American experience.[27] This fresh look at the
religion clauses is proper in deciding this case of
first impression.
In primitive times, all of life may be said to
have been religious. Every significant event in
the primitive mans life, from birth to death, was

105

marked by religious ceremonies. Tribal society

survived because religious sanctions effectively
elicited adherence to social customs. A person
who broke a custom violated a taboo which
would then bring upon him the wrathful
vengeance of a superhuman mysterious power.
[28]
Distinction between the religious and nonreligious would thus have been meaningless to
him. He sought protection from all kinds of evil
- whether a wild beast or tribe enemy and
lightning or wind - from the same person. The
head of the clan or the Old Man of the tribe or
the king protected his wards against both
human and superhuman enemies. In time, the
king not only interceded for his people with the
divine powers, but he himself was looked upon
as a divine being and his laws as divine
decrees.[29]
Time came, however, when the function of
acting as intermediary between human and
spiritual
powers
became
sufficiently
differentiated from the responsibility of leading
the tribe in war and policing it in peace as to
require the full-time services of a special priest
class. This saw the birth of the social and
communal problem of the competing claims of
the king and priest. Nevertheless, from the
beginning, the king and not the priest was
superior. The head of the tribe was the warrior,

and although he also performed priestly

functions, he carried out these functions
because he was the head and representative of
the community.[30]
There being no distinction between the
religious and the secular, the same authority
that promulgated laws regulating relations
between man and man promulgated laws
concerning
mans
obligations
to
the
supernatural. This authority was the king who
was the head of the state and the source of all
law and who only delegated performance of
rituals and sacrifice to the priests. The Code of
Hammurabi, king of Babylonia, imposed
penalties for homicide, larceny, perjury, and
other crimes; regulated the fees of surgeons
and the wages of masons and tailors and
prescribed rules for inheritance of property;
[31]
and also catalogued the gods and assigned
them their places in the divine hierarchy so as
to put Hammurabis own god to a position of
equality with existing gods. [32] In sum, the
relationship of religion to the state (king) in
pre-Hebreic times may be characterized as a
union of the two forces, with the state almost
universally the dominant partner.[33]
With the rise of the Hebrew state, a new
term had to be coined to describe the relation
of the Hebrew state with the Mosaic

106

religion: theocracy. The authority and power of

the state was ascribed to God. [34] The Mosaic
creed was not merely regarded as the religion
of the state, it was (at least until Saul) the state
itself. Among the Hebrews, patriarch, prophet,
and priest preceded king and prince. As man of
God, Moses decided when the people should
travel and when to pitch camp, when they
should make war and when peace. Saul and
David were made kings by the prophet Samuel,
disciple of Eli the priest. Like the Code of
Hammurabi, the Mosaic code combined civil
laws with religious mandates, but unlike the
Hammurabi Code, religious laws were not of
secondary
importance. On
the
contrary,
religious motivation was primary and allembracing: sacrifices were made and Israel was
prohibited from exacting usury, mistreating
aliens or using false weights, all because God
commanded these.
Moses of the Bible led not like the ancient
kings. The latter used religion as an engine to
advance the purposes of the state. Hammurabi
unified Mesopotamia and established Babylon as
its capital by elevating its city-god to a primary
position over the previous reigning gods.
[35]
Moses, on the other hand, capitalized on the
natural yearnings of the Hebrew slaves for
freedom and independence to further Gods

purposes. Liberation and Exodus were preludes

to Sinai and the receipt of the Divine Law. The
conquest of Canaan was a preparation for the
building of the temple and the full worship of
God.[36]
Upon the monotheism of Moses was the
theocracy of Israel founded. This monotheism,
more than anything else, charted not only the
future of religion in western civilization, but
equally, the future of the relationship between
religion and state in the west. This fact is
acknowledged by many writers, among whom is
Northcott who pointed out, viz:
Historically it was the Hebrew and
Christian conception of a single and
universal God that introduced a religious
exclusivism leading to compulsion and
persecution in the realm of
religion. Ancient religions were regarded
as confined to each separate people
believing in them, and the question of
change from one religious belief to another
did not arise. It was not until an exclusive
fellowship, that the questions of proselytism,
change of belief and liberty of religion arose.
[37]
(emphasis supplied)
The Hebrew theocracy existed in its pure form
from Moses to Samuel. In this period, religion

107

was not only superior to the state, but it was all

of the state. The Law of God as transmitted
through Moses and his successors was the
whole of government.
With Saul, however, the state rose to be the
rival and ultimately, the master, of religion. Saul
and David each received their kingdom from
Samuel the prophet and disciple of Eli the
priest, but soon the king dominated prophet
and priest. Saul disobeyed and even sought to
slay Samuel the prophet of God.[38] Under
Solomon, the subordination of religion to state
became complete; he used religion as an engine
to further the states purposes. He reformed the
order of priesthood established by Moses
because the high priest under that order
endorsed the claim of his rival to the throne.[39]
The subordination of religion to the state was
also true in pre-Christian Rome which engaged
in emperor-worship. When Augustus became
head of the Roman state and the priestly
hierarchy, he placed religion at a high esteem
as part of a political plan to establish the real
religion of pre-Christian Rome - the worship of
the head of the state. He set his great uncle
Julius Caesar among the gods, and commanded
that worship of Divine Julius should not be less
than worship of Apollo, Jupiter and other
gods. When Augustus died, he also joined the

ranks of the gods, as other emperors before

him.[40]
The onset of Christianity, however, posed a
difficulty to the emperor as the Christians
dogmatic exclusiveness prevented them from
paying homage to publicly accepted gods. In
the first two centuries after the death of Jesus,
Christians were subjected to persecution. By
the time of the emperor Trajan, Christians were
considered outlaws. Their crime was hatred of
the human race, placing them in the same
category as pirates and brigands and other
enemies of mankind who were subject to
summary punishments.[41]
In 284, Diocletian became emperor and
sought to reorganize the empire and make its
administration more efficient. But the closelyknit hierarchically controlled church presented a
serious problem, being a state within a state
over which he had no control. He had two
options: either to force it into submission and
break its power or enter into an alliance with it
and procure political control over it. He opted
for force and revived the persecution, destroyed
the churches, confiscated sacred books,
imprisoned the clergy and by torture forced
them to sacrifice.[42] But his efforts proved
futile.

108

The later emperor, Constantine, took the

second option of alliance. Constantine joined
with Galerius and Licinius, his two co-rulers of
the empire, in issuing an edict of toleration to
Christians on condition that nothing is done by
them contrary to discipline.[43] A year later,
after Galerius died, Constantine and Licius
jointly issued the epochal Edict of Milan (312
or 313), a document of monumental importance
in the history of religious liberty. It provided
that liberty of worship shall not be
denied to any, but that the mind and will of
every individual shall be free to manage divine
affairs according to his own choice. (emphasis
supplied) Thus, all restrictive statutes were
abrogated and it was enacted that every person
who cherishes the desire to observe the
Christian
religion
shall
freely
and
unconditionally proceed to observe the same
without let or hindrance. Furthermore, it was
provided that the same free and open power to
follow their own religion or worship is granted
also to others, in accordance with the
tranquillity of our times, in order that every
person may have free opportunity to
worship the object of his choice.(emphasis
supplied)[44]
Before long, not only did Christianity achieve
equal status, but acquired privilege, then

prestige,
and
eventually,
exclusive
power. Religion became an engine of state
policy as Constantine considered Christianity a
means of unifying his complex empire. Within
seven years after the Edict of Milan, under the
emperors command, great Christian edifices
were erected, the clergy were freed from public
burdens others had to bear, and private
heathen sacrifices were forbidden.
The favors granted to Christianity came
at a price: state interference in religious
affairs. Constantine and his successors called
and dismissed church councils, and enforced
unity of belief and practice. Until recently the
church had been the victim of persecution and
repression, but this time it welcomed the states
persecution and repression of the nonconformist
and the orthodox on the belief that it was better
for heretics to be purged of their error than to
die unsaved.
Both in theory as in practice, the partnership
between church and state was not easy. It was
a constant struggle of one claiming dominance
over the other. In time, however, after the
collapse and disintegration of the Roman
Empire, and while monarchical states were
gradually being consolidated among the
numerous feudal holdings, the church
stood as the one permanent, stable and

109

universal
power. Not
surprisingly,
therefore, it claimed not merely equality
but superiority over the secular states. This
claim, symbolized by Pope Leos crowning of
Charlemagne, became the churchs accepted
principle of its relationship to the state in the
Middle Ages. As viewed by the church, the
union of church and state was now a union of
the state in the church. The rulers of the states
did
not
concede
to
this
claim
of
supremacy. Thus, while Charlemagne received
his crown from the Pope, he himself crowned
his own son as successor to nullify the inference
of supremacy.[45] The whole history of
medieval Europe was a struggle for
supremacy between prince and Pope and
the
resulting
religious
wars
and
persecution
of
heretics
and
nonconformists. At about the second quarter
of the 13th century, the Inquisition was
established, the purpose of which was the
discovery and extermination of heresy. Accused
heretics were tortured with the approval of the
church in the bull Ad extirpanda issued by Pope
Innocent IV in 1252.
The corruption and abuses of the Catholic
Church spurred the Reformation aimed at
reforming the Catholic Church and resulting in
the establishment of Protestant churches. While

Protestants are accustomed to ascribe to the

Reformation the rise of religious liberty and its
acceptance as the principle governing the
relations between a democratic state and its
citizens, history shows that it is more accurate
to say that the same causes that gave rise to
the Protestant revolution also resulted in the
widespread acceptance of the principle of
religious liberty, and ultimately of the principle
of separation of church and state.[46] Pleas for
tolerance and freedom of conscience can
without doubt be found in the writings of
leaders of the Reformation. But just as
Protestants living in the countries of papists
pleaded for toleration of religion, so did the
papists that lived where Protestants were
dominant.[47] Papist
and
Protestant
governments alike accepted the idea of
cooperation between church and state and
regarded as essential to national unity the
uniformity
of
at
least
the
outward
[48]
manifestations of religion.
Certainly, Luther,
leader of the Reformation, stated that neither
pope, nor bishop, nor any man whatever has
the right of making one syllable binding on a
Christian man, unless it be done with his own
consent.[49] But when the tables had turned and
he was no longer the hunted heretic, he
likewise stated when he made an alliance with
the secular powers that (h)eretics are not to be

110

disputed with, but to be condemned unheard,

and whilst they perish by fire, the faithful ought
to pursue the evil to its source, and bathe their
hands in the blood of the Catholic bishops, and
of the Pope, who is a devil in disguise. [50] To
Luther, unity among the peoples in the interests
of
the
state
was
an
important
consideration. Other
personalities
in
the
Reformation such as Melanchton, Zwingli and
Calvin strongly espoused theocracy or the use
of the state as an engine to further religion. In
establishing theocracy in Geneva, Calvin made
absence from the sermon a crime, he included
criticism of the clergy in the crime of blasphemy
punishable by death, and to eliminate heresy,
he cooperated in the Inquisition.[51]
There were, however, those who truly
advocated religious liberty. Erasmus, who
belonged to the Renaissance than the
Reformation, wrote that (t)he terrible papal
edict, the more terrible imperial edict, the
imprisonments,
the
confiscations,
the
recantations, the fagots and burnings, all these
things I can see accomplish nothing except to
make the evil more widespread.[52] The
minority or dissident sects also ardently
advocated religious liberty. The Anabaptists,
persecuted and despised, along with the
Socinians (Unitarians) and the Friends of the

Quakers founded by George Fox in the

17th century, endorsed the supremacy and
freedom of the individual conscience. They
regarded religion as outside the realm of
political governments.[53] The English Baptists
proclaimed that the magistrate is not to meddle
with religion or matters of conscience, nor
compel men to this or that form of religion.[54]
Thus, out of the Reformation, three
rationalizations of church-state relations may be
distinguished: the Erastian (after the German
doctor
Erastus),
the theocratic,
and
the separatist. The
first
assumed
state
superiority in ecclesiastical affairs and the use
of religion as an engine of state policy as
demonstrated by Luthers belief that civic
cohesion could not exist without religious unity
so that coercion to achieve religious unity was
justified. The
second
was
founded
on
ecclesiastical supremacy and the use of state
machinery to further religious interests as
promoted by Calvin. The third, which was yet
to
achieve
ultimate
and
complete
expression in the New World, was
discernibly in its incipient form in the
arguments of some dissident minorities
that the magistrate should not intermeddle
in religious affairs.[55] After the Reformation,
Erastianism pervaded all Europe except for

111

Calvins
theocratic
Geneva. In
England,
perhaps more than in any other country,
Erastianism was at its height. To illustrate, a
statute was enacted by Parliament in 1678,
which, to encourage woolen trade, imposed on
all clergymen the duty of seeing to it that no
person was buried in a shroud made of any
substance other than wool.[56] Under Elizabeth,
supremacy of the crown over the church was
complete: ecclesiastical offices were regulated
by her proclamations, recusants were fined and
imprisoned, Jesuits and proselytizing priests
were put to death for high treason, the thirtynine Articles of the Church of England were
adopted and English Protestantism attained its
present doctrinal status.[57] Elizabeth was to be
recognized as the only Supreme Governor of
this realm . . . as well in all spiritual or
ecclesiastical things or causes as temporal. She
and her successors were vested, in their
dominions, with all manner of jurisdictions,
privileges, and preeminences, in any wise
touching or concerning any spiritual or
ecclesiastical jurisdiction.[58] Later, however,
Cromwell
established
theconstitution
in
1647 which
granted full
liberty
to
all
Protestant sects, but denied toleration to
Catholics.[59] In 1689, William III issued
the Act of Toleration which established a de
facto toleration for all except Catholics.The

Catholics achieved religious liberty in the

19th century when the Roman Catholic
Relief Act of 1829 was adopted. The Jews
followed suit in 1858 when they were finally
permitted to sit in Parliament.[60]
When
the
representatives
of
the
American states met in Philadelphia in
1787 to draft the constitutional foundation
of the new republic, the theocratic state
which had flourished intermittently in Israel,
Judea, the Holy Roman Empire and Geneva was
completely gone. The prevailing church-state
relationship
in
Europe
was
Erastianism
embodied in the system of jurisdictionalism
whereby one faith was favored as the official
state-supported religion, but other faiths were
permitted to exist with freedom in various
degrees. No nation had yet adopted as the
basis of its church-state relations the
principle of the mutual independence of
religion
and
government
and
the
concomitant principle that neither might
be used as an engine to further the policies
of the other, although the principle was in
its seminal form in the arguments of some
dissident
minorities
and
intellectual
leaders of the Renaissance. The religious
wars of 16th and 17th century Europe were
a thing of the past by the time America

112

declared its independence from the Old

World, but their memory was still vivid in
the minds of the Constitutional Fathers as
expressed by the United States Supreme
Court, viz:
The centuries immediately before and
contemporaneous with the colonization of
America had been filled with turmoil, civil strife,
and persecution generated in large part by
established sects determined to maintain their
absolute political and religious supremacy.With
the power of government supporting them, at
various times and places, Catholics had
persecuted Protestants, Protestants had
persecuted Catholics, Protestant sects had
persecuted other protestant sects, Catholics of
one shade of belief had persecuted Catholics of
another shade of belief, and all of these had
from time to time persecuted Jews. In efforts to
force loyalty to whatever religious group
happened to be on top and in league with the
government of a particular time and place, men
and women had been fined, cast in jail, cruelly
tortured, and killed. Among the offenses for
which these punishments had been inflicted
were such things as speaking disrespectfully of
the views of ministers of governmentestablished churches, non-attendance at those
churches, expressions of non-belief in their

doctrines, and failure to pay taxes and tithes to

support them.[61]
In 1784, James Madison captured in this
statement the entire history of church-state
relations in Europe up to the time the United
States Constitution was adopted, viz:
Torrents of blood have been spilt in the world in
vain attempts of the secular arm to extinguish
religious discord, by proscribing all differences
in religious opinions.[62]
In sum, this history shows two salient
features: First, with minor exceptions, the
history of church-state relationships was
characterized
by
persecution,
oppression,
hatred, bloodshed, and war, all in the name of
the God of Love and of the Prince of
Peace. Second, likewise with minor exceptions,
this history witnessed the unscrupulous
use of religion by secular powers to
promote secular purposes and policies,
and the willing acceptance of that role by
the vanguards of religion in exchange for
the favors and mundane benefits conferred
by ambitious princes and emperors in
exchange
for
religions
invaluable
service. This was the context in which the
unique experiment of the principle of

113

religious freedom and separation of church

and state saw its birth in American
constitutional democracy and in human
history.[63]
V. Factors Contributing to the Adoption
of the American Religion Clauses
Settlers fleeing from religious persecution in
Europe,
primarily
in
Anglican-dominated
England, established many of the American
colonies. British
thought
pervaded
these
colonies as the immigrants brought with them
their religious and political ideas from England
and English books and pamphlets largely
provided their cultural fare.[64] But although
these settlers escaped from Europe to be freed
from bondage of laws which compelled them to
support and attend government favored
churches, some of these settlers themselves
transplanted into American soil the oppressive
practices they escaped from. The charters
granted by the English Crown to the individuals
and companies designated to make the laws
which would control the destinies of the
colonials authorized them to erect religious
establishments, which all, whether believers or
not, were required to support or attend.[65] At
one time, six of the colonies established a state

religion. Other colonies, however, such as

Rhode Island and Delaware tolerated a high
degree of religious diversity. Still others, which
originally tolerated only a single religion,
eventually extended support to several different
faiths.[66]
This was the state of the American
colonies when the unique American
experiment of separation of church and
state came about. The birth of the experiment
cannot be attributed to a single cause or
event.Rather, a number of interdependent
practical and ideological factors contributed in
bringing it forth. Among these were the English
Act of Toleration of 1689, the multiplicity of
sects, the lack of church affiliation on the part
of most Americans, the rise of commercial
intercourse, the exigencies of the Revolutionary
War, the Williams-Penn tradition and the
success of their experiments, the writings of
Locke, the social contract theory, the Great
Awakening, and the influence of European
rationalism and deism.[67] Each of these factors
shall be briefly discussed.
First, the practical factors. Englands
policy of opening the gates of the American
colonies to different faiths resulted in the
multiplicity of sects in the colonies. With an
Erastian justification, English lords chose to

114

forego protecting what was considered to be the

true and eternal church of a particular time in
order to encourage trade and commerce. The
colonies were large financial investments which
would be profitable only if people would settle
there. It would be difficult to engage in trade
with persons one seeks to destroy for religious
belief, thus tolerance was a necessity. This
tended to distract the colonies from their
preoccupations over their religion and its
exclusiveness, encouraging them to think less
of the Church and more of the State and of
commerce.[68] The diversity brought about by
the colonies open gates encouraged religious
freedom and non-establishment in several
ways. First, as there were too many dissenting
sects to abolish, there was no alternative but to
learn to live together. Secondly, because of the
daily exposure to different religions, the
passionate conviction in the exclusive rightness
of ones religion, which impels persecution for
the sake of ones religion, waned. Finally,
because of the great diversity of the sects,
religious uniformity was not possible, and
without such uniformity, establishment could
not survive.[69]
But while there was a multiplicity of
denomination, paradoxically, there was a
scarcity of adherents. Only about four percent

of the entire population of the country had a

church affiliation at the time the republic was
founded.[70]This might be attributed to the
drifting to the American colonies of the
skepticism
that
characterized
European
[71]
Enlightenment.
Economic
considerations
might have also been a factor. The individualism
of the American colonist, manifested in the
multiplicity of sects, also resulted in much
unaffiliated religion which treated religion as a
personal
non-institutional
matter. The
prevalence of lack of church affiliation
contributed
to
religious
liberty
and
disestablishment as persons who were not
connected with any church were not likely to
persecute others for similar independence nor
accede to compulsory taxation to support a
church to which they did not belong.[72]
However, for those who were affiliated to
churches, the colonial policy regarding their
worship generally followed the tenor of the
English Act of Toleration of 1689. In England,
this Act conferred on Protestant dissenters the
right to hold public services subject to
registration of their ministers and places of
worship.[73] Although the toleration accorded to
Protestant dissenters who qualified under its
terms was only a modest advance in religious
freedom, it nevertheless was of some influence

115

to the American experiment.[74] Even then, for

practical considerations, concessions had to be
made to other dissenting churches to ensure
their cooperation in the War of Independence
which thus had a unifying effect on the colonies.
Next, the ideological factors. First, the
Great Awakening in mid-18th century, an
evangelical religious revival originating in New
England, caused a break with formal church
religion and a resistance to coercion by
established
churches. This
movement
emphasized an emotional, personal religion that
appealed directly to the individual, putting
emphasis on the rights and duties of the
individual conscience and its answerability
exclusively to God. Thus, although they had no
quarrel with orthodox Christian theology as in
fact they were fundamentalists, this group
became staunch advocates of separation of
church and state.[75]
Then there was the Williams-Penn
tradition. Roger Williams was the founder of
the colony of Rhode Island where he
established a community of Baptists, Quakers
and other nonconformists. In this colony,
religious freedom was not based on practical
considerations but on the concept of mutual
independence of religion and government. In
1663, Rhode Island obtained a charter from the

British crown which declared that settlers have

it much on their heart to hold forth a livelie
experiment that a most flourishing civil state
may best be maintained . . . with full libertie in
religious
concernments.[76] In
Williams
pamphlet, The Bloudy Tenent of Persecution for
cause of Conscience, discussed in a Conference
between Truth and Peace,[77] he articulated the
philosophical basis for his argument of religious
liberty. To
him,
religious
freedom
and
separation of church and state did not
constitute two but only one principle. Religious
persecution is wrong because it confounds the
Civil and Religious and because States . . . are
proved essentially Civil. The power of true
discerning the true fear of God is not one of the
powers that the people have transferred to Civil
Authority.[78] Williams Bloudy
Tenet is
considered an epochal milestone in the history
of religious freedom and the separation of
church and state.[79]
William Penn, proprietor of the land that
became Pennsylvania, was also an ardent
advocate of toleration, having been imprisoned
for his religious convictions as a member of the
despised Quakers. He opposed coercion in
matters of conscience because imposition,
restraint and persecution for conscience sake,
highly invade the Divine prerogative. Aside from

116

his idealism, proprietary interests made

toleration
in
Pennsylvania
necessary. He
attracted large numbers of settlers by promising
religious toleration, thus bringing in immigrants
both from the Continent and Britain. At the end
of the colonial period, Pennsylvania had the
greatest variety of religious groups. Penn was
responsible in large part for the Concessions
and agreements of the Proprietors, Freeholders,
and inhabitants of West Jersey, in America, a
monumental document in the history of civil
liberty which provided among others, for liberty
of conscience.[80] The Baptist followers of
Williams and the Quakers who came after Penn
continued the tradition started by the leaders of
their denominations. Aside from the Baptists
and the Quakers, the Presbyterians likewise
greatly contributed to the evolution of
separation and freedom.[81] The Constitutional
fathers who convened in Philadelphia in 1787,
and Congress and the states that adopted the
First Amendment in 1791 were very familiar
with and strongly influenced by the successful
examples of Rhode Island and Pennsylvania.[82]
Undeniably, John Locke and the social
contract theory also contributed to the
American experiment. The social contract
theory popularized by Locke was so widely
accepted as to be deemed self-evident truth in

Americas Declaration of Independence. With the

doctrine of natural rights and equality set forth
in the Declaration of Independence, there was
no room for religious discrimination. It was
difficult to justify inequality in religious
treatment by a new nation that severed its
political bonds with the English crown which
violated the self-evident truth that all men are
created equal.[83]
The social contract theory was applied by
many religious groups in arguing against
establishment, putting emphasis on religion as
a natural right that is entirely personal and not
within the scope of the powers of a political
body. That Locke and the social contract theory
were influential in the development of religious
freedom and separation is evident from the
memorial presented by the Baptists to the
Continental Congress in 1774, viz:
Men unite in society, according to the great Mr.
Locke, with an intention in every one the better
to preserve himself, his liberty and
property. The power of the society, or
Legislature constituted by them, can never be
supposed to extend any further than the
common good, but is obliged to secure every
ones property. To give laws, to receive
obedience, to compel with the sword, belong to

117

none but the civil magistrate; and on this

ground we affirm that the magistrates power
extends not to establishing any articles of faith
or forms of worship, by force of laws; for laws
are of no force without penalties. The care of
souls cannot belong to the civil magistrate,
because his power consists only in
outward force; but pure and saving
religion consists in the inward persuasion
of the mind, without which nothing can be
acceptable to God.[84] (emphasis supplied)
The idea that religion was outside the
jurisdiction of civil government was acceptable
to both the religionist and rationalist. To the
religionist, God or Christ did not desire that
government have that jurisdiction (render unto
Caesar that which is Caesars; my kingdom is
not of this world) and to the rationalist, the
power to act in the realm of religion was not
one of the powers conferred on government as
part of the social contract.[85]
Not only the social contract theory drifted to
the colonies from Europe. Many of the leaders
of
the
Revolutionary
and
postrevolutionary period were also influenced
by European deism and rationalism, [86] in
general, and some were apathetic if not
antagonistic to formal religious worship

and
institutionalized
religion. Jefferson,
Paine, John Adams, Washington, Franklin,
Madison, among others were reckoned to be
among the Unitarians or Deists. Unitarianism
and Deism contributed to the emphasis on
secular interests and the relegation of historic
theology to the background.[87] For these men
of the enlightenment, religion should be allowed
to rise and fall on its own, and the state must
be protected from the clutches of the church
whose entanglements has caused intolerance
and corruption as witnessed throughout history.
[88]
Not only the leaders but also the masses
embraced rationalism at the end of the
eighteenth
century,
accounting
for
the
[89]
popularity of Paines Age of Reason.
Finally, the events leading to religious
freedom and separation in Virginia contributed
significantly to the American experiment of the
First Amendment. Virginia was the first state
in the history of the world to proclaim the
decree of absolute divorce between church
and state.[90] Many factors contributed to this,
among which were that half to two-thirds of the
population were organized dissenting sects, the
Great Awakening had won many converts, the
established Anglican Church of Virginia found
themselves on the losing side of the Revolution
and had alienated many influential laymen with

118

its identification with the Crowns tyranny, and

above all, present in Virginia was a group of
political leaders who were devoted to liberty
generally,[91] who had accepted the social
contract as self-evident, and who had been
greatly
influenced
by
Deism
and
Unitarianism. Among these leaders were
Washington, Patrick Henry, George Mason,
James Madison and above the rest,
Thomas Jefferson.
The first major step towards separation in
Virginia was the adoption of the following
provision in the Bill of Rights of the states first
constitution:
That religion, or the duty which we owe to our
Creator, and the manner of discharging it, can
be directed only by reason and conviction,
not by force or violence; and therefore, all
men are equally entitled to the free
exercise of religion according to the
dictates of conscience; and that it is the
mutual duty of all to practice Christian
forbearance, love, and charity towards each
other.[92] (emphasis supplied)
The adoption of the Bill of Rights signified the
beginning of the end of establishment. Baptists,
Presbyterians and Lutherans flooded the first
legislative assembly with petitions for abolition

of establishment. While the majority of the

population were dissenters, a majority of the
legislature were churchmen. The legislature
compromised and enacted a bill in 1776
abolishing the more oppressive features of
establishment and granting exemptions to the
dissenters, but not guaranteeing separation. It
repealed the laws punishing heresy and
absence from worship and requiring the
dissenters to contribute to the support of the
establishment.[93] But the dissenters were not
satisfied; they not only wanted abolition of
support for the establishment, they opposed the
compulsory support of their own religion as
others. As members of the established church
would not allow that only they would pay taxes
while the rest did not, the legislature enacted in
1779
a
bill
making
permanent
the
establishments loss of its exclusive status and
its power to tax its members; but those who
voted for it did so in the hope that a general
assessment bill would be passed. Without the
latter,
the
establishment
would
not
survive. Thus, a bill was introduced in 1779
requiring every person to enroll his name with
the county clerk and indicate which society for
the purpose of Religious Worship he wished to
support. On the basis of this list, collections
were to be made by the sheriff and turned over
to the clergymen and teachers designated by

119

the religious congregation. The assessment of

any person who failed to enroll in any society
was to be divided proportionately among the
societies.[94] The bill evoked strong opposition.
In
1784,
another
bill,
entitled
Bill
Establishing a Provision for Teachers of the
Christian Religion was introduced requiring all
persons to pay a moderate tax or contribution
annually for the support of the Christian
religion, or of some Christian church,
denomination or communion of Christians, or
for some form of Christian worship.[95] This
likewise aroused the same opposition to the
1779 bill. The most telling blow against the
1784 bill was the monumental Memorial and
Remonstrance against Religious Assessments
written by Madison and widely distributed
before the reconvening of legislature in the fall
of 1785.[96] It stressed natural rights, the
governments lack of jurisdiction over the
domain of religion, and the social contract
as the ideological basis of separation while
also citing practical considerations such as loss
of population through migration. He wrote, viz:
Because we hold it for a fundamental and
undeniable truth, that religion, or the duty
which we owe to our creator, and the
manner of discharging it, can be directed only

by reason and conviction, not by force or

violence. The religion, then, of every man,
must be left to the conviction and
conscience of every man; and it is the right
of every man to exercise it as these may
dictate. This right is, in its nature, an
unalienable right. It is unalienable, because
the opinions of men, depending only on the
evidence contemplated in their own minds,
cannot follow the dictates of other men; it is
unalienable, also, because what is here a right
towards men, is a duty towards the creator. It
is the duty of every man to render the
creator such homage, and such only as he
believes to be acceptable to him; this duty
is precedent, both in order of time and
degree of obligation, to the claims of civil
society. Before any man can be considered
as a member of civil society, he must be
considered as a subject of the governor of
the universe; and if a member of civil society,
who enters into any subordinate association,
must always do it with a reservation of his duty
to the general authority, much more must every
man who becomes a member of any particular
civil society do it with the saving his allegiance
to the universal sovereign.[97] (emphases
supplied)

120

Madison articulated in the Memorial the widely

held beliefs in 1785 as indicated by the great
number of signatures appended to the
Memorial. The assessment bill was speedily
defeated.

men shall be free to profess, and by

argument to maintain, their opinions in
matters of religion, and that the same shall in
no wise diminish, enlarge or affect their civil
capacities.[98] (emphases supplied)

Taking advantage of the situation, Madison

called up a much earlier 1779 bill of Jefferson
which had not been voted on, the Bill for
Establishing Religious Freedom, and it was
finally passed in January 1786. It provided, viz:

This statute forbade any kind of taxation in

support of religion and effectually ended any
thought of a general or particular establishment
in Virginia.[99] But the passage of this law was
obtained not only because of the influence of
the great leaders in Virginia but also because of
substantial popular support coming mainly from
the two great dissenting sects, namely the
Presbyterians and the Baptists. The former
were never established in Virginia and an
underprivileged minority of the population. This
made them anxious to pull down the existing
state church as they realized that it was
impossible for them to be elevated to that
privileged
position. Apart
from
these
expediential considerations, however, many of
the Presbyterians were sincere advocates of
separation[100] grounded on rational, secular
arguments and to the language of natural
religion.[101] Influenced by Roger Williams, the
Baptists, on the other hand, assumed that
religion was essentially a matter of concern of
the individual and his God, i.e., subjective,
spiritual and supernatural, having no relation

Well aware that Almighty God hath created

the mind free; that all attempts to influence it
by temporal punishments or burdens, or by civil
incapacitations, tend not only to beget habits of
hypocrisy and meanness, and are a departure
from the plan of the Holy Author of our religion,
who being Lord both of body and mind, yet
chose not to propagate it by coercions on either,
as was in his Almighty power to do;
xxx xxx xxx
Be it therefore enacted by the General
Assembly. That no man shall be compelled to
frequent or support any religious worship, place
or ministry whatsoever, nor shall be enforced,
restrained, molested or burdened in his body or
goods, nor shall otherwise suffer on account of
his religious opinions or beliefs, but that all

121

with the social order.[102] To them, the Holy

Ghost was sufficient to maintain and direct the
Church without governmental assistance and
state-supported religion was contrary ti the
spirit of the Gospel.[103] Thus, separation was
necessary.[104] Jeffersons
religious
freedom
statute was a milestonein the history of
religious freedom. The United States Supreme
Court has not just once acknowledged that the
provisions of the First Amendment of the
U.S. Constitution had the same objectives
and intended to afford the same protection
against government interference with
religious liberty as the Virginia Statute of
Religious Liberty.
Even in the absence of the religion clauses,
the principle that government had no power to
legislate in the area of religion by restricting its
free exercise or establishing it was implicit in
the Constitution of 1787. This could be deduced
from the prohibition of any religious test for
federal office in Article VI of the Constitution
and the assumed lack of power of Congress to
act on any subject not expressly mentioned in
the Constitution.[105] However, omission of an
express guaranty of religious freedom and other
natural rights nearly prevented the ratification
of
the
Constitution.[106] In
the
ratifying
conventions of almost every state, some

objection was expressed to the absence of a

restriction on the Federal Government as
regards legislation on religion.[107] Thus, in
1791, this restriction was made explicit with the
adoption of the religion clauses in the First
Amendment as they are worded to this day,
with the first part usually referred to as the
Establishment Clause and the second part, the
Free Exercise Clause, viz:
Congress shall make no law respecting an
establishment of religion or prohibiting the free
exercise thereof.
VI. Religion Clauses in the United States:
Concept, Jurisprudence, Standards
With the widespread agreement regarding
the value of the First Amendment religion
clauses comes an equally broad disagreement
as to what these clauses specifically require,
permit and forbid. No agreement has been
reached by those who have studied the religion
clauses as regards its exact meaning and the
paucity of records in Congress renders it
difficult
to
ascertain
its
meaning.
[108]
Consequently, the jurisprudence in this
area
is
volatile
and
fraught
with

122

inconsistencies whether within a Court

decision or across decisions.

between purely secular government actions and

religion clause values.[112]

One source of difficulty is the difference in

the context in which the First Amendment was
adopted and in which it is applied today. In the
1780s, religion played a primary role in social
life - i.e., family responsibilities, education,
health care, poor relief, and other aspects of
social life with significant moral dimension while government played a supportive and
indirect role by maintaining conditions in which
these activities may be carried out by religious
or religiously-motivated associations. Today,
government plays this primary role and religion
plays the supportive role.[109] Government runs
even family planning, sex education, adoption
and foster care programs.[110]Stated otherwise
and with some exaggeration, (w)hereas two
centuries ago, in matters of social life which
have a significant moral dimension, government
was the handmaid of religion, today religion, in
its social responsibilities, as contrasted with
personal faith and collective worship, is the
handmaid of government.[111] With government
regulation of individual conduct having become
more pervasive, inevitably some of those
regulations would reach conduct that for some
individuals
are
religious. As
a
result,
increasingly, there may be inadvertent collisions

Parallel to this expansion of government has

been the expansion of religious organizations in
population, physical institutions, types of
activities undertaken, and sheer variety of
denominations, sects and cults. Churches run
day-care centers, retirement homes, hospitals,
schools at all levels, research centers,
settlement
houses,
halfway
houses
for
prisoners, sports facilities, theme parks,
publishing
houses
and
mass
media
programs. In
these
activities,
religious
organizations complement and compete with
commercial enterprises, thus blurring the line
between many types of activities undertaken by
religious groups and secular activities. Churches
have also concerned themselves with social and
political issues as a necessary outgrowth of
religious faith as witnessed in pastoral letters on
war and peace, economic justice, and human
life, or in ringing affirmations for racial equality
on religious foundations. Inevitably, these
developments have brought about substantial
entanglement of religion and government.
Likewise, the growth in population density,
mobility and diversity has significantly changed
the
environment
in
which
religious
organizations and activities exist and the laws

123

affecting them are made. It is no longer easy

for individuals to live solely among their own
kind or to shelter their children from exposure
to competing values. The result is disagreement
over what laws should require, permit or
prohibit;[113] and agreement that if the rights of
believers as well as non-believers are all to be
respected and given their just due, a rigid,
wooden interpretation of the religion clauses
that is blind to societal and political realities
must be avoided.[114]
Religion
cases
arise
from
different
circumstances. The more obvious ones arise
from a government action which purposely aids
or inhibits religion. These cases are easier to
resolve as, in general, these actions are plainly
unconstitutional. Still, this kind of cases poses
difficulty in ascertaining proof of intent to aid or
inhibit religion.[115] The more difficult religion
clause cases involve government action with a
secular purpose and general applicability which
incidentally or inadvertently aids or burdens
religious exercise. In Free Exercise Clause
cases, these government actions are referred to
as those with burdensome effect on religious
exercise even if the government action is not
religiously motivated.[116] Ideally, the legislature
would recognize the religions and their practices
and would consider them, when practical, in

enacting laws of general application. But when

the legislature fails to do so, religions that are
threatened and burdened turn to the courts for
protection.[117] Most of these free exercise
claims brought to the Court are for exemption,
not invalidation of the facially neutral law that
has a burdensome effect.[118]
With the change in political and social
context and the increasing inadvertent collisions
between law and religious exercise, the
definition of religion for purposes of interpreting
the religion clauses has also been modified to
suit current realities. Defining religion is a
difficult task for even theologians, philosophers
and moralists cannot agree on a comprehensive
definition. Nevertheless, courts must define
religion for constitutional and other legal
purposes.[119] It was in the 1890 case of Davis
v. Beason[120] that the United States Supreme
Court first
had
occasion
to
define
religion, viz:
The term religion has reference to ones
views of his relations to his Creator, and to
the obligations they impose of reverence
for his being and character, and of
obedience to his will. It is often confounded
with the cultus or form of worship of a
particular sect, but is distinguishable from the

124

latter. The First Amendment to the Constitution,

in declaring that Congress shall make no law
respecting the establishment of religion, or
forbidding the free exercise thereof, was
intended to allow everyone under the
jurisdiction of the United States to entertain
such notions respecting his relations to his
Maker and the duties they impose as may be
approved by his judgment and conscience, and
to exhibit his sentiments in such form of
worship as he may think proper, not injurious to
the equal rights of others, and to prohibit
legislation for the support of any religious
tenets, or the modes of worship of any sect.[121]
The definition was clearly theistic which was
reflective of the popular attitudes in 1890.
In 1944, the Court stated in United States
v. Ballard[122] that the free exercise of religion
embraces the right to maintain theories of life
and of death and of the hereafter which are
rank heresy to followers of the orthodox faiths.
[123]
By the 1960s, American pluralism in
religion had flourished to include non-theistic
creeds from Asia such as Buddhism and
Taoism.[124] In 1961, the Court, in Torcaso v.
Watkins,[125] expanded the term religion to
non-theistic beliefs such as Buddhism, Taoism,
Ethical Culture, and Secular Humanism. Four

years later, the Court faced a definitional

problem in United States v. Seeger[126] which
involved four men who claimed conscientious
objector status in refusing to serve in the
Vietnam War. One of the four, Seeger, was not a
member of any organized religion opposed to
war, but when specifically asked about his belief
in a Supreme Being, Seeger stated that you
could call (it) a belief in a Supreme Being or
God. These just do not happen to be the words
that I use. Forest Peter, another one of the four
claimed that after considerable meditation and
reflection on values derived from the Western
religious
and
philosophical
tradition,
he
determined that it would be a violation of his
moral code to take human life and that he
considered this belief superior to any obligation
to the state. The Court avoided a constitutional
question by broadly interpreting not the Free
Exercise Clause, but the statutory definition of
religion in the Universal Military Training and
Service Act of 1940 which exempt from combat
anyone who, by reason of religious training and
belief,
is
conscientiously
opposed
to
participation in war in any form. Speaking for
the Court, Justice Clark ruled, viz:
Congress, in using the expression Supreme
Being rather than the designation God, was
merely clarifying the meaning of religious

125

tradition and belief so as to embrace all

religions and to exclude essentially political,
sociological, or philosophical views (and) the
test of belief in relation to a Supreme
Being is whether a given belief that is
sincere and meaningful occupies a place in
the life of its possessor parallel to the
orthodox belief in God. (emphasis supplied)
The Court was convinced that Seeger, Peter and
the others were conscientious objectors
possessed of such religious belief and training.
Federal and state courts have expanded
the definition of religion in Seeger to include
even non-theistic beliefs such as Taoism or Zen
Buddhism. It has been proposed that basically,
a creed must meet four criteria to qualify as
religion under the First Amendment. First,
there must be belief in God or some parallel
belief that occupies a central place in the
believers life. Second, the religion must involve
a moral code transcending individual belief, i.e.,
it cannot be purely subjective. Third, a
demonstrable sincerity in belief is necessary,
but the court must not inquire into the truth or
reasonableness of the belief.[127] Fourth, there
must be some associational ties, [128]although
there is also a view that religious beliefs held by
a single person rather than being part of the

teachings of any kind of group or sect are

entitled to the protection of the Free Exercise
Clause.[129]
Defining religion is only the beginning of the
difficult task of deciding religion clause
cases. Having
hurdled
the
issue
of
definition, the court then has to draw lines
to determine what is or is not permissible
under the religion clauses. In this task,
the purpose of
the
clauses
is
the
yardstick. Their purpose is singular; they are
two sides of the same coin.[130] In devoting two
clauses to religion, the Founders were stating
not two opposing thoughts that would cancel
each other out, but two complementary
thoughts that apply in different ways in
different circumstances.[131] The purpose of the
religion clauses - both in the restriction it
imposes on the power of the government to
interfere with the free exercise of religion and
the limitation on the power of government to
establish, aid, and support religion - is
the protection and promotion of religious
liberty.[132] The end, the goal, and the rationale
of the religion clauses is this liberty.[133] Both
clauses were adopted to prevent government
imposition of religious orthodoxy; the great evil
against which they are directed is governmentinduced homogeneity.[134] TheFree Exercise

126

Clause directly
articulates
the
common
objective
of
the
two
clauses
and
the Establishment
Clause specifically
addresses a form of interference with religious
liberty with which the Framers were most
familiar and for which government historically
had demonstrated a propensity.[135] In other
words, free exercise is the end, proscribing
establishment is a necessary means to this end
to protect the rights of those who might dissent
from whatever religion is established.[136] It has
even been suggested that the sense of the First
Amendment is captured if it were to read as
Congress shall make no law respecting an
establishment
of
religion
or otherwise prohibiting
the
free
exercise
thereof because the fundamental and single
purpose of the two religious clauses is to avoid
any infringement on the free exercise of
religions[137] Thus, the Establishment Clause
mandates separation of church and state to
protect each from the other, in service of the
larger goal of preserving religious liberty. The
effect of the separation is to limit the
opportunities for any religious group to capture
the state apparatus to the disadvantage of
those of other faiths, or of no faith at
all[138] because history has shown that religious
fervor conjoined with state power is likely to
tolerate far less religious disagreement and

disobedience from those who hold different

beliefs than an enlightened secular state.[139] In
the words of the U.S. Supreme Court, the two
clauses are interrelated, viz: (t)he structure of
our government has, for the preservation of
civil liberty, rescued the temporal institutions
from religious interference. On the other hand,
it has secured religious liberty from the invasion
of the civil authority.[140]
In upholding religious liberty as the end
goal in religious clause cases, the line the
court draws to ensure that government
does not establish and instead remains
neutral toward religion is not absolutely
straight. Chief Justice Burger explains, viz:
The course of constitutional neutrality in this
area cannot be an absolutely straight line;
rigidity could well defeat the basic purpose of
these provisions, which is to insure that no
religion be sponsored or favored, none
commanded and none inhibited.[141](emphasis
supplied)
Consequently, U.S. jurisprudence has produced
two identifiably different,[142] even opposing,
strains of jurisprudence on the religion
clauses: separation (in the form of strict
separation or the tamer version of strict
neutrality or separation) and benevolent

127

neutrality or accommodation. A view of the

landscape of U.S. religion clause cases would be
useful in understanding these two strains, the
scope of protection of each clause, and the
tests used in religious clause cases. Most of
these cases are cited as authorities in Philippine
religion clause cases.
A. Free Exercise Clause
The Court first interpreted the Free Exercise
Clause in the 1878 case of Reynolds v. United
States.[143] This
landmark
case
involved
Reynolds, a Mormon who proved that it was his
religious duty to have several wives and that
the failure to practice polygamy by male
members of his religion when circumstances
would permit would be punished with
damnation in the life to come. Reynolds act of
contracting a second marriage violated Section
5352,
Revised
Statutes
prohibiting
and
penalizing
bigamy,
for
which
he
was
convicted. The
Court
affirmed
Reynolds
conviction, using what in jurisprudence would
be called the belief-action test which allows
absolute protection to belief but not to action. It
cited Jeffersons Bill Establishing Religious
Freedom which, according to the Court,
declares the true distinction between what

properly belongs to the Church and what to the

State.[144] The bill, making a distinction between
belief and action, states in relevant part, viz:
That to suffer the civil magistrate to
intrude his powers into the field of opinion,
and to restrain the profession or propagation of
principles on supposition of their ill tendency, is
a dangerous fallacy which at once destroys
all religious liberty;
that it is time enough for the rightful
purposes of civil government for its
officers to interfere when principles break
out into overt acts against peace and good
order.[145] (emphasis supplied)
The Court then held, viz:
Congress was deprived of all legislative
power over mere opinion, but was left free
to reach actions which were in violation of
social duties or subversive of good
order. . .
Laws are made for the government of
actions, and while they cannot interfere
with mere religious belief and opinions,
they may with practices. Suppose one
believed that human sacrifice were a necessary
part of religious worship, would it be seriously

128

contended that the civil government under

which he lived could not interfere to prevent a
sacrifice? Or if a wife religiously believed it was
her duty to burn herself upon the funeral pile of
her dead husband, would it be beyond the
power of the civil government to prevent her
carrying her belief into practice?
So here, as a law of the organization of society
under the exclusive dominion of the United
States, it is provided that plural marriages shall
not be allowed. Can a man excuse his practices
to the contrary because of his religious
belief? To permit this would be to make the
professed doctrines of religious belief superior
to the law of the land, and in effect to permit
every citizen to become a law unto
himself. Government could exist only in name
under such circumstances.[146]
The construct was thus simple: the state was
absolutely prohibited by the Free Exercise
Clause from regulating individual religious
beliefs, but placed no restriction on the ability
of the state to regulate religiously motivated
conduct. It was logical for belief to be accorded
absolute protection because any statute
designed to prohibit a particular religious belief
unaccompanied by any conduct would most
certainly be motivated only by the legislatures

preference of a competing religious belief. Thus,

all cases of regulation of belief would amount to
regulation of religion for religious reasons
violative of the Free Exercise Clause. On the
other hand, most state regulations of conduct
are for public welfare purposes and have
nothing to do with the legislatures religious
preferences. Any burden on religion that results
from state regulation of conduct arises only
when particular individuals are engaging in the
generally regulated conduct because of their
particular religious beliefs. These burdens are
thus usually inadvertent and did not figure in
the belief-action test. As long as the Court
found that regulation address action rather than
belief, the Free Exercise Clause did not pose any
problem.[147] The Free Exercise Clause thus
gave no protection against the proscription of
actions even if considered central to a religion
unless the legislature formally outlawed the
belief itself.[148]
This belief-action distinction was held by
the Court for some years as shown by cases
where the Court upheld other laws which
burdened the practice of the Mormon religion by
imposing various penalties on polygamy such as
the Davis case and Church of Latter Day
Saints v. United States.[149] However, more
than a century since Reynolds was decided,

129

the Court has expanded the scope of

protection from
belief
to
speech
and
conduct.But while the belief-action test has
been abandoned, the rulings in the earlier Free
Exercise cases have gone unchallenged. The
belief-action distinction is still of some
importance though as there remains an
absolute
prohibition
of
governmental
[150]
proscription of beliefs.
The Free Exercise Clause accords absolute
protection to individual religious convictions and
beliefs[151] and proscribes government from
questioning a persons beliefs or imposing
penalties or disabilities based solely on those
beliefs. The Clause extends protection to
both beliefs and unbelief. Thus, in Torcaso
v. Watkins,[152] a unanimous Court struck
down a state law requiring as a qualification for
public office an oath declaring belief in the
existence of God. The protection also allows
courts to look into the good faith of a person in
his belief, but prohibits inquiry into the truth
of a persons religious beliefs. As held
in United States v. Ballard,[153] (h)eresy trials
are foreign to the Constitution. Men may believe
what they cannot prove. They may not be put
to the proof of their religious doctrines or
beliefs.

Next to belief which enjoys virtually

absolute protection, religious speech and
expressive religious conduct are accorded
the highest degree of protection. Thus, in
the 1940 case of Cantwell v. Connecticut,
[154]
the Court struck down a state law
prohibiting door-to-door solicitation for any
religious or charitable cause without prior
approval of a state agency. The law was
challenged by Cantwell, a member of the
Jehovahs Witnesses which is committed to
active proselytizing. The Court invalidated the
state statute as the prior approval necessary
was held to be a censorship of religion
prohibited by the Free Exercise Clause. The
Court held, viz:
In the realm of religious faith, and in that of
political belief, sharp differences arise. In both
fields the tenets of one may seem the rankest
error to his neighbor. To persuade others to his
point of view, the pleader, as we know, resorts
to exaggeration, to vilification of men who have
been, or are, prominent in church or state, and
even to false statement. But the people of this
nation have ordained in the light of history,
that, in spite of the probability of excesses and
abuses, these liberties are, in the long view,
essential to enlightened opinion and right

130

conduct on the part of citizens of a democracy.

[155]

Cantwell took a step forward from the

protection afforded by the Reynolds case in
that it not only affirmed protection of belief but
also freedom to act for the propagation of that
belief, viz:
Thus the Amendment embraces two concepts freedom to believe and freedom to act. The first
is absolute but, in the nature of things, the
second cannot be. Conduct remains subject to
regulation for the protection of society. . . In
every case, the power to regulate must be
so exercised as not, in attaining a
permissible end, unduly to infringe the
protected freedom. (emphasis supplied)[156]
The Court stated, however, that government
had the power to regulate the times, places,
and manner of solicitation on the streets and
assure the peace and safety of the community.
Three years after Cantwell, the Court
in Douglas v. City of Jeanette,[157] ruled that
police could not prohibit members of the
Jehovahs Witnesses from peaceably and orderly
proselytizing on Sundays merely because other
citizens complained. In another case likewise
involving the Jehovahs Witnesses, Niemotko v.

Maryland,[158] the Court unanimously held

unconstitutional a city councils denial of a
permit to the Jehovahs Witnesses to use the
city park for a public meeting. The city councils
refusal was because of the unsatisfactory
answers of the Jehovahs Witnesses to questions
about Catholicism, military service, and other
issues. The denial of the public forum was
considered blatant censorship. While protected,
religious speech in the public forum is still
subject to reasonable time, place and manner
regulations
similar
to
non-religious
speech. Religious proselytizing in congested
areas, for example, may be limited to certain
areas to maintain the safe and orderly flow of
pedestrians and vehicular traffic as held in the
case of Heffron v. International Society for
Krishna Consciousness.[159]
The least protected under the Free
Exercise Clause is religious conduct,
usually in the form of unconventional
religious practices. Protection in this realm
depends on the character of the action and the
government rationale for regulating the action.
[160]
The
Mormons
religious
conduct
of polygamy is an example of unconventional
religious practice. As discussed in the Reynolds
case above, the Court did not afford protection
to the practice. Reynolds was reiterated in the

131

1890 case of Davis again involving Mormons,

where the Court held, viz: (c)rime is not the
less odious because sanctioned by what any
particular sect may designate as religion.[161]
The belief-action
test in Reynolds and Davis proved
unsatisfactory. Under this test, regulation of
religiously dictated conduct would be upheld no
matter how central the conduct was to the
exercise of religion and no matter how
insignificant was the governments non-religious
regulatory interest so long as the government is
proscribing action and not belief. Thus, the
Court
abandoned
the
simplistic beliefaction distinction and instead recognized the
deliberate-inadvertent distinction, i.e., the
distinction between deliberate state interference
of religious exercise for religious reasons which
was plainly unconstitutional and governments
inadvertent interference with religion in
pursuing some secular objective.[162] In the
1940 case of Minersville School District v.
Gobitis,[163] the Court upheld a local school
board requirement that all public school
students participate in a daily flag salute
program, including the Jehovahs Witnesses who
were forced to salute the American flag in
violation of their religious training, which
considered flag salute to be worship of a graven

image. The Court recognized that the general

requirement
of
compulsory
flag
salute
inadvertently burdened the Jehovah Witnesses
practice of their religion, but justified the
government regulation as an appropriate means
of attaining national unity, which was the basis
of national security.Thus, although the Court
was already aware of the deliberate-inadvertent
distinction in government interference with
religion, it continued to hold that the Free
Exercise Clause presented no problem to
interference with religion that was inadvertent
no matter how serious the interference, no
matter how trivial the states non-religious
objectives, and no matter how many alternative
approaches were available to the state to
pursue its objectives with less impact on
religion, so long as government was acting in
pursuit of a secular objective.
Three years later, the Gobitis decision was
overturned
in West
Virginia
v.
[164]
Barnette
which involved a similar set of
facts and issue. The Court recognized that
saluting the flag, in connection with the
pledges, was a form of utterance and the flag
salute program was a compulsion of students to
declare
a
belief. The
Court
ruled
that
compulsory unification of opinions leads only to
the unanimity of the graveyard and exempt the

132

students who were members of the Jehovahs

Witnesses from saluting the flag. A close
scrutiny of the case, however, would show that
it was decided not on the issue of religious
conduct as the Court said, (n)or does the issue
as we see it turn on ones possession of
particular religious views or the sincerity with
which they are held. While religion supplies
appellees motive for enduring the discomforts
of making the issue in this case, many citizens
who do not share these religious views hold
such
a
compulsory
rite
to
infringe constitutional
liberty
of
the
[165]
individual. (emphasis supplied)
The Court
pronounced, however, that, freedoms of speech
and of press, of assembly, and of worship . . .
are susceptible only of restriction only to
prevent grave and immediate danger to
interests which the state may lawfully
protect.[166] The Court seemed to recognize the
extent
to
which
its
approach
in Gobitis subordinated the religious liberty of
political minorities - a specially protected
constitutional value - to the common everyday
economic and public welfare objectives of the
majority in the legislature. This time, even
inadvertent interference with religion must pass
judicial scrutiny under the Free Exercise Clause
with only grave and immediate danger sufficing
to override religious liberty. But the seeds of

this heightened scrutiny would only grow to a

full flower in the 1960s.[167]
Nearly a century after Reynolds employed
the belief-action test, the Warren Court began
the modern free exercise jurisprudence.
[168]
A two-part balancing
test was
[169]
established in Braunfeld v. Brown
where
the Court considered the constitutionality of
applying Sunday closing laws to Orthodox Jews
whose beliefs required them to observe another
day as the Sabbath and abstain from
commercial activity on Saturday. Chief Justice
Warren, writing for the Court, found that the
law placed a severe burden on Sabattarian
retailers. He noted, however, that since the
burden was the indirect effect of a law with a
secular purpose, it would violate the Free
Exercise
Clause only
if
there
were
alternative ways of achieving the states
interest. He employed a two-part balancing
test of validity where the first step was for
plaintiff to show that the regulation placed a
real burden on his religious exercise. Next, the
burden would be upheld only if the state
showed that it was pursuing an overriding
secular goal by the means which imposed the
least burden on religious practices. [170] The
Court found that the state had an overriding
secular interest in setting aside a single day for

133

rest, recreation and tranquility and there was

no alternative means of pursuing this interest
but to require Sunday as a uniform rest day.
Two
years
after
came
the
stricter compelling state interest test in the
1963 case of Sherbert v. Verner.[171] This test
was similar to the two-part balancing test in
Braunfeld,[172] but this latter test stressed that
the state interest was not merely any
colorable state interest, but must be
paramount and compelling to override the
free exercise claim. In this case, Sherbert, a
Seventh Day Adventist, claimed unemployment
compensation under the law as her employment
was terminated for refusal to work on
Saturdays on religious grounds. Her claim was
denied. She sought recourse in the Supreme
Court. In laying down the standard for
determining whether the denial of benefits
could withstand constitutional scrutiny, the
Court ruled, viz:
Plainly enough, appellees conscientious
objection to Saturday work constitutes no
conduct prompted by religious principles of a
kind within the reach of state legislation. If,
therefore, the decision of the South Carolina
Supreme Court is to withstand appellants
constitutional challenge, it must be either

because her disqualification as a

beneficiary represents no infringement by
the State of her constitutional rights of
free exercise, or because any incidental
burden on the free exercise of appellants
religion may be justified by a compelling
state interest in the regulation of a subject
within the States constitutional power to
regulate. . . NAACP v. Button, 371 US 415,
438 9 L ed 2d 405, 421, 83 S Ct 328.
[173]
(emphasis supplied)
The Court stressed that in the area of
religious liberty, it is basic that it is not
sufficient to merely show a rational
relationship
of
the
substantial
infringement to the religious right and a
colorable state interest.(I)n this highly
sensitive constitutional area, [o]nly the gravest
abuses, endangering paramount interests, give
occasion for permissible limitation. Thomas v.
Collins, 323 US 516, 530, 89 L ed 430, 440, 65
S Ct 315.[174] The Court found that there was no
such compelling state interest to override
Sherberts religious liberty. It added that even if
the state could show that Sherberts exemption
would pose serious detrimental effects to the
unemployment
compensation
fund
and
scheduling of work, it was incumbent upon the
state to show that no alternative means of

134

regulations would address such detrimental

effects without infringing religious liberty. The
state, however, did not discharge this
burden. The Court thus carved out for Sherbert
an exemption from the Saturday work
requirement that caused her disqualification
from claiming the unemployment benefits. The
Court reasoned that upholding the denial of
Sherberts benefits would force her to choose
between receiving benefits and following her
religion. This choice placed the same kind of
burden upon the free exercise of religion as
would a fine imposed against (her) for her
Saturday
worship. This
germinal
case
of Sherbert firmly established the exemption
doctrine, [175] viz:
It is certain that not every conscience can be
accommodated by all the laws of the land; but
when general laws conflict with scruples of
conscience, exemptions ought to be
granted unless some compelling state
interest intervenes.
Thus, in a short period of twenty-three years
from Gobitis to Sherbert (or even as early
as Braunfeld), the Court moved from the
doctrine
that
inadvertent
or
incidental
interferences with religion raise no problem
under the Free Exercise Clause to the doctrine

that such interferences violate the Free Exercise

Clause in the absence of a compelling state
interest - the highest level of constitutional
scrutiny short of a holding of a per
se violation. Thus, the problem posed by
the belief-action test and the deliberateinadvertent distinction was addressed.[176]
Throughout the 1970s and 1980s under the
Warren, and afterwards, the Burger Court, the
rationale
in Sherbert continued
to
be
applied. In Thomas
v.
Review
[177]
Board
and Hobbie
v.
Unemployment
[178]
Appeals Division,
for example, the Court
reiterated the exemption doctrine and held that
in the absence of a compelling justification, a
state could not withhold unemployment
compensation from an employee who resigned
or was discharged due to unwillingness to
depart from religious practices and beliefs that
conflicted with job requirements. But not every
governmental refusal to allow an exemption
from a regulation which burdens a sincerely
held religious belief has been invalidated, even
though strict or heightened scrutiny is
applied. In United
States
v.
Lee,[179] for
instance, the Court using strict scrutiny and
referring to Thomas, upheld the federal
governments
refusal
to
exempt
Amish
employers who requested for exemption from

135

paying social security taxes on wages on the

ground of religious beliefs. The Court held that
(b)ecause the broad public interest in
maintaining a sound tax system is of such a
high order, religious belief in conflict with the
payment of taxes affords no basis for resisting
the
tax.[180] It
reasoned
that
unlike
in Sherbert, an exemption would significantly
impair
governments
achievement
of
its
objective - the fiscal vitality of the social
security system; mandatory participation is
indispensable to attain this objective. The Court
noted that if an exemption were made, it would
be hard to justify not allowing a similar
exemption from general federal taxes where the
taxpayer argues that his religious beliefs require
him to reduce or eliminate his payments so that
he will not contribute to the governments warrelated activities, for example.
The strict scrutiny and compelling state
interest test significantly increased the
degree of protection afforded to religiously
motivated
conduct. While
not
affording
absolute immunity to religious activity, a
compelling secular justification was necessary
to uphold public policies that collided with
religious practices. Although the members of
the Court often disagreed over
which
governmental interests should be considered

compelling, thereby producing dissenting and

separate opinions in religious conduct cases,
this general test established a strong
presumption in favor of the free exercise
of religion.[181]
Heightened scrutiny was also used in the
1972 case of Wisconsin v. Yoder[182] where
the Court upheld the religious practice of the
Old Order Amish faith over the states
compulsory high school attendance law. The
Amish parents in this case did not permit
secular education of their children beyond the
eighth grade. Chief Justice Burger, writing for
the majority, held, viz:
It follows that in order for Wisconsin to compel
school attendance beyond the eighth grade
against a claim that such attendance interferes
with the practice of a legitimate religious
belief, it must appear either that the State
does not deny the free exercise of religious
belief by its requirement, or that there is a
state interest of sufficient magnitude to
override the interest claiming protection
under the Free Exercise Clause. Long before
there was general acknowledgement of the
need for universal education, the Religion
Clauses had specially and firmly fixed the right
of free exercise of religious beliefs, and

136

buttressing this fundamental right was an

equally firm, even if less explicit, prohibition
against the establishment of any religion. The
values underlying these two provisions relating
to religion have been zealously protected,
sometimes even at the expense of other
interests of admittedly high social importance. .
.
The essence of all that has been said and
written on the subject is that only those
interests of the highest order and those
not otherwise served can overbalance
legitimate claims to the free exercise of
religion. . .
. . . our decisions have rejected the idea that
that religiously grounded conduct is always
outside the protection of the Free Exercise
Clause. It is true that activities of individuals,
even when religiously based, are often subject
to regulation by the States in the exercise of
their undoubted power to promote the health,
safety, and general welfare, or the Federal
government in the exercise of its delegated
powers . . . But to agree that religiously
grounded conduct must often be subject to
the broad police power of the State is not
to deny that there are areas of conduct
protected by the Free Exercise Clause of

the First Amendment and thus beyond the

power of the State to control, even under
regulations of general applicability. . . .This
case, therefore, does not become easier
because respondents were convicted for their
actions in refusing to send their children to the
public high school; in this context belief and
action cannot be neatly confined in logic-tight
compartments. . . [183]
The onset of the 1990s, however, saw a
major setback in the protection afforded
by
the
Free
Exercise
Clause. In Employment Division, Oregon
Department of Human Resources v. Smith,
[184]
the
sharply
divided Rehnquist Court dramatically departe
d from the heightened scrutiny and compelling
justification approach and imposed serious
limits on the scope of protection of religious
freedom afforded by the First Amendment. In
this case, the well-established practice of the
Native American Church, a sect outside the
Judeo-Christian
mainstream
of
American
religion, came in conflict with the states interest
in prohibiting the use of illicit drugs. Oregons
controlled substances statute made the
possession of peyote a criminal offense. Two
members of the church, Smith and Black,
worked as drug rehabilitation counselors for a

137

private social service agency in Oregon. Along

with other church members, Smith and Black
ingested peyote, a hallucinogenic drug, at a
sacramental ceremony practiced by Native
Americans for hundreds of years. The social
service agency fired Smith and Black citing their
use of peyote as job-related misconduct. They
applied for unemployment compensation, but
the Oregon Employment Appeals Board denied
their application as they were discharged for
job-related misconduct. Justice Scalia, writing
for the majority, ruled that if prohibiting the
exercise of religion . . . is . . . merely the
incidental effect of a generally applicable
and otherwise valid law, the First
Amendment has not been offended. In
other words, the Free Exercise Clause would be
offended only if a particular religious practice
were singled out for proscription. The majority
opinion
relied
heavily
on
the Reynolds
case and in effect, equated Oregons drug
prohibition law with the anti-polygamy statute
in Reynolds. The relevant portion of the
majority opinion held, viz:
We have never invalidated any governmental
action on the basis of the Sherbert test except
the denial of unemployment compensation.

Even if we were inclined to breathe

into Sherbert some life beyond the
unemployment compensation field, we would
not apply it to require exemptions from a
generally applicable criminal law. . .
We conclude today that the sounder
approach, and the approach in accord with
the vast majority of our precedents, is to
hold the test inapplicable to such
challenges. The governments ability to enforce
generally applicable prohibitions of socially
harmful conduct, like its ability to carry out
other aspects of public policy, cannot depend on
measuring the effects of a governmental action
on a religious objectors spiritual
development. . . .To make an individuals
obligation to obey such a law contingent
upon the laws coincidence with his
religious beliefs except where the States
interest is compelling - permitting him, by
virtue of his beliefs, to become a law unto
himself, . . . - contradicts both
constitutional tradition and common
sense.
Justice OConnor wrote a concurring opinion
pointing out that the majoritys rejection of the
compelling governmental interest test was the
most
controversial
part
of
the

138

decision. Although she concurred in the result

that the Free Exercise Clause had not been
offended, she sharply criticized the majority
opinion as a dramatic departure from wellsettled First Amendment jurisprudence. . . and .
. . (as) incompatible with our Nations
fundamental
commitment
to
religious
liberty. This portion of her concurring opinion
was supported by Justices Brennan, Marshall
and Blackmun who dissented from the Courts
decision. Justice OConnor asserted that (t)he
compelling state interest test effectuates
the First Amendments command that
religious liberty is an independent liberty,
that it occupies a preferred position, and
that
the
Court
will
not
permit
encroachments upon this liberty, whether
direct or indirect, unless required by clear
and compelling government interest of the
highest order. Justice Blackmun registered a
separate dissenting opinion, joined by Justices
Brennan and Marshall. He charged the majority
with
mischaracterizing
precedents
and
overturning. . . settled law concerning the
Religion Clauses of our Constitution. He pointed
out that the Native American Church restricted
and supervised the sacramental use of
peyote. Thus, the state had no significant
health or safety justification for regulating the
sacramental drug use. He also observed that

Oregon had not attempted to prosecute Smith

or Black, or any Native Americans, for that
matter, for the sacramental use of peyote. In
conclusion, he said that Oregons interest in
enforcing its drug laws against religious use of
peyote (was) not sufficiently compelling to
outweigh respondents right to the free exercise
of their religion.
The
Court
went
back
to
the Reynolds and Gobitis doctrine
in Smith. The
Courts
standard
in Smith virtually eliminated the requirement
that the government justify with a compelling
state interest the burdens on religious exercise
imposed
by
laws
neutral
toward
religion. The Smith
doctrine is
highly
unsatisfactory in several respects and has been
criticized as exhibiting a shallow understanding
of free exercise jurisprudence.[185] First, the
First amendment was intended to protect
minority religions from the tyranny of the
religious and political majority. A deliberate
regulatory interference with minority religious
freedom is the worst form of this tyranny. But
regulatory interference with a minority religion
as a result of ignorance or sensitivity of the
religious and political majority is no less an
interference with the minoritys religious
freedom. If the regulation had instead restricted

139

the majoritys religious practice, the majoritarian

legislative process would in all probability have
modified or rejected the regulation. Thus, the
imposition of the political majoritys nonreligious objectives at the expense of the
minoritys religious interests implements the
majoritys religious viewpoint at the expense of
the minoritys. Second, government impairment
of religious liberty would most often be of the
inadvertent kind as in Smith considering the
political culture where direct and deliberate
regulatory imposition of religious orthodoxy is
nearly inconceivable. If the Free Exercise Clause
could not afford protection to inadvertent
interference,
it
would
be
left
almost
meaningless. Third,
theReynolds-GobitisSmith doctrine
simply
defies
common
sense. The state should not be allowed to
interfere with the most deeply held fundamental
religious convictions of an individual in order to
pursue some trivial state economic or
bureaucratic objective. This is especially true
when there are alternative approaches for the
state to effectively pursue its objective without
serious inadvertent impact on religion.[186]
Thus,
the Smith
decision has
been
criticized not only for increasing the power of
the state over religion but as discriminating in
favor of mainstream religious groups against

smaller, more peripheral groups who lack

legislative clout,[187] contrary to the original
theory of the First Amendment.[188] Undeniably,
claims for judicial exemption emanate almost
invariably from relatively politically powerless
minority religions and Smith virtually wiped out
their judicial recourse for exemption.[189] Thus,
the Smith decision elicited much negative
public reaction especially from the religious
community, and commentaries insisted that the
Court was allowing the Free Exercise Clause to
disappear.[190] So much was the uproar that a
majority in Congress was convinced to enact
the Religious Freedom Restoration Act (RFRA) of
1993. The RFRA prohibited government at all
levels from substantially burdening a persons
free exercise of religion, even if such burden
resulted from a generally applicable rule, unless
the
government
could
demonstrate
a
compelling state interest and the rule
constituted the least restrictive means of
furthering that interest.[191] RFRA, in effect,
sought to overturn the substance of the Smith
ruling and restore the status quo prior to
Smith. Three years after the RFRA was enacted,
however, the Court, dividing 6 to 3, declared
the RFRA unconstitutional in City of Boerne v.
Flores.[192] The
Court
ruled
that
RFRA
contradicts
vital
principles
necessary
to
maintain separation of powers and the federal

140

balance. It emphasized the primacy of its role

as interpreter of the Constitution and
unequivocally rejected, on broad institutional
grounds, a direct congressional challenge of
final judicial authority on a question of
constitutional interpretation.
After Smith came Church of the Lukumi
Babalu Aye, Inc. v. City of Hialeah [193] which
was
ruled
consistent
with
the
Smith
doctrine. This case involved animal sacrifice of
the Santeria, a blend of Roman Catholicism and
West African religions brought to the Carribean
by East African slaves. An ordinance made it a
crime to unnecessarily kill, torment, torture, or
mutilate an animal in public or private ritual or
ceremony not for the primary purpose of food
consumption. The
ordinance
came
as
a
response to the local concern over the sacrificial
practices of the Santeria. Justice Kennedy,
writing for the majority, carefully pointed out
that the questioned ordinance was not a
generally applicable criminal prohibition, but
instead singled out practitioners of the Santeria
in that it forbade animal slaughter only insofar
as it took place within the context of religious
rituals.
It may be seen from the foregoing cases that
under the Free Exercise Clause, religious belief
is absolutely protected, religious speech and

proselytizing are highly protected but subject to

restraints applicable to non-religious speech,
and unconventional religious practice receives
less protection; nevertheless conduct, even if
its violates a law, could be accorded protection
as shown in Wisconsin.[194]
B. Establishment Clause
The
Courts first
encounter with
the
Establishment Clause was in the 1947 case
of Everson v. Board of Education.[195] Prior
cases had made passing reference to the
Establishment
Clause[196] and
raised
establishment questions but were decided on
other grounds.[197] It was in the Everson
case that the U.S. Supreme Court adopted
Jeffersons metaphor of a wall of separation
between church and state as encapsulating the
meaning of the Establishment Clause. The often
and loosely used phrase separation of church
and state does not appear in the U.S.
Constitution. It
became
part
of
U.S.
jurisprudence when the Court in the 1878 case
of Reynolds v. United States[198] quoted
Jeffersons famous letter of 1802 to the Danbury
Baptist Association in narrating the history of
the religion clauses, viz:

141

Believing with you that religion is a matter

which lies solely between man and his God;
that he owes account to none other for his faith
or his worship; that the legislative powers of
the Government reach actions only, and not
opinions, I contemplate with sovereign
reverence that act of the whole American
people which declared that their Legislature
should make no law respecting an
establishment of religion or prohibiting the free
exercise thereof, thus building a wall of
separation between Church and State.[199]
(emphasis supplied)
Chief Justice Waite, speaking for the majority,
then added, (c)oming as this does from an
acknowledged leader of the advocates of the
measure, it may be accepted almost as an
authoritative declaration of the scope and effect
of the amendment thus secured.[200]
The interpretation of the Establishment
Clause has in large part been in cases involving
education, notably state aid to private religious
schools
and
prayer
in
public
schools.
[201]
In Everson v. Board of Education, for
example, the issue was whether a New Jersey
local school board could reimburse parents for
expenses incurred in transporting their children
to
and
from
Catholic
schools. The

reimbursement was part of a general program

under which all parents of children in public
schools
and
nonprofit
private
schools,
regardless of religion, were entitled to
reimbursement for transportation costs. Justice
Hugo Black, writing for a sharply divided Court,
justified the reimbursements on the child
benefit theory, i.e., that the school board was
merely furthering the states legitimate interest
in getting children regardless of their religion,
safely and expeditiously to and from accredited
schools.The Court, after narrating the history of
the First Amendment in Virginia, interpreted the
Establishment Clause, viz:
The establishment of religion clause of the First
Amendment means at least this: Neither a state
nor the Federal Government can set up a
church. Neither can pass laws which aid
one religion, aid all religions, or prefer one
religion over another. Neither can force nor
influence a person to go to or remain away from
church against his will or force him to profess a
belief or disbelief in any religion. No person can
be punished for entertaining or professing
religious beliefs or disbeliefs, for church
attendance or non-attendance. No tax in any
amount, large or small, can be levied to support
any religious activities or institutions, whatever
they may be called, or whatever form they may

142

adopt to teach or practice religion. Neither a

state nor the Federal Government can, openly
or secretly participate in the affairs of any
religious organizations or groups and vice
versa. In the words of Jefferson, the clause
against establishment of religion by law
was intended to erect a wall of separation
between Church and State.[202]
The Court then ended the opinion, viz:
The First Amendment has erected a wall
between church and state. That wall must be
kept high and impregnable. We could not
approve the slightest breach. New Jersey has
not breached it here.[203]
By 1971, the Court integrated the different
elements of the Courts Establishment Clause
jurisprudence that evolved in the 1950s and
1960s and laid down a three-pronged test
in Lemon v. Kurtzman[204] in determining the
constitutionality of policies challenged under the
Establishment Clause. This case involved a
Pennsylvania statutory program providing
publicly funded reimbursement for the cost of
teachers salaries, textbooks, and instructional
materials in secular subjects and a Rhode
Island statute providing salary supplements to
teachers
in
parochial

schools. The Lemon test requires a challenged

policy to meet the following criteria to pass
scrutiny under the Establishment Clause. First,
the statute must have a secular legislative
purpose; second, its primary or principal
effect must be one that neither advances
nor inhibits religion (Board of Education v.
Allen, 392 US 236, 243, 20 L Ed 2d 1060,
1065, 88 S Ct 1923 [1968]); finally, the
statute must not foster an excessive
entanglement with religion. (Walz v.Tax
Commission, 397 US 664, 668, 25 L Ed 2d
697, 701, 90 S Ct 1409 [1970]) (emphasis
supplied)[205] Using this test, the Court held that
the Pennsylvania statutory program and Rhode
Island statute were unconstitutional as fostering
excessive entanglement between government
and religion.
The most controversial of the education
cases involving the Establishment Clause are
the school prayer decisions. Few decisions of
the modern Supreme Court have been criticized
more intensely than the school prayer decisions
of the early 1960s.[206] In the 1962 case
of Engel v. Vitale,[207] the Court invalidated a
New York Board of Regents policy that
established the voluntary recitation of a brief
generic prayer by children in the public schools
at the start of each school day. The majority

143

opinion written by Justice Black stated that in

this country it is no part of the business of
government to compose official prayers for any
group of the American people to recite as part
of a religious program carried on by
government. In fact, history shows that this
very practice of establishing governmentally
composed prayers for religious services was one
of the reasons that caused many of the early
colonists to leave England and seek religious
freedom in America. The Court called to mind
that the first and most immediate purpose of
the Establishment Clause rested on the belief
that a union of government and religion tends
to destroy government and to degrade
religion. The
following
year,
the Engel
decision was reinforced in Abington School
District
v.
Schempp[208] and Murray
v.
[209]
Curlett
where the Court struck down the
practice of Bible reading and the recitation of
the Lords prayer in the Pennsylvania and
Maryland schools. The Court held that to
withstand the strictures of the Establishment
Clause, a statute must have a secular legislative
purpose and a primary effect that neither
advances nor inhibits religion. It reiterated, viz:
The wholesome neutrality of which this Courts
cases speak thus stems from a recognition of
the teachings of history that powerful sects or

groups might bring about a fusion of

governmental and religious functions or a
concert or dependency of one upon the other to
the end that official support of the State of
Federal Government would be placed behind the
tenets of one or of all orthodoxies. This the
Establishment Clause prohibits. And a further
reason for neutrality is found in the Free
Exercise Clause, which recognizes the value of
religious training, teaching and observance and,
more particularly, the right of every person to
freely choose his own course with reference
thereto, free of any compulsion from the state.
[210]

The school prayer decisions drew furious

reactions. Religious leaders and conservative
members of Congress and resolutions passed
by several state legislatures condemned these
decisions.[211] On
several
occasions,
constitutional
amendments
have
been
introduced in Congress to overturn the school
prayer decisions. Still, the Court has maintained
its position and has in fact reinforced it in the
1985 case of Wallace v. Jaffree[212] where the
Court struck down an Alabama law that
required public school students to observe a
moment of silence for the purpose of meditation
or voluntary prayer at the start of each school
day.

144

Religious instruction in public schools has

also pressed the Court to interpret the
Establishment
Clause. Optional
religious
instruction within public school premises and
instructional time were declared offensive of the
Establishment Clause in the 1948 case
of McCollum
v.
Board
of
Education,
[213]
decided
just
a
year
after
the
seminal Everson case. In this case, interested
members of the Jewish, Roman Catholic and a
few Protestant faiths obtained permission from
the Board of Education to offer classes in
religious instruction to public school students in
grades four to nine. Religion classes were
attended by pupils whose parents signed
printed cards requesting that their children be
permitted to attend. The classes were taught in
three separate groups by Protestant teachers,
Catholic priests and a Jewish rabbi and were
held weekly from thirty to forty minutes during
regular class hours in the regular classrooms of
the school building. The religious teachers were
employed at no expense to the school
authorities but they were subject to the
approval and supervision of the superintendent
of schools. Students who did not choose to take
religious instruction were required to leave their
classrooms and go to some other place in the
school building for their secular studies while
those who were released from their secular

study for religious instruction were required to

attend the religious classes. The Court held that
the use of tax-supported property for religious
instruction and the close cooperation between
the school authorities and the religious council
in promoting religious education amounted to a
prohibited use of tax-established and taxsupported public school system to aid religious
groups spread their faith. The Court rejected
the claim that the Establishment Clause only
prohibited government preference of one
religion over another and not an impartial
governmental
assistance
of
all
[214]
religions. In Zorach v. Clauson,
however,
the Court upheld released time programs
allowing students in public schools to leave
campus upon parental permission to attend
religious services while other students attended
study hall. Justice Douglas, the writer of the
opinion, stressed that (t)he First Amendment
does not require that in every and all respects
there shall be a separation of Church and
State. The
Court
distinguished Zorach from McCollum, viz:
In the McCollum case the classrooms were used
for religious instruction and the force of the
public school was used to promote that
instruction. . . We follow the McCollum
case. But we cannot expand it to cover the

145

present released time program unless

separation of Church and State means that
public institutions can make no adjustments of
their schedules to accommodate the religious
needs of the people. We cannot read into the
Bill of Rights such a philosophy of hostility to
religion.[215]
In the area of government displays or
affirmations of belief, the Court has given
leeway to religious beliefs and practices which
have acquired a secular meaning and have
become deeply entrenched in history. For
instance, inMcGowan v. Maryland,[216] the
Court upheld laws that prohibited certain
businesses from operating on Sunday despite
the obvious religious underpinnings of the
restrictions. Citing the secular purpose of the
Sunday closing laws and treating as incidental
the fact that this day of rest happened to be the
day of worship for most Christians, the Court
held, viz:
It is common knowledge that the first day of
the week has come to have special significance
as a rest day in this country. People of all
religions and people with no religion regard
Sunday as a time for family activity, for visiting
friends and relatives, for later sleeping, for

passive and active entertainments, for dining

out, and the like.[217]
In the 1983 case of Marsh v. Chambers,
[218]
the Court refused to invalidate Nebraskas
policy of beginning legislative sessions with
prayers offered by a Protestant chaplain
retained at the taxpayers expense. The majority
opinion did not rely on the Lemon test and
instead drew heavily from history and the
need for accommodation of popular
religious beliefs, viz:
In light of the unambiguous and unbroken
history of more than 200 years, there can be no
doubt that the practice of opening legislative
sessions with prayer has become the fabric of
our society. To invoke Divine guidance on a
public body entrusted with making the laws is
not, in these circumstances, an establishment
of religion or a step toward establishment; it is
simply a tolerable acknowledgement of
beliefs widely held among the people of
this country. As Justice Douglas observed,
(w)e are a religious people whose
institutions presuppose a Supreme
Being. (Zorach c. Clauson, 343 US 306, 313
[1952])[219] (emphasis supplied)

146

Some view the Marsh ruling as a mere

aberration as the Court would inevitably be
embarrassed if it were to attempt to strike
down a practice that occurs in nearly every
legislature in the United States, including the
U.S. Congress.[220] That Marsh was not an
aberration is suggested by subsequent cases. In
the 1984 case of Lynch v. Donnelly,[221] the
Court upheld a city-sponsored nativity scene in
Rhode Island. By a 5-4 decision, the majority
opinion hardly employed the Lemon test
and again relied on history and the fact
that the creche had become a neutral
harbinger of the holiday season for many,
rather than a symbol of Christianity.
The Establishment Clause has also been
interpreted in the area of tax exemption. By
tradition, church and charitable institutions
have been exempt from local property taxes
and their income exempt from federal and state
income taxes. In the 1970 case of Walz v. Tax
Commission,[222] the New York City Tax
Commissions grant of property tax exemptions
to churches as allowed by state law was
challenged by Walz on the theory that this
required him to subsidize those churches
indirectly. The Court upheld the law stressing its
neutrality, viz:

It has not singled out one particular church or

religious group or even churches as such;
rather, it has granted exemptions to all houses
of religious worship within a broad class of
property owned by non-profit, quasi-public
corporations . . . The State has an affirmative
policy that considers these groups as beneficial
and stabilizing influences in community life and
finds this classification useful, desirable, and in
the public interest.[223]
The Court added that the exemption was not
establishing religion but sparing the exercise of
religion from the burden of property taxation
levied on private profit institutions[224] and
preventing excessive entanglement between
state and religion. At the same time, the Court
acknowledged the long-standing practice of
religious tax exemption and the Courts
traditional deference to legislative bodies with
respect to the taxing power, viz:
(f)ew concepts are more deeply embedded in
the fabric of our national life, beginning with
pre-Revolutionary colonial times, than for
the government to exercise . . . this kind of
benevolent neutrality toward churches and
religious exercise generally so long as
none was favored over others and none

147

suffered interference.[225] (emphasis

supplied)
C. Strict Neutrality v. Benevolent
Neutrality
To be sure, the cases discussed above, while
citing many landmark decisions in the religious
clauses area, are but a small fraction of the
hundreds of religion clauses cases that the U.S.
Supreme Court has passed upon.Court rulings
contrary to or making nuances of the above
cases may be cited. Professor McConnell
poignantly recognizes this, viz:
Thus, as of today, it is constitutional for a state
to hire a Presbyterian minister to lead the
legislature in daily prayers (Marsh v. Chambers,
463 US783, 792-93[1983]), but
unconstitutional for a state to set aside a
moment of silence in the schools for children to
pray if they want to (Wallace v. Jaffree, 472 US
38, 56 [1985]). It is unconstitutional for a state
to require employers to accommodate their
employees work schedules to their sabbath
observances (Estate of Thornton v. Caldor, Inc.,
472 US 703, 709-10 [1985]) but
constitutionally mandatory for a state to require
employers to pay workers compensation when

the resulting inconsistency between work and

sabbath leads to discharge (. . .Sherbert v.
Verner, 374 US 398, 403-4 [1963]). It is
constitutional for the government to give money
to religiously-affiliated organizations to teach
adolescents about proper sexual behavior
(Bowen v. Kendrick, 487 US 589, 611 [1988]),
but not to teach them science or history (Lemon
v. Kurtzman, 403 US 602, 618-619 [1971]). It
is constitutional for the government to provide
religious school pupils with books (Board of
Education v. Allen, 392 US 236, 238 [1968]),
but not with maps (Wolman v. Walter, 433 US
229, 249-51 [1977]); with bus rides to religious
schools (Everson v. Board of Education, 330 US
1, 17 [1947]), but not from school to a
museum on a field trip (Wolman v. Walter, 433
US 229, 252-55 [1977]); with cash to pay for
state-mandated standardized tests (Committee
for Pub. Educ. and Religious Liberty v. Regan,
444 US 646, 653-54 [1980]), but not to pay for
safety-related maintenance (Committee for Pub.
Educ v. Nyquist, 413 US 756, 774-80
[1973]). It is a mess.[226]
But the purpose of the overview is not to
review the entirety of the U.S. religion clause
jurisprudence nor to extract the prevailing case
law regarding particular religious beliefs or
conduct colliding with particular government

148

regulations. Rather, the cases discussed above

suffice to show that, as legal scholars observe,
this area of jurisprudence has demonstrated
two main standards used by the Court in
deciding religion clause cases: separation (in
the form of strict separation or the tamer
version
of
strict
neutrality
or
separation) and benevolent neutrality or
accommodation. The
weight
of
current
authority, judicial and in terms of sheer volume,
appears to lie with the separationists, strict or
tame.[227] But the accommodationists have also
attracted a number of influential scholars and
jurists.[228] The two standards producing two
streams
of
jurisprudence
branch
out
respectively from the history of the First
Amendment in England and the American
colonies and climaxing in Virginia as narrated in
this opinion and officially acknowledged by the
Court in Everson, and from American societal
life which reveres religion and practices age-old
religious
traditions. Stated
otherwise, separation - strict or tame protects the principle of church-state separation
with a rigid reading of the principle
while benevolent neutrality protects religious
realities, tradition and established practice with
a flexible reading of the principle.[229] The latter
also appeals to history in support of its
position, viz:

The opposing school of thought argues that the

First Congress intended to allow government
support of religion, at least as long as that
support did not discriminate in favor of
one particular religion. . . the Supreme Court
has overlooked many important pieces of
history. Madison, for example, was on the
congressional committee that appointed a
chaplain, he declared several national days of
prayer and fasting during his presidency, and he
sponsored Jeffersons bill for punishing Sabbath
breakers; moreover, while president, Jefferson
allowed federal support of religious missions to
the Indians. . . And so, concludes one recent
book, there is no support in the Congressional
records that either the First Congress, which
framed the First Amendment, or its principal
author and sponsor, James Madison, intended
that Amendment to create a state of complete
independence between religion and
government. In fact, the evidence in the public
documents goes the other way.[230] (emphasis
supplied)
To succinctly and poignantly illustrate the
historical basis of benevolent neutrality that
gives room for accommodation, less than
twenty-four hours after Congress adopted the
First
Amendments
prohibition
on
laws
respecting an establishment of religion,

149

Congress decided to express its thanks to God

Almighty for the many blessings enjoyed by the
nation with a resolution in favor of a
presidential proclamation declaring a national
day of Thanksgiving and Prayer. Only two
members of Congress opposed the resolution,
one on the ground that the move was a
mimicking of European customs, where they
made a mere mockery of thanksgivings, the
other
on
establishment
clause
concerns. Nevertheless, the salutary effect of
thanksgivings throughout Western history was
acknowledged and the motion was passed
without further recorded discussion.[231] Thus,
accommodationists also go back to the framers
to ascertain the meaning of the First
Amendment, but prefer to focus on acts rather
than
words. Contrary
to
the
claim
of
separationists
that
rationalism
pervaded
th
America in the late 19 century and that
America was less specifically Christian during
those years than at any other time before or
since,[232] accommodationaists
claim
that
American citizens at the time of the
Constitutions origins were a remarkably
religious people in particularly Christian terms.
[233]

The two streams of jurisprudence separationist or accommodationist - are

anchored on a different reading of the wall

of separation. The strict separtionist view
holds that Jefferson meant the wall of
separation to protect the state from the
church. Jefferson
was
a
man
of
the
Enlightenment Era of the eighteenth century,
characterized
by
the
rationalism
and
[234]
anticlericalism of that philosophic bent.
He
has often been regarded as espousing Deism or
the rationalistic belief in a natural religion and
natural law divorced from its medieval
connection with divine law, and instead
adhering to a secular belief in a universal
harmony.[235] Thus,
according
to
this
Jeffersonian view, the Establishment Clause
being meant to protect the state from the
church, the states hostility towards religion
allows no interaction between the two.[236] In
fact, when Jefferson became President, he
refused to proclaim fast or thanksgiving days on
the ground that these are religious exercises
and the Constitution prohibited the government
from
intermeddling
with
religion.[237] This
approach erects an absolute barrier to formal
interdependence of religion and state. Religious
institutions could not receive aid, whether direct
or indirect, from the state. Nor could the state
adjust its secular programs to alleviate burdens
the programs placed on believers.[238]Only the
complete separation of religion from politics

150

would eliminate the formal influence of religious

institutions and provide for a free choice among
political views thus a strict wall of separation is
necessary.[239] Strict
separation
faces
difficulties, however, as it is deeply embedded
in history and contemporary practice that
enormous amounts of aid, both direct and
indirect, flow to religion from government in
return for huge amounts of mostly indirect aid
from religion. Thus, strict separationists are
caught in an awkward position of claiming a
constitutional principle that has never existed
and is never likely to.[240]
A tamer version of the strict separationist
view, the strict neutrality or separationist
view is largely used by the Court, showing the
Courts tendency to press relentlessly towards a
more secular society.[241] It finds basis in
the Everson case where the Court declared
that Jeffersons wall of separation encapsulated
the meaning of the First Amendment but at the
same time held that the First Amendment
requires the state to be neutral in its relations
with groups of religious believers and nonbelievers; it does not require the state to be
their adversary. State power is no more to
be used so as to handicap religions than it
is to favor
them. (emphasis
supplied)
[242]
While the strict neutrality approach is not

hostile to religion, it is strict in holding that

religion may not be used as a basis for
classification for purposes of governmental
action, whether the action confers rights or
privileges or imposes duties or obligations. Only
secular criteria may be the basis of government
action. It does not permit, much less require,
accommodation of secular programs to religious
belief.[243] Professor Kurland wrote, viz:
The thesis proposed here as the proper
construction of the religion clauses of the first
amendment is that the freedom and separation
clauses should be read as a single precept that
government cannot utilize religion as a standard
for action or inaction because these clauses
prohibit classification in terms of religion either
to confer a benefit or to impose a burden.[244]
The Court has repeatedly declared that religious
freedom means government neutrality in
religious matters and the Court has also
repeatedly interpreted this policy of neutrality
to prohibit government from acting except for
secular purposes and in ways that have
primarily secular effects.[245]
Prayer in public schools is an area where the
Court has applied strict neutrality and refused
to allow any form of prayer, spoken or silent, in
the public schools as in Engel and Schempp.

151

The McCollum case prohibiting optional

religious instruction within public school
premises during regular class hours also
demonstrates
strict
neutrality. In
these
education cases, the Court refused to uphold
the government action as they were based not
on a secular but on a religious purpose. Strict
neutrality
was
also
used
in Reynolds and Smith which both held that if
government acts in pursuit of a generally
applicable law with a secular purpose that
merely incidentally burdens religious exercise,
the
First
Amendment
has
not
been
offended. However, if the strict neutrality
standard is applied in interpreting the
Establishment Clause, it could de facto void
religious expression in the Free Exercise
Clause.As pointed out by Justice Goldberg in his
concurring
opinion
in Schempp,
strict
neutrality could lead to a brooding and
pervasive devotion to the secular and a passive,
or even active, hostility to the religious which is
prohibited by the Constitution.[247] Professor
Laurence Tribe commented in his authoritative
treatise, viz:
[246]

To most observers. . . strict neutrality has

seemed incompatible with the very idea of a
free exercise clause. The Framers, whatever
specific applications they may have intended,

clearly envisioned religion as something special;

they enacted that vision into law by
guaranteeing the free exercise of religion but
not, say, of philosophy or science. The strict
neutrality approach all but erases this
distinction. Thus it is not surprising that the
Supreme Court has rejected strict neutrality,
permitting and sometimes mandating religious
classifications.[248]
The separationist approach, whether strict or
tame, is caught in a dilemma because while the
Jeffersonian wall of separation captures the
spirit of the American ideal of church-state
separation, in real life church and state are not
and cannot be totally separate. [249] This is all
the more true in contemporary times when both
the government and religion are growing and
expanding their spheres of involvement and
activity, resulting in the intersection of
government and religion at many points.[250]
Consequently, the Court has also decided
cases
employing benevolent
neutrality. Benevolent
neutrality which
gives room for accommodation is buttressed
by a different view of the wall of separation
associated with Williams, founder of the Rhode
Island
colony. In
Mark
DeWolfe
Howes
classic, The Garden and the Wilderness, he

152

asserts that to the extent the Founders had a

wall of separation in mind, it was unlike the
Jeffersonian wall that is meant to protect the
state from the church; instead, the wall is
meant to protect the church from the state,
[251]
i.e., the garden of the church must be
walled in for its own protection from the
wilderness of the world[252] with its potential for
corrupting those values so necessary to
religious commitment.[253] Howe called this the
theological or evangelical rationale for churchstate separation while the wall espoused by
enlightened statesmen such as Jefferson and
Madison, was a political rationale seeking to
protect politics from intrusions by the church.
[254]
But it has been asserted that this contrast
between the Williams and Jeffersonian positions
is more accurately described as a difference in
kinds or styles of religious thinking, not as a
conflict
between
religious
and
secular
(political); the religious style was biblical and
evangelical in character while the secular style
was grounded in natural religion, more generic
and philosophical in its religious orientation.[255]
The Williams wall is, however, breached for
the church is in the state and so the remaining
purpose of the wall is to safeguard religious
liberty. Williams view would therefore allow for
interaction between church and state, but is

strict with regard to state action which would

threaten the integrity of religious commitment.
[256]
His conception of separation is not total
such that it provides basis for certain
interactions between church and state dictated
by apparent necessity or practicality.[257] This
theological view of separation is found in
Williams writings, viz:
. . . when they have opened a gap in the hedge
or wall of separation between the garden of the
church and the wilderness of the world, God
hath ever broke down the wall itself, removed
the candlestick, and made his garden a
wilderness, as this day. And that therefore if He
will eer please to restore His garden and
paradise again, it must of necessity be walled in
peculiarly unto Himself from the world. . .[258]
Chief Justice Burger spoke of benevolent
neutrality in Walz, viz:
The general principle deducible from the First
Amendment and all that has been said by the
Court is this: that we will not tolerate either
governmentally established religion or
governmental interference with religion. Short
of those expressly proscribed governmental acts
there is room for play in the joints productive
of a benevolent neutrality which will

153

permit religious exercise to exist without

sponsorship and without interference.
[259]
(emphasis supplied)
The Zorach case expressed
of accommodation,[260] viz:

the

doctrine

The First Amendment, however, does not

say that in every and all respects there
shall be a separation of Church and
State. Rather, it studiously defines the
manner, the specific ways, in which there
shall be no concert or union or dependency
one or the other. That is the common
sense of the matter. Otherwise, the state
and religion would be aliens to each other
- hostile, suspicious, and even
unfriendly. Churches could not be required to
pay even property taxes.Municipalities would
not be permitted to render police or fire
protection to religious groups. Policemen who
helped parishioners into their places of worship
would violate the Constitution. Prayers in our
legislative halls; the appeals to the Almighty in
the messages of the Chief Executive; the
proclamations making Thanksgiving Day a
holiday; so help me God in our courtroom
oaths- these and all other references to the
Almighty that run through our laws, our public
rituals, our ceremonies would be flouting the

First Amendment. A fastidious atheist or

agnostic could even object to the supplication
with which the Court opens each session: God
save the United States and this Honorable
Court.
xxx xxx xxx
We are a religious people whose
institutions presuppose a Supreme
Being. We guarantee the freedom to worship
as one chooses. . . When the state
encourages religious instruction or
cooperates with religious authorities by
adjusting the schedule of public events, it
follows the best of our traditions. For it
then respects the religious nature of our
people and accommodates the public
service to their spiritual needs. To hold
that it may not would be to find in the
Constitution a requirement that the
government show a callous indifference to
religious groups. . . But we find no
constitutional requirement which makes it
necessary for government to be hostile to
religion and to throw its weight against efforts
to widen their effective scope of religious
influence.[261] (emphases supplied)

154

Benevolent neutrality is congruent with the

sociological proposition that religion serves a
function essential to the survival of society
itself, thus there is no human society without
one or more ways of performing the essential
function
of
religion. Although
for
some
individuals there may be no felt need for
religion and thus it is optional or even
dispensable, for society it is not, which is why
there is no human society without one or more
ways of performing the essential function of
religion. Even in ostensibly atheistic societies,
there are vigorous underground religion(s) and
surrogate religion(s) in their ideology.[262] As
one sociologist wrote:
It is widely held by students of society that
there are certain functional prerequisites
without which society would not continue to
exist. At first glance, this seems to be obvious scarcely more than to say that an automobile
could not exist, as a going system, without a
carburetor. . . Most writers list religion among
the functional prerequisites.[263]
Another noted sociologist, Talcott Parsons,
wrote: There is no known human society
without something which modern social
scientists would classify as a religionReligion is
as much a human universal as language.[264]

Benevolent neutrality thus recognizes that

religion plays an important role in the public life
of the United States as shown by many
traditional
government
practices
which,
to strict neutrality, pose Establishment Clause
questions. Among these are the inscription of In
God We Trust on American currency, the
recognition of America as one nation under God
in the official pledge of allegiance to the flag,
the Supreme Courts time-honored practice of
opening oral argument with the invocation God
save the United States and this honorable
Court, and the practice of Congress and every
state legislature of paying a chaplain, usually of
a particular Protestant denomination to lead
representatives in prayer.[265] These practices
clearly show the preference for one theological
viewpoint -the existence of and potential for
intervention by a god - over the contrary
theological viewpoint of atheism. Church and
government agencies also cooperate in the
building of low-cost housing and in other forms
of poor relief, in the treatment of alcoholism
and drug addiction, in foreign aid and other
government activities with strong moral
dimension.[266] The persistence of these de
facto establishments are in large part explained
by the fact that throughout history, the
evangelical theory of separation, i.e., Williams
wall, has demanded respect for these de

155

factoestablishments.[267] But the separationists

have a different explanation. To characterize
these as de jure establishments according to
the principle of the Jeffersonian wall, the U.S.
Supreme Court, the many dissenting and
concurring opinions explain some of these
practices
as de
minimis instances
of
government endorsement or as historic
governmental practices that have largely lost
their religious significance or at least have
proven not to lead the government into further
involvement with religion.[268]
With religion looked upon with benevolence
and
not
hostility, benevolent
neutrality allows accommodation of religion
under certain circumstances. Accommodations
are government policies that take religion
specifically into account not to promote the
governments favored form of religion, but
to allow individuals and groups to exercise
their religion without hindrance. Their
purpose or effect therefore is to remove a
burden on, or facilitate the exercise of, a
persons or institutions religion. As Justice
Brennan explained, the government [may] take
religion
into
accountto
exempt,
when
possible,
from
generally
applicable
governmental regulation individuals whose
religious beliefs and practices would otherwise

thereby be infringed, or to create without state

involvement an atmosphere in which voluntary
religious exercise may flourish.[269] (emphasis
supplied) Accommodation is forbearance and
not alliance. it does not reflect agreement with
the minority, but respect for the conflict
between the temporal and spiritual authority in
which the minority finds itself.[270]
Accommodation is distinguished from
strict neutrality in that the latter holds that
government should base public policy
solely on secular considerations, without
regard to the religious consequences of its
actions. The debate between accommodation
and strict neutrality is at base a question of
means: Is the freedom of religion best achieved
when the government is conscious of the effects
of its action on the various religious practices of
its people, and seeks to minimize interferences
with those practices? Or is it best advanced
through a policy of religious blindness - keeping
government aloof from religious practices and
issues? An accommodationist holds that it is
good
public
policy,
and
sometimes
constitutionally required, for the state to make
conscious and deliberate efforts to avoid
interference with religious freedom. On the
other hand, the strict neutrality adherent
believes that it is good public policy, and also

156

constitutionally required, for the government to

avoid religion-specific policy even at the cost of
inhibiting religious exercise.[271]
There are strong and compelling reasons,
however,
to
take
the accommodationist position rather than
the
strict
neutrality
position. First,
the
accommodationist interpretation is most
consistent with the language of the First
Amendment. The religion clauses contain two
parallel provisions, both specifically directed at
religion. The government may not establish
religion and neither may government prohibit
it. Taken together, the religion clauses can be
read most plausibly as warding off two equal
and opposite threats to religious freedom government action that promotes the (political)
majoritys favored brand of religion and
government action that impedes religious
practices
not
favored
by
the
majority. The substantive end in view is the
preservation of the autonomy of religious life
and not just the formal process value of
ensuring that government does not act on the
basis of religious bias. On the other hand, strict
neutrality interprets the religion clauses as
allowing government to do whatever it desires
to or for religion, as long as it does the same to
or for comparable secular entities. Thus, for

example, if government prohibits all alcoholic

consumption by minors, it can prohibit minors
from taking part in communion. Paradoxically,
this view would make the religion clauses
violate the religion clauses, so to speak, since
the religion clauses single out religion by name
for
special
protection. Second,
the
accommodationist position best achieves
the purposes of the First Amendment. The
principle underlying the First Amendment is
thatfreedom to carry out ones duties to a
Supreme Being is an inalienable right, not
one
dependent
on
the
grace
of
legislature. Although
inalienable,
it
is
necessarily limited by the rights of others,
including the public right of peace and good
order. Nevertheless it is a substantive right and
not merely a privilege against discriminatory
legislation. The accomplishment of the purpose
of the First Amendment requires more than the
religion blindness of strict neutrality. With the
pervasiveness
of
government
regulation,
conflicts with religious practices become
frequent and intense. Laws that are suitable for
secular entities are sometimes inappropriate for
religious entities, thus the government must
make special provisions to preserve a degree of
independence for religious entities for them to
carry out their religious missions according to
their religious beliefs. Otherwise, religion will

157

become just like other secular entities subject

to
pervasive
regulation
by
majoritarian
institutions. Third, the accommodationist
interpretation is particularly necessary to
protect adherents of minority religions
from
the
inevitable
effects
of
majoritarianism, which include ignorance and
indifference
and overt hostility to the
minority. In a democratic republic, laws are
inevitably based on the presuppositions of the
majority, thus not infrequently, they come into
conflict with the religious scruples of those
holding different world views, even in the
absence of a deliberate intent to interfere with
religious practice. At times, this effect is
unavoidable as a practical matter because some
laws are so necessary to the common good that
exceptions
are
intolerable. But
in
other
instances, the injury to religious conscience is
so great and the advancement of public
purposes so small or incomparable that only
indifference or hostility could explain a refusal
to
make
exemptions. Because
of
plural
traditions, legislators and executive officials are
frequently willing to make such exemptions
when the need is brought to their attention, but
this may not always be the case when the
religious practice is either unknown at the time
of enactment or is for some reason
unpopular. In these cases, a constitutional

interpretation that allows accommodations

prevents needless injury to the religious
consciences of those who can have an
influence in the legislature; while a
constitutional
interpretation
that requires accommodations extends this
treatment to religious faiths that are less
able to protect themselves in the political
arena. Fourth, the accommodationist position
is practical as it is a commonsensical way to
deal with the various needs and beliefs of
different faiths in a pluralistic nation. Without
accommodation, many otherwise beneficial laws
would
interfere
severely
with
religious
freedom. Aside from laws against serving
alcoholic beverages to minors conflicting with
celebration of communion, regulations requiring
hard hats in construction areas can effectively
exclude Amish and Sikhs from the workplace, or
employment
anti-discrimination
laws
can
conflict with the Roman Catholic male
priesthood, among others. Exemptions from
such laws are easy to craft and administer and
contribute much to promoting religious freedom
at little cost to public policy. Without
exemptions,
legislature
would
be
frequently forced to choose between
violating religious conscience of a segment
of the population or dispensing with
legislation it considers beneficial to society

158

as a whole. Exemption seems manifestly

more reasonable than either of the
alternative: no exemption or no law.[272]
Benevolent neutrality gives room for
different
kinds
of accommodation: those
which are constitutionally compelled, i.e.,
required by the Free Exercise Clause; and those
which are discretionary or legislative, i.e., and
those not required by the Free Exercise Clause
but nonetheless permitted by the Establishment
Clause.[273] Some Justices of the Supreme Court
have also used the term accommodation to
describe government actions that acknowledge
or express prevailing religious sentiments of the
community such as display of a religious symbol
on public property or the delivery of a prayer at
public ceremonial events.[274] Stated otherwise,
using benevolent neutrality as a standard
could
result
to
three
situations
of accommodation: those
where accommodation is required,
those
where it is permissible, and those where it
is prohibited. In
the
first
situation,
accommodation isrequired to preserve free
exercise protections and not unconstitutionally
infringe on religious liberty or create penalties
for
religious
freedom. Contrary
to
the Smith declaration
that
free
exercise
exemptions
are
intentional
government

advancement, these exemptions merely relieve

the prohibition on the free exercise thus
allowing the burdened religious adherent to be
left alone. The state must create exceptions to
laws of general applicability when these laws
threaten religious convictions or practices in the
absence of a compelling state interest.[275] By
allowing such exemptions, the Free Exercise
Clause does not give believers the right or
privilege to choose for themselves to override
socially-prescribed decision; it allows them to
obey
spiritual
rather
than
temporal
[276]
authority
for those who seriously invoke the
Free Exercise Clause claim to be fulfilling a
solemn duty. Religious freedom is a matter less
of rights than duties; more precisely, it is a
matter of rights derived from duties. To deny a
person or a community the right to act upon
such a duty can be justified only by appeal to a
yet more compelling duty. Of course, those
denied will usually not find the reason for the
denial compelling. Because they may turn out
to be right about the duty in question, and
because, even if they are wrong, religion bears
witness to that which transcends the political
order, such denials should be rare and painfully
reluctant.[277]
The Yoder case is an example where the
Court held that the state must accommodate

159

the religious beliefs of the Amish who objected

to enrolling their children in high school as
required by law. The Sherbert case is another
example where the Court held that the state
unemployment
compensation
plan
must
accommodate the religious convictions of
Sherbert.[278] In these cases of burdensome
effect, the modern approach of the Court has
been to apply strict scrutiny, i.e., to declare the
burden as permissible, the Court requires the
state to demonstrate that the regulation which
burdens the religious exercise pursues a
particularly
important
or
compelling
government goal through the least restrictive
means. If the states objective could be served
as well or almost as well by granting an
exemption to those whose religious beliefs are
burdened by the regulation, such an exemption
must be given.[279]This approach of the Court on
burdensome effect was only applied since the
1960s. Prior to this time, the Court took the
separationist view that as long as the state was
acting in pursuit of non-religious ends and
regulating conduct rather than pure religious
beliefs, the Free Exercise Clause did not pose a
hindrance such as in Reynolds.[280] In the
second
situation
where
accommodation
is permissible, the state may, but is not
required
to,
accommodate
religious
interests. The Walz
case illustrates
this

situation
where
the
Court
upheld
the
constitutionality of tax exemption given by New
York to church properties, but did not rule that
the state was required to provide tax
exemptions. The Court declared that (t)he limits
of permissible state accommodation to religion
are by no means co-extensive with the
noninterference mandated by the Free Exercise
Clause.[281] The Court held that New York could
have an interest in encouraging religious values
and avoiding threats to those values through
the burden of property taxes. Other examples
are the Zorach case allowing released time in
public schools and Marsh allowing payment of
legislative chaplains from public funds. Finally,
in
the
situation
where
accommodation
is prohibited, establishment concerns prevail
over potential accommodation interests. To say
that there are valid exemptions buttressed by
the Free Exercise Clause does not mean that all
claims for free exercise exemptions are valid.
[282]
An example where accommodation was
prohibited is McCollum where the Court ruled
against optional religious instruction in the
public school premises.[283] In effect, the last
situation would arrive at a strict neutrality
conclusion.

160

In the first situation where accommodation

is required, the approach follows this basic
framework:
If the plaintiff can show that a law or
government practice inhibits the free exercise of
his religious beliefs, the burden shifts to the
government to demonstrate that the law or
practice is necessary to the accomplishment of
some important (or compelling) secular
objective and that it is the least restrictive
means of achieving that objective. If the
plaintiff meets this burden and the government
does not, the plaintiff is entitled to exemption
from the law or practice at issue. In order to be
protected, the claimants beliefs must be
sincere, but they need not necessarily be
consistent, coherent, clearly articulated, or
congruent with those of the claimants religious
denomination. Only beliefs rooted in religion are
protected by the Free Exercise Clause; secular
beliefs, however sincere and conscientious, do
not suffice.[284]
In other words, a three-step process (also
referred to as the two-step balancing
process supra when the second and third
steps
are
combined) as
in Sherbert is
followed in weighing the states interest and
religious freedom when these collide. Three

questions are answered in this process. First,

(h)as the statute or government action created
a burden on the free exercise of religion? The
courts often look into the sincerity of the
religious belief, but without inquiring into the
truth of the belief because the Free Exercise
Clause prohibits inquiring about its truth as held
in Ballard and Cantwell. The sincerity of the
claimants belief is ascertained to avoid the
mere claim of religious beliefs to escape a
mandatory regulation. As evidence of sincerity,
the U.S. Supreme Court has considered
historical evidence as in Wisconsin where the
Amish people had held a long-standing
objection to enrolling their children in ninth and
tenth grades in public high schools. In another
case, Dobkin v. District of Columbia,[285] the
Court denied the claim of a party who refused
to appear in court on Saturday alleging he was
a Sabbatarian, but the Court noted that he
regularly
conducted
business
on
Saturday. Although it is true that the Court
might erroneously deny some claims because of
a misjudgment of sincerity, this is not as
argument to reject all claims by not allowing
accommodation as a rule. There might be injury
to the particular claimant or to his religious
community, but for the most part, the injustice
is done only in the particular case.[286] Aside
from the sincerity, the court may look into the

161

centrality of those beliefs, assessing them not

on an objective basis but in terms of the opinion
and belief of the person seeking exemption. In
Wisconsin, for example, the Court noted that
the Amish peoples convictions against becoming
involved in public high schools were central to
their way of life and faith. Similarly, in Sherbert,
the Court concluded that the prohibition against
Saturday work was a cardinal principle.
[287]
Professor Lupu puts to task the person
claiming exemption, viz:
On the claimants side, the meaning and
significance of the relevant religious practice
must be demonstrated. Religious command
should outweigh custom, individual conscience
should count for more than personal
convenience, and theological principle should be
of greater significance than institutional
ease. Sincerity matters, (footnote omitted) and
longevity of practice - both by the individual
and within the individuals religious tradition reinforces sincerity. Most importantly, the law of
free exercise must be inclusive and expansive,
recognizing non-Christian religions - eastern,
Western, aboriginal and otherwise - as
constitutionally equal to their Christian
counterparts, and accepting of the intensity and
scope of fundamentalist creed.[288]

Second, the court asks: (i)s there a

sufficiently compelling state interest to justify
this infringement of religious liberty? In this
step, the government has to establish that
its purposes are legitimate for the state
and that they are compelling. Government
must do more than assert the objectives at risk
if exemption is given; it must precisely show
how and to what extent those objectives will be
undermined if exemptions are granted.[289] The
person claiming religious freedom, on the other
hand, will endeavor to show that the interest is
not legitimate or that the purpose, although
legitimate, is not compelling compared to
infringement of religious liberty. This step
involves balancing, i.e., weighing the interest
of the state against religious liberty to
determine which is more compelling under the
particular set of facts. The greater the states
interests, the more central the religious belief
would have to be to overcome it. In assessing
the state interest, the court will have to
determine the importance of the secular
interest and the extent to which that interest
will be impaired by an exemption for the
religious practice. Should the court find the
interest truly compelling, there will be no
requirement that the state diminish the
effectiveness of its regulation by granting the
exemption.[290]

162

Third, the court asks: (h)as the state in

achieving its legitimate purposes used the least
intrusive means possible so that the free
exercise is not infringed any more than
necessary to achieve the legitimate goal of the
state?[291] The analysis requires the state to
show that the means in which it is achieving its
legitimate state objective is the least intrusive
means, i.e., it has chosen a way to achieve its
legitimate state end that imposes as little as
possible on religious liberties. In Cantwell, for
example, the Court invalidated the license
requirement for the door-to-door solicitation as
it was a forbidden burden on religious liberty,
noting that less drastic means of insuring peace
and tranquility existed. As a whole, in carrying
out the compelling state interest test, the
Court should give careful attention to context,
both religious and regulatory, to achieve refined
judgment.[292]
In sum, as shown by U.S. jurisprudence on
religion clause cases, the competing values of
secular government and religious freedom
create tensions that make constitutional law on
the subject of religious liberty unsettled,
mirroring the evolving views of a dynamic
society.[293]
VII. Religion Clauses in the Philippines

A. History
Before our country fell under American rule,
the blanket of Catholicism covered the
archipelago. There was a union of church and
state and Catholicism was the state religion
under the Spanish Constitution of 1876. Civil
authorities exercised religious functions and the
friars exercised civil powers.[294] Catholics alone
enjoyed the right of engaging in public
ceremonies
of
worship.[295] Although
the
Spanish Constitution itself was not extended to
the Philippines, Catholicism was also the
established church in our country under the
Spanish rule. Catholicism was in fact protected
by the Spanish Penal Code of 1884 which was in
effect in the Philippines. Some of the offenses in
chapter six of the Penal Code entitled Crimes
against Religion and Worship referred to crimes
against the state religion.[296] The coming of the
Americans to our country, however, changed
this state-church scheme for with the advent of
this regime, the unique American experiment of
separation of church and state was transported
to Philippine soil.
Even as early as the conclusion of
the Treaty of Paris between the United States
and Spain on December 10, 1898, the American
guarantee of religious freedom had been
extended to the Philippines. The Treaty provided

163

that the inhabitants of the territories over which

Spain relinquishes or cedes her sovereignty
shall be secured in the free exercise of religion.
[297]
Even the Filipinos themselves guaranteed
religious freedom a month later or on January
22, 1899 upon the adoption of the Malolos
Constitution of the Philippine Republic under
General Emilio Aguinaldo. It provided that the
State recognizes the liberty and equality of all
religion (de todos los cultos) in the same
manner as the separation of the Church and
State. But
the
Malolos
Constitution
and
government was short-lived as the Americans
took over the reigns of government.[298]
With the Philippines under the American
regime,
President
McKinley
issued Instructions to the Second Philippine
Commission, the body created to take over the
civil
government
in
the
Philippines
in
1900. The Instructionsguaranteed
religious
freedom, viz:
That no law shall be made respecting the
establishment of religion or prohibiting the free
exercise thereof, and that the free exercise and
enjoyment of religious profession and worship
without discrimination or preference shall
forever be allowed ... that no form of religion
and no minister of religion shall be forced upon

the community or upon any citizen of the

Islands, that, on the other hand, no minister of
religion shall be interfered with or molested in
following his calling.[299]
This provision was based on the First
Amendment
of
the
United
States
Constitution. Likewise, the Instructions declared
that (t)he separation between State and Church
shall be real, entire and absolute.[300]
Thereafter, every organic act of the
Philippines contained a provision on freedom of
religion. Similar to the religious freedom clause
in the Instructions, the Philippine Bill of 1902
provided that:
No law shall be made respecting an
establishment of religion or prohibiting the free
exercise thereof, and that free exercise and
enjoyment of religious worship, without
discrimination or preference, shall forever be
allowed.
In U.S. v. Balcorta,[301] the Court stated that
the Philippine Bill of 1902 caused the complete
separation of church and state, and the
abolition of all special privileges and all
restrictions theretofor conferred or imposed
upon any particular religious sect.[302]

164

The Jones Law of 1916 carried the same

provision, but expanded it with a restriction
against using public money or property for
religious purposes, viz:

be secured and no inhabitant or religious

organization shall be molested in person or
property on account of religious belief or mode
of worship.[303]

That no law shall be made respecting an

establishment of religion or prohibiting the free
exercise thereof, and that the free exercise and
enjoyment of religious profession and worship
without discrimination or preference, shall
forever be allowed; and no religious test shall
be required for the exercise of civil or political
rights. No public money or property shall ever
be appropriated, applied, donated, or used,
directly or indirectly, for the use, benefit, or
support of any sect, church, denomination,
sectarian institution, or system of religion, or
for the use, benefit or support of any priest,
preacher, minister, or other religious teachers or
dignitary as such.

The Constitutional Convention then began

working on the 1935 Constitution. In their
proceedings, Delegate Jose P. Laurel as
Chairman of the Committee on Bill of Rights
acknowledged that (i)t was the Treaty of Paris
of December 10, 1898, which first introduced
religious toleration in our country. President
McKinleys Instructions to the Second Philippine
Commission reasserted this right which later
was incorporated into the Philippine Bill of 1902
and in the Jones Law.[304] In accordance with
the
Tydings-McDuffie
Law,
the
1935
Constitution provided in the Bill of Rights,
Article IV, Section 7, viz:

This
was
followed
by
the Philippine
Independence Law or Tydings-McDuffie
Law of 1934 which guaranteed independence
to the Philippines and authorized the drafting of
a Philippine constitution. It enjoined Filipinos to
include freedom of religion in drafting their
constitution preparatory to the grant of
independence. The
law
prescribed
that
(a)bsolute toleration of religious sentiment shall

Sec. 7. No law shall be made respecting an

establishment of religion, or prohibiting the free
exercise thereof, and the free exercise and
enjoyment of religious profession and worship,
without discrimination or preference, shall
forever be allowed. No religious test shall be
required for the exercise of civil or political
rights.
This provision, borrowed from the Jones Law,
was readily approved by the Convention. [305] In

165

his speech as Chairman of the Committee on

Bill of Rights, Delegate Laurel said that
modifications in phraseology of the Bill of Rights
in the Jones Law were avoided whenever
possible because the principles must remain
couched in a language expressive of their
historical background, nature, extent and
limitations as construed and interpreted by the
great statesmen and jurists that vitalized them.
[306]

The 1973 Constitution which superseded

the 1935 Constitution contained an almost
identical provision on religious freedom in the
Bill of Rights in Article IV, Section 8, viz:
Sec. 8. No law shall be made respecting an
establishment of religion, or prohibiting the free
exercise thereof. The free exercise and
enjoyment of religious profession and worship,
without discrimination or preference, shall
forever be allowed. No religious test shall be
required for the exercise of civil or political
rights.
This time, however, the General Provisions in
Article XV added in Section 15 that (t)he
separation of church and state shall be
inviolable.

Without
discussion
by
the
1986
Constitutional Commission, the 1973 religious
clauses
were
reproduced
in
the 1987
Constitution under the Bill of Rights in Article
III, Section 5.[307] Likewise, the provision on
separation of church and state was included
verbatim in the 1987 Constitution, but this time
as a principle in Section 6, Article II entitled
Declaration of Principles and State Policies.
Considering the American origin of the
Philippine religion clauses and the intent to
adopt the historical background, nature, extent
and limitations of the First Amendment of the
U.S. Constitution when it was included in the
1935 Bill of Rights, it is not surprising that
nearly all the major Philippine cases involving
the religion clauses turn to U.S. jurisprudence in
explaining the nature, extent and limitations of
these clauses. However, a close scrutiny of
these cases would also reveal that while U.S.
jurisprudence on religion clauses flows into two
main streams of interpretation - separation
and benevolent neutrality - the well-spring
of Philippine jurisprudence on this subject
is for the most part, benevolent neutrality
which gives room for accommodation.
B. Jurisprudence

166

In revisiting the landscape of Philippine

jurisprudence on the religion clauses, we begin
with the definition of religion. Religion is
derived from the Middle English religioun, from
Old French religion, from Latin religio, vaguely
referring to a bond between man and the gods.
[308]
This pre-Christian term for the cult and
rituals of pagan Rome was first Christianized in
the Latin translation of the Bible.[309] While the
U.S. Supreme Court has had to take up the
challenge of defining the parameters and
contours of religion to determine whether a
non-theistic belief or act is covered by the
religion clauses, this Court has not been
confronted with the same issue. In Philippine
jurisprudence, religion, for purposes of the
religion clauses, has thus far been interpreted
as theistic. In 1937, the Philippine case
of Aglipay
v.
Ruiz[310] involving
the
Establishment Clause, defined religion as a
profession of faith to an active power that binds
and elevates man to his Creator. Twenty years
later, the Court cited the Aglipay definition
in American Bible Society v. City of Manila,
[311]
a case involving the Free Exercise
clause. The latter also cited the American case
of Davis in defining religion, viz: (i)t has
reference to ones views of his relations to His
Creator and to the obligations they impose of
reverence to His being and character and

obedience to His Will. TheBeason definition,

however, has
been
expanded
in
U.S.
jurisprudence to include non-theistic beliefs.
1. Free Exercise Clause
Freedom of choice guarantees the liberty of
the religious conscience and prohibits any
degree of compulsion or burden, whether direct
or indirect, in the practice of ones religion. The
Free Exercise Clause principally guarantees
voluntarism, although the Establishment Clause
also assures voluntarism by placing the burden
of the advancement of religious groups on their
intrinsic merits and not on the support of the
state.[312]
In interpreting the Free Exercise Clause,
the realm of belief poses no difficulty. The
early case of Gerona v. Secretary of
Education[313] is instructive on the matter, viz:
The realm of belief and creed is infinite
and limitless bounded only by ones
imagination and thought. So is the
freedom of belief, including religious
belief, limitless and without bounds. One
may believe in most anything, however strange,
bizarre and unreasonable the same may appear

167

to others, even heretical when weighed in the

scales of orthodoxy or doctrinal standards. But
between the freedom of belief and the exercise
of said belief, there is quite a stretch of road to
travel.[314]
The difficulty in interpretation sets in when
belief is externalized into speech and action.
Religious speech comes within the pale of
the Free Exercise Clause as illustrated in
the American Bible Society case. In that
case, plaintiff American Bible Society was a
foreign,
non-stock,
non-profit,
religious
missionary corporation which sold bibles and
gospel portions of the bible in the course of its
ministry. The defendant City of Manila required
plaintiff to secure a mayors permit and a
municipal license as ordinarily required of those
engaged in the business of general merchandise
under the citys ordinances. Plaintiff argued that
this amounted to religious censorship and
restrained the free exercise and enjoyment of
religious profession, to wit: the distribution and
sale of bibles and other religious literature to
the people of the Philippines.
After defining religion, the Court, citing
Tanada
and
Fernando,
made
this
statement, viz:

The constitutional guaranty of the free exercise

and enjoyment of religious profession and
worship carries with it the right to disseminate
religious information. Any restraint of such right
can only be justified like other restraints of
freedom of expression on the grounds that
there is a clear and present danger of any
substantive evil which the State has the
right to prevent. (Tanada and Fernando on the
Constitution of the Philippines, vol. 1, 4th ed., p.
297) (emphasis supplied)
This was the Courts maiden unequivocal
affirmation of the clear and present danger
rule in the religious freedom area, and in
Philippine jurisprudence, for that matter.
[315]
The case did not clearly show, however,
whether the Court proceeded to apply the test
to the facts and issues of the case, i.e., it did
not identify the secular value the government
regulation sought to protect, whether the
religious speech posed a clear and present
danger to this or other secular value protected
by government, or whether there was danger
but it could not be characterized as clear and
present. It is one thing to apply the test and
find that there is no clear and present danger,
and quite another not to apply the test
altogether.

168

Instead, the Court categorically held that the

questioned ordinances were not applicable to
plaintiff as it was not engaged in the business
or occupation of selling said merchandise for
profit. To add, the Court, citing Murdock v.
Pennsylvania,[316] ruled that applying the
ordinance requiring it to secure a license and
pay a license fee or tax would impair its free
exercise of religious profession and worship and
its right of dissemination of religious beliefs as
the power to tax the exercise of a privilege is
the power to control or suppress its
enjoyment. Thus, in American Bible Society,
the clear and present danger rule was laid down
but it was not clearly applied.
In the much later case of Tolentino v.
Secretary of Finance,[317] also involving the
sale of religious books, the Court distinguished
the American Bible Society case from the
facts and issues in Tolentino and did not apply
the American
Bible
Society
ruling. In Tolentino, the Philippine Bible
Society
challenged
the
validity
of
the
registration provisions of the Value Added Tax
(VAT) Law as a prior restraint. The Court held,
however, that the fixed amount of registration
fee was not imposed for the exercise of a
privilege like a license tax which American
Bible Society ruled was violative of religious

freedom. Rather, the registration fee was

merely an administrative fee to defray part of
the cost of registration which was a central
feature of the VAT system. Citing Jimmy
Swaggart
Ministries
v.
Board
of
[318]
Equalization,
the Court also declared
prefatorily that the Free Exercise of Religion
Clause does not prohibit imposing a generally
applicable sales and use tax on the sale of
religious
materials
by
a
religious
organization. In the Courts resolution of the
motion for reconsideration of the Tolentino
decision, the Court noted that the burden on
religious freedom caused by the tax was just
similar to any other economic imposition that
might make the right to disseminate religious
doctrines costly.
Two
years
after American
Bible
Society came the 1959 case of Gerona v.
Secretary
of
Education,[319] this
time
involving conduct expressive of religious belief
colliding with a rule prescribed in accordance
with law. In this case, petitioners were
members of the Jehovahs Witnesses. They
challenged a Department Order issued by the
Secretary of Education implementing Republic
Act No. 1265 which prescribed compulsory flag
ceremonies in all public schools. In violation of
the Order, petitioners children refused to salute

169

the Philippine flag, sing the national anthem, or

recite the patriotic pledge, hence they were
expelled from school. Seeking protection under
the Free Exercise Clause, petitioners claimed
that their refusal was on account of their
religious belief that the Philippine flag is an
image and saluting the same is contrary to their
religious belief. The Court stated, viz:
. . . If the exercise of religious belief clashes
with the established institutions of society and
with the law, then the former must yield to the
latter. The Government steps in and either
restrains said exercise or even prosecutes the
one exercising it. (emphasis supplied)[320]
The Court then proceeded to determine if the
acts involved constituted a religious ceremony
in conflict with the beliefs of the petitioners with
the following justification:
After all, the determination of whether a certain
ritual is or is not a religious ceremony must rest
with the courts. It cannot be left to a religious
group or sect, much less to a follower of said
group or sect; otherwise, there would be
confusion and misunderstanding for there might
be as many interpretations and meaning to be
given to a certain ritual or ceremony as there
are religious groups or sects or followers, all

depending upon the meaning which they,

though in all sincerity and good faith, may want
to give to such ritual or ceremony.[321]
It was held that the flag was not an image, the
flag salute was not a religious ceremony, and
there was nothing objectionable about the
singing of the national anthem as it speaks only
of love of country, patriotism, liberty and the
glory of suffering and dying for it. The Court
upheld the questioned Order and the expulsion
of petitioners children, stressing that:
Men may differ and do differ on religious beliefs
and creeds, government policies, the wisdom
and legality of laws, even the correctness of
judicial decisions and decrees; but in the field of
love of country, reverence for the flag, national
unity and patriotism, they can hardly afford to
differ, for these are matters in which they are
mutually and vitally interested, for to them,
they mean national existence and survival as a
nation or national extinction.[322]
In support of its ruling, the Court cited Justice
Frankfurters dissent in the Barnette case, viz:
The constitutional protection of religious
freedom x x x gave religious equality, not civil
immunity. Its essence is freedom from

170

conformity to religious dogma, not freedom

from conformity to law because of religious
dogma.[323]
It stated in categorical terms, viz:
The freedom of religious belief guaranteed by
the Constitution does not and cannot mean
exemption from or non-compliance with
reasonable and non-discriminatory laws, rules
and regulations promulgated by competent
authority.[324]
Thus, the religious freedom doctrines one
can derive from Gerona are: (1) it is
incumbent upon the Court to determine
whether a certain ritual is religious or not;
(2) religious freedom will not be upheld if
it clashes with the established institutions
of society and with the law such that when
a law of general applicability (in this case
the
Department
Order)
incidentally
burdens the exercise of ones religion, ones
right to religious freedom cannot justify
exemption from compliance with the
law. The Gerona
ruling was
reiterated
in Balbuna, et al. v. Secretary of Education,
et al.[325]
Fifteen years after Gerona came the 1974
case of Victoriano v. Elizalde Rope Workers

Union.[326] In this unanimously decided en

banc case, Victoriano was a member of the
Iglesia ni Cristo which prohibits the affiliation of
its members with any labor organization. He
worked in the Elizalde Rope Factory, Inc. and
was a member of the Elizalde Rope Workers
Union which had with the company a closed
shop provision pursuant to Republic Act No. 875
allowing
closed
shop
arrangements. Subsequently, Republic Act No.
3350 was enacted exempting from the
application and coverage of a closed shop
agreement employees belonging to any
religious sect which prohibits affiliation of their
members
with
any
labor
organization. Victoriano resigned from the union
after Republic Act No. 3350 took effect. The
union notified the company of Victorianos
resignation, which in turn notified Victoriano
that unless he could make a satisfactory
arrangement with the union, the company
would be constrained to dismiss him from the
service. Victoriano
sought
to
enjoin
the
company and the union from dismissing
him. The court having granted the injunction,
the union came to this Court on questions of
law, among which was whether Republic Act No.
3350 was unconstitutional for impairing the
obligation of contracts and for granting an
exemption offensive of the Establishment

171

Clause. With respect to the first issue, the Court

ruled, viz:
Religious freedom, although not unlimited, is a
fundamental personal right and liberty
(Schneider v. Irgington, 308 U.S. 147, 161, 84
L.ed.155, 164, 60 S.Ct. 146) and has a
preferred position in the hierarchy of
values. Contractual rights, therefore, must yield
to freedom of religion. It is only where
unavoidably necessary to prevent an
immediate and grave danger to the
security and welfare of the community that
infringement of religious freedom may be
justified, and only to the smallest extent
necessary.[327] (emphasis supplied)
As regards the Establishment Clause issue, the
Court after citing the constitutional provision on
establishment and free exercise of religion,
declared, viz:
The constitutional provisions not only prohibits
legislation for the support of any religious
tenets or the modes of worship of any sect,
thus forestalling compulsion by law of the
acceptance of any creed or the practice of any
form of worship (U.S. Ballard, 322 U.S. 78, 88
L. ed. 1148, 1153), but also assures the free
exercise of ones chosen form of religion within

limits of utmost amplitude. It has been said

that the religion clauses of the
Constitution are all designed to protect the
broadest possible liberty of conscience, to
allow each man to believe as his
conscience directs, to profess his beliefs,
and to live as he believes he ought to live,
consistent with the liberty of others and
with the common good. (footnote
omitted). Any legislation whose effect or
purpose is to impede the observance of
one or all religions, or to discriminate
invidiously between the religions, is
invalid, even though the burden may be
characterized as being only indirect.
(Sherbert v. Verner, 374 U.S. 398, 10
L.ed.2d 965, 83 S. Ct. 1970) But if the
state regulates conduct by enacting, within
its power, a general law which has for its
purpose and effect to advance the states
secular goals, the statute is valid despite
its indirect burden on religious
observance, unless the state can
accomplish its purpose without imposing
such burden. (Braunfeld v. Brown, 366 U.S.
599, 6 L ed. 2d. 563, 81 S. Ct. 144;
McGowan v. Maryland, 366 U.S. 420, 444-5
and 449)[328] (emphasis supplied)

172

Quoting Aglipay v. Ruiz,[329] the Court held

that government is not precluded from pursuing
valid objectives secular in character even if the
incidental result would be favorable to a religion
or sect. It also cited Board of Education v.
Allen,[330] which held that in order to withstand
the strictures of constitutional prohibition, a
statute must have a secular legislative purpose
and a primary effect that neither advances nor
inhibits
religion. Using
these
criteria
in
upholding Republic Act No. 3350, the Court
pointed out, viz:
(Republic Act No. 3350) was intended to serve
the secular purpose of advancing the
constitutional right to the free exercise of
religion, by averting that certain persons be
refused work, or be dismissed from work, or be
dispossessed of their right to work and of being
impeded to pursue a modest means of
livelihood, by reason of union security
agreements. . . . The primary effects of the
exemption from closed shop agreements in
favor of members of religious sects that prohibit
their members from affiliating with a labor
organization, is the protection of said
employees against the aggregate force of the
collective bargaining agreement, and relieving
certain citizens of a burden on their religious

beliefs, and . . . eliminating to a certain extent

economic insecurity due to unemployment.[331]
The Court stressed that (a)lthough the
exemption may benefit those who are members
of religious sects that prohibit their members
from joining labor unions, the benefit upon the
religious sects is merely incidental and indirect.
[332]
In enacting Republic Act No. 3350,
Congress merely relieved the exercise of
religion by certain persons of a burden
imposed by union security agreements
which
Congress
itself
also
imposed
through the Industrial Peace Act. The Court
concluded
the
issue
of
exemption
by
citing Sherbert which laid down the rule that
when general laws conflict with scruples of
conscience, exemptions ought to be granted
unless
some
compelling
state
interest
intervenes. The Court then abruptly added that
(i)n the instant case, We see no compelling
state interest to withhold exemption.[333]
A close look at Victoriano would show that
the
Court
mentioned
several
tests
in
determining when religious freedom may be
validly limited. First, the Court mentioned the
test of immediate and grave danger to the
security and welfare of the community and
infringement of religious freedom only to the

173

smallest extent necessary to justify limitation of

religious freedom. Second, religious exercise
may be indirectly burdened by a general law
which has for its purpose and effect the
advancement of the states secular goals,
provided that there is no other means by which
the state can accomplish this purpose without
imposing
such
burden. Third, the
Court
referred to the compelling state interest test
which grants exemptions when general laws
conflict with religious exercise, unless a
compelling state interest intervenes.
It is worth noting, however, that the first two
tests were mentioned only for the purpose of
highlighting the importance of the protection of
religious freedom as the secular purpose of
Republic Act No. 3350. Upholding religious
freedom was a secular purpose insofar as it
relieved the burden on religious freedom caused
by another law, i.e, the Industrial Peace Act
providing for union shop agreements. The first
two
tests
were
only
mentioned
in Victorianobut were not applied by the Court
to the facts and issues of the case. The third,
the compelling state interest test was employed
by the Court to determine whether the
exemption provided by Republic Act No. 3350
was
not
unconstitutional. It
upheld
the
exemption, stating that there was no compelling

state interest to strike it down. However, after

careful
consideration
of
the Sherbert
case from which Victoriano borrowed this test,
the inevitable conclusion is that the compelling
state interest test was not appropriate and
could not find application in the Victoriano
case. In Sherbert, appellant Sherbert invoked
religious freedom in seeking exemption from
the
provisions
of
the
South
Carolina
Unemployment
Compensation
Act
which
disqualified her from claiming unemployment
benefits. It was the appellees, members of the
South Carolina Employment Commission, a
government agency, who propounded the state
interest to justify overriding Sherberts claim of
religious freedom. The U.S. Supreme Court,
considering Sherberts and the Commissions
arguments, found that the state interest was
not sufficiently compelling to prevail over
Sherberts free exercise claim. This situation did
not obtain in the Victoriano case where it was
the government itself, through Congress, which
provided the exemption in Republic Act No.
3350
to
allow
Victorianos
exercise
of
religion. Thus, the government could not argue
against the exemption on the basis of a
compelling state interest as it would be arguing
against itself; while Victoriano would not seek
exemption from the questioned law to allow the
free exercose of religion as the law in fact

174

provides
such
an
exemption. In
sum,
although Victoriano involved a religious belief
and conduct, it did not involve a free exercise
issue where the Free Exercise Clause is invoked
to exempt him from the burden imposed by a
law on his religious freedom.
Victoriano was reiterated in several cases
involving the Iglesia ni Cristo, namely Basa, et
al. v. Federacion Obrera de la Industria
Tabaquera y Otros Trabajadores de
Filipinas,[334] Anucension v. National Labor
Union, et al.,[335] and Gonzales, et al. v.
Central Azucarera de Tarlac Labor Union.
[336]

Then came German v. Barangan in 1985 at

the
height
of
the
anti-administration
rallies. Petitioners were walking to St. Jude
Church within the Malacanang security area to
pray for an end to violence when they were
barred
by
the
police. Invoking
their
constitutional freedom of religious worship and
locomotion, they came to the Court on a
petition for mandamus to allow them to enter
and pray inside the St. Jude Chapel. The Court
was divided on the issue. The slim majority of
six recognized their freedom of religion but
noted their absence of good faith and concluded
that they were using their religious liberty to
express
their
opposition
to
the

government. Citing Cantwell,

the
Court
distinguished between freedom to believe and
freedom to act on matters of religion, viz:
. . . Thus the (First) amendment embraces two
concepts - freedom to believe and freedom to
act. The first is absolute, but in the nature of
things, the second cannot be.[337]
The Court reiterated the Gerona ruling, viz:
In the case at bar, petitioners are not denied or
restrained of their freedom of belief or choice of
their religion, but only in the manner by
which they had attempted to translate the
same to action. This curtailment is in accord
with the pronouncement of this Court in Gerona
v. Secretary of Education (106 Phil. 2), thus:
. . . But between the freedom of belief and the
exercise of said belief, there is quite a stretch of
road to travel. If the exercise of said religious
belief clashes with the established institutions
of society and with the law, then the former
must yield and give way to the latter. The
government steps in and either restrains said
exercise or even prosecutes the one exercising
it. (italics supplied)
The majority found that the restriction imposed
upon petitioners was necessary to maintain the

175

smooth functioning of the executive branch of

the government, which petitioners mass action
would certainly disrupt[338] and denied the
petition. Thus, without considering the tests
mentioned in Victoriano, German went back
to the Gerona rule that religious freedom
will not be upheld if it clashes with the
established institutions of society and the
law.
Then Associate Justice Teehankee registered
a dissent which in subsequent jurisprudence
would be cited as a test in religious freedom
cases. His dissent stated in relevant part, viz:
A brief restatement of the applicable
constitutional principles as set forth in the
landmark case of J.B.L. Reyes v.
Bagatsing (125 SCRA 553[1983]) should guide
us in resolving the issues.
1. The right to freely exercise ones religion is
guaranteed in Section 8 of our Bill of Rights.
(footnote omitted) Freedom of worship,
alongside with freedom of expression and
speech and peaceable assembly along with
the other intellectual freedoms, are highly
ranked in our scheme of constitutional
values. It cannot be too strongly stressed that
on the judiciary - even more so than on the
other departments - rests the grave and

delicate responsibility of assuring respect for

and deference to such preferred rights. No
verbal formula, no sanctifying phrase can, of
course, dispense with what has been so
felicitously termed by Justice Holmes as the
sovereign prerogative of
judgment. Nonetheless, the presumption
must be to incline the weight of the scales
of justice on the side of such rights,
enjoying as they do precedence and
primacy. (J.B.L. Reyes, 125 SCRA at pp. 569570)
2. In the free exercise of such preferred rights,
there is to be no prior restraint although there
may be subsequent punishment of any illegal
acts committed during the exercise of such
basic rights. The sole justification for a prior
restraint or limitation on the exercise of
these basic rights is the existence of a
grave and present danger of a character
both grave and imminent, of a serious evil
to public safety, public morals, public
health or any other legitimate public
interest, that the State has a right (and
duty) to prevent (Idem, at pp. 560-561).
[339]
(emphasis supplied)
The J.B.L. Reyes v. Bagatsing case from
which this portion of Justice Teehankees dissent

176

was taken involved the rights to free speech

and assembly, and not the exercise of religious
freedom. At issue in that case was a permit
sought by retired Justice J.B.L. Reyes, on behalf
of the Anti-Bases Coalition, from the City of
Manila to hold a peaceful march and rally from
the Luneta to the gates of the U.S.
Embassy. Nevertheless Bagatsing was used by
Justice Teehankee in his dissent which had
overtones of petitioner German and his
companions right to assemble and petition the
government for redress of grievances.[340]
In 1993, the issue on the Jehovahs
Witnesses participation in the flag ceremony
again came before the Court in Ebralinag v.
The Division Superintendent of Schools.
[341]
A unanimous Court overturned the Gerona
ruling after three decades. Similar to Gerona,
this case involved several Jehovahs Witnesses
who were expelled from school for refusing to
salute the flag, sing the national anthem and
recite the patriotic pledge, in violation of the
Administrative Code of 1987. In resolving the
same religious freedom issue as in Gerona, the
Court this time transported the grave and
imminent danger test laid down in Justice
Teehankees dissent in German, viz:

The sole justification for a prior restraint or

limitation on the exercise of religious freedom
(according to the late Chief Justice Claudio
Teehankee in his dissenting opinion in German
v. Barangan, 135 SCRA 514, 517) is the
existence of a grave and present danger of a
character both grave and imminent, of a
serious evil to public safety, public morals,
public health or any other legitimate public
interest, that the State has a right (and duty) to
prevent. Absent such a threat to public safety,
the expulsion of the petitioners from the schools
is not justified.[342] (emphasis supplied)
The Court added, viz:
We are not persuaded that by exempting the
Jehovahs Witnesses from saluting the flag,
singing the national anthem and reciting the
patriotic pledge, this religious group which
admittedly comprises a small portion of the
school population will shake up our part of the
globe and suddenly produce a nation untaught
and uninculcated in and unimbued with
reverence for the flag, patriotism, love of
country and admiration for national heroes
(Gerona v. Secretary of Education, 106 Phil.
224). After all, what the petitioners seek only is
exemption from the flag ceremony, not
exclusion from the public schools where they

177

may study the Constitution, the democratic way

of life and form of government, and learn not
only the arts, sciences, Philippine history and
culture but also receive training for a vocation
or profession and be taught the virtues of
patriotism, respect for human rights,
appreciation of national heroes, the rights and
duties of citizenship, and moral and spiritual
values (Sec. 3[2], Art. XIV, 1987 Constitution)
as part of the curricula.Expelling or banning the
petitioners from Philippine schools will bring
about the very situation that this Court has
feared in Gerona. Forcing a small religious
group, through the iron hand of the law, to
participate in a ceremony that violates their
religious beliefs, will hardly be conducive to love
of country or respect for duly constituted
authorities.[343]
Barnette also
opinion, viz:

found

its

way

to

the

Furthermore, let it be noted that coerced unity

and loyalty even to the country, x x x- assuming
that such unity and loyalty can be attained
through coercion- is not a goal that is
constitutionally obtainable at the expense of
religious liberty. A desirable end cannot be
promoted by prohibited means. (Meyer vs.

Nebraska, 262 U.S. 390, 67 L. ed. 1042, 1046).

[344]

Towards the end of the decision, the Court also

cited the Victoriano case and its use of the
compelling state interest test in according
exemption to the Jehovahs Witnesses, viz:
In Victoriano vs. Elizalde Rope Workers Union,
59 SCRA 54, 72-75, we upheld the exemption
of members of the Iglesia ni Cristo, from the
coverage of a closed shop agreement between
their employer and a union because it would
violate the teaching of their church not to join
any group:
x x x It is certain that not every conscience can
be accommodated by all the laws of the land;
but when general laws conflict with scruples of
conscience, exemptions ought to be granted
unless some compelling state interest
intervenes. (Sherbert vs. Verner, 374 U.S. 398,
10 L. Ed. 2d 965, 970, 83 S.Ct. 1790)
We hold that a similar exemption may be
accorded to the Jehovahs Witnesses with regard
to the observance of the flag ceremony out of
respect for their religious beliefs, however
bizarre those beliefs may seem to others.[345]

178

The Court annulled the orders expelling

petitioners from school.
Thus, the grave and imminent danger test
laid
down
in
a
dissenting
opinion
in German which involved prior restraint of
religious worship with overtones of the right to
free speech and assembly, was transported
to Ebralinagwhich did not involve prior
restraint of religious worship, speech or
assembly. Although, it might be observed that
the Court faintly implied that Ebralinag also
involved the right to free speech when in its
preliminary remarks, the Court stated that
compelling petitioners to participate in the flag
ceremony is alien to the conscience of the
present generation of Filipinos who cut their
teeth on the Bill of Rights which guarantees
their rights to free speech and the free exercise
of religious profession and worship; the Court
then stated in a footnote that the flag salute,
singing the national anthem and reciting the
patriotic pledge are all forms of utterances.[346]
The compelling state interest test was not
fully applied by the Court in Ebralinag. In the
Solicitor Generals consolidated comment, one of
the grounds cited to defend the expulsion
orders issued by the public respondents was
that (t)he States compelling interests being
pursued by the DECs lawful regulations in

question do not warrant exemption of the

school children of the Jehovahs Witnesses from
the flag salute ceremonies on the basis of their
own self-perceived religious convictions.[347] The
Court, however, referred to the test only
towards the end of the decision and did not
even mention what the Solicitor General argued
as the compelling state interest, much less did
the Court explain why the interest was not
sufficiently compelling to override petitioners
religious freedom.
Three years after Ebralinag, the Court
decided the 1996 case of Iglesia ni Cristo v.
Court of Appeals, et al.[348] Although there
was a dissent with respect to the applicability of
the clear and present danger test in this case,
the majority opinion in unequivocal terms
applied the clear and present danger test to
religious speech. This case involved the
television program, Ang Iglesia ni Cristo,
regularly aired over the television. Upon
petitioner Iglesia ni Cristos submission of the
VTR tapes of some of its episodes, respondent
Board of Review for Motion Pictures and
Television classified these as X or not for public
viewing on the ground that they offend and
constitute an attack against other religions
which is expressly prohibited by law. Invoking
religious freedom, petitioner alleged that the

179

Board acted without jurisdiction or with grave

abuse of discretion in requiring it to submit the
VTR tapes of its television program and x-rating
them. While upholding the Boards power to
review the Iglesia television show, the Court
was emphatic about the preferred status of
religious freedom. Quoting
Justice
Cruz
commentary on the constitution, the Court held
that freedom to believe is absolute but freedom
to act on ones belief, where it affects the public,
is subject to the authority of the state. The
commentary quoted Justice Frankfurters dissent
inBarnette which was quoted in Gerona, viz:
(t)he constitutional provision on religious
freedom terminated disabilities, it did not create
new privileges. It gave religious liberty, not civil
immunity. Its
essence
is
freedom
from
conformity to religious dogma, not freedom
from conformity to law because of religious
dogma.[349] Nevertheless, the Court was quick
to add the criteria by which the state can
regulate the exercise of religious freedom, that
is, when the exercise will bring about the clear
and present danger of some substantive evil
which the State is duty bound to prevent, i.e.,
serious detriment to the more overriding
interest of public health, public morals, or public
welfare.[350]

In annulling the x-rating of the shows, the

Court stressed that the Constitution is hostile to
all prior restraints on speech, including religious
speech and the x-rating was a suppression of
petitioners freedom of speech as much as it was
an interference with its right to free exercise of
religion. Citing Cantwell, the Court recognized
that the different religions may criticize one
another and their tenets may collide, but the
Establishment Clause prohibits the state from
protecting any religion from this kind of attack.
The Court then called to mind the clear and
present danger test first laid down in
the American Bible Society case and the test
of
immediate
and
grave
danger
with
infringement only to the smallest extent
necessary to avoid danger in Victoriano and
pointed out that the reviewing board failed to
apply
the
clear
and
present
danger
test. Applying the test, the Court noted, viz:
The records show that the decision of the
respondent Board, affirmed by the respondent
appellate court, is completely bereft of findings
of facts to justify the conclusion that the subject
video tapes constitute impermissible attacks
against another religion. There is no showing
whatsoever of the type of harm the tapes will
bring about especially the gravity and

180

imminence of the threatened harm. Prior

restraint on speech, including religious speech,
cannot be justified by hypothetical fears but
only by the showing of a substantive and
imminent evil which has taken the life of a
reality already on ground.
Replying to the challenge on the applicability of
the clear and present danger test to the case,
the Court acknowledged the permutations that
the test has undergone, but stressed that the
test is still applied to four types of speech:
speech that advocates dangerous ideas, speech
that provokes a hostile audience reaction, out of
court contempt and release of information that
endangers a fair trial[351] and ruled, viz:
. . . even allowing the drift of American
jurisprudence, there is reason to apply the clear
and present danger test to the case at bar
which concerns speech that attacks other
religions and could readily provoke hostile
audience reaction. It cannot be doubted that
religious truths disturb and disturb terribly.[352]
In Iglesia therefore, the Court went back
to Gerona insofar as holding that religious
freedom cannot be invoked to seek exemption
from compliance with a law that burdens ones
religious exercise. It also reiterated the clear

and present danger test in American Bible

Society and the grave and imminent danger
in Victoriano, but this time clearly justifying its
applicability and showing how the test was
applied to the case.
In sum, the Philippine Supreme Court
has adopted a posture of not invalidating a
law offensive to religious freedom, but
carving out an exception or upholding an
exception
to
accommodate
religious
[353]
exercise where it is justified.
2. Establishment Clause
In Philippine jurisdiction, there is
substantial agreement on the values
sought
to
be
protected
by
the
Establishment Clause, namely, voluntarism
and insulation of the political process from
interfaith dissension. The first, voluntarism,
has both a personal and a social dimension. As
a personal value, it refers to the inviolability
of the human conscience which, as discussed
above, is also protected by the free exercise
clause.From the religious perspective, religion
requires voluntarism because compulsory faith
lacks religious efficacy. Compelled religion is a
contradiction in terms.[354] As a social value, it

181

means that the growth of a religious sect as a

social force must come from the voluntary
support of its members because of the belief
that both spiritual and secular society will
benefit if religions are allowed to compete on
their own intrinsic merit without benefit of
official patronage. Such voluntarism cannot be
achieved unless the political process is insulated
from religion and unless religion is insulated
from
politics.[355] Non-establishment
thus
calls for government neutrality in religious
matters to uphold voluntarism and avoid
breeding interfaith dissension.[356]
The neutrality principle was applied in the
first significant non-establishment case under
the 1935 Constitution. In the 1937 case
of Aglipay
v.
Ruiz,[357] the
Philippine
Independent Church challenged the issuance
and sale of postage stamps commemorating the
Thirty-Third International Eucharistic Congress
of the Catholic Church on the ground that the
constitutional prohibition against the use of
public money for religious purposes has been
violated. It appears that the Director of Posts
issued the questioned stamps under the
provisions
of
Act
No.
4052[358] which
appropriated a sum for the cost of plates and
printing of postage stamps with new designs
and authorized the Director of Posts to dispose

of the sum in a manner and frequency

advantageous to the Government. The printing
and issuance of the postage stamps in question
appears to have been approved by authority of
the President. Justice Laurel, speaking for the
Court, took pains explaining religious freedom
and the role of religion in society, and in
conclusion, found no constitutional infirmity in
the issuance and sale of the stamps, viz:
The prohibition herein expressed is a direct
corollary of the principle of separation of church
and state. Without the necessity of adverting to
the historical background of this principle in our
country, it is sufficient to say that our history,
not to speak of the history of mankind, has
taught us that the union of church and
state is prejudicial to both, for occasions
might arise when the state will use the
church, and the church the state, as a
weapon in the furtherance of their
respective ends and aims . . . It is almost
trite to say now that in this country we enjoy
both religious and civil freedom. All the officers
of the Government, from the highest to the
lowest, in taking their oath to support and
defend the Constitution, bind themselves to
recognize and respect the constitutional
guarantee of religious freedom, with its inherent
limitations and recognized implications. It

182

should be stated that what is guaranteed by our

Constitution is religious liberty, not mere
toleration.
Religious freedom, however, as a
constitutional mandate is not an inhibition
of profound reverence for religion and is
not a denial of its influence in human
affairs. Religion as a profession of faith to
an active power that binds and elevates
man to his Creator is recognized. And, in
so far as it instills into the minds the
purest principles of morality, its influence
is deeply felt and highly appreciated. When
the Filipino people, in the preamble of their
Constitution, implored the aid of Divine
Providence, in order to establish a
government that shall embody their ideals,
conserve and develop the patrimony of the
nation, promote the general welfare, and
secure to themselves and their posterity
the blessings of independence under a
regime of justice, liberty and democracy,
they thereby manifested their intense
religious nature and placed unfaltering
reliance upon Him who guides the
destinies of men and nations. The
elevating influence of religion in human
society is recognized here as elsewhere. In
fact, certain general concessions are

indiscriminately accorded to religious sects and

denominations. . .[359]
xxx xxx xxx
It is obvious that while the issuance and sale of
the stamps in question may be said to be
inseparably linked with an event of a religious
character, the resulting propaganda, if any,
received by the Roman Catholic Church, was
not the aim and purpose of the
Government. We are of the opinion that the
Government should not be embarrassed in
its activities simply because of incidental
results, more or less religious in character,
if the purpose had in view is one which
could legitimately be undertaken by
appropriate legislation. The main purpose
should not be frustrated by its subordination to
mere incidental results not contemplated.
(Vide Bradfield vs. Roberts, 175 U.S. 295; 20
Sup. Ct. Rep., 121; 44 Law. ed., 168)
[360]
(emphases supplied)
In so deciding the case, the Court, citing U.S.
jurisprudence, laid down the doctrine that a
law or government action with a legitimate
secular purpose does not offend the
Establishment Clause even if it incidentally
aids a particular religion.

183

Almost
forty-five
years
after Aglipay came Garces
v.
Estenzo.
[361]
Although the Court found that the
separation of church and state was not at issue
as the controversy was over who should have
custody of a saints image, it nevertheless made
pronouncements on the separation of church
and state along the same line as the Aglipay
ruling. The Court held that there was nothing
unconstitutional or illegal in holding a fiesta and
having a patron saint for the barrio. It adhered
to
the barrio resolutions
of
the barangay involved in the case stating that
the barrio fiesta is a socio-religious affair, the
celebration of which is an ingrained tradition in
rural communities that relieves the monotony
and
drudgery
of
the
lives
of
the
masses. Corollarily, the Court found nothing
illegal about any activity intended to facilitate
the worship of the patron saint such as the
acquisition and display of his image bought with
funds obtained through solicitation from
the barrio residents. The Court pointed out that
the image of the patron saint was purchased in
connection with the celebration of the barrio
fiesta honoring the patron saint, San Vicente
Ferrer, and not for the purpose of favoring any
religion nor interfering with religious matters or
the
religious
beliefs
of
the
barrio

residents. Citing the Aglipay ruling, the Court

declared, viz:
Not every governmental activity which involves
the expenditure of public funds and which has
some religious tint is violative of the
constitutional provisions regarding separation of
church and state, freedom of worship and
banning the use of public money or property.
Then came the 1978 case of Pamil v.
Teleron, et al.[362] which presented a novel
issue involving the religion clauses. In this case,
Section 2175 of the Revised Administrative
Code of 1917 disqualifying ecclesiastics from
appointment or election as municipal officer was
challenged. After protracted deliberation, the
Court was sharply divided on the issue. Seven
members of the Court, one short of the number
necessary to declare a law unconstitutional,
approached the problem from a free exercise
perspective and considered the law a religious
test offensive of the constitution. They were
Justices Fernando, Teehankee, Muoz-Palma,
Concepcion, Jr., Santos, Fernandez, and
Guerrero. Then Associate Justice Fernando,
the ponente,
stated, viz:
The
challenged
Administrative Code provision, certainly insofar
as it declares ineligible ecclesiastics to any
elective or appointive office, is, on its face,

184

inconsistent
with
the
religious
freedom
guaranteed by the Constitution. Citing Torcaso
v. Watkins,[363] the ponencia held, viz:
Torcaso v. Watkins, an American Supreme Court
decision, has persuasive weight. What was
there involved was the validity of a provision in
the Maryland Constitution prescribing that no
religious test ought ever to be required as a
disqualification for any office or profit or trust in
this State, other than a declaration of belief in
the existence of God ***. Such a constitutional
requirement was assailed as contrary to the
First Amendment of the United States
Constitution by an appointee to the office of
notary public in Maryland, who was refused a
commission as he would not declare a belief in
God. He failed in the Maryland Court of Appeals
but prevailed in the United States Supreme
Court, which reversed the state court
decision. It could not have been otherwise. As
emphatically declared by Justice Black: this
Maryland religious test for public office
unconstitutionally invades the appellants
freedom of belief and religion and therefore
cannot be enforced against him.
The analogy appears to be obvious. In that
case, it was lack of belief in God that was a
disqualification. Here being an ecclesiastic and

therefore professing a religious faith suffices to

disqualify for a public office. There is thus an
incompatibility between the Administrative Code
provision relied upon by petitioner and an
express constitutional mandate.[364]
On the other hand, the prevailing five other
members of the Court - Chief Justice Castro,
Justices Barredo, Makasiar, Antonio and Aquino
- approached the case from a nonestablishment perspective and upheld the law
as a safeguard against the constant threat of
union of church and state that has marked
Philippine history. Justice Makasiar stated: To
allow an ecclesiastic to head the executive
department of a municipality is to permit the
erosion of the principle of separation of Church
and State and thus open the floodgates for the
violation of the cherished liberty of religion
which the constitutional provision seeks to
enforce and protect. Consequently, the Court
upheld the validity of Section 2175 of the
Revised Administrative Code and declared
respondent priest ineligible for the office of
municipal mayor.
Another type of cases interpreting the
establishment clause deals with intramural
religious disputes. Fonacier v. Court of
Appeals[365] is the leading case. The issue

185

therein was the right of control over certain

properties of the Philippine Independent
Church, the resolution of which necessitated the
determination of who was the legitimate bishop
of the church. The Court cited American
Jurisprudence,[366] viz:
Where, however, a decision of an ecclesiastical
court plainly violates the law it professes to
administer, or is in conflict with the law of the
land, it will not be followed by the civil
courts. . . In some instances, not only have the
civil courts the right to inquire into the
jurisdiction of the religious tribunals and the
regularity of their procedure, but they have
subjected their decisions to the test of fairness
or to the test furnished by the constitution and
the law of the church. . .[367]
The Court then ruled that petitioner Fonacier
was legitimately ousted and respondent de los
Reyes was the duly elected head of the Church,
based on their internal laws. To finally dispose
of the property issue, the Court, citingWatson
v. Jones,[368] declared that the rule in property
controversies within religious congregations
strictly independent of any other superior
ecclesiastical association (such as the Philippine
Independent Church) is that the rules for
resolving such controversies should be those of

any voluntary association. If the congregation

adopts the majority rule then the majority
should prevail; if it adopts adherence to duly
constituted authorities within the congregation,
then that should be followed. Applying these
rules, Fonacier lost the case. While the Court
exercised jurisdiction over the case, it
nevertheless refused to touch doctrinal and
disciplinary differences raised, viz:
The amendments of the constitution,
restatement of articles of religion and
abandonment of faith or abjuration alleged by
appellant, having to do with faith, practice,
doctrine, form of worship, ecclesiastical law,
custom and rule of a church and having
reference to the power of excluding from the
church those allegedly unworthy of
membership, are unquestionably ecclesiastical
matters which are outside the province of the
civil courts.[369]
VIII. Free Exercise Clause vis--vis
Establishment Clause
In both Philippine and U.S. jurisdiction, it is
recognized that there is a tension between
the
Free
Exercise
Clause
and
the
Establishment
Clause
in
their

186

application. There is a natural antagonism

between a command not to establish religion
and a command not to inhibit its practice; this
tension between the religion clauses often
leaves the courts with a choice between
competing values in religion cases.[370]
One set of facts, for instance, can be
differently viewed from the Establishment
Clause perspective and the Free Exercise Clause
point of view, and decided in opposite
directions. In Pamil, the majority gave more
weight to the religious liberty of the priest in
holding that the prohibition of ecclesiastics to
assume elective or appointive government
positions was violative of the Free Exercise
Clause. On the other hand, the prevailing five
justices gave importance to the Establishment
Clause in stating that the principle of separation
of church and state justified the prohibition.
Tension is also apparent when a case is
decided to uphold the Free Exercise Clause and
consequently exemptions from a law of general
applicability are afforded by the Court to the
person claiming religious freedom; the question
arises whether the exemption does not amount
to support of the religion in violation of the
Establishment Clause. This was the case in the
Free Exercise Clause case of Sherbert where
the U.S. Supreme Court ruled, viz:

In holding as we do, plainly we are not

fostering the establishment of the Seventhday Adventist religion in South Carolina, for the
extension of unemployment benefits to
Sabbatarians in common with Sunday
worshippers reflects nothing more than the
governmental obligation of neutrality in
the face of religious differences, and does
not represent that involvement of religious with
secular institutions which it is the object of the
Establishment Clause to forestall.[371] (emphasis
supplied)
Tension also exists when a law of general
application provides exemption in order to
uphold free exercise as in the Walz case where
the appellant argued that the exemption
granted to religious organizations, in effect,
required him to contribute to religious bodies in
violation of the Establishment Clause. But the
Court held that the exemption was not a case of
establishing religion but merely upholding the
Free Exercise Clause by sparing the exercise of
religion from the burden of property taxation
levied on private profit institutions. Justice
Burger wrote, viz:
(t)he Court has struggled to find a neutral
course between the two religion clauses, both of
which are cast in absolute terms, and either of

187

which, if expanded to a logical extreme, would

tend to clash with the other.[372]
Similarly, the Philippine Supreme Court in
the Victoriano case held that the exemption
afforded by law to religious sects who prohibit
their members from joining unions did not
offend the Establishment Clause. We ruled, viz:
We believe that in enacting Republic Act No.
3350, Congress acted consistently with the
spirit of the constitutional provision. It acted
merely to relieve the exercise of religion, by
certain persons, of a burden that is imposed by
union security agreements.[373](emphasis
supplied)
Finally, in some cases, a practice is obviously
violative of the Establishment Clause but the
Court nevertheless upholds it. In Schempp,
Justice Brennan stated: (t)here are certain
practices,
conceivably
violative
of
the
Establishment Clause, the striking down of
which might seriously interfere with certain
religious liberties also protected by the First
Amendment.
How the tension between the Establishment
Clause and the Free Exercise Clause will be
resolved is a question for determination in the
actual cases that come to the Court. In cases

involving both the Establishment Clause and the

Free Exercise Clause, the two clauses should be
balanced against each other. The courts must
review all the relevant facts and determine
whether there is a sufficiently strong free
exercise right that should prevail over the
Establishment Clause problem. In the United
States, it has been proposed that in balancing,
the free exercise claim must be given an edge
not only because of abundant historical
evidence in the colonial and early national
period of the United States that the free
exercise principle long antedated any broadbased support of disestablishment, but also
because an Establishment Clause concern
raised by merely accommodating a citizens free
exercise of religion seems far less dangerous to
the
republic
than
pure
establishment
cases. Each time the courts side with the
Establishment Clause in cases involving tension
between the two religion clauses, the courts
convey a message of hostility to the religion
that in that case cannot be freely exercised.
[374]
American professor of constitutional law,
Laurence Tribe, similarly suggests that the free
exercise principle should be dominant in any
conflict
with
the
anti-establishment
principle. This dominance would be the result of
commitment to religious tolerance instead of
thwarting at all costs even the faintest

188

appearance
of
establishment.[375] In
our
jurisdiction, Fr. Joaquin Bernas, S.J. asserts that
a literal interpretation of the religion clauses
does
not
suffice. Modern
society
is
characterized by the expanding regulatory arm
of government that reaches a variety of areas
of human conduct and an expanding concept of
religion. To adequately meet the demands of
this modern society, the societal values the
religion clauses are intended to protect must be
considered in their interpretation and resolution
of the tension. This, in fact, has been the
approach followed by the Philippine Court.[376]
IX. Philippine Religion Clauses: Nature,
Purpose, Tests
Based on Philippine and American Religion
Clause History,
Law and Jurisprudence
The history of the religion clauses in the
1987 Constitution shows that these clauses
were largely adopted from the First Amendment
of the U.S. Constitution. The religion clauses in
the First Amendment were contained in every
organic Act of the Philippines under the
American regime. When the delegates of the
1934 Constitutional Convention adopted a Bill of
Rights in the 1935 Constitution, they purposely

retained the phraseology of the religion clauses

in the First Amendment as contained in the
Jones Law in order to adopt its historical
background, nature, extent and limitations. At
that time, there were not too many religion
clause cases in the United States as the U.S.
Supreme Court decided an Establishment
Clause issue only in the 1947 Everson
case. The Free Exercise Clause cases were also
scarce then. Over the years, however, with the
expanding reach of government regulation to a
whole gamut of human actions and the growing
plurality and activities of religions, the number
of religion clause cases in the U.S. exponentially
increased. With
this
increase
came
an
expansion of the interpretation of the religion
clauses, at times reinforcing prevailing case law,
at other times modifying it, and still at other
times creating contradictions so that two main
streams
of
jurisprudence
had
become
identifiable. The
first
stream
employs separationwhile
the
second
employs benevolent neutrality in interpreting
the religious clauses. Alongside this change in
the
landscape
of
U.S.
religion
clause
jurisprudence, the Philippines continued to
adopt the 1935 Constitution religion clauses in
the 1973 Constitution and later, the 1987
Constitution. Philippine jurisprudence and
commentaries on the religious clauses also

189

continued to borrow authorities from U.S.

jurisprudence without articulating the
stark distinction between the two streams
of U.S. jurisprudence. One might simply
conclude that the Philippine Constitutions and
jurisprudence also inherited the disarray of U.S.
religion clause jurisprudence and the two
identifiable streams; thus, when a religion
clause
case
comes
before
the
Court,
a separationist approach or a benevolent
neutrality approach might be adopted and
each will have U.S. authorities to support it. Or,
one might conclude that as the history of the
First Amendment as narrated by the Court
in Everson supports
the separationist approach,
Philippine
jurisprudence should also follow this approach
in light of the Philippine religion clauses
history. As a result, in a case where the party
claims religious liberty in the face of a general
law that inadvertently burdens his religious
exercise, he faces an almost insurmountable
wall in convincing the Court that the wall of
separation would not be breached if the Court
grants him an exemption. These conclusions,
however, are not and were never
warranted by the 1987, 1973 and 1935
Constitutions as shown by other provisions
on religion in all three constitutions. It is a
cardinal rule in constitutional construction that

the constitution must be interpreted as a whole

and apparently conflicting provisions should be
reconciled and harmonized in a manner that will
give to all of them full force and effect.
[377]
From this construction, it will be
ascertained that the intent of the framers
was to adopt a benevolent neutrality
approach in interpreting the religious
clauses in the Philippine constitutions, and
the enforcement of this intent is the goal of
construing the constitution.[378]
We first apply the hermeneutical scalpel to
dissect the 1935 Constitution. At the same time
that the 1935 Constitution provided for an
Establishment Clause, it also provided for tax
exemption of church property in Article VI,
Section 22, par. 3(b), viz:
(3) Cemeteries, churches, and parsonages or
convents, appurtenant thereto, and all lands,
buildings, and improvements used exclusively
for religious, charitable, or educational
purposes shall be exempt from taxation.
Before the advent of the 1935 Constitution,
Section 344 of the Administrative Code provided
for a similar exemption. To the same effect, the
Tydings-McDuffie Law contained a limitation on
the taxing power of the Philippine government
during the Commonwealth period.[379] The

190

original draft of the Constitution placed this

provision in an ordinance to be appended to the
Constitution because this was among the
provisions prescribed by the Tydings-McDuffie
Law. However, in order to have a constitutional
guarantee for such an exemption even beyond
the Commonwealth period, the provision was
introduced in the body of the Constitution on
the rationale that if churches, convents
[rectories or parsonages] and their accessories
are always necessary for facilitating the
exercise of such [religious] freedom, it would
also be natural that their existence be also
guaranteed by exempting them from taxation.
[380]
The amendment was readily approved with
83 affirmative votes against 15 negative votes.
[381]

The Philippine constitutional provision on tax

exemption
is
not
found
in
the
U.S.
Constitution. In the U.S. case of Walz, the
Court struggled to justify this kind of exemption
to withstand Establishment Clause scrutiny by
stating that church property was not singled out
but was exempt along with property owned by
non-profit, quasi-public corporations because
the state upheld the secular policy that
considers these groups as beneficial and
stabilizing influences in community life and finds
this classification useful, desirable, and in the

public interest. The Court also stated that the

exemption was meant to relieve the burden on
free exercise imposed by property taxation. At
the
same
time,
however,
the
Court
acknowledged that the exemption was an
exercise
of benevolent
neutrality to
accommodate a long-standing tradition of
exemption. With the inclusion of the church
property tax exemption in the body of the 1935
Constitution and not merely as an ordinance
appended to the Constitution, the benevolent
neutrality referred to in the Walz case was
given constitutional imprimatur under the
regime of the 1935 Constitution.The provision,
as stated in the deliberations, was an
acknowledgment of the necessity of the exempt
institutions to the exercise of religious liberty,
thereby evincing benevolence towards religious
exercise.
Similarly, the 1935 Constitution provides in
Article VI, Section 23(3), viz:
(3) No public money, or property shall ever be
appropriated, applied, or used, directly or
indirectly, for the use, benefit, or support of any
sect, church, denomination, sectarian institution
or system of religion, for the use, benefit or
support of any priest, preacher, ministers or
other religious teacher or dignitary as

191

such, except when such priest, preacher,

minister, or dignitary is assigned to the
armed forces or to any penal institution,
orphanage, or leprosarium. (emphasis
supplied)
The original draft of this provision was a
reproduction of a portion of section 3 of the
Jones Law which did not contain the above
exception, viz:
No public money or property shall ever be
appropriated, applied, or used, directly or
indirectly, for the use, benefit, or support of any
sect, church denomination, sectarian institution,
or system of religion, or for the use, benefit or
support of any priest, preacher, minister, or
dignitary as such[382]
In the deliberations of this draft provision, an
amendment was proposed to strike down
everything after church denomination.[383] The
proposal intended to imitate the silence of the
U.S. Constitution on the subject of support for
priests and ministers. It was also an imitation of
the silence of the Malolos Constitution to
restore the situation under the Malolos
Constitution and prior to the Jones Law, when
chaplains of the revolutionary army received
pay from public funds with no doubt about its

legality. It was pointed out, however, that even

with the prohibition under the Jones Law,
appropriations were made to chaplains of the
national penitentiary and the Auditor General
upheld its validity on the basis of a similar
United States practice. But it was also pointed
out that the U.S. Constitution did not contain a
prohibition on appropriations similar to the
Jones Law.[384] To settle the question on the
constitutionality of payment of salaries of
religious
officers
in
certain
government
institutions and to avoid the feared situation
where the enumerated government institutions
could not employ religious officials with
compensation, the exception in the 1935
provision was introduced and approved. The
provision garnered 74 affirmative votes against
34 negative votes.[385] As pointed out in the
deliberations, the U.S. Constitution does not
provide for this exemption. However, the U.S.
Supreme Court in Cruz v. Beto, apparently
taking a benevolent neutrality approach,
implicitly approved the state of Texas payment
of prison chaplains salaries as reasonably
necessary to permit inmates to practice their
religion. Also, in the Marsh case, the U.S.
Supreme Court upheld the long-standing
tradition of beginning legislative sessions with
prayers offered by legislative chaplains retained
at
taxpayers
expense. The
constitutional

192

provision exempting religious officers in

government institutions affirms the departure of
the Philippine Constitution from the U.S.
Constitution in its adoption of benevolent
neutrality in Philippine jurisdiction. While the
provision prohibiting aid to religion protects the
wall of separation between church and state,
the provision at the same time gives
constitutional sanction to a breach in the wall.
To further
buttress
the
thesis
that
benevolent neutrality is contemplated in the
Philippine Establishment Clause, the 1935
Constitution provides for optional religious
instruction in public schools in Article XIII,
Section 5, viz:
. . . Optional religious instruction shall be
maintained in the public schools as now
authorized by law. . .
The law then applicable was Section 928 of the
Administrative Code, viz:
It shall be lawful, however, for the priest or
minister of any church established in the town
where a public school is situated, either in
person or by a designated teacher of religion, to
teach religion for one-half hour three times a
week, in the school building, to those publicschool pupils whose parents or guardians desire

it and express their desire therefor in writing

filed with the principal of the school . . .
During the debates of the Constitutional
Convention, there were three positions on the
issue
of
religious
instruction
in
public
schools. The first held that the teaching of
religion in public schools should be prohibited as
this was a violation of the principle of
separation of church and state and the
prohibition against the use of public funds for
religious purposes. The second favored the
proposed optional religious instruction as
authorized by the Administrative Code and
recognized that the actual practice of allowing
religious instruction in the public schools was
sufficient proof that religious instruction was not
and would not be a source of religious discord in
the schools.[386] The third wanted religion to be
included as a course in the curriculum of the
public schools but would only be taken by pupils
at
the
option
of
their
parents
or
guardians. After several rounds of debate, the
second camp prevailed, thus raising to
constitutional stature the optional teaching of
religion in public schools, despite the opposition
to the provision on the ground of separation of
church and state.[387] As in the provisions on
church
property
tax
exemption
and
compensation
of
religious
officers
in

193

government institutions, the U.S. Constitution

does not provide for optional religious
instruction in public schools. In fact, in
the McCollum case, the Court, using strict
neutrality, prohibited this kind of religious
instruction where the religion teachers would
conduct class within the school premises. The
constitutional provision on optional religious
instruction shows that Philippine jurisdiction
rejects the strict neutrality approach which does
not allow such accommodation of religion.
Finally, to make certain the Constitutions
benevolence to religion, the Filipino people
implored (ing) the aid of Divine Providence (,)
in order to establish a government that shall
embody their ideals, conserve and develop the
patrimony of the nation, promote the general
welfare, and secure to themselves and their
posterity the blessings of independence under a
regime of justice, liberty, and democracy, (in)
ordain(ing)
and
promulgat(ing)
this
Constitution. A preamble is a key to open the
mind of the authors of the constitution as to the
evil sought to be prevented and the objects
sought to be accomplished by the provisions
thereof.[388] There was no debate on the
inclusion of a Divine Providence in the
preamble. In Aglipay, Justice Laurel noted that
when the Filipino people implored the aid of

Divine Providence, (t)hey thereby manifested

their intense religious nature and placed
unfaltering reliance upon Him who guides the
destinies of men and nations.[389] The 1935
Constitutions religion clauses, understood
alongside the other provisions on religion in the
Constitution, indubitably shows not hostility, but
benevolence, to religion.[390]
The 1973 Constitution contained in Article
VI, Section 22(3) a provision similar to Article
VI, Section 22, par. 3(b) of the 1935
Constitution on exemption of church property
from taxation, with the modification that the
property should not only be used directly, but
also actually and exclusively for religious or
charitable purposes. Parallel to Article VI,
Section 23(3) of the 1935 Constitution, the
1973 Constitution also contained a similar
provision on salaries of religious officials
employed in the enumerated government
institutions. Article XIII, Section 5 of the 1935
Constitution on optional religious instruction
was also carried to the 1973 Constitution in
Article XV, Section 8(8) with the modification
that optional religious instruction shall be
conducted as may be provided by law and not
as now authorized by law as stated in the 1935
Constitution. The 1973 counterpart, however,
made explicit in the constitution that the

194

religious instruction in public elementary and

high schools shall be done (a)t the option
expressed in writing by the parents or
guardians, and without cost to them and the
government. With the adoption of these
provisions in the 1973 Constitution, the
benevolent neutrality approach continued to
enjoy constitutional sanction. In Article XV,
Section 15 of the General Provisions of the
1973 Constitution this provision made its
maiden appearance: (t)he separation of church
and state shall be inviolable. The 1973
Constitution retained the portion of the
preamble
imploring
the
aid
of
Divine
Providence.
In the Report of the Ad Hoc Sub-Committee
on Goals, Principles and Problems of the
Committee on Church and State of the 1971
Constitutional Convention, the question arose
as to whether the absolute separation of Church
and State as enunciated in the Everson
case and
reiterated
in Schempp i.e.,
neutrality not only as between one religion and
another but even as between religion and nonreligion - is embodied in the Philippine
Constitution. The sub-committees answer was
that it did not seem so. Citing the Aglipay
case where Justice Laurel recognized the
elevating influence of religion in human society

and the Filipinos imploring of Divine Providence

in the 1935 Constitution, the sub-committee
asserted that the state may not prefer or aid
one religion over another, but may aid all
religions equally or the cause of religion in
general.[391] Among
the
position
papers
submitted to the Committee on Church on State
was a background paper for reconsideration of
the religion provisions of the constitution by Fr.
Bernas, S.J. He stated therein that the
Philippine Constitution is not hostile to religion
and in fact recognizes the value of religion and
accommodates
religious
values.[392] Stated
otherwise,
the
Establishment
Clause
contemplates not a strict neutrality but
benevolent neutrality. While the Committee
introduced the provision on separation of
church and state in the General Provisions of
the 1973 Constitution, this was nothing new as
according to it, this principle was implied in the
1935 Constitution even in the absence of a
similar provision.[393]
Then came the 1987 Constitution. The 1973
Constitutional provision on tax exemption of
church property was retained with minor
modification in Article VI, Section 28(3) of the
1987 Constitution. The same is true with
respect to the prohibition on the use of public
money and property for religious purposes and

195

the salaries of religious officers serving in the

enumerated government institutions, now
contained
in
Article
VI,
Section
29(2). Commissioner Bacani, however, probed
into the possibility of allowing the government
to spend public money for purposes which
might have religious connections but which
would benefit the public generally. Citing
the Aglipay
case,Commissioner
Rodrigo
explained that if a public expenditure would
benefit the government directly, such expense
would be constitutional even if it results to an
incidental
benefit
to
religion. With
that
explanation, Commissioner Bacani no longer
pursued his proposal.[394]
The
provision
on
optional
religious
instruction was also adopted in the 1987
Constitution in Article XIV, Section 3(3) with the
modification that it was expressly provided that
optional instruction shall be conducted within
the regular class hours and without additional
cost to the government. There were protracted
debates on what additional cost meant, i.e.,
cost over and above what is needed for normal
operations such as wear and tear, electricity,
janitorial services,[395] and when during the day
instruction
would
be
conducted.[396] In
deliberating on the phrase within the regular
class hours, Commissioner Aquino expressed

her reservations to this proposal as this would

violate the time-honored principle of separation
of church and state. She cited the McCullom
case where religious instruction during regular
school
hours
was
stricken
down
as
unconstitutional and also cited what she
considered the most liberal interpretation of
separation of church and state in Surach v.
Clauson where the U.S. Supreme Court
allowed only release time for religious
instruction. Fr. Bernas replied, viz:
. . . the whole purpose of the provision was to
provide for an exception to the rule on nonestablishment of religion, because if it were
not necessary to make this exception for
purposes of allowing religious instruction, then
we could just drop the amendment. But, as a
matter of fact, this is necessary because we
are trying to introduce something here
which is contrary to American practices.
[397]
(emphasis supplied)
(W)ithin regular class hours was approved.
The provision on the separation of church
and state was retained but placed under the
Principles in the Declaration of Principles and
State Policies in Article II, Section 6. In opting
to retain the wording of the provision, Fr.
Bernas stated, viz:

196

. . . It is true, I maintain, that as a legal

statement the sentence The separation of
Church and State is inviolable, is almost a
useless statement; but at the same time it is a
harmless statement. Hence, I am willing to
tolerate it there, because, in the end, if we look
at the jurisprudence on Church and State,
arguments are based not on the statement of
separation of church and state but on the nonestablishment clause in the Bill of Rights.[398]
The preamble changed Divine Providence in
the 1935 and 1973 Constitutions to Almighty
God. There was considerable debate on whether
to use Almighty God which Commissioner
Bacani said was more reflective of Filipino
religiosity, but Commissioner Rodrigo recalled
that a number of atheistic delegates in the 1971
Constitutional Convention objected to reference
to a personal God.[399] God of History, Lord of
History and God were also proposed, but the
phrase Almighty God prevailed. Similar to the
1935 and 1971 Constitutions, it is obvious that
the 1987 Constitution is not hostile nor
indifferent to religion;[400] its wall of separation
is not a wall of hostility or indifference.[401]
The provisions of the 1935, 1973 and 1987
constitutions on tax exemption of church
property, salary of religious officers in

government institutions, optional religious

instruction and the preamble all reveal without
doubt that the Filipino people, in adopting these
constitutions, did not intend to erect a high and
impregnable wall of separation between the
church and state.[402] The strict neutrality
approach which examines only whether
government action is for a secular purpose and
does not consider inadvertent burden on
religious exercise protects such a rigid
barrier. By adopting the above constitutional
provisions on religion, the Filipinos manifested
their
adherence
to
thebenevolent
neutrality approach in interpreting the religion
clauses, an approach that looks further than the
secular purposes of government action and
examines the effect of these actions on religious
exercise. Benevolent
neutrality recognizes
the religious nature of the Filipino people and
the elevating influence of religion in society; at
the
same
time,
it
acknowledges
that
government must pursue its secular goals. In
pursuing these goals, however, government
might adopt laws or actions of general
applicability
which
inadvertently
burden
religious
exercise. Benevolent
neutrality gives room for accommodation of
these religious exercises as required by the Free
Exercise Clause. It allows these breaches in the
wall of separation to uphold religious liberty,

197

which after all is the integral purpose of the

religion clauses. The case at bar involves this
first
type
of accommodation where
an
exemption is sought from a law of general
applicability that inadvertently burdens religious
exercise.
Although our constitutional history and
interpretation
mandate benevolent
neutrality, benevolent neutrality does not
mean that the Court ought to grant
exemptions every time a free exercise
claim comes before it. But it does mean
that the Court will not look with hostility or
act indifferently towards religious beliefs
and practices and that it will strive to
accommodate them when it can within
flexible constitutional limits; it does mean
that the Court will not simply dismiss a
claim under the Free Exercise Clause
because the conduct in question offends a
law or the orthodox view for this precisely
is the protection afforded by the religion
clauses of the Constitution, i.e., that in the
absence of legislation granting exemption
from a law of general applicability, the
Court can carve out an exception when the
religion clauses justify it. While the Court
cannot adopt a doctrinal formulation that can
eliminate the difficult questions of judgment in

determining the degree of burden on religious

practice or importance of the state interest or
the sufficiency of the means adopted by the
state to pursue its interest, the Court can set a
doctrine on the ideal towards which religious
clause jurisprudence should be directed. [403] We
here lay down the doctrine that in
Philippine jurisdiction, we adopt the
benevolent neutrality approach not only
because of its merits as discussed above,
but
more
importantly,
because
our
constitutional history and interpretation
indubitably
show
that
benevolent
neutrality is the launching pad from which
the Court should take off in interpreting
religion clause cases. The ideal towards
which this approach is directed is the
protection of religious liberty not only for a
minority, however small- not only for a
majority, however large- but for each of us
to the greatest extent possible within
flexible constitutional limits.
Benevolent neutrality is manifest not only
in the Constitution but has also been recognized
in Philippine jurisprudence, albeit not expressly
called
benevolent
neutrality
or
accommodation. In Aglipay, the Court not only
stressed the elevating influence of religion in
human
society
but
acknowledged
the

198

Constitutional provisions on exemption from tax

of church property, salary of religious officers in
government institutions, and optional religious
instruction as well as the provisions of the
Administrative Code making Thursday and
Friday of the Holy Week, Christmas Day and
Sundays legal holidays. In Garces, the Court
not
only
recognized
the
Constitutional
provisions indiscriminately granting concessions
to religious sects and denominations, but also
acknowledged that government participation in
long-standing traditions which have acquired a
social character - the barrio fiesta is a socioreligious affair - does not offend the
Establishment Clause. In Victoriano, the Court
upheld the exemption from closed shop
provisions of members of religious sects who
prohibited their members from joining unions
upon the justification that the exemption was
not a violation of the Establishment Clause but
was only meant to relieve the burden on free
exercise of religion. In Ebralinag, members of
the Jehovahs Witnesses were exempt from
saluting the flag as required by law, on the
basis not of a statute granting exemption but of
the Free Exercise Clause without offending the
Establishment Clause.
While the U.S. and Philippine religion
clauses are similar in form and origin,

Philippine constitutional law has departed

from the U.S. jurisprudence of employing a
separationist
or
strict
neutrality
approach.The Philippine religion clauses have
taken a life of their own, breathing the air
of benevolent
neutrality and accommodation. Thus,
the
wall of separation in Philippine jurisdiction is not
as high and impregnable as the wall created by
the U.S. Supreme Court in Everson.[404] While
the religion clauses are a unique American
experiment which understandably came about
as a result of Americas English background and
colonization, the life that these clauses have
taken in this jurisdiction is the Philippines own
experiment, reflective of the Filipinos own
national soul, history and tradition. After all, the
life of the law. . . has been experience.
But while history, constitutional construction,
and earlier jurisprudence unmistakably show
that benevolent neutrality is the lens with
which the Court ought to view religion clause
cases, it must be stressed that the interest
of the state should also be afforded utmost
protection. To do this, a test must be applied
to draw the line between permissible and
forbidden
religious
exercise. It
is
quite
paradoxical that in order for the members of a
society to exercise their freedoms, including

199

their religious liberty, the law must set a limit

when their exercise offends the higher interest
of the state. To do otherwise is self-defeating
for unlimited freedom would erode order in the
state and foment anarchy, eventually destroying
the very state its members established to
protect their freedoms. The very purpose of the
social contract by which people establish the
state is for the state to protect their liberties;
for this purpose, they give up a portion of these
freedoms - including the natural right to free
exercise - to the state. It was certainly not the
intention of the authors of the constitution that
free exercise could be used to countenance
actions that would undo the constitutional order
that guarantees free exercise.[405]
The all important question then is the test
that should be used in ascertaining the limits of
the exercise of religious freedom. Philippine
jurisprudence articulates several tests to
determine these limits. Beginning with the first
case on the Free Exercise Clause, American
Bible Society, the Court mentioned the clear
and present danger test but did not employ
it. Nevertheless, this test continued to be cited
in
subsequent
cases
on
religious
liberty. TheGerona case then pronounced that
the test of permissibility of religious freedom is
whether it violates the established institutions

of
society
and
law. The Victoriano
case mentioned the immediate and grave
danger test as well as the doctrine that a law of
general applicability may burden religious
exercise provided the law is the least restrictive
means to accomplish the goal of the law. The
case also used, albeit inappropriately, the
compelling state interest test. After Victoriano,
German went
back
to
the
Gerona
rule. Ebralinag then employed the grave and
immediate
danger
test
and
overruled
the Gerona test. The
fairly
recent
case
of Iglesia ni Cristo went back to the clear and
present danger test in the maiden case
of American Bible Society. Not surprisingly,
all the cases which employed the clear and
present danger or grave and immediate
danger test involved, in one form or
another, religious speech as this test is
often used in cases on freedom of
expression. On
the
other
hand,
the Gerona and German cases set the rule
that religious freedom will not prevail over
established
institutions
of
society
and
law. Gerona, however, which was the authority
cited
by German has
been
overruled
by Ebralinag which employed the grave and
immediate danger test. Victoriano was the
only case that employed the compelling state
interest test, but as explained previously, the

200

use of the test was inappropriate to the facts of

the case.
The case at bar does not involve speech as
in American
Bible
Society,
Ebralinag and Iglesia ni Cristo where the
clear and present danger and grave and
immediate danger tests were appropriate as
speech has easily discernible or immediate
effects. The Gerona and German
doctrine, aside from having been overruled, is
not
congruent
with
the benevolent
neutrality approach, thus not appropriate in
this
jurisdiction. Similar
to Victoriano,the present
case
involves
purely
conduct arising
from
religious
belief. The compelling state interest test is
proper where conduct is involved for the
whole gamut of human conduct has
different effects on the states interests:
some effects may be immediate and shortterm while others delayed and farreaching. A test that would protect the
interests of the state in preventing a
substantive evil, whether immediate or delayed,
is therefore necessary. However, not any
interest of the state would suffice to prevail
over the right to religious freedom as this is a
fundamental right that enjoys a preferred
position in the hierarchy of rights - the most

inalienable and sacred of all human rights, in

the words of Jefferson.[406] This right is sacred
for an invocation of the Free Exercise Clause is
an appeal to a higher sovereignty. The entire
constitutional order of limited government is
premised upon an acknowledgment of such
higher
sovereignty,[407] thus
the
Filipinos
implore the aid of Almighty God in order to
build a just and humane society and establish a
government. As held in Sherbert, only the
gravest
abuses,
endangering paramount
interests can limit this fundamental right. A
mere balancing of interests which balances a
right with just a colorable state interest is
therefore not appropriate. Instead, only a
compelling interest of the state can prevail over
the fundamental right to religious liberty. The
test requires the state to carry a heavy burden,
a compelling one, for to do otherwise would
allow the state to batter religion, especially the
less powerful ones until they are destroyed.
[408]
In determining which shall prevail between
the states interest and religious liberty,
reasonableness shall be the guide.[409] The
compelling state interest serves the purpose of
revering religious liberty while at the same time
affording protection to the paramount interests
of the state. This was the test used
in Sherbert which involved conduct, i.e. refusal
to work on Saturdays. In the end, the

201

compelling state interest test, by upholding the

paramount interests of the state, seeks to
protect the very state, without which, religious
liberty will not be preserved.
X. Application of the Religion Clauses to
the Case at Bar
A. The Religion Clauses and Morality
In a catena of cases, the Court has ruled
that government employees engaged in illicit
relations are guilty of disgraceful and immoral
conduct for which he/she may be held
administratively liable.[410] In these cases, there
was not one dissent to the majoritys ruling that
their conduct was immoral. The respondents
themselves did not foist the defense that their
conduct was not immoral, but instead sought to
prove that they did not commit the alleged act
or have abated from committing the act. The
facts of the 1975 case of De Dios v.
Alejo[411] and the 1999 case of Maguad v. De
Guzman,[412] are similar to the case at bar i.e., the complainant is a mere stranger and the
legal wife has not registered any objection to
the illicit relation, there is no proof of scandal or
offense to the moral sensibilities of the

community in which the respondent and the

partner live and work, and the government
employee is capacitated to marry while the
partner is not capacitated but has long been
separated in fact. Still, the Court found the
government employees administratively liable
for disgraceful and immoral conduct and only
considered the foregoing circumstances to
mitigate the penalty. Respondent Escritor does
not claim that there is error in the settled
jurisprudence that an illicit relation constitutes
disgraceful and immoral conduct for which a
government employee is held liable. Nor is
there an allegation that the norms of morality
with respect to illicit relations have shifted
towards leniency from the time these precedent
cases were decided. The Court finds that there
is no such error or shift, thus we find no reason
to deviate from these rulings that such illicit
relationship constitutes disgraceful and immoral
conduct punishable under the Civil Service Law.
Respondent having admitted the alleged
immoral conduct, she, like the respondents in
the
above-cited
cases,
could
be
held
administratively liable. However, there is a
distinguishing factor that sets the case at bar
apart from the cited precedents, i.e., as a
defense, respondent invokes religious freedom
since her religion, the Jehovahs Witnesses, has,
after thorough investigation, allowed her

202

conjugal arrangement with Quilapio based on

the churchs religious beliefs and practices. This
distinguishing factor compels the Court to apply
the religious clauses to the case at bar.
Without holding that religious freedom is not
in issue in the case at bar, both the dissenting
opinion of Mme. Justice Ynares-Santiago and
the separate opinion of Mr. Justice Vitug dwell
more on the standards of morality than on the
religion clauses in deciding the instant case. A
discussion on morality is in order.
At base, morality refers to, in Socrates
words, how we ought to live and why. Any
definition of morality beyond Socrates simple
formulation is bound to offend one or another of
the many rival theories regarding what it means
to live morally.[413] The answer to the question
of how we ought to live necessarily considers
that man does not live in isolation, but in
society. Devlin posits that a society is held
together by a community of ideas, made up not
only of political ideas but also of ideas about the
manner its members should behave and govern
their lives. The latter are their morals; they
constitute the public morality. Each member of
society has ideas about what is good and what
is evil. If people try to create a society wherein
there is no fundamental agreement about good
and evil, they will fail; if having established the

society on common agreement, the agreement

collapses, the society will disintegrate.Society is
kept together by the invisible bonds of common
thought so that if the bonds are too loose, the
members would drift apart. A common morality
is part of the bondage and the bondage is part
of the price of society; and mankind, which
needs society, must pay its price. [414] This
design is parallel with the social contract in the
realm of politics: people give up a portion of
their liberties to the state to allow the state to
protect their liberties. In a constitutional order,
people make a fundamental agreement about
the powers of government and their liberties
and embody this agreement in a constitution,
hence referred to as the fundamental law of the
land. A complete break of this fundamental
agreement such as by revolution destroys the
old order and creates a new one. [415] Similarly,
in the realm of morality, the breakdown of the
fundamental agreement about the manner a
societys members should behave and govern
their lives would disintegrate society. Thus,
society is justified in taking steps to preserve its
moral code by law as it does to preserve its
government and other essential institutions.
[416]
From these propositions of Devlin, one
cannot conclude that Devlin negates diversity in
society for he is merely saying that in the midst
of this diversity, there should nevertheless be a

203

fundamental agreement about good and evil

that will govern how people in a society ought
to live. His propositions, in fact, presuppose
diversity hence the need to come to an
agreement; his position also allows for change
of morality from time to time which may be
brought about by this diversity. In the same
vein, a pluralistic society lays down fundamental
rights and principles in their constitution in
establishing and maintaining their society, and
these fundamental values and principles are
translated into legislation that governs the
order of society, laws that may be amended
from time to time. Harts argument propounded
in Mr. Justice Vitugs separate opinion that,
Devlins view of people living in a single society
as having common moral foundation (is) overly
simplistic because societies have always been
diverse fails to recognize the necessity of
Devlins proposition in a democracy. Without
fundamental agreement on political and moral
ideas, society will fall into anarchy; the
agreement is necessary to the existence and
progress of society.
In a democracy, this common agreement on
political and moral ideas is distilled in the public
square. Where citizens are free, every opinion,
every prejudice, every aspiration, and every
moral discernment has access to the public

square where people deliberate the order of

their life together. Citizens are the bearers of
opinion, including opinion shaped by, or
espousing religious belief, and these citizens
have equal access to the public square. In this
representative
democracy,
the
state
is
prohibited from determining which convictions
and moral judgments may be proposed for
public deliberation. Through a constitutionally
designed process, the people deliberate and
decide.Majority rule is a necessary principle in
this democratic governance.[417] Thus, when
public deliberation on moral judgments is finally
crystallized into law, the laws will largely reflect
the beliefs and preferences of the majority, i.e.,
the
mainstream
or
median
groups.
[418]
Nevertheless, in the very act of adopting
and accepting a constitution and the limits it
specifies -- including protection of religious
freedom not only for a minority, however smallnot only for a majority, however large- but for
each of us -- the majority imposes upon itself a
self-denying ordinance. It promises not to do
what it otherwise could do: to ride roughshod
over the dissenting minorities.[419] In the realm
of
religious
exercise, benevolent
neutrality that
gives
room
for accommodation carries out this promise,
provided the compelling interests of the state
are not eroded for the preservation of the state

204

is necessary to the preservation of religious

liberty. That is why benevolent neutrality is
necessary in a pluralistic society such as the
United
States
and
the
Philippines
to
accommodate those minority religions which are
politically powerless. It is not surprising
thatSmith is much criticized for it blocks the
judicial recourse of the minority for religious
accommodations.
The laws enacted become expressions of
public morality. As Justice Holmes put it, (t)he
law is the witness and deposit of our moral life.
[420]
In a liberal democracy, the law reflects
social morality over a period of time.
[421]
Occasionally though, a disproportionate
political influence might cause a law to be
enacted at odds with public morality or
legislature might fail to repeal laws embodying
outdated traditional moral views.[422] Law has
also been defined as something men create in
their best moments to protect themselves in
their worst moments.[423] Even then, laws are
subject to amendment or repeal just as judicial
pronouncements are subject to modification and
reversal to better reflect the public morals of a
society at a given time. After all, the life of the
law...has been experience, in the words of
Justice Holmes. This is not to say though that
law is all of morality. Law deals with the

minimum standards of human conduct while

morality is concerned with the maximum. A
person who regulates his conduct with the sole
object of avoiding punishment under the law
does not meet the higher moral standards set
by society for him to be called a morally upright
person.[424] Law also serves as a helpful starting
point for thinking about a proper or ideal public
morality for a society[425] in pursuit of moral
progress.
In Magno v. Court of Appeals, et al.,
we articulated the relationship between law
and public morality. We held that under the
utilitarian theory, the protective theory in
criminal law, criminal law is founded upon
the moral disapprobation x x x of actions
which
are
immoral, i.e.,
which
are detrimental (or dangerous) to those
conditions
upon
which
depend
the
existence
and
progress
of
human
society. This disapprobation is inevitable to the
extent that morality is generally founded
and built upon a certain concurrence in the
moral opinions of all. x x x That which we call
punishment is only an external means of
emphasizing moral disapprobation: the method
of punishment is in reality the amount of
punishment.[427] Stated otherwise, there are
certain standards of behavior or moral
[426]

205

principles which society requires to be observed

and these form the bases of criminal law. Their
breach is an offense not only against the person
injured but against society as a whole.
[428]
Thus, even if all involved in the misdeed
are consenting parties, such as in the case at
bar, the injury done is to the public morals and
the public interest in the moral order.[429] Mr.
Justice Vitug expresses concern on this point in
his separate opinion. He observes that certain
immoral acts which appear private and not
harmful to society such as sexual congress
between a man and a prostitute, though
consensual and private, and with no injured
third party, remains illegal in this country. His
opinion asks whether these laws on private
morality are justified or they constitute
impingement
on
ones
freedom
of
belief. Discussion on private morality, however,
is not material to the case at bar for whether
respondents
conduct,
which
constitutes
[430]
concubinage,
is private in the sense that
there is no injured party or the offended spouse
consents to the concubinage, the inescapable
fact is that the legislature has taken
concubinage out of the sphere of private
morals. The legislature included concubinage as
a crime under the Revised Penal Code and the
constitutionality of this law is not being raised in
the case at bar. In the definition of the crime of

concubinage, consent of the injured party, i.e.,

the legal spouse, does not alter or negate the
crime unlike in rape[431] where consent of the
supposed victim negates the crime. If at all, the
consent or pardon of the offended spouse in
concubinage negates the prosecution of the
action,[432] but does not alter the legislatures
characterization of the act as a moral
disapprobation punishable by law. The separate
opinion states that, (t)he ponencia has taken
pains to distinguish between secular and private
morality, and reached the conclusion that the
law, as an instrument of the secular State
should only concern itself with secular morality.
The Court does not draw this distinction in the
case at bar. The distinction relevant to the case
is not, as averred and discussed by the
separate opinion, between secular and private
morality, but between public and secular
morality on the one hand, and religious morality
on the other, which will be subsequently
discussed.
Not every moral wrong is foreseen and
punished by law, criminal or otherwise. We
recognized this reality in Velayo, et al. v.
Shell Co. of the Philippine Islands, et
al., where we explained that for those wrongs
which are not punishable by law, Articles 19 and
21 in Chapter 2 of the Preliminary Title of the

206

New Civil Code, dealing with Human Relations,

provide for the recognition of the wrong and the
concomitant punishment in the form of
damages.Articles 19 and 21 provide, viz:
Art. 19. Any person must, in the exercise of his
rights and in the performance of his duties, act
with justice, give everyone his due and observe
honesty and good faith.
xxx xxx xxx
Art. 21. Any person who willfully causes loss or
injury to another in a manner that is contrary
to morals, good customs or public policy shall
compensate the latter for the damage.
(emphasis supplied)
We then cited in Velayo the Code Commissions
comment on Article 21:
Thus at one stroke, the legislator, if the
foregoing rule is approved (as it was approved),
would vouchsafe adequate legal remedy for
that untold numbers of moral wrongs
which is impossible for human foresight to
provide for specifically in the statutes.
But, it may be asked, would this proposed
article obliterate the boundary line between
morality and law? The answer is that, in the last

analysis, every good law draws its breath of

life from morals, from those principles which
are written with words of fire in the conscience
of man. If this premise is admitted, then the
proposed rule is a prudent earnest of justice in
the face of the impossibility of enumerating,
one by one, all wrongs which cause
damages. When it is reflected that while codes
of law and statutes have changed from age to
age, the conscience of man has remained fixed
to its ancient moorings, one can not but feel
that it is safe and salutary to transmute, as
far as may be, moral norms into legal
rules, thus imparting to every legal system that
enduring quality which ought to be one of its
superlative attributes.
Furthermore, there is no belief of more baneful
consequence upon the social order than that a
person may with impunity cause damage to his
fellow-men so long as he does not break any
law of the State, though he may be defying the
most sacred postulates of morality. What is
more, the victim loses faith in the ability of the
government to afford him protection or relief.
A provision similar to the one under
consideration is embodied in article 826 of the
German Civil Code.[433] (emphases supplied)

207

The public morality expressed in the law is

necessarily secular for in our constitutional
order, the religion clauses prohibit the state
from establishing a religion, including the
morality
it
sanctions. Religious
morality
proceeds from a persons views of his relations
to His Creator and to the obligations they
impose of reverence to His being and character
and obedience to His Will, in accordance with
this Courts definition of religion in American
Bible
Society citing Davis. Religion
also
dictates how we ought to live for the nature of
religion is not just to know, but often, to act in
accordance with mans views of his relations to
His Creator.[434] But the Establishment Clause
puts a negative bar against establishment of
this morality arising from one religion or the
other, and implies the affirmative establishment
of a civil order for the resolution of public moral
disputes. This
agreement
on
a
secular
mechanism is the price of ending the war of all
sects against all; the establishment of a secular
public moral order is the social contract
produced by religious truce.[435]
Thus, when the law speaks of immorality in
the Civil Service Law or immoral in the Code of
Professional Responsibility for lawyers[436], or
public morals in the Revised Penal Code, [437] or
morals in the New Civil Code,[438] or moral

character in the Constitution,[439] the distinction

between public and secular morality on the one
hand, and religious morality, on the other,
should be kept in mind. [440] The morality
referred to in the law is public and necessarily
secular, not religious as the dissent of Mr.
Justice Carpio holds. Religious teachings as
expressed in public debate may influence the
civil public order but public moral disputes may
be resolved only on grounds articulable in
secular terms.[441] Otherwise, if government
relies upon religious beliefs in formulating public
policies and morals, the resulting policies and
morals would require conformity to what some
might regard as religious programs or
agenda. The non-believers would therefore be
compelled to conform to a standard of conduct
buttressed by a religious belief, i.e., to a
compelled religion, anathema to religious
freedom. Likewise, if government based its
actions upon religious beliefs, it would tacitly
approve or endorse that belief and thereby also
tacitly disapprove contrary religious or nonreligious views that would not support the
policy. As a result, government will not provide
full religious freedom for all its citizens, or even
make it appear that those whose beliefs are
disapproved
are
second-class
citizens. Expansive religious freedom therefore
requires that government be neutral in matters

208

of religion; governmental reliance upon

religious justification is inconsistent with this
policy of neutrality.[442]
In other words, government action, including
its proscription of immorality as expressed in
criminal law like concubinage, must have a
secular purpose. That is, the government
proscribes this conduct because it is detrimental
(or dangerous) to those conditions upon which
depend the existence and progress of human
society and not because the conduct is
proscribed by the beliefs of one religion or the
other. Although admittedly, moral judgments
based on religion might have a compelling
influence
on
those
engaged
in
public
deliberations over what actions would be
considered a moral disapprobation punishable
by law. After all, they might also be adherents
of a religion and thus have religious opinions
and moral codes with a compelling influence on
them; the human mind endeavors to regulate
the temporal and spiritual institutions of society
in a uniform manner, harmonizing earth with
heaven.[443] Succinctly put, a law could be
religious or Kantian or Aquinian or utilitarian in
its deepest roots, but it must have an
articulable and discernible secular purpose and
justification to pass scrutiny of the religion
clauses. Otherwise, if a law has an apparent

secular purpose but upon closer examination

shows a discriminatory and prohibitory religious
purpose, the law will be struck down for being
offensive of the religion clauses as in Church of
the Lukumi Babalu Aye, Inc. where the U.S.
Supreme Court invalidated an ordinance
prohibiting
animal
sacrifice
of
the
Santeria. Recognizing the religious nature of the
Filipinos and the elevating influence of religion
in society, however, the Philippine constitutions
religion clauses prescribe not a strict but
a benevolent
neutrality. Benevolent
neutrality recognizes that government must
pursue its secular goals and interests but at the
same time strives to uphold religious liberty to
the greatest extent possible within flexible
constitutional
limits. Thus,
although
the
morality
contemplated
by
laws
is
secular, benevolent neutrality could allow
for accommodation of morality based on
religion, provided it does not offend compelling
state interests.
Mr. Justice Vitugs separate opinion embraces
the benevolent neutrality approach when it
states that in deciding the case at bar, the
approach should consider that, (a)s a rule . . .
moral laws are justified only to the extent that
they directly or indirectly serve to protect the
interests of the larger society. It is only where

209

their rigid application would serve to obliterate

the value which society seeks to uphold, or
defeat the purpose for which they are enacted
would, a departure be justified. In religion
clause parlance, the separate opinion holds that
laws of general applicability governing morals
should have a secular purpose of directly or
indirectly protecting the interests of the state. If
the strict application of these laws (which are
the Civil Service Law and the laws on marriage)
would erode the secular purposes of the law
(which the separate opinion identifies as
upholding the sanctity of marriage and the
family),
then
in
a benevolent
neutrality framework, an accommodation of
the unconventional religious belief and practice
(which the separate opinion holds should be
respected on the ground of freedom of belief)
that would promote the very same secular
purpose of upholding the sanctity of marriage
and family through the Declaration Pledging
Faithfulness that makes the union binding and
honorable before God and men, is required by
the Free Exercise Clause. The separate opinion
then makes a preliminary discussion of the
values society seeks to protect in adhering to
monogamous marriage, but concludes that
these values and the purposes of the applicable
laws should be thoroughly examined and
evidence in relation thereto presented in the

OCA. The accommodation approach in the

case at bar would also require a similar
discussion of these values and presentation of
evidence before the OCA by the state that seeks
to protect its interest on marriage and opposes
the accommodation of
the
unconventional
religious belief and practice regarding marriage.
The distinction between public and secular
morality as expressed - albeit not exclusively in the law, on the one hand, and religious
morality, on the other, is important because
the jurisdiction of the Court extends only
to public and secular morality. Whatever
pronouncement the Court makes in the case at
bar should be understood only in this realm
where it has authority. More concretely, should
the Court declare respondents conduct as
immoral and hold her administratively liable,
the Court will be holding that in the realm of
public morality, her conduct is reprehensible or
there are state interests overriding her religious
freedom. For as long as her conduct is being
judged within this realm, she will be
accountable to the state. But in so ruling, the
Court does not and cannot say that her conduct
should be made reprehensible in the realm of
her church where it is presently sanctioned and
that she is answerable for her immorality to her
Jehovah God nor that other religions prohibiting

210

her conduct are correct. On the other hand,

should
the
Court
declare
her
conduct
permissible, the Court will be holding that under
her unique circumstances, public morality is not
offended or that upholding her religious
freedom is an interest higher than upholding
public morality thus her conduct should not be
penalized. But the Court is not ruling that the
tenets and practice of her religion are correct
nor that other churches which do not allow
respondents conjugal arrangement should
likewise allow such conjugal arrangement or
should not find anything immoral about it and
therefore members of these churches are not
answerable for immorality to their Supreme
Being. The Court cannot speak more than what
it has authority to say. In Ballard, the U.S.
Supreme Court held that courts cannot inquire
about the truth of religious beliefs. Similarly,
in Fonacier, this Court declared that matters
dealing with faith, practice, doctrine, form of
worship, ecclesiastical law, custom and rule of a
churchare unquestionably ecclesiastical matters
which are outside the province of the civil
courts.[444] But while the state, including the
Court, accords such deference to religious belief
and exercise which enjoy protection under the
religious clauses, the social contract and the
constitutional order are designed in such a way
that when religious belief flows into speech and

conduct that step out of the religious sphere

and overlap with the secular and public realm,
the state has the power to regulate, prohibit
and
penalize
these
expressions
and
embodiments of belief insofar as they affect the
interests of the state. The states inroad on
religion exercise in excess of this constitutional
design is prohibited by the religion clauses; the
Old World, European and American history
narrated above bears out the wisdom of this
proscription.
Having distinguished between public and
secular morality and religious morality, the
more difficult task is determining which immoral
acts under this public and secular morality fall
under the phrase disgraceful and immoral
conduct for which a government employee may
be held administratively liable. The line is not
easy to draw for it is like a line that divides land
and sea, a coastline of irregularities and
indentations.[445] But the case at bar does not
require us to comprehensively delineate
between those immoral acts for which one may
be held administratively liable and those to
which
administrative
liability
does
not
attach. We need not concern ourselves in this
case therefore whether laziness, gluttony,
vanity, selfishness, avarice and cowardice are
immoral acts which constitute grounds for

211

administrative liability. Nor need we expend too

much energy grappling with the propositions
that not all immoral acts are illegal or not all
illegal
acts
are
immoral,
or
different
jurisdictions have different standards of
morality as discussed by the dissents and
separate opinions, although these observations
and propositions are true and correct. It is
certainly a fallacious argument that because
there are exceptions to the general rule that the
law is the witness and deposit of our moral life,
then the rule is not true; in fact, that there are
exceptions only affirms the truth of the
rule. Likewise, the observation that morality is
relative in different jurisdictions only affirms the
truth that there is morality in a particular
jurisdiction; without, however, discounting the
truth that underneath the moral relativism are
certain moral absolutes such as respect for life
and truth-telling, without which no society will
survive. Only one conduct is in question before
this Court, i.e., the conjugal arrangement of a
government employee whose partner is legally
married to another which Philippine law and
jurisprudence consider both immoral and
illegal. Lest the Court inappropriately engage in
the
impossible
task
of
prescribing
comprehensively how one ought to live, the
Court must focus its attention upon the sole
conduct in question before us.

In interpreting disgraceful and immoral

conduct, the dissenting opinion of Mme. Justice
Ynares-Santiago groped for standards of
morality and stated that the ascertainment of
what is moral or immoral calls for the discovery
of contemporary community standards but did
not articulate how these standards are to be
ascertained. Instead, it held that, (f)or those in
the service of the Government, provisions of
law and court precedents . . . have to be
considered. It identified the Civil Service Law
and the laws on adultery and concubinage as
laws which respondents conduct has offended
and cited a string of precedents where a
government employee was found guilty of
committing a disgraceful and immoral conduct
for maintaining illicit relations and was thereby
penalized. As stated above, there is no dispute
that under settled jurisprudence, respondents
conduct constitutes disgraceful and immoral
conduct. However, the cases cited by the
dissent do not involve the defense of religious
freedom which respondent in the case at bar
invokes. Those cited cases cannot therefore
serve as precedents in settling the issue in the
case at bar.
Mme. Justice Ynares-Santiagos dissent also
cites Cleveland v. United States[446] in laying
down the standard of morality, viz: (w)hether

212

an act is immoral within the meaning of the

statute is not to be determined by respondents
concept of morality. The law provides the
standard; the offense is complete if respondent
intended to perform, and did in fact perform,
the act which it condemns. The Mann Act under
consideration in the Cleveland case declares
as an offense the transportation in interstate
commerce of any woman or girl for the purpose
of prostitution or debauchery, or for any other
immoral purpose.[447] The resolution of that
case hinged on the interpretation of the phrase
immoral purpose. The U.S. Supreme Court held
that the petitioner Mormons act of transporting
at least one plural wife whether for the purpose
of cohabiting with her, or for the purpose of
aiding another member of their Mormon church
in such a project, was covered by the phrase
immoral purpose. In so ruling, the Court relied
on Reynolds which held that the Mormons
practice of polygamy, in spite of their defense of
religious freedom, was odious among the
northern and western nations of Europe,[448] a
return to barbarism,[449] contrary to the spirit of
Christianity and of the civilization which
Christianity has produced in the Western world,
[450]
and thus punishable by law.
The Cleveland standard, however, does not
throw light to the issue in the case at bar. The

pronouncements of the U.S. Supreme Court

that polygamy is intrinsically odious or barbaric
do not apply in the Philippines where Muslims,
by law, are allowed to practice polygamy. Unlike
in Cleveland, there is no jurisprudence in
Philippine jurisdiction holding that the defense
of religious freedom of a member of the
Jehovahs
Witnesses
under
the
same
circumstances as respondent will not prevail
over the laws on adultery, concubinage or some
other law. We cannot summarily conclude
therefore that her conduct is likewise so odious
and barbaric as to be immoral and punishable
by law.
While positing the view that the resolution of
the case at bar lies more on determining the
applicable moral standards and less on religious
freedom, Mme. Justice Ynares-Santiagos dissent
nevertheless discussed respondents plea of
religious freedom and disposed of this defense
by stating that (a) clear and present danger of
a substantive evil, destructive to public morals,
is a ground for the reasonable regulation of the
free exercise and enjoyment of religious
profession. (American Bible Society v. City of
Manila, 101 Phil. 386 [1957]). In addition to the
destruction of public morals, the substantive
evil in this case is the tearing down of morality,
good
order,
and
discipline
in
the

213

judiciary. However, the foregoing discussion has

shown that the clear and present danger test
that is usually employed in cases involving
freedom of expression is not appropriate to the
case at bar which involves purely religious
conduct. The dissent also cites Reynolds in
supporting its conclusion that respondent is
guilty
of
disgraceful
and
immoral
conduct. The Reynolds ruling, however, was
reached with a strict neutrality approach, which
is not the approach contemplated by the
Philippine constitution. As discussed above,
Philippine
jurisdiction
adopts benevolent
neutrality in interpreting the religion clauses.
In the same vein, Mr. Justice Carpios dissent
which employs strict neutrality does not reflect
the
constitutional
intent
of
employing benevolent
neutrality in
interpreting the Philippine religion clauses. His
dissent avers that respondent should be held
administratively liable not for disgraceful and
immoral conduct but conduct prejudicial to the
best interest of the service as she is a
necessary co-accused of her partner in
concubinage. The dissent stresses that being a
court employee, her open violation of the law is
prejudicial to the administration of justice.
Firstly, the dissent offends due process as
respondent was not given an opportunity to

defend herself against the charge of conduct

prejudicial to the best interest of the service. In
addition, there is no evidence of the alleged
prejudice to the best interest of the
service. Most importantly, the dissent concludes
that respondents plea of religious freedom
cannot prevail without so much as employing a
test that would balance respondents religious
freedom and the states interest at stake in the
case at bar. The foregoing discussion on the
doctrine of religious freedom, however, shows
that
with benevolent
neutrality as
a
framework, the Court cannot simply reject
respondents plea of religious freedom without
even subjecting it to the compelling state
interest test that would balance her freedom
with the paramount interests of the state. The
strict neutrality employed in the cases the
dissent cites -Reynolds, Smith and People v.
Bitdu decided before the 1935 Constitution
which unmistakably shows adherence to
benevolent neutrality - is not contemplated
by our constitution.
Neither is Sulu Islamic Association of
Masjid Lambayong v. Judge Nabdar J.
Malik[451] cited in Mr. Justice Carpios dissent
decisive of the immorality issue in the case at
bar. In that case, the Court dismissed the
charge of immorality against a Tausug judge for

214

engaging in an adulterous relationship with

another woman with whom he had three
children because it (was) not immoral by
Muslim standards for Judge Malik to marry a
second
time
while
his
first
marriage
(existed). Putting the quoted portion in its
proper context would readily show that
the Sulu Islamic case does not provide a
precedent to the case at bar. Immediately prior
to the portion quoted by the dissent, the Court
stressed, viz: (s)ince Art. 180 of P.D. No. 1083,
otherwise known as the Code of Muslim
Personal Laws of the Philippines, provides that
the penal laws relative to the crime of
bigamy shall not apply to a person married x x
x under Muslim Law, it is not immoral by Muslim
standards for Judge Malik to marry a second
time while his first marriage exists.[452] It was
by law, therefore, that the Muslim conduct in
question was classified as an exception to the
crime of bigamy and thus an exception to the
general
standards
of
morality. The
constitutionality of P.D. No. 1083 when
measured against the Establishment Clause was
not raised as an issue in the Sulu Islamic
case. Thus, the Court did not determine
whether P.D. No. 1083 suffered from a
constitutional infirmity and instead relied on the
provision excepting the challenged Muslim
conduct from the crime of bigamy in holding

that the challenged act is not immoral by

Muslim standards. In contradistinction, in the
case at bar, there is no similar law which the
Court can apply as basis for treating
respondents conduct as an exception to the
prevailing jurisprudence on illicit relations of
civil servants. Instead, the Free Exercise Clause
is being invoked to justify exemption.
B. Application of Benevolent Neutrality and
the
Compelling State Interest Test to the Case
at Bar
The case at bar being one of first impression,
we now subject the respondents claim of
religious freedom to the compelling state
interest test from a benevolent neutrality
stance - i.e. entertaining the possibility that
respondents claim to religious freedom would
warrant carving out an exception from the Civil
Service Law; necessarily, her defense of
religious freedom will be unavailing should the
government succeed in demonstrating a more
compelling state interest.
In applying the test, the first inquiry is
whether respondents right to religious
freedom has been burdened. There is no

215

doubt that choosing between keeping her

employment and abandoning her religious belief
and practice and family on the one hand, and
giving up her employment and keeping her
religious practice and family on the other hand,
puts a burden on her free exercise of
religion. In Sherbert, the Court found that
Sherberts religious exercise was burdened as
the denial of unemployment benefits forces her
to choose between following the precepts of her
religion and forfeiting benefits, on the one
hand, and abandoning one of the precepts of
her religion in order to accept work, on the
other hand. The burden on respondent in the
case at bar is even greater as the price she has
to pay for her employment is not only her
religious precept but also her family which, by
the Declaration Pledging Faithfulness, stands
honorable before God and men.
The second step is to ascertain
respondents sincerity in her religious
belief. Respondent appears to be sincere in her
religious belief and practice and is not merely
using the Declaration of Pledging Faithfulness to
avoid punishment for immorality. She did not
secure the Declaration only after entering the
judiciary where the moral standards are strict
and defined, much less only after an
administrative case for immorality was filed

against her.The Declaration was issued to her

by her congregation after ten years of living
together with her partner, Quilapio, and ten
years before she entered the judiciary. Ministers
from her congregation testified on the
authenticity of the Jehovahs Witnesses practice
of securing a Declaration and their doctrinal or
scriptural basis for such a practice. As the
ministers testified, the Declaration is not
whimsically issued to avoid legal punishment for
illicit conduct but to make the union of their
members under respondents circumstances
honorable before God and men. It is also
worthy of notice that the Report and
Recommendation of the investigating judge
annexed letters[453] of the OCA to the
respondent regarding her request to be exempt
from attending the flag ceremony after Circular
No. 62-2001 was issued requiring attendance in
the flag ceremony. The OCAs letters were not
submitted by respondent as evidence but
annexed by the investigating judge in
explaining that he was caught in a dilemma
whether to find respondent guilty of immorality
because the Court Administrator and Deputy
Court Administrator had different positions
regarding respondents request for exemption
from the flag ceremony on the ground of the
Jehovahs
Witnesses
contrary
belief
and
practice. Respondents request for exemption

216

from the flag ceremony shows her sincerity in

practicing the Jehovahs Witnesses beliefs and
not
using
them
merely
to
escape
punishment. She is a practicing member of the
Jehovahs Witnesses and the Jehovah ministers
testified that she is a member in good
standing.Nevertheless, should the government,
thru the Solicitor General, want to further
question the respondents sincerity and the
centrality of her practice in her faith, it should
be given the opportunity to do so. The
government has not been represented in the
case at bar from its incipience until this point.
In any event, even if the Court deems
sufficient respondents evidence on the
sincerity of her religious belief and its
centrality in her faith, the case at bar
cannot
still
be
decided
using
the
compelling state interest test. The case at
bar is one of first impression, thus the parties
were not aware of the burdens of proof they
should discharge in the Courts use of the
compelling state interest test. We note that the
OCA found respondents defense of religious
freedom unavailing in the face of the Courts
ruling in Dicdican v. Fernan, et al., viz:
It bears emphasis that the image of a court of
justice is mirrored in the conduct, official and

otherwise, of the personnel who work thereat,

from the judge to the lowest of its
personnel. Court personnel have been enjoined
to adhere to the exacting standards of morality
and decency in their professional and private
conduct in order to preserve the good name
and integrity of the courts of justice.
It is apparent from the OCAs reliance upon
this ruling that the state interest it upholds is
the preservation of the integrity of the judiciary
by maintaining among its ranks a high standard
of morality and decency. However, there is
nothing in the OCAs memorandum to the Court
that demonstrates how this interest is so
compelling that it should override respondents
plea of religious freedom nor is it shown that
the means employed by the government in
pursuing its interest is the least restrictive to
respondents religious exercise.
Indeed,
it
is
inappropriate
for
the
complainant, a private person, to present
evidence on the compelling interest of the
state. The burden of evidence should be
discharged by the proper agency of the
government which is the Office of the Solicitor
General. To properly settle the issue in the case
at bar, the government should be given the
opportunity to demonstrate the compelling

217

state interest it seeks to uphold in opposing the

respondents
stance
that
her
conjugal
arrangement is not immoral and punishable as
it comes within the scope of free exercise
protection. Should the Court prohibit and
punish her conduct where it is protected
by the Free Exercise Clause, the Courts
action would be an unconstitutional
encroachment of her right to religious
freedom.[454] We cannot therefore simply take
a passing look at respondents claim of religious
freedom, but must instead apply the compelling
state interest test. The government must be
heard on the issue as it has not been given an
opportunity to discharge its burden of
demonstrating the states compelling interest
which can override respondents religious belief
and practice. To repeat, this is a case of first
impression where we are applying the
compelling state interest test in a case involving
purely religious conduct. The careful application
of the test is indispensable as how we will
decide the case will make a decisive difference
in the life of the respondent who stands not
only before the Court but before her Jehovah
God.
IN
VIEW
WHEREOF, the
case
is REMANDED to the Office of the Court
Administrator. The Solicitor General is ordered

to intervene in the case where it will be given

the opportunity (a) to examine the sincerity and
centrality of respondents claimed religious belief
and practice; (b) to present evidence on the
states
compelling
interest
to
override
respondents religious belief and practice; and
(c) to show that the means the state adopts in
pursuing its interest is the least restrictive to
respondents religious freedom. The rehearing
should be concluded thirty (30) days from the
Office of the Court Administrators receipt of this
Decision.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. 117472 June 25, 1996

PEOPLE OF THE PHILIPPINES, plaintiffappellee,
vs.
LEO ECHEGARAY y PILO, accused-appellant.

218

PER CURIAM:p
Amidst the endless debates on whether or not
the reimposition of the death penalty is indeed
a deterrent as far as the commission of heinous
crimes is concerned and while the attendant
details pertaining to the execution of a death
sentence remain as yet another burning issue,
we are tasked with providing a clear-cut
resolution of whether or not the herein accusedappellant deserves to forfeit his place in human
society for the infliction of the primitive and
bestial act of incestuous lust on his own blood.
Before us for automatic review is the judgment
of conviction, dated September 7, 1994, for the
crime of Rape, rendered after marathon hearing
by the Regional Trial Court of Quezon City,
Branch 104, the dispositive portion of which
reads:
WHEREFORE, judgment is hereby
rendered finding accused LEO
ECHEGARAY Y PILO guilty beyond
reasonable doubt of the crime of

RAPE as charged in the complaint,

aggravated by the fact that the same
was commited by the accused who is
the father/stepfather of the
complainant, he is hereby sentenced
to suffer the penalty of DEATH, as
provided for under RA. No. 7659, to
pay the complainant Rodessa
Echegaray the sum
of P50,000.00 as damages, plus all
the accessory penalties provided by
law, without subsidiary imprisonment
in case of insolvency, and to pay the
costs. 1
We note, however, that the charge had been
formulated in this manner:
COMPLAINT
The undersigned accuses LEO
ECHEGARAY Y PILO of the crime of
RAPE, committed as follows:
That on or about the month of April
1994, in Quezon City, Philippines, the
above-named accused, by means of

219

force and intimidation did then and

there wilfully, unlawfully and
feloniously have carnal knowledge of
the undersigned complainant, his
daughter, a minor, 10 years of age, all
against her will and without her
consent, to her damage and
prejudice.
CONTRARY TO LAW 2
Upon being arraigned on August 1, 1994, the
accused-appellant, assisted by his counsel de
oficio, entered the plea of "not guilty."
These are the pertinent facts of the case as
summarized by the Solicitor-General in his
brief:
This is a case of rape by the father of
his ten-year old daughter.
Complainant RODESSA ECHEGARAY is
a ten-year old girl and a fifth-grader,
born on September 11, 1983.
Rodessa is the eldest of five siblings.
She has three brothers aged 6, 5 and

2, respectively, and a 3-month old

baby sister. Her parents are Rosalie
and Leo Echegaray, the latter being
the accused-appellant himself. The
victim lives with her family in a small
house located at No. 199 Fernandez
St., Barangay San Antonio, San
Francisco Del Monte, Quezon City (pp.
5-9, Aug. 9, 1994, TSN).
Sometime in the afternoon of April
1994, while Rodessa was looking
after her three brothers in their house
as her mother attended a gambling
session in another place, she heard
her father, the accused-appellant in
this case, order her brothers to go
out of the house (pp. 10-11, ibid). As
soon as her brothers left, accusedappellant Leo Echegaray approached
Rodessa and suddenly dragged her
inside the room (p. 12, ibid). Before
she could question the appellant, the
latter immediately, removed her
panty and made her lie on the floor
(p. 13, ibid). Thereafter, appellant

220

likewise removed his underwear and

immediately placed himself on top of
Rodessa. Subsequently, appellant
forcefully inserted his penis into
Rodessa's organ causing her to suffer
intense pain (pp. 14-15, ibid). While
appellant was pumping on her, he
even uttered. "Masarap ba, masarap
ba?" and to which Rodessa answered:
"Tama na Papa, masakit" (p.
16, ibid). Rodessa's plea proved futile
as appellant continued with his act.
After satisfying his bestial instinct,
appellant threatened to kill her
mother if she would divulge what had
happened. Scared that her mother
would be killed by appellant, Rodessa
kept to herself the ordeal she
suffered. She was very afraid of
appellant because the latter, most of
the time, was high on drugs (pp. 1718, ibid.). The same sexual assault
happened up to the fifth time and this
usually took place when her mother
was out of the house (p. 19, ibid.).
However, after the fifth time, Rodessa

decided to inform her grandmother,

Asuncion Rivera, who in turn told
Rosalie, Radessa's mother. Rodessa
and her mother proceeded to the
Barangay Captain where Rodessa
confided the sexual assaults she
suffered. Thereafter, Rodessa was
brought to the precinct where she
executed an affidavit (p. 21, ibid.).
From there, she was accompanied to
the Philippine National Police Crime
Laboratory for medical examination
(p. 22, ibid.).
Rodessa testified that the said sexual
assaults happened only during the
time when her mother was pregnant.
Rodessa added that at first, her
mother was on her side. However,
when appellant was detained, her
mother kept on telling her. "Kawawa
naman ang Tatay mo, nakakulong"
(pp. 39-40,ibid.).
When Rodessa was examined by the
medico-legal officer in the person of

221

Dra. Ma. Cristina B. Preyna, 3 the

complainant was described as
physically on a non-virgin state, as
evidenced by the presence of
laceration of the hymen of said
complainant (TSN, Aug. 22, 1995, pp.
8-9). 4
On the other hand, the accused-appellant's brief
presents a different story:
. . . the defense presented its first
witness, Rosalie Echegaray. She
asserted that the RAPE charge
against the accused was only the
figment of her mothers dirty mind.
That her daughter's complaint was
forced upon her by her grandma and
the answers in the sworn statement
of Rodessa were coached. That the
accusation of RAPE was motivated by
Rodessa's grandmother's greed over
the lot situated at the Madrigal
Estate-NHA Project, Barangay San
Antonio, San Francisco del Monte,
Quezon City, which her grandmother's

paramour, Conrado Alfonso gave to

the accused in order to persuade the
latter to admit that Rodessa executed
an affidavit of desistance after it
turned out that her complaint of
attempted homicide was substituted
with the crime of RAPE at the
instance of her mother. That when
her mother came to know about the
affidavit of desistance, she placed her
granddaughter under the custody of
the Barangay Captain. That her
mother was never a real mother to
her.
She stated that her complaint against
accused was for attempted homicide
as her husband poured alcohol on her
body and attempted to burn her. She
identified the certification issued by
the NHA and Tag No. 87-0393 (Exh.
2). That the Certification based on
the Masterlist (Exh. 3) indicates that
the property is co-owned by accused
and Conrado Alfonso. That Rodessa is
her daughter sired by Conrado

222

Alfonso, the latter being the

paramour of her mother. That
Conrado Alfonso waived his right and
participation over the lot in favor of
the accused in consideration of the
latter's accepting the fact that he is
the father of Rodessa to simulate the
love triangle and to conceal the
nauseating sex orgies from Conrado
Alfonso's real wife.
Accused testified in his behalf and
stated that the grandmother of the
complainant has a very strong motive
in implicating him to the crime of
RAPE since she was interested to
become the sole owner of a property
awarded to her live-in partner by the
Madrigal Estate-NHA Project. That he
could not have committed the
imputed crime because he considers
Rodessa as his own daughter. That he
is a painter-contractor and on the
date of the alleged commission of the
crime, he was painting the house of
one Divina Ang of Barangay Vitalis,

Paraaque, Metro Manila (Exh. 4).

The travel time between his work
place to his residence is three (3)
hours considering the condition of
traffic. That the painting contract is
evidenced by a document
denominated "Contract of Services"
duly accomplished (see submarkings
of Exh. 4). He asserted that he has a
big sexual organ which when used to
a girl 11 years old like Rodessa, the
said female organ will be
"mawawarak." That it is abnormal to
report the imputed commission of the
crime to the grandmother of the
victim.
Accused further stated that her (sic)
mother-in-law trumped-up a charge
of drug pushing earlier and he
pleaded guilty to a lesser offense of
using drugs. The decretal portion of
the judgment of conviction ordering
the accused to be confined at the
Bicutan Rehabilitation Center irked
the grandmother of Rodessa because

223

it was her wish that accused should

be meted the death penalty.
Accused remain steadfast in his
testimony perorating the strong
motive of Rodessa's grandmother in
implicating him in this heinous crime
because of her greed to become the
sole owner of that piece of property
at the National Housing AuthorityMadrigal Project, situated at San
Francisco del Monte, Quezon City,
notwithstanding rigid crossexamination. He asserted that the
imputed offense is far from his mind
considering that he treated Rodessa
as his own daughter. He categorically
testified that he was in his painting
job site on the date and time of the
alleged commission of the crime.
Mrs. Punzalan was presented as third
defense witness. She said that she is
the laundry woman and part time
baby sitter of the family of accused.
That at one time, she saw Rodessa

reading sex books and the Bulgar

newspaper. That while hanging
washed clothes on the vacant lot, she
saw Rodessa masturbating by
tinkering her private parts. The
masturbation took sometime.
This sexual fling of Rodessa were
corroborated by Silvestra Echegaray,
the fourth and last witness for the
defense. She stated that she tried
hard to correct the flirting tendency
of Rodessa and that she scolded her
when she saw Rodessa viewing an Xrated tape. Rodessa according to her
was fond of going with friends of illrepute. That (sic) she corroborated
the testimony of Mrs. Punzalan by
stating that she herself saw Rodessa
masturbating inside the room of her
house. 5
In finding the accused-appellant guilty beyond
reasonable doubt of the crime of rape, the
lower court dismissed the defense of alibi and
lent credence to the straightforward testimony

224

of the ten-year old victim to whom no ill motive

to testify falsely against accused-appellant can
be attributed. The lower court likewise regarded
as inconsequential the defense of the accusedappellant that the extraordinary size of his
penis could not have insinuated itself into the
victim's vagina and that the accused is not the
real father of the said victim.
The accused-appellant now reiterates his
position in his attempt to seek a reversal of the
lower court's verdict through the following
assignment of errors:
1. THE LOWER COURT
FAILED TO APPRECIATE
THE SINISTER MOTIVE OF
PRIVATE COMPLAINANT'S
GRANDMOTHER? THAT
PRECIPITATED THE FILING
OF THE CHARGE OF RAPE,
HENCE IT ERRED IN
HOLDING ACCUSED GUILTY
AS CHARGED.
2. THE COURT BELOW
OVERLOOKED THE FACT

THAT THE HEALED

LACERATIONS AT 3 AND 7
O'CLOCK COULD NOT HAVE
BEEN DUE TO THE
PUMPING OF THE PENIS OF
ACCUSED TO THE VAGINA
OF PRIVATE COMPLAINANT,
HENCE IT ERRED IN
HOLDING THAT ACCUSED
COMMITTED THE CRIME
CHARGED,
NOTWITHSTANDING
VEHEMENT DENIAL.
3. THE COURT A
QUO WHIMSICALLY
IGNORED THE DEFENSE OF
ALIBI THAT ACCUSED WAS
IN PARAAQUE ON THE
DATE AND TIME OF THE
IMPUTED CRIME HENCE, IT
ERRED IN HOLDING THAT
ALIBI IS NOT SUSTAINABLE
IN THE CASE AT BAR. 6

225

Considering that a rape charge, in the light of

the reimposition of the death penalty, requires a
thorough and judicious examination of the
circumstances relating thereto, this Court
remains guided by the following principles in
evaluating evidence in cases of this nature: (a)
An accusation for rape can be made with
facility; it is difficult to prove but more difficult
for the accused though innocent to disprove;
(b) In view of the intrinsic nature of the crime
of rape where only two persons are involved,
the testimony of the complainant must be
scrutinized with extreme caution; and (c) The
evidence for the prosecution must stand and fall
on its own merits, and cannot be allowed to
draw strength from the weakness of the
evidence for the defense. 7

San Francisco del Monte, Quezon City. The

accused-appellant theorizes that prosecution
witness Asuncion Rivera, the maternal
grandmother of the victim Rodessa, concocted
the charge of rape so that, in the event that the
accused-appellant shall be meted out a death
sentence, title to the lot will be consolidated in
her favor. Indeed, the lot in question is coowned by the accused-appellant and Conrado
Alfonso, the live-in partner of Asuncion Rivera,
according to the records of the National Housing
Authority (Exh. "3"). The accused-appellant
would want us to believe that the rape charge
was fabricated by Asuncion Rivera in order to
eliminate the accused-appellant from being a
co-owner. So, the live-in partners would have
the property for their own. 8

Anent the first assigned error, no amount of

persuasion can convince this Court to tilt the
scales of justice in favor of the accusedappellant notwithstanding that he cries foul
insisting that the rape charge was merely
concocted and strongly motivated by greed over
a certain lot situated at the NHA-Madrigal
Estate Housing Project, Barangay San Antonio,

We believe, as did the Solicitor-General, that no

grandmother would be so callous as to instigate
her 10-year old granddaughter to file a rape
case against her own father simply on account
of her alleged interest over the disputed lot. 9
It is a well-entrenched jurisprudential rule that
the testimony of a rape victim is credible where

226

she has no motive to testify against the

accused. 10
We find no flaws material enough to discredit
the testimony of the ten-year old Rodessa which
the trial court found convincing enough and
unrebutted by the defense. The trial court not
surprisingly noted that Rodessa's narration in
detail of her father's monstrous acts had made
her cry. 11 Once again, we rule that:
. . . The testimony of the victim who
was only 12 years old at the time of
the rape as to the circumstances of
the rape must be given weight, for
testimony of young and immature
rape victims are credible (People v.
Guibao, 217 SCRA 64 [1993]). No
woman especially one of tender age,
practically only a girl, would concoct a
story of defloration, allow an
examination of her private parts and
thereafter expose herself to a public
trial, if she were not motivated solely
by the desire to have the culprit

apprehended and punished (People v.

Guibao, supra). 12
The accused-appellant points out certain
inconsistencies in the testimonies of the
prosecution witnesses in his attempt to bolster
his claim that the rape accusation against him is
malicious and baseless. Firstly, Rodessa's
testimony that the accused-appellant was
already naked when he dragged her inside the
room is inconsistent with her subsequent
testimony that the said accused-appellant was
still wearing short pants when she was dragged
inside the room. Secondly, Rodessa's sworn
statement before the police investigator which
indicated that, while the accused was executing
pumping acts, he uttered the words "Masarap
ba?", differ from her testimony in court wherein
she related that, when the accused took out his
penis from her vagina, the accused said
"Masarap, tapos na." Thirdly, the victim's
grandmother, Asuncion Rivera, recounted in her
sworn statement that it was the accused who
went to see her to apprise her of the rape
committed on her granddaughter. However, in
her testimony in court , Asuncion Rivera

227

claimed that she was the one who invited the

accused-appellant to see her in her house so as
to tell her a secret. 13 These alleged
discrepancies merely pertain to minor details
which in no way pose serious doubt as to the
credibility of the prosecution witnesses.
Whether or not the accused was naked when he
dragged Rodessa inside the room where he
sexually assaulted her bears no significant
effect on Rodessa's testimony that she was
actually raped by the accused-appellant.
Moreover, a conflicting account of whatever
words were uttered by the accused-appellant
after he forcefully inserted his penis into
Rodessa's private organ against her will cannot
impair the prosecution's evidence as a whole. A
determination of which version earmarks the
truth as to how the victim's grandmother
learned about the rape is inconsequential to the
judgment of conviction.
As we have pronounced in the case of People
v. Jaymalin: 14
This Court has stated time and again
that minor inconsistencies in the

narration of the witness do not

detract from its essential credibility as
long as it is on the whole coherent
and intrinsically believable.
Inaccuracies may in fact suggest that
the witness is telling the truth and
has not been rehearsed as it is not to
he expected that he will be able to
remember every single detail of an
incident with perfect or total recall.
After due deliberation, this Court finds that the
trial judge's assessment of the credibility of the
prosecution witnesses deserves our utmost
respect in the absence of arbitrariness.
With respect to the second assigned error, the
records of the instant case are bereft of clear
and concrete proof of the accused-appellant's
claim as to the size of his penis and that if that
be the fact, it could not have merely caused
shallow healed lacerations at 3:00 and 7:00
o'clock. 15 In his testimony, the accusedappellant stated that he could not have raped
Rodessa because of
the size of his penis which could have ruptured

228

her vagina had he actually done so. 16 This

Court gives no probative value on the accusedappellant's self-serving statement in the light of
our ruling in the case
of People v. Melivo, supra, 17 that:
The vaginal wall and the hymenal
membrane are elastic organs capable
of varying degrees of distensibility.
The degree of distensibility of the
female reproductive organ is normally
limited only by the character and size
of the pelvic inlet, other factors being
minor. The female reprodructive canal
being capable of allowing passage of
a regular fetus, there ought to be no
difficulty allowing the entry of objects
of much lesser size, including the
male reproductive organ, which even
in its largest dimensions, would still
be considerably smaller than the fullterm fetus.
xxx xxx xxx
In the case at bench, the presence of
healed lacerations in various parts of

he vaginal wall, though not as

extensive as appellant might have
expected them to be, indicate
traumatic injury to the area within
the period when the incidents were
supposed to have occurred. (At pp.
13-14, emphasis supplied)
In rape cases, a broken hymen is not an
essential element thereof. 18 A mere knocking at
the doors of the pudenda, so to speak, by the
accused's penis suffices to constitute the crime
of rape as full entry into the victim's vagina is
not required to sustain a conviction. 19 In the
case, Dr. Freyra, the medico-legal examiner,
categorically testified that the healed
lacerations of Rodessa on her vagina were
consistent with the date of the commission of
the rape as narrated by the victim to have
taken place in April, 1994. 20
Lastly, the third assigned error deserves scant
consideration. The accused-appellant
erroneously argues that the Contract of
Services (Exhibit 4) offered as evidence in
support of the accused-appellant's defense of

229

alibi need not be corroborated because there is

no law expressly requiring so. 21 In view of our
finding that the prosecution witnesses have no
motive to falsely testify against the accusedappellant, the defense of alibi, in this case,
uncorroborated by other witnesses, should be
completely disregarded. 22 More importantly,
the defense of alibi which is inherently weak
becomes even weaker in the face of positive
identification of the accused-appellant as
perpetrator of the crime of rape by his victim,
Rodessa. 23
The Contract of Services whereby the accusedappellant obligated himself to do some painting
job at the house of one Divina Ang in
Paraaque, Metro Manila, within 25 days from
April 4, 1994, is not proof of the whereabouts of
the accused-appellant at the time of the
commission of the offense.
The accused-appellant in this case is charged
with Statutory Rape on the basis of the
complaint, dated July 14, 1994. The gravamen
of the said offense, as stated in paragraph 3,
Article 335 of the Revised Penal Code, is the

carnal knowledge of a woman below twelve

years old. 24 Rodessa positively identified his
father accused-appellant, as the culprit of
Statutory Rape. Her account of how the
accused-appellant succeeded in consummating
his grievous and odious sexual assault on her is
free from any substantial self-contradiction. It is
highly inconceivable that it is rehearsed and
fabricated upon instructions from Rodessa's
maternal grandmother Asuncion Rivera as
asserted by the accused-appellant. The words
of Chief Justice Enrique M. Fernando, speaking
for the Court, more than two decades ago, are
relevant and worth reiterating, thus:
. . . it is manifest in the decisions of
this Court that where the offended
parties are young and immature girls
like the victim in this case, (Cited
cases omitted) there is marked
receptivity on its, part to tend
credence to their version of what
transpired. It is not to be wondered
at. The state, as parens patria, is
under the obligation to minimize the
risk of harm to those, who, because

230

of their minority, are as yet unable to

take care of themselves fully. Those
of tender years deserve its utmost
protection. Moreover, the injury in
cases of rape is not inflicted on the
unfortunate victim alone. The
consternation it causes her family
must also be taken into account It
may reflect a failure to abide by the
announced concern in the
fundamental law for such institution
There is all the more reason then for
the rigorous application of the penal
law with its severe penalty for this
offense, whenever warranted. It has
been aptly remarked that with the
advance in civilization, the disruption
in public peace and order it
represents defies explanation, much
more so in view of what currently
appears to be a tendency for sexual
permissiveness. Where the prospects
of relationship based on consent are
hardly minimal, self-restraint should
even be more marked. 25

Under Section 11 of Republic Act No. 7659 often

referred to as the Death Penalty Law, Art. 335
of the Revised Penal Code was amended, to wit:
The death penalty shall also be
imposed if the crime of rape is
committed with any of the following
attendant circumstances:
1. When the victim is under eigthteen
(18) years of age and the offender is
a parent, ascendant, step-parent,
guardian, relative by consanguinity or
affinity within the third civil degree,
or the common-law spouse of the
parent of the victim.
xxx xxx xxx
(Emphasis supplied)
Apparently, as a last glimpse of hope, the
accused-appellant questions the penalty
imposed by the trial court by declaring that he
is neither a father, stepfather or grandfather of
Rodessa although he was a confirmed lover of
Rodessa's mother. 26 On direct examination, he

231

admitted that before the charge of rape was

riled against him, he had treated Rodessa as his
real daughter and had provided for her food,
clothing, shelter and education. 27 The Court
notes that Rodessa uses the surname of the
accused-appellant, not Rivera (her mother's
maiden name) nor Alfonso (her grandmother's
live-in partner). Moreover, Rodessa's mother
stated during the cross-examination that she,
the accused-appellant, and her five children,
including Rodessa, had been residing in one
house only. 28 At any rate, even if he were not
the father, stepfather or grandfather of
Rodessa, this disclaimer cannot save him from
the abyss where perpetrators of heinous crimes
ought to be, as mandated by law. Considering
that the accused-appellant is a confirmed lover
of Rodessa's mother, 29 he falls squarely within
the aforequoted portion of the Death Penalty
Law under the term "common-law spouse of the
parent of the victim."
The fact that the ten-year old Rodessa referred
to the accused-appellant as "Papa" is reason
enough to conclude that accused-appellant is
either the father or stepfather of Rodessa. Thus,

the act of sexual assault perpetrated by the

accused on his young victim has become all the
more repulsive and perverse. The victim's
tender age and the accused-appellant's moral
ascendancy and influence over her are factors
which forced Rodessa to succumb to the
accused's selfish and bestial craving. The law
has made it inevitable under the circumstances
of this case that the accused-appellant face the
supreme penalty of death. WHEREFORE, we
AFFIRM the decision of the Regional Trial Court
of Quezon City, Branch 104.
SO ORDERED.

232

Republic of the Philippines

SUPREME COURT
Baguio City
EN BANC
G.R. No. 180016

April 29, 2014

LITO CORPUZ, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PERALTA, J.:
This is to resolve the Petition for Review on
Certiorari, under Rule 45 of the Rules of Court,
dated November 5, 2007, of petitioner Lito
Corpuz (petitioner), seeking to reverse and set
aside the Decision1 dated March 22, 2007 and
Resolution2 dated September 5, 2007 of the
Court of Appeals (CA), which affirmed with
modification the Decision3 dated July 30, 2004
of the Regional Trial Court (RTC), Branch 46,
San Fernando City, finding the petitioner guilty
beyond reasonable doubt of the crime of Estafa

under Article 315, paragraph (1), subparagraph (b) of the Revised Penal Code.
The antecedent facts follow.
Private complainant Danilo Tangcoy and
petitioner met at the Admiral Royale Casino in
Olongapo City sometime in 1990. Private
complainant was then engaged in the business
of lending money to casino players and, upon
hearing that the former had some pieces of
jewelry for sale, petitioner approached him on
May 2, 1991 at the same casino and offered to
sell the said pieces of jewelry on commission
basis. Private complainant agreed, and as a
consequence, he turned over to petitioner the
following items: an 18k diamond ring for men;
a woman's bracelet; one (1) men's necklace
and another men's bracelet, with an aggregate
value of P98,000.00, as evidenced by a receipt
of even date. They both agreed that petitioner
shall remit the proceeds of the sale, and/or, if
unsold, to return the same items, within a
period of 60 days. The period expired without
petitioner remitting the proceeds of the sale or
returning the pieces of jewelry. When private

233

complainant was able to meet petitioner, the

latter promised the former that he will pay the
value of the said items entrusted to him, but to
no avail.
Thus, an Information was filed against
petitioner for the crime of estafa, which reads
as follows:
That on or about the fifth (5th) day of July
1991, in the City of Olongapo, Philippines, and
within the jurisdiction of this Honorable Court,
the above-named accused, after having
received from one Danilo Tangcoy, one (1)
men's diamond ring, 18k, worth P45,000.00;
one (1) three-baht men's bracelet, 22k,
worth P25,000.00; one (1) two-baht ladies'
bracelet, 22k, worth P12,000.00, or in the total
amount of Ninety-Eight Thousand Pesos
(P98,000.00), Philippine currency, under
expressed obligation on the part of said accused
to remit the proceeds of the sale of the said
items or to return the same, if not sold, said
accused, once in possession of the said items,
with intent to defraud, and with unfaithfulness
and abuse of confidence, and far from

complying with his aforestated obligation, did

then and there wilfully, unlawfully and
feloniously misappropriate, misapply and
convert to his own personal use and benefit the
aforesaid jewelries (sic) or the proceeds of the
sale thereof, and despite repeated demands,
the accused failed and refused to return the
said items or to remit the amount of NinetyEight Thousand Pesos (P98,000.00), Philippine
currency, to the damage and prejudice of said
Danilo Tangcoy in the aforementioned amount.
CONTRARY TO LAW.
On January 28, 1992, petitioner, with the
assistance of his counsel, entered a plea of not
guilty. Thereafter, trial on the merits ensued.
The prosecution, to prove the above-stated
facts, presented the lone testimony of Danilo
Tangcoy. On the other hand, the defense
presented the lone testimony of petitioner,
which can be summarized, as follows:
Petitioner and private complainant were
collecting agents of Antonio Balajadia, who is
engaged in the financing business of extending

234

loans to Base employees. For every collection

made, they earn a commission. Petitioner
denied having transacted any business with
private complainant.
However, he admitted obtaining a loan from
Balajadia sometime in 1989 for which he was
made to sign a blank receipt. He claimed that
the same receipt was then dated May 2, 1991
and used as evidence against him for the
supposed agreement to sell the subject pieces
of jewelry, which he did not even see.
After trial, the RTC found petitioner guilty
beyond reasonable doubt of the crime charged
in the Information. The dispositive portion of
the decision states:
WHEREFORE, finding accused LITO CORPUZ
GUILTY beyond reasonable doubt of the felony
of Estafa under Article 315, paragraph one (1),
subparagraph (b) of the Revised Penal Code;
there being no offsetting generic aggravating
nor ordinary mitigating circumstance/s to vary
the penalty imposable;

accordingly, the accused is hereby sentenced to

suffer the penalty of deprivation of liberty
consisting of an imprisonment under the
Indeterminate Sentence Law of FOUR (4)
YEARS AND TWO (2) MONTHS of Prision
Correccional in its medium period AS MINIMUM,
to FOURTEEN (14) YEARS AND EIGHT (8)
MONTHS of Reclusion Temporal in its minimum
period AS MAXIMUM; to indemnify private
complainant Danilo Tangcoy the amount
ofP98,000.00 as actual damages, and to pay
the costs of suit.
SO ORDERED.
The case was elevated to the CA, however, the
latter denied the appeal of petitioner and
affirmed the decision of the RTC, thus:
WHEREFORE, the instant appeal is DENIED. The
assailed Judgment dated July 30, 2004 of the
RTC of San Fernando City (P), Branch 46, is
hereby AFFIRMED with MODIFICATION on the
imposable prison term, such that accusedappellant shall suffer the indeterminate penalty
of 4 years and 2 months of prision correccional,
as minimum, to 8 years of prision mayor, as

235

maximum, plus 1 year for each

additional P10,000.00, or a total of 7 years. The
rest of the decision stands.

[PIECES OF] JEWELRY SHOULD BE

RETURNED, IF UNSOLD, OR THE MONEY
TO BE REMITTED, IF SOLD;

SO ORDERED.

2. THE DATE OF THE OCCURRENCE OF THE

CRIME ALLEGED IN THE INFORMATION AS
OF 05 JULY 1991 WAS MATERIALLY
DIFFERENT FROM THE ONE TESTIFIED TO
BY THE PRIVATE COMPLAINANT WHICH
WAS 02 MAY 1991;

Petitioner, after the CA denied his motion for

reconsideration, filed with this Court the present
petition stating the following grounds:
A. THE HONORABLE COURT OF APPEALS ERRED
IN CONFIRMING THE ADMISSION AND
APPRECIATION BY THE LOWER COURT OF
PROSECUTION EVIDENCE, INCLUDING ITS
EXHIBITS, WHICH ARE MERE MACHINE COPIES,
AS THIS VIOLATES THE BEST EVIDENCE RULE;
B. THE HONORABLE COURT OF APPEALS ERRED
IN AFFIRMING THE LOWER COURT'S FINDING
THAT THE CRIMINAL INFORMATION FOR
ESTAFA WAS NOT FATALLY DEFECTIVE
ALTHOUGH THE SAME DID NOT CHARGE THE
OFFENSE UNDER ARTICLE 315 (1) (B) OF THE
REVISED PENAL CODE IN THAT 1. THE INFORMATION DID NOT FIX A
PERIOD WITHIN WHICH THE SUBJECT

C. THE HONORABLE COURT OF APPEALS ERRED

IN AFFIRMING THE LOWER COURT'S FINDING
THAT DEMAND TO RETURN THE SUBJECT
[PIECES OF] JEWELRY, IF UNSOLD, OR REMIT
THE PROCEEDS, IF SOLD AN ELEMENT OF
THE OFFENSE WAS PROVED;
D. THE HONORABLE COURT OF APPEALS ERRED
IN AFFIRMING THE LOWER COURT'S FINDING
THAT THE PROSECUTION'S CASE WAS PROVEN
BEYOND REASONABLE DOUBT ALTHOUGH 1. THE PRIVATE COMPLAINANT TESTIFIED
ON TWO (2) VERSIONS OF THE INCIDENT;

236

2. THE VERSION OF THE PETITIONER

ACCUSED IS MORE STRAIGHTFORWARD
AND LOGICAL, CONSISTENT WITH HUMAN
EXPERIENCE;
3. THE EQUIPOISE RULE WAS NOT
APPRECIATED IN AND APPLIED TO THIS
CASE;
4. PENAL STATUTES ARE STRICTLY
CONSTRUED AGAINST THE STATE.
In its Comment dated May 5, 2008, the Office
of the Solicitor General (OSG) stated the
following counter-arguments:
The exhibits were properly admitted inasmuch
as petitioner failed to object to their
admissibility.
The information was not defective inasmuch as
it sufficiently established the designation of the
offense and the acts complained of.
The prosecution sufficiently established all the
elements of the crime charged.

This Court finds the present petition devoid of

any merit.
The factual findings of the appellate court
generally are conclusive, and carry even more
weight when said court affirms the findings of
the trial court, absent any showing that the
findings are totally devoid of support in the
records, or that they are so glaringly erroneous
as to constitute grave abuse of
discretion.4 Petitioner is of the opinion that the
CA erred in affirming the factual findings of the
trial court. He now comes to this Court raising
both procedural and substantive issues.
According to petitioner, the CA erred in
affirming the ruling of the trial court, admitting
in evidence a receipt dated May 2, 1991 marked
as Exhibit "A" and its submarkings, although
the same was merely a photocopy, thus,
violating the best evidence rule. However, the
records show that petitioner never objected to
the admissibility of the said evidence at the
time it was identified, marked and testified
upon in court by private complainant. The CA
also correctly pointed out that petitioner also

237

failed to raise an objection in his Comment to

the prosecution's formal offer of evidence and
even admitted having signed the said receipt.
The established doctrine is that when a party
failed to interpose a timely objection to
evidence at the time they were offered in
evidence, such objection shall be considered as
waived.5
Another procedural issue raised is, as claimed
by petitioner, the formally defective Information
filed against him. He contends that the
Information does not contain the period when
the pieces of jewelry were supposed to be
returned and that the date when the crime
occurred was different from the one testified to
by private complainant. This argument is
untenable. The CA did not err in finding that the
Information was substantially complete and in
reiterating that objections as to the matters of
form and substance in the Information cannot
be made for the first time on appeal. It is true
that the gravamen of the crime of estafa under
Article 315, paragraph 1, subparagraph (b) of
the RPC is the appropriation or conversion of
money or property received to the prejudice of

the owner6 and that the time of occurrence is

not a material ingredient of the crime, hence,
the exclusion of the period and the wrong date
of the occurrence of the crime, as reflected in
the Information, do not make the latter fatally
defective. The CA ruled:
x x x An information is legally viable as long as
it distinctly states the statutory designation of
the offense and the acts or omissions
constitutive thereof. Then Section 6, Rule 110
of the Rules of Court provides that a complaint
or information is sufficient if it states the name
of the accused;
the designation of the offense by the statute;
the acts or omissions complained of as
constituting the offense; the name of the
offended party; the approximate time of the
commission of the offense, and the place
wherein the offense was committed. In the case
at bar, a reading of the subject Information
shows compliance with the foregoing rule. That
the time of the commission of the offense was
stated as " on or about the fifth (5th) day of
July, 1991" is not likewise fatal to the

238

prosecution's cause considering that Section 11

of the same Rule requires a statement of the
precise time only when the same is a material
ingredient of the offense. The gravamen of the
crime of estafa under Article 315, paragraph 1
(b) of the Revised Penal Code (RPC) is the
appropriation or conversion of money or
property received to the prejudice of the
offender. Thus, aside from the fact that the date
of the commission thereof is not an essential
element of the crime herein charged, the failure
of the prosecution to specify the exact date
does not render the Information ipso facto
defective. Moreover, the said date is also near
the due date within which accused-appellant
should have delivered the proceeds or returned
the said [pieces of jewelry] as testified upon by
Tangkoy, hence, there was sufficient compliance
with the rules. Accused-appellant, therefore,
cannot now be allowed to claim that he was not
properly apprised of the charges proferred
against him.7
It must be remembered that petitioner was
convicted of the crime of Estafa under Article
315, paragraph 1 (b) of the RPC, which reads:

ART. 315. Swindling (estafa). Any person who

shall defraud another by any of the means
mentioned hereinbelow.
1. With unfaithfulness or abuse of confidence,
namely:
xxxx
(b) By misappropriating or converting, to the
prejudice of another, money, goods, or any
other personal property received by the
offender in trust or on commission, or for
administration, or under any other obligation
involving the duty to make delivery of or to
return the same, even though such obligation
be totally or partially guaranteed by a bond; or
by denying having received such money, goods,
or other property; x x x
The elements of estafa with abuse of confidence
are as follows: (a) that money, goods or other
personal property is received by the offender in
trust, or on commission, or for administration,
or under any other obligation involving the duty
to make delivery of, or to return the same; (b)
that there be misappropriation or conversion of

239

such money or property by the offender or

denial on his part of such receipt; (c) that such
misappropriation or conversion or denial is to
the prejudice of another; and (d) that there is a
demand made by the offended party on the
offender.8

a Lito Corpuz, sir.

Petitioner argues that the last element, which

is, that there is a demand by the offended party
on the offender, was not proved. This Court
disagrees. In his testimony, private complainant
narrated how he was able to locate petitioner
after almost two (2) months from the time he
gave the pieces of jewelry and asked petitioner
about the same items with the latter promising
to pay them. Thus:

a Yes, sir.

PROS. MARTINEZ
q Now, Mr. Witness, this was executed on 2 May
1991, and this transaction could have been
finished on 5 July 1991, the question is what
happens (sic) when the deadline came?
a I went looking for him, sir.
q For whom?

q Were you able to look (sic) for him?

a I looked for him for a week, sir.
q Did you know his residence?

q Did you go there?

a Yes, sir.
q Did you find him?
a No, sir.
q Were you able to talk to him since 5 July
1991?
a I talked to him, sir.
q How many times?
a Two times, sir.
q What did you talk (sic) to him?
a About the items I gave to (sic) him, sir.

240

q Referring to Exhibit A-2?

a Yes, sir, and according to him he will take his
obligation and I asked him where the items are
and he promised me that he will pay these
amount, sir.
q Up to this time that you were here, were you
able to collect from him partially or full?
a No, sir.9
No specific type of proof is required to show
that there was demand.10 Demand need not
even be formal; it may be verbal.11 The specific
word "demand" need not even be used to show
that it has indeed been made upon the person
charged, since even a mere query as to the
whereabouts of the money [in this case,
property], would be tantamount to a
demand.12 As expounded in Asejo v. People:13
With regard to the necessity of demand, we
agree with the CA that demand under this kind
of estafa need not be formal or written. The
appellate court observed that the law is silent

with regard to the form of demand in estafa

under Art. 315 1(b), thus:
When the law does not qualify, We should not
qualify. Should a written demand be necessary,
the law would have stated so. Otherwise, the
word "demand" should be interpreted in its
general meaning as to include both written and
oral demand. Thus, the failure of the
prosecution to present a written demand as
evidence is not fatal.
In Tubb v. People, where the complainant
merely verbally inquired about the money
entrusted to the accused, we held that the
query was tantamount to a demand, thus:
x x x [T]he law does not require a demand as a
condition precedent to the existence of the
crime of embezzlement. It so happens only that
failure to account, upon demand for funds or
property held in trust, is circumstantial evidence
of misappropriation. The same way, however, be
established by other proof, such as that
introduced in the case at bar.14

241

In view of the foregoing and based on the

records, the prosecution was able to prove the
existence of all the elements of the crime.
Private complainant gave petitioner the pieces
of jewelry in trust, or on commission basis, as
shown in the receipt dated May 2, 1991 with an
obligation to sell or return the same within sixty
(60) days, if unsold. There was
misappropriation when petitioner failed to remit
the proceeds of those pieces of jewelry sold, or
if no sale took place, failed to return the same
pieces of jewelry within or after the agreed
period despite demand from the private
complainant, to the prejudice of the latter.
Anent the credibility of the prosecution's sole
witness, which is questioned by petitioner, the
same is unmeritorious. Settled is the rule that
in assessing the credibility of witnesses, this
Court gives great respect to the evaluation of
the trial court for it had the unique opportunity
to observe the demeanor of witnesses and their
deportment on the witness stand, an
opportunity denied the appellate courts, which
merely rely on the records of the case.15 The
assessment by the trial court is even conclusive

and binding if not tainted with arbitrariness or

oversight of some fact or circumstance of
weight and influence, especially when such
finding is affirmed by the CA.16 Truth is
established not by the number of witnesses, but
by the quality of their testimonies, for in
determining the value and credibility of
evidence, the witnesses are to be weighed not
numbered.17
As regards the penalty, while this Court's Third
Division was deliberating on this case, the
question of the continued validity of imposing
on persons convicted of crimes involving
property came up. The legislature apparently
pegged these penalties to the value of the
money and property in 1930 when it enacted
the Revised Penal Code. Since the members of
the division reached no unanimity on this
question and since the issues are of first
impression, they decided to refer the case to
the Court en banc for consideration and
resolution. Thus, several amici curiae were
invited at the behest of the Court to give their
academic opinions on the matter. Among those
that graciously complied were Dean Jose

242

Manuel Diokno, Dean Sedfrey M. Candelaria,

Professor Alfredo F. Tadiar, the Senate
President, and the Speaker of the House of
Representatives. The parties were later heard
on oral arguments before the Court en banc,
with Atty. Mario L. Bautista appearing as
counsel de oficio of the petitioner.
After a thorough consideration of the arguments
presented on the matter, this Court finds the
following:
There seems to be a perceived injustice brought
about by the range of penalties that the courts
continue to impose on crimes against property
committed today, based on the amount of
damage measured by the value of money eighty
years ago in 1932. However, this Court cannot
modify the said range of penalties because that
would constitute judicial legislation. What the
legislature's perceived failure in amending the
penalties provided for in the said crimes cannot
be remedied through this Court's decisions, as
that would be encroaching upon the power of
another branch of the government. This,
however, does not render the whole situation

without any remedy. It can be appropriately

presumed that the framers of the Revised Penal
Code (RPC) had anticipated this matter by
including Article 5, which reads:
ART. 5. Duty of the court in connection with acts
which should be repressed but which are not
covered by the law, and in cases of excessive
penalties. - Whenever a court has knowledge of
any act which it may deem proper to repress
and which is not punishable by law, it shall
render the proper decision, and shall report to
the Chief Executive, through the Department of
Justice, the reasons which induce the court to
believe that said act should be made the
subject of penal legislation.
In the same way, the court shall submit to the
Chief Executive, through the Department of
Justice, such statement as may be deemed
proper, without suspending the execution of the
sentence, when a strict enforcement of the
provisions of this Code would result in the
imposition of a clearly excessive penalty, taking
into consideration the degree of malice and the
injury caused by the offense.18

243

The first paragraph of the above provision

clearly states that for acts bourne out of a case
which is not punishable by law and the court
finds it proper to repress, the remedy is to
render the proper decision and thereafter,
report to the Chief Executive, through the
Department of Justice, the reasons why the
same act should be the subject of penal
legislation. The premise here is that a
deplorable act is present but is not the subject
of any penal legislation, thus, the court is
tasked to inform the Chief Executive of the need
to make that act punishable by law through
legislation. The second paragraph is similar to
the first except for the situation wherein the act
is already punishable by law but the
corresponding penalty is deemed by the court
as excessive. The remedy therefore, as in the
first paragraph is not to suspend the execution
of the sentence but to submit to the Chief
Executive the reasons why the court considers
the said penalty to be non-commensurate with
the act committed. Again, the court is tasked to
inform the Chief Executive, this time, of the
need for a legislation to provide the proper
penalty.

In his book, Commentaries on the Revised

Penal Code,19 Guillermo B. Guevara opined that
in Article 5, the duty of the court is merely to
report to the Chief Executive, with a
recommendation for an amendment or
modification of the legal provisions which it
believes to be harsh. Thus:
This provision is based under the legal maxim
"nullum crimen, nulla poena sige lege," that is,
that there can exist no punishable act except
those previously and specifically provided for by
penal statute.
No matter how reprehensible an act is, if the
law-making body does not deem it necessary to
prohibit its perpetration with penal sanction, the
Court of justice will be entirely powerless to
punish such act.
Under the provisions of this article the Court
cannot suspend the execution of a sentence on
the ground that the strict enforcement of the
provisions of this Code would cause excessive
or harsh penalty. All that the Court could do in
such eventuality is to report the matter to the
Chief Executive with a recommendation for an

244

amendment or modification of the legal

provisions which it believes to be harsh.20
Anent the non-suspension of the execution of
the sentence, retired Chief Justice Ramon C.
Aquino and retired Associate Justice Carolina C.
Grio-Aquino, in their book, The Revised Penal
Code,21 echoed the above-cited commentary,
thus:
The second paragraph of Art. 5 is an application
of the humanitarian principle that justice must
be tempered with mercy. Generally, the courts
have nothing to do with the wisdom or justness
of the penalties fixed by law. "Whether or not
the penalties prescribed by law upon conviction
of violations of particular statutes are too
severe or are not severe enough, are questions
as to which commentators on the law may fairly
differ; but it is the duty of the courts to enforce
the will of the legislator in all cases unless it
clearly appears that a given penalty falls within
the prohibited class of excessive fines or cruel
and unusual punishment." A petition for
clemency should be addressed to the Chief
Executive.22

There is an opinion that the penalties provided

for in crimes against property be based on the
current inflation rate or at the ratio of P1.00 is
equal to P100.00 . However, it would be
dangerous as this would result in uncertainties,
as opposed to the definite imposition of the
penalties. It must be remembered that the
economy fluctuates and if the proposed
imposition of the penalties in crimes against
property be adopted, the penalties will not
cease to change, thus, making the RPC, a selfamending law. Had the framers of the RPC
intended that to be so, it should have provided
the same, instead, it included the earlier cited
Article 5 as a remedy. It is also improper to
presume why the present legislature has not
made any moves to amend the subject
penalties in order to conform with the present
times. For all we know, the legislature intends
to retain the same penalties in order to deter
the further commission of those punishable acts
which have increased tremendously through the
years. In fact, in recent moves of the
legislature, it is apparent that it aims to
broaden the coverage of those who violate
penal laws. In the crime of Plunder, from its

245

original minimum amount of P100,000,000.00

plundered, the legislature lowered it
toP50,000,000.00. In the same way, the
legislature lowered the threshold amount upon
which the Anti-Money Laundering Act may
apply, from P1,000,000.00 to P500,000.00.

cases, and in connection with the

accessory penalties which may be imposed
and for the purpose of the other provisions
of this Code, the penalty shall be termed
prision mayor or reclusion temporal, as the
case may be.

It is also worth noting that in the crimes of

Theft and Estafa, the present penalties do not
seem to be excessive compared to the proposed
imposition of their corresponding penalties. In
Theft, the provisions state that:

2. The penalty of prision correccional in its

medium and maximum periods, if the
value of the thing stolen is more than
6,000 pesos but does not exceed 12,000
pesos.

Art. 309. Penalties. Any person guilty of theft

shall be punished by:

3. The penalty of prision correccional in its

minimum and medium periods, if the value
of the property stolen is more than 200
pesos but does not exceed 6,000 pesos.

1. The penalty of prision mayor in its

minimum and medium periods, if the value
of the thing stolen is more than 12,000
pesos but does not exceed 22,000 pesos,
but if the value of the thing stolen exceeds
the latter amount the penalty shall be the
maximum period of the one prescribed in
this paragraph, and one year for each
additional ten thousand pesos, but the
total of the penalty which may be imposed
shall not exceed twenty years. In such

4. Arresto mayor in its medium period to

prision correccional in its minimum period,
if the value of the property stolen is over
50 pesos but does not exceed 200 pesos.
5. Arresto mayor to its full extent, if such
value is over 5 pesos but does not exceed
50 pesos.

246

6. Arresto mayor in its minimum and

medium periods, if such value does not
exceed 5 pesos.
7. Arresto menor or a fine not exceeding
200 pesos, if the theft is committed under
the circumstances enumerated in
paragraph 3 of the next preceding article
and the value of the thing stolen does not
exceed 5 pesos. If such value exceeds said
amount, the provision of any of the five
preceding subdivisions shall be made
applicable.
8. Arresto menor in its minimum period or
a fine not exceeding 50 pesos, when the
value of the thing stolen is not over 5
pesos, and the offender shall have acted
under the impulse of hunger, poverty, or
the difficulty of earning a livelihood for the
support of himself or his family.
In a case wherein the value of the thing stolen
is P6,000.00, the above-provision states that
the penalty is prision correccional in its
minimum and medium periods (6 months and 1
day to 4 years and 2 months). Applying the

proposal, if the value of the thing stolen

is P6,000.00, the penalty is imprisonment of
arresto mayor in its medium period to prision
correccional minimum period (2 months and 1
day to 2 years and 4 months). It would seem
that under the present law, the penalty imposed
is almost the same as the penalty proposed. In
fact, after the application of the Indeterminate
Sentence Law under the existing law, the
minimum penalty is still lowered by one degree;
hence, the minimum penalty is arresto mayor in
its medium period to maximum period (2
months and 1 day to 6 months), making the
offender qualified for pardon or parole after
serving the said minimum period and may even
apply for probation. Moreover, under the
proposal, the minimum penalty after applying
the Indeterminate Sentence Law is arresto
menor in its maximum period to arresto mayor
in its minimum period (21 days to 2 months) is
not too far from the minimum period under the
existing law. Thus, it would seem that the
present penalty imposed under the law is not at
all excessive. The same is also true in the crime
of Estafa.23

247

Moreover, if we apply the ratio of 1:100, as

suggested to the value of the thing stolen in the
crime of Theft and the damage caused in the
crime of Estafa, the gap between the minimum
and the maximum amounts, which is the basis
of determining the proper penalty to be
imposed, would be too wide and the penalty
imposable would no longer be commensurate to
the act committed and the value of the thing
stolen or the damage caused:
I. Article 309, or the penalties for the crime of
Theft, the value would be modified but the
penalties are not changed:
1. P12,000.00 to P22,000.00 will
become P1,200,000.00 to P2,200,000.00,
punished by prision mayor minimum to
prision mayor medium (6 years and 1 day
to 10 years).
2. P6,000.00 to P12,000.00 will
become P600,000.00 to P1,200,000.00,
punished by prision correccional medium
and to prision correccional maximum (2
years, 4 months and 1 day to 6 years).24

3. P200.00 to P6,000.00 will

become P20,000.00 to P600,000.00,
punishable by prision correccional
minimum to prision correccional medium
(6 months and 1 day to 4 years and 2
months).
4. P50.00 to P200.00 will
become P5,000.00 to P20,000.00,
punishable by arresto mayor medium to
prision correccional minimum (2 months
and 1 day to 2 years and 4 months).
5. P5.00 to P50.00 will become P500.00
to P5,000.00, punishable by arresto mayor
(1 month and 1 day to 6 months).
6. P5.00 will become P500.00, punishable
by arresto mayor minimum to arresto
mayor medium.
x x x x.
II. Article 315, or the penalties for the crime of
Estafa, the value would also be modified but the
penalties are not changed, as follows:

248

1st. P12,000.00 to P22,000.00, will

become P1,200,000.00 to P2,200,000.00,
punishable by prision correccional
maximum to prision mayor minimum (4
years, 2 months and 1 day to 8 years).25
2nd. P6,000.00 to P12,000.00 will
become P600,000.00 to P1,200,000.00,
punishable by prision correccional
minimum to prision correccional medium
(6 months and 1 day to 4 years and 2
months).26
3rd. P200.00 to P6,000.00 will
become P20,000.00 to P600,000.00,
punishable by arresto mayor maximum to
prision correccional minimum (4 months
and 1 day to 2 years and 4 months).
4th. P200.00 will become P20,000.00,
punishable by arresto mayor maximum (4
months and 1 day to 6 months).
An argument raised by Dean Jose Manuel I.
Diokno, one of our esteemed amici curiae, is
that the incremental penalty provided under

Article 315 of the RPC violates the Equal

Protection Clause.
The equal protection clause requires equality
among equals, which is determined according to
a valid classification. The test developed by
jurisprudence here and yonder is that of
reasonableness,27 which has four requisites:
(1) The classification rests on substantial
distinctions;
(2) It is germane to the purposes of the
law;
(3) It is not limited to existing conditions
only; and
(4) It applies equally to all members of the
same class.28
According to Dean Diokno, the Incremental
Penalty Rule (IPR) does not rest on substantial
distinctions asP10,000.00 may have been
substantial in the past, but it is not so today,
which violates the first requisite; the IPR was
devised so that those who commit estafa
involving higher amounts would receive heavier

249

penalties; however, this is no longer achieved,

because a person who steals P142,000.00
would receive the same penalty as someone
who steals hundreds of millions, which violates
the second requisite; and, the IPR violates
requisite no. 3, considering that the IPR is
limited to existing conditions at the time the law
was promulgated, conditions that no longer
exist today.
Assuming that the Court submits to the
argument of Dean Diokno and declares the
incremental penalty in Article 315
unconstitutional for violating the equal
protection clause, what then is the penalty that
should be applied in case the amount of the
thing subject matter of the crime
exceeds P22,000.00? It seems that the
proposition poses more questions than answers,
which leads us even more to conclude that the
appropriate remedy is to refer these matters to
Congress for them to exercise their inherent
power to legislate laws.

Even Dean Diokno was of the opinion that if the

Court declares the IPR unconstitutional, the
remedy is to go to Congress. Thus:
xxxx
JUSTICE PERALTA:
Now, your position is to declare that the
incremental penalty should be struck down as
unconstitutional because it is absurd.
DEAN DIOKNO:
Absurd, it violates equal protection, Your Honor,
and cruel and unusual punishment.
JUSTICE PERALTA:
Then what will be the penalty that we are going
to impose if the amount is more than TwentyTwo Thousand (P22,000.00) Pesos.
DEAN DIOKNO:
Well, that would be for Congress to ... if this
Court will declare the incremental penalty rule

250

unconstitutional, then that would ... the void

should be filled by Congress.

DEAN DIOKNO: If the Court will say that they

can go beyond the literal wording of the law...

JUSTICE PERALTA:

JUSTICE PERALTA: But if we de ... (interrupted)

But in your presentation, you were fixing the

amount at One Hundred Thousand
(P100,000.00) Pesos ...

DEAN DIOKNO: ....then....

DEAN DIOKNO:

JUSTICE PERALTA: Ah, yeah. But if we declare

the incremental penalty as unsconstitutional,
the court cannot fix the amount ...

Well, my presen ... (interrupted)

DEAN DIOKNO: No, Your Honor.

JUSTICE PERALTA:

JUSTICE PERALTA: ... as the equivalent of one,

as an incremental penalty in excess of TwentyTwo Thousand (P22,000.00) Pesos.

For every One Hundred Thousand

(P100,000.00) Pesos in excess of Twenty-Two
Thousand (P22,000.00) Pesos you were
suggesting an additional penalty of one (1)
year, did I get you right?
DEAN DIOKNO: Yes, Your Honor, that is, if the
court will take the route of statutory
interpretation.
JUSTICE PERALTA: Ah ...

DEAN DIOKNO: No, Your Honor.

JUSTICE PERALTA: The Court cannot do that.
DEAN DIOKNO: Could not be.
JUSTICE PERALTA: The only remedy is to go to
Congress...
DEAN DIOKNO: Yes, Your Honor.
JUSTICE PERALTA:

251

... and determine the value or the amount.

DEAN DIOKNO: Yes, Your Honor.
JUSTICE PERALTA: That will be equivalent to the
incremental penalty of one (1) year in excess of
Twenty-Two Thousand (P22,000.00) Pesos.
DEAN DIOKNO: Yes, Your Honor.
JUSTICE PERALTA: The amount in excess of
Twenty-Two Thousand (P22,000.00) Pesos.
Thank you, Dean.
DEAN DIOKNO: Thank you.
x x x x29
Dean Diokno also contends that Article 315 of
the Revised Penal Code constitutes cruel and
unusual punishment. Citing Solem v.
Helm,30 Dean Diokno avers that the United
States Federal Supreme Court has expanded
the application of a similar Constitutional
provision prohibiting cruel and unusual
punishment, to the duration of the penalty, and
not just its form. The court therein ruled that

three things must be done to decide whether a

sentence is proportional to a specific crime,
viz.; (1) Compare the nature and gravity of the
offense, and the harshness of the penalty; (2)
Compare the sentences imposed on other
criminals in the same jurisdiction, i.e., whether
more serious crimes are subject to the same
penalty or to less serious penalties; and (3)
Compare the sentences imposed for commission
of the same crime in other jurisdictions.
However, the case of Solem v. Helm cannot be
applied in the present case, because in Solem
what respondent therein deemed cruel was the
penalty imposed by the state court of South
Dakota after it took into account the latters
recidivist statute and not the original penalty for
uttering a "no account" check. Normally, the
maximum punishment for the crime would have
been five years imprisonment and a $5,000.00
fine. Nonetheless, respondent was sentenced to
life imprisonment without the possibility of
parole under South Dakotas recidivist statute
because of his six prior felony convictions.
Surely, the factual antecedents of Solem are
different from the present controversy.

252

With respect to the crime of Qualified Theft,

however, it is true that the imposable penalty
for the offense is high. Nevertheless, the
rationale for the imposition of a higher penalty
against a domestic servant is the fact that in
the commission of the crime, the helper will
essentially gravely abuse the trust and
confidence reposed upon her by her employer.
After accepting and allowing the helper to be a
member of the household, thus entrusting upon
such person the protection and safekeeping of
the employers loved ones and properties, a
subsequent betrayal of that trust is so repulsive
as to warrant the necessity of imposing a higher
penalty to deter the commission of such
wrongful acts.
There are other crimes where the penalty of
fine and/or imprisonment are dependent on the
subject matter of the crime and which, by
adopting the proposal, may create serious
implications. For example, in the crime of
Malversation, the penalty imposed depends on
the amount of the money malversed by the
public official, thus:

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,
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

253

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 twentytwo 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 funds 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 use.

The above-provisions contemplate a situation

wherein the Government loses money due to
the unlawful acts of the offender. Thus,
following the proposal, if the amount malversed
is P200.00 (under the existing law), the amount
now becomes P20,000.00 and the penalty is
prision correccional in its medium and
maximum periods (2 years 4 months and 1 day
to 6 years). The penalty may not be
commensurate to the act of embezzlement
ofP20,000.00 compared to the acts committed
by public officials punishable by a special law,
i.e., Republic Act No. 3019 or the Anti-Graft and
Corrupt Practices Act, specifically Section
3,31 wherein the injury caused to the
government is not generally defined by any
monetary amount, the penalty (6 years and 1
month to 15 years)32under the Anti-Graft Law
will now become higher. This should not be the
case, because in the crime of malversation, the
public official takes advantage of his public
position to embezzle the fund or property of the
government entrusted to him.
The said inequity is also apparent in the crime
of Robbery with force upon things (inhabited or

254

uninhabited) where the value of the thing

unlawfully taken and the act of unlawful entry
are the bases of the penalty imposable, and
also, in Malicious Mischief, where the penalty of
imprisonment or fine is dependent on the cost
of the damage caused.
In Robbery with force upon things (inhabited or
uninhabited), if we increase the value of the
thing unlawfully taken, as proposed in the
ponencia, the sole basis of the penalty will now
be the value of the thing unlawfully taken and
no longer the element of force employed in
entering the premises. It may likewise cause an
inequity between the crime of Qualified
Trespass to Dwelling under Article 280, and this
kind of robbery because the former is
punishable by prision correccional in its medium
and maximum periods (2 years, 4 months and 1
day to 6 years) and a fine not
exceeding P1,000.00 (P100,000.00 now if the
ratio is 1:100) where entrance to the premises
is with violence or intimidation, which is the
main justification of the penalty. Whereas in the
crime of Robbery with force upon things, it is
punished with a penalty of prision mayor (6

years and 1 day to 12 years) if the intruder is

unarmed without the penalty of Fine despite the
fact that it is not merely the illegal entry that is
the basis of the penalty but likewise the
unlawful taking.
Furthermore, in the crime of Other Mischiefs
under Article 329, the highest penalty that can
be imposed is arresto mayor in its medium and
maximum periods (2 months and 1 day to 6
months) if the value of the damage caused
exceeds P1,000.00, but under the proposal, the
value of the damage will now
become P100,000.00 (1:100), and still
punishable by arresto mayor (1 month and 1
day to 6 months). And, if the value of the
damaged property does not exceed P200.00,
the penalty is arresto menor or a fine of not
less than the value of the damage caused and
not more than P200.00, if the amount involved
does not exceed P200.00 or cannot be
estimated. Under the proposal, P200.00 will
now become P20,000.00, which simply means
that the fine of P200.00 under the existing law
will now become P20,000.00. The amount of
Fine under this situation will now become

255

excessive and afflictive in nature despite the

fact that the offense is categorized as a light
felony penalized with a light penalty under
Article 26 of the RPC.33 Unless we also amend
Article 26 of the RPC, there will be grave
implications on the penalty of Fine, but
changing the same through Court decision,
either expressly or impliedly, may not be legally
and constitutionally feasible.

such as: Article 213 (Frauds against the public

treasury and similar offenses), Article 215
(Prohibited Transactions),

There are other crimes against property and

swindling in the RPC that may also be affected
by the proposal, such as those that impose
imprisonment and/or Fine as a penalty based
on the value of the damage caused, to wit:
Article 311 (Theft of the property of the
National Library and National Museum), Article
312 (Occupation of real property or usurpation
of real rights in property), Article 313 (Altering
boundaries or landmarks), Article 316 (Other
forms of swindling), Article 317 (Swindling a
minor), Article 318 (Other deceits), Article 328
(Special cases of malicious mischief) and Article
331 (Destroying or damaging statues, public
monuments or paintings). Other crimes that
impose Fine as a penalty will also be affected,

In addition, the proposal will not only affect

crimes under the RPC. It will also affect crimes
which are punishable by special penal laws,
such as Illegal Logging or Violation of Section
68 of Presidential Decree No. 705, as
amended.34 The law treats cutting, gathering,
collecting and possessing timber or other forest
products without license as an offense as grave
as and equivalent to the felony of qualified
theft.35 Under the law, the offender shall be
punished with the penalties imposed under
Articles 309 and 31036 of the Revised Penal
Code, which means that the penalty imposable
for the offense is, again, based on the value of
the timber or forest products involved in the
offense. Now, if we accept the said proposal in

Article 216 (Possession of prohibited interest by

a public officer), Article 218 (Failure of
accountable officer to render accounts), Article
219 (Failure of a responsible public officer to
render accounts before leaving the country).

256

the crime of Theft, will this particular crime of

Illegal Logging be amended also in so far as the
penalty is concerned because the penalty is
dependent on Articles 309 and 310 of the RPC?
The answer is in the negative because the
soundness of this particular law is not in
question.
With the numerous crimes defined and
penalized under the Revised Penal Code and
Special Laws, and other related provisions of
these laws affected by the proposal, a thorough
study is needed to determine its effectivity and
necessity. There may be some provisions of the
law that should be amended; nevertheless, this
Court is in no position to conclude as to the
intentions of the framers of the Revised Penal
Code by merely making a study of the
applicability of the penalties imposable in the
present times. Such is not within the
competence of the Court but of the Legislature
which is empowered to conduct public hearings
on the matter, consult legal luminaries and who,
after due proceedings, can decide whether or
not to amend or to revise the questioned law or

other laws, or even create a new legislation

which will adopt to the times.
Admittedly, Congress is aware that there is an
urgent need to amend the Revised Penal Code.
During the oral arguments, counsel for the
Senate informed the Court that at present, fiftysix (56) bills are now pending in the Senate
seeking to amend the Revised Penal
Code,37 each one proposing much needed
change and updates to archaic laws that were
promulgated decades ago when the political,
socio-economic, and cultural settings were far
different from todays conditions.
Verily, the primordial duty of the Court is
merely to apply the law in such a way that it
shall not usurp legislative powers by judicial
legislation and that in the course of such
application or construction, it should not make
or supervise legislation, or under the guise of
interpretation, modify, revise, amend, distort,
remodel, or rewrite the law, or give the law a
construction which is repugnant to its
terms.38 The Court should apply the law in a
manner that would give effect to their letter and

257

spirit, especially when the law is clear as to its

intent and purpose. Succinctly put, the Court
should shy away from encroaching upon the
primary function of a co-equal branch of the
Government; otherwise, this would lead to an
inexcusable breach of the doctrine of separation
of powers by means of judicial legislation.
Moreover, it is to be noted that civil indemnity
is, technically, not a penalty or a Fine; hence, it
can be increased by the Court when
appropriate. Article 2206 of the Civil Code
provides:
Art. 2206. The amount of damages for death
caused by a crime or quasi-delict shall be at
least three thousand pesos, even though there
may have been mitigating circumstances. In
addition:
(1) The defendant shall be liable for the
loss of the earning capacity of the
deceased, and the indemnity shall be paid
to the heirs of the latter; such indemnity
shall in every case be assessed and
awarded by the court, unless the deceased
on account of permanent physical disability

not caused by the defendant, had no

earning capacity at the time of his death;
(2) If the deceased was obliged to give
support according to the provisions of
Article 291, the recipient who is not an
heir called to the decedent's inheritance by
the law of testate or intestate succession,
may demand support from the person
causing the death, for a period not
exceeding five years, the exact duration to
be fixed by the court;
(3) The spouse, legitimate and illegitimate
descendants and ascendants of the
deceased may demand moral damages for
mental anguish by reason of the death of
the deceased.
In our jurisdiction, civil indemnity is awarded to
the offended party as a kind of monetary
restitution or compensation to the victim for the
damage or infraction that was done to the latter
by the accused, which in a sense only covers
the civil aspect. Precisely, it is civil indemnity.
Thus, in a crime where a person dies, in
addition to the penalty of imprisonment

258

imposed to the offender, the accused is also

ordered to pay the victim a sum of money as
restitution. Clearly, this award of civil indemnity
due to the death of the victim could not be
contemplated as akin to the value of a thing
that is unlawfully taken which is the basis in the
imposition of the proper penalty in certain
crimes. Thus, the reasoning in increasing the
value of civil indemnity awarded in some
offense cannot be the same reasoning that
would sustain the adoption of the suggested
ratio. Also, it is apparent from Article 2206 that
the law only imposes a minimum amount for
awards of civil indemnity, which is P3,000.00.
The law did not provide for a ceiling. Thus,
although the minimum amount for the award
cannot be changed, increasing the amount
awarded as civil indemnity can be validly
modified and increased when the present
circumstance warrants it. Corollarily, moral
damages under Article 222039 of the Civil Code
also does not fix the amount of damages that
can be awarded. It is discretionary upon the
court, depending on the mental anguish or the
suffering of the private offended party. The
amount of moral damages can, in relation to

civil indemnity, be adjusted so long as it does

not exceed the award of civil indemnity.
In addition, some may view the penalty
provided by law for the offense committed as
tantamount to cruel punishment. However, all
penalties are generally harsh, being punitive in
nature. Whether or not they are excessive or
amount to cruel punishment is a matter that
should be left to lawmakers. It is the
prerogative of the courts to apply the law,
especially when they are clear and not subject
to any other interpretation than that which is
plainly written.
Similar to the argument of Dean Diokno, one of
Justice Antonio Carpios opinions is that the
incremental penalty provision should be
declared unconstitutional and that the courts
should only impose the penalty corresponding
to the amount of P22,000.00, regardless if the
actual amount involved exceeds P22,000.00. As
suggested, however, from now until the law is
properly amended by Congress, all crimes of
Estafa will no longer be punished by the
appropriate penalty. A conundrum in the regular

259

course of criminal justice would occur when

every accused convicted of the crime of estafa
will be meted penalties different from the
proper penalty that should be imposed. Such
drastic twist in the application of the law has no
legal basis and directly runs counter to what the
law provides.
It should be noted that the death penalty was
reintroduced in the dispensation of criminal
justice by the Ramos Administration by virtue of
Republic Act No. 765940 in December 1993. The
said law has been questioned before this Court.
There is, arguably, no punishment more cruel
than that of death. Yet still, from the time the
death penalty was re-imposed until its lifting in
June 2006 by Republic Act No. 9346,41 the
Court did not impede the imposition of the
death penalty on the ground that it is a "cruel
punishment" within the purview of Section 19
(1),42Article III of the Constitution. Ultimately, it
was through an act of Congress suspending the
imposition of the death penalty that led to its
non-imposition and not via the intervention of
the Court.

Even if the imposable penalty amounts to cruel

punishment, the Court cannot declare the
provision of the law from which the proper
penalty emanates unconstitutional in the
present action. Not only is it violative of due
process, considering that the State and the
concerned parties were not given the
opportunity to comment on the subject matter,
it is settled that the constitutionality of a statute
cannot be attacked collaterally because
constitutionality issues must be pleaded directly
and not collaterally,43 more so in the present
controversy wherein the issues never touched
upon the constitutionality of any of the
provisions of the Revised Penal Code.
Besides, it has long been held that the
prohibition of cruel and unusual punishments is
generally aimed at the form or character of the
punishment rather than its severity in respect of
duration or amount, and applies to punishments
which public sentiment has regarded as cruel or
obsolete, for instance, those inflicted at the
whipping post, or in the pillory, burning at the
stake, breaking on the wheel, disemboweling,

260

and the like. Fine and imprisonment would not

thus be within the prohibition.44
It takes more than merely being harsh,
excessive, out of proportion, or severe for a
penalty to be obnoxious to the Constitution. The
fact that the punishment authorized by the
statute is severe does not make it cruel and
unusual. Expressed in other terms, it has been
held that to come under the ban, the
punishment must be "flagrantly and plainly
oppressive," "wholly disproportionate to the
nature of the offense as to shock the moral
sense of the community."45
Cruel as it may be, as discussed above, it is for
the Congress to amend the law and adapt it to
our modern time.
The solution to the present controversy could
not be solved by merely adjusting the
questioned monetary values to the present
value of money based only on the current
inflation rate. There are other factors and
variables that need to be taken into
consideration, researched, and deliberated upon
before the said values could be accurately and

properly adjusted. The effects on the society,

the injured party, the accused, its socioeconomic impact, and the likes must be
painstakingly evaluated and weighed upon in
order to arrive at a wholistic change that all of
us believe should be made to our existing law.
Dejectedly, the Court is ill-equipped, has no
resources, and lacks sufficient personnel to
conduct public hearings and sponsor studies
and surveys to validly effect these changes in
our Revised Penal Code. This function clearly
and appropriately belongs to Congress. Even
Professor Tadiar concedes to this conclusion, to
wit:
xxxx
JUSTICE PERALTA:
Yeah, Just one question. You are suggesting
that in order to determine the value of Peso you
have to take into consideration several factors.
PROFESSOR TADIAR: Yes.
JUSTICE PERALTA: Per capita income.
PROFESSOR TADIAR: Per capita income.

261

JUSTICE PERALTA: Consumer price index.

JUSTICE PERALTA: That is legislative in nature.

PROFESSOR TADIAR: Yeah.

PROFESSOR TADIAR: That is my position that

the Supreme Court ...

JUSTICE PERALTA: Inflation ...

PROFESSOR TADIAR: Yes.
JUSTICE PERALTA: ... and so on. Is the
Supreme Court equipped to determine those
factors?
PROFESSOR TADIAR: There are many ways by
which the value of the Philippine Peso can be
determined utilizing all of those economic
terms.
JUSTICE PERALTA: Yeah, but ...
PROFESSOR TADIAR: And I dont think it is
within the power of the Supreme Court to pass
upon and peg the value to One Hundred
(P100.00) Pesos to ...
JUSTICE PERALTA: Yeah.
PROFESSOR TADIAR: ... One (P1.00.00) Peso in
1930.

JUSTICE PERALTA:
Yeah, okay.
PROFESSOR TADIAR: ... has no power to utilize
the power of judicial review to in order to
adjust, to make the adjustment that is a power
that belongs to the legislature.
JUSTICE PERALTA: Thank you, Professor.
PROFESSOR TADIAR: Thank you.46
Finally, the opinion advanced by Chief Justice
Maria Lourdes P. A. Sereno echoes the view that
the role of the Court is not merely to dispense
justice, but also the active duty to prevent
injustice. Thus, in order to prevent injustice in
the present controversy, the Court should not
impose an obsolete penalty pegged eighty three
years ago, but consider the proposed ratio of
1:100 as simply compensating for inflation.
Furthermore, the Court has in the past taken

262

into consideration "changed conditions" or

"significant changes in circumstances" in its
decisions.
Similarly, the Chief Justice is of the view that
the Court is not delving into the validity of the
substance of a statute. The issue is no different
from the Courts adjustment of indemnity in
crimes against persons, which the Court had
previously adjusted in light of current times,
like in the case of People v. Pantoja.47 Besides,
Article 10 of the Civil Code mandates a
presumption that the lawmaking body intended
right and justice to prevail.
With due respect to the opinions and proposals
advanced by the Chief Justice and my
Colleagues, all the proposals ultimately lead to
prohibited judicial legislation. Short of being
repetitious and as extensively discussed above,
it is truly beyond the powers of the Court to
legislate laws, such immense power belongs to
Congress and the Court should refrain from
crossing this clear-cut divide. With regard to
civil indemnity, as elucidated before, this refers
to civil liability which is awarded to the offended

party as a kind of monetary restitution. It is

truly based on the value of money. The same
cannot be said on penalties because, as earlier
stated, penalties are not only based on the
value of money, but on several other factors.
Further, since the law is silent as to the
maximum amount that can be awarded and
only pegged the minimum sum, increasing the
amount granted as civil indemnity is not
proscribed. Thus, it can be adjusted in light of
current conditions.
Now, with regard to the penalty imposed in the
present case, the CA modified the ruling of the
RTC. The RTC imposed the indeterminate
penalty of four (4) years and two (2) months of
prision correccional in its medium period, as
minimum, to fourteen (14) years and eight (8)
months of reclusion temporal in its minimum
period, as maximum. However, the CA imposed
the indeterminate penalty of four (4) years and
two (2) months of prision correccional, as
minimum, to eight (8) years of prision mayor,
as maximum, plus one (1) year for each
additionalP10,000.00, or a total of seven (7)
years.

263

In computing the penalty for this type of estafa,

this Court's ruling in Cosme, Jr. v. People48 is
highly instructive, thus:
With respect to the imposable penalty, Article
315 of the Revised Penal Code provides:
ART. 315 Swindling (estafa). - Any person who
shall defraud another by any of the means
mentioned hereinbelow shall be punished by:
1st. The penalty of prision correccional in its
maximum period to prision mayor in its
minimum period, if the amount of the fraud is
over 12,000 but does not exceed 22,000 pesos,
and if such amount exceeds the latter sum, the
penalty provided in this paragraph shall be
imposed in its maximum period, adding one
year for each additional 10,000 pesos; but the
total penalty which may be imposed shall not
exceed twenty years. In such case, and in
connection with the accessory penalties which
may be imposed and for the purpose of the
other provisions of this Code, the penalty shall
be termed prision mayor or reclusion temporal,
as the case may be.

The penalty prescribed by Article 315 is

composed of only two, not three, periods, in
which case, Article 65 of the same Code
requires the division of the time included in the
penalty into three equal portions of time
included in the penalty prescribed, forming one
period of each of the three portions. Applying
the latter provisions, the maximum, medium
and minimum periods of the penalty prescribed
are:
Maximum - 6 years, 8 months, 21 days to 8
years
Medium - 5 years, 5 months, 11 days to 6
years, 8 months, 20 days
Minimum - 4 years, 2 months, 1 day to 5 years,
5 months, 10 days49
To compute the maximum period of the
prescribed penalty, prisin correccional
maximum to prisin mayor minimum should be
divided into three equal portions of time each of
which portion shall be deemed to form one
period in accordance with Article 6550 of the
RPC.51 In the present case, the amount involved

264

is P98,000.00, which exceeds P22,000.00, thus,

the maximum penalty imposable should be
within the maximum period of 6 years, 8
months and 21 days to 8 years of prision
mayor. Article 315 also states that a period of
one year shall be added to the penalty for every
additional P10,000.00 defrauded in excess
of P22,000.00, but in no case shall the total
penalty which may be imposed exceed 20
years.
Considering that the amount of P98,000.00
is P76,000.00 more than the P22,000.00 ceiling
set by law, then, adding one year for each
additional P10,000.00, the maximum period of
6 years, 8 months and 21 days to 8 years of
prision mayor minimum would be increased by
7 years. Taking the maximum of the prescribed
penalty, which is 8 years, plus an additional 7
years, the maximum of the indeterminate
penalty is 15 years.
Applying the Indeterminate Sentence Law, since
the penalty prescribed by law for the estafa
charge against petitioner is prision correccional
maximum to prision mayor minimum, the

penalty next lower would then be prision

correccional in its minimum and medium
periods.
Thus, the minimum term of the indeterminate
sentence should be anywhere from 6 months
and 1 day to 4 years and 2 months.
One final note, the Court should give Congress
a chance to perform its primordial duty of
lawmaking. The Court should not pre-empt
Congress and usurp its inherent powers of
making and enacting laws. While it may be the
most expeditious approach, a short cut by
judicial fiat is a dangerous proposition, lest the
Court dare trespass on prohibited judicial
legislation.
WHEREFORE, the Petition for Review on
Certiorari dated November 5, 2007 of petitioner
Lito Corpuz is hereby DENIED. Consequently,
the Decision dated March 22, 2007 and
Resolution dated September 5, 2007 of the
Court of Appeals, which affirmed with
modification the Decision dated July 30, 2004 of
the Regional Trial Court, Branch 46, San
Fernando City, finding petitioner guilty beyond

265

reasonable doubt of the crime of Estafa under

Article 315, paragraph (1), sub-paragraph (b) of
the Revised Penal Code, are hereby AFFIRMED
with MODIFICATION that the penalty imposed is
the indeterminate penalty of imprisonment
ranging from THREE (3) YEARS, TWO (2)
MONTHS and ELEVEN DAYS of prision
correccional, as minimum, to FIFTEEN (15)
YEARS of reclusion temporal as maximum.
Pursuant to Article 5 of the Revised Penal Code,
let a Copy of this Decision be furnished the
President of the Republic of the Philippines,
through the Department of Justice.
Also, let a copy of this Decision be furnished the
President of the Senate and the Speaker of the
House of Representatives.
SO ORDERED.

266

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. Nos. L-32613-14 December 27, 1972

PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. SIMEON. FERRER (in his capacity as
Judge of the Court of First Instance of
Tarlac, Branch I), FELICIANO CO alias
LEONCIO CO alias "Bob," and NILO S.
TAYAG alias Romy Reyes alias
"Taba,"respondents.
Solicitor R. Mutuc for respondent Feliciano Co.
Jose W. Diokno for respondent Nilo Tayag.

CASTRO, J.:p
I. Statement of the Case

Posed in issue in these two cases is the

constitutionality of the Anti-Subversion
Act, 1 which outlaws the Communist Party of the
Philippines and other "subversive associations,"
and punishes any person who "knowingly,
willfully and by overt acts affiliates himself with,
becomes or remains a member" of the Party or
of any other similar "subversive" organization.
On March 5, 1970 a criminal complaint for
violation of section 4 of the Anti-Subversion Act
was filed against the respondent Feliciano Co in
the Court of First Instance of Tarlac. On March
10 Judge Jose C. de Guzman conducted a
preliminary investigation and, finding a prima
facie case against Co, directed the Government
prosecutors to file the corresponding
information. The twice-amended information,
docketed as Criminal Case No. 27, recites:
That on or about May 1969 to
December 5, 1969, in the Municipality
of Capas, Province of Tarlac,
Philippines, and within the jurisdiction
of this Honorable Court, the
abovenamed accused, feloniously

267

became an officer and/or ranking

leader of the Communist Party of the
Philippines, an outlawed and illegal
organization aimed to overthrow the
Government of the Philippines by
means of force, violence, deceit,
subversion, or any other illegal means
for the purpose of establishing in the
Philippines a totalitarian regime and
placing the government under the
control and domination of an alien
power, by being an instructor in the
Mao Tse Tung University, the training
school of recruits of the New People's
Army, the military arm of the said
Communist Party of the Philippines.
That in the commission of the above
offense, the following aggravating
circumstances are present, to wit:
(a) That the crime has been
committed in contempt of or with
insult to public authorities;
(b) That the crime was committed by
a band; and afford impunity.

(c) With the aid of armed men or

persons who insure or afford
impunity.
Co moved to quash on the ground that the AntiSubversion Act is a bill of attainder.
Meanwhile, on May 25, 1970, another criminal
complaint was filed with the same court,
sharing the respondent Nilo Tayag and five
others with subversion. After preliminary
investigation was had, an information was filed,
which, as amended, reads:
The undersigned provincial Fiscal of
Tarlac and State Prosecutors duly
designated by the Secretary of Justice
to collaborate with the Provincial
Fiscal of Tarlac, pursuant to the Order
dated June 5, above entitled case,
hereby accuse Nilo S. Tayag, alias
Romy Reyes alias TABA, ARTHUR
GARCIA, RENATO (REY) CASIPE,
ABELARDO GARCIA, MANUEL
ALAVADO, BENJAMIN BIE alias
COMMANDER MELODY and several
JOHN DOES, whose identities are still

268

unknown, for violation of REPUBLIC

ACT No. 1700, otherwise known as
the Anti-Subversion Law, committed
as follows:
That in or about March 1969 and for
sometime prior thereto and
thereafter, in the Province of Tarlac,
within the jurisdiction of this
Honorable Court, and elsewhere in
the Philippines, the above-named
accused knowingly, willfully and by
overt acts organized, joined and/or
remained as offices and/or ranking
leaders, of the KABATAANG
MAKABAYAN, a subversive
organization as defined in Republic
Act No. 1700; that BENJAMIN BIE and
COMMANDER MELODY, in addition
thereto, knowingly, willfully and by
over acts joined and/or remained as a
member and became an officer
and/or ranking leader not only of the
Communist Party of the Philippines
but also of the New People's Army,
the military arm of the Communist

Party of the Philippines; and that all

the above-named accused, as such
officers and/or ranking leaders of the
aforestated subversive organizations,
conspiring, confederating and
mutually helping one another, did
then and there knowingly, willfully
and feloniously commit subversive
and/or seditious acts, by inciting,
instigating and stirring the people to
unite and rise publicly and
tumultuously and take up arms
against the government, and/or
engage in rebellious conspiracies and
riots to overthrow the government of
the Republic of the Philippines by
force, violence, deceit, subversion
and/or other illegal means among
which are the following:
1. On several occasions within the
province of Tarlac, the accused
conducted meetings and/or seminars
wherein the said accused delivered
speeches instigating and inciting the
people to unite, rise in arms and

269

overthrow the Government of the

Republic of the Philippines, by force,
violence, deceit, subversion and/or
other illegal means; and toward this
end, the said accused organized,
among others a chapter of the
KABATAANG MAKABAYAN in barrio
Motrico, La Paz, Tarlac for the avowed
purpose of undertaking or promoting
an armed revolution, subversive
and/or seditious propaganda,
conspiracies, and/or riots and/or
other illegal means to discredit and
overthrow the Government of the
Republic of the Philippines and to
established in the Philippines a
Communist regime.
2. The accused NILO TAYAG alias
ROMY REYES alias TABA, together
with FRANCISCO PORTEM alias KIKO
Gonzales and others, pursued the
above subversive and/or seditious
activities in San Pablo City by
recruiting members for the New
People's Army, and/or by instigating

and inciting the people to organize

and unite for the purpose of
overthrowing the Government of the
Republic of the Philippines through
armed revolution, deceit, subversion
and/or other illegal means, and
establishing in the Philippines a
Communist Government.
That the following aggravating
circumstances attended the
commission of the offense: (a) aid of
armed men or persons to insure or
afford impunity; and (b) craft, fraud,
or disguise was employed.
On July 21, 1970 Tayag moved to quash,
impugning the validity of the statute on the
grounds that (1) it is a bill of attainder; (2) it is
vague; (3) it embraces more than one subject
not expressed in the title thereof; and (4) it
denied him the equal protection of the laws.
Resolving the constitutional issues raised, the
trial court, in its resolution of September 15,
1970, declared the statute void on the grounds
that it is a bill of attainder and that it is vague

270

and overboard, and dismissed the informations

against the two accused. The Government
appealed. We resolved to treat its appeal as a
special civil action for certiorari.
II. Is the Act a Bill of Attainder?
Article III, section 1 (11) of the Constitution
states that "No bill of attainder or ex port
facto law shall be enacted." 2A bill of attainder is
a legislative act which inflicts punishment
without trial. 3 Its essence is the substitution of
a legislative for a judicial determination of
guilt. 4 The constitutional ban against bills of
attainder serves to implement the principle of
separation of powers 5 by confining legislatures
to
rule-making 6 and thereby forestalling
legislative usurpation of the judicial
function. 7 History in perspective, bills of
attainder were employed to suppress unpopular
causes and political minorities, 8 and it is
against this evil that the constitutional
prohibition is directed. The singling out of a
definite class, the imposition of a burden on it,

and a legislative intent, suffice to stigmatizea

statute as a bill of attainder. 9
In the case at bar, the Anti-Subversion Act was
condemned by the court a quo as a bill of
attainder because it "tars and feathers" the
Communist Party of the Philippines as a
"continuing menace to the freedom and security
of the country; its existence, a 'clear, present
and grave danger to the security of the
Philippines.'" By means of the Act, the trial
court said, Congress usurped "the powers of the
judge," and assumed "judicial magistracy by
pronouncing the guilt of the CCP without any of
the forms or safeguards of judicial trial." Finally,
according to the trial court, "if the only issue [to
be determined] is whether or not the accused is
a knowing and voluntary member, the law is
still a bill of attainder because it has expressly
created a presumption of organizational guilt
which the accused can never hope to
overthrow."
1. When the Act is viewed in its actual
operation, it will be seen that it does not specify
the Communist Party of the Philippines or the

271

members thereof for the purpose of

punishment. What it does is simply to declare
the Party to be an organized conspiracy for the
overthrow of the Government for the purposes
of the prohibition, stated in section 4, against
membership in the outlawed organization. The
term "Communist Party of the Philippines"
issued solely for definitional purposes. In fact
the Act applies not only to the Communist Party
of the Philippines but also to "any other
organization having the same purpose and their
successors." Its focus is not on individuals but
on conduct. 10
This feature of the Act distinguishes it from
section 504 of the U.S. Federal LaborManagement Reporting and Disclosure Act of
1959 11 which, in U.S. vs. Brown, 12 was held to
be a bill of attainder and therefore
unconstitutional. Section 504 provided in its
pertinent parts as follows:
(a) No person who is or has been a
member of the Communist
Party ... shall serve

(1) as an officer, director, trustee,

member of any executive board or
similar governing body, business
agent, manager, organizer, or other
employee (other than as an employee
performing exclusively clerical or
custodial duties) of any labor
organization.
during or for five years after the
termination of his membership in the
Communist Party....
(b) Any person who willfully violates
this section shall be fined not more
than $10,000 or imprisoned for not
more than one year, or both.
This statute specified the Communist Party, and
imposes disability and penalties on its
members. Membership in the Party, without
more, ipso facto disqualifies a person from
becoming an officer or a member of the
governing body of any labor organization. As
the Supreme Court of the United States pointed
out:

272

Under the line of cases just outlined,

sec. 504 of the Labor Management
Reporting and Disclosure Act plainly
constitutes a bill of attainder.
Congress undoubtedly possesses
power under the Commerce Clause to
enact legislation designed to keep
from positions affecting interstate
commerce persons who may use of
such positions to bring about political
strikes. In section 504, however,
Congress has exceeded the authority
granted it by the Constitution. The
statute does not set forth a generally
applicable rule decreeing that any
person who commits certain acts or
possesses certain characteristics (acts
and characteristics which, in
Congress' view, make them likely to
initiate political strikes) shall not hold
union office, and leaves to courts and
juries the job of deciding what
persons have committed the specified
acts or possessed the specified
characteristics. Instead, it designates
in no uncertain terms the persons

who possess the feared

characteristics and therefore cannot
hold union office without incurring
criminal liability members of the
Communist Party.
Communist Party v. Subversive
Activities Control Board, 367 US 1, 6
L ed 2d 625, 81 S CT 1357, lend a
support to our conclusion. That case
involved an appeal from an order by
the Control Board ordering the
Communist Party to register as a
"Communist-action organization,"
under the Subversive Activities
Control Act of 1950, 64 Stat 987, 50
USC sec. 781 et seq. (1958 ed). The
definition of "Communist-action
organization" which the Board is to
apply is set forth in sec. 3 of the Act:
[A]ny organization in the United
States ... which (i)is substantially
directed, dominated, or controlled by
the foreign government or foreign
organization controlling the world

273

Communist movement referred to in

section 2 of this title, and(ii) operates
primarily to advance the objectives of
such world Communist movement...
64 Stat 989, 50 USC sec. 782 (1958
ed.)
A majority of the Court rejected the
argument that the Act was a bill of
attainder, reasoning that sec. 3 does
not specify the persons or groups
upon which the deprivations setforth
in the Act are to be imposed, but
instead sets forth a general definition.
Although the Board has determined in
1953 that the Communist Party was a
"Communist-action organization," the
Court found the statutory definition
not to be so narrow as to insure that
the Party would always come within
it:
In this proceeding the Board had
found, and the Court of Appeals has
sustained its conclusion, that the
Communist Party, by virtud of the

activities in which it now engages,

comes within the terms of the Act. If
the Party should at anytime choose to
abandon these activities, after it is
once registered pursuant to sec. 7,
the Act provides adequate means of
relief. (367 US, at 87, 6 L ed 2d at
683)
Indeed, were the Anti-Subversion Act a bill of
attainder, it would be totally unnecessary to
charge Communists in court, as the law alone,
without more, would suffice to secure their
punishment. But the undeniable fact is that
their guilt still has to be judicially established.
The Government has yet to prove at the trial
that the accused joined the Party knowingly,
willfully and by overt acts, and that they joined
the Party, knowing its subversive character and
with specific intent to further its basic objective,
i.e., to overthrow the existing Government by
force deceit, and other illegal means and place
the country under the control and domination of
a foreign power.

274

As to the claim that under the statute

organizationl guilt is nonetheless imputed
despite the requirement of proof of knowing
membership in the Party, suffice it to say that is
precisely the nature of conspiracy, which has
been referred to as a "dragneet device"
whereby all who participate in the criminal
covenant are liable. The contention would be
correct if the statute were construed as
punishing mere membership devoid of any
specific intent to further the unlawful goals of
the Party. 13 But the statute specifically required
that membership must be knowing or active,
with specific intent to further the illegal
objectives of the Party. That is what section 4
means when it requires that membership, to be
unlawful, must be shown to have been acquired
"knowingly, willfully and by overt acts." 14 The
ingredient of specific intent to pursue the
unlawful goals of the Party must be shown by
"overt acts." 15 This constitutes an element of
"membership" distinct from the ingredient of
guilty knowledge. The former requires proof of
direct participation in the organization's
unlawful activities, while the latter requires

proof of mere adherence to the organization's

illegal objectives.
2. Even assuming, however, that the Act
specifies individuals and not activities, this
feature is not enough to render it a bill of
attainder. A statute prohibiting partners or
employees of securities underwriting firms from
serving as officers or employees of national
banks on the basis of a legislative finding that
the persons mentioned would be subject to the
temptation to commit acts deemed inimical to
the national economy, has been declared not to
be a bill of attainder. 16 Similarly, a statute
requiring every secret, oath-bound society
having a membership of at least twenty to
register, and punishing any person who
becomes a member of such society which fails
to register or remains a member thereof, was
declared valid even if in its operation it was
shown to apply only to the members of the Ku
Klux Klan. 17
In the Philippines the validity of section 23 (b)
of the Industrial Peace Act, 18 requiring labor
unions to file with the Department of Labor

275

affidavits of union officers "to the effect that

they are not members of the Communist Party
and that they are not members of any
organization which teaches the overthrow of the
Government by force or by any illegal or
unconstitutional method," was upheld by this
Court. 19
Indeed, it is only when a statute applies either
to named individuals or to easily ascertainable
members of a group in such a way as to inflict
punishment on them without a judicial trial does
it become a bill of attainder. 20 It is upon this
ground that statutes which disqualified those
who had taken part in the rebellion against the
Government of the United States during the
Civil War from holding office, 21 or from
exercising their profession, 22 or which
prohibited the payment of further compensation
to individuals named in the Act on the basis of a
finding that they had engages in subversive
activities,23 or which made it a crime for a
member of the Communist Party to serve as an
officer or employee of a labor union, 24have
been invalidated as bills of attainder.

But when the judgment expressed in legislation

is so universally acknowledged to be certain as
to be "judicially noticeable," the legislature may
apply its own rules, and judicial hearing is not
needed fairly to make such determination. 25
In New York ex rel. Bryant vs.
Zimmerman, 26 the New York legislature passed
a law requiring every secret, oath-bound society
with a membership of at least twenty to
register, and punishing any person who joined
or remained a member of such a society failing
to register. While the statute did not specify the
Ku Klux Klan, in its operation the law applied to
the KKK exclusively. In sustaining the statute
against the claim that it discriminated against
the Ku Klux Klan while exempting other secret,
oath-bound organizations like masonic societies
and the Knights of Columbus, the United States
Supreme Court relied on common knowledge of
the nature and activities of the Ku Klux Klan.
The Court said:
The courts below recognized the
principle shown in the cases just cited
and reached the conclusion that the

276

classification was justified by a

difference between the two classes of
associations shown by experience,
and that the difference consisted (a)
in a manifest tendency on the part of
one class to make the secrecy
surrounding its purpose and
membership a cloak for acts and
conduct inimical to personal rights
and public welfare, and (b) in the
absence of such a tendency on the
part of the other class. In pointing
out this difference one of the courts
said of the Ku Klux Klan, the principal
association in the included class: "It
is a matter of common knowledge
that this organization functions
largely at night, its members
disguised by hoods and gowns and
doing things calculated to strike
terror into the minds of the people;"
and later said of the other class:
"These organizations and their
purposes are well known, many of
them having been in existence for
many years. Many of them are oath-

bound and secret. But we hear no

complaint against them regarding
violation of the peace or interfering
with the rights of others." Another of
the courts said: "It is a matter of
common knowledge that the
association or organization of which
the relator is concededly a member
exercises activities tending to the
prejudice and intimidation of sundry
classes of our citizens. But the
legislation is not confined to this
society;" and later said of the other
class: "Labor unions have a
recognized lawful purpose. The
benevolent orders mentioned in the
Benevolent Orders Law have already
received legislative scrutiny and have
been granted special privileges so
that the legislature may well consider
them beneficial rather than harmful
agencies." The third court, after
recognizing "the potentialities of evil
in secret societies," and observing
that "the danger of certain
organizations has been judicially

277

demonstrated," meaning in that

state, said: "Benevolent orders,
labor unions and college fraternities
have existed for many years, and,
while not immune from hostile
criticism, have on the whole justified
their existence."
We assume that the legislature had
before it such information as was
readily available including the
published report of a hearing, before
a committee of the House of
Representatives of the 57th Congress
relating to the formation, purposes
and activities of the Klu Klux Klan. If
so it was advised putting aside
controverted evidence that the
order was a revival of the Ku Klux
Klan of an earlier time with additional
features borrowed from the Know
Nothing and the A. P. A. orders of
other periods; that its memberships
was limited to native-born, gentile,
protestant whites; that in part of its
constitution and printed creed it

proclaimed the widest freedom for all

and full adherence to the Constitution
of the United States; in another
exacted of its member an oath to
shield and preserve "white
supremacy;" and in still another
declared any person actively opposing
its principles to be "a dangerous
ingredient in the body politic of our
country and an enemy to the weal of
our national commonwealth;" that it
was conducting a crusade against
Catholics, Jews, and Negroes, and
stimulating hurtful religious and race
prejudices; that it was striving for
political power and assuming a sort of
guardianship over the administration
of local, state and national affairs;
and that at times it was taking into its
own hands the punishment of what
some of its members conceived to be
crimes. 27
In the Philippines the character of the
Communist Party has been the object of
continuing scrutiny by this Court. In 1932 we

278

found the Communist Party of the Philippines to

be an illegal association. 28 In 1969 we again
found that the objective of the Party was the
"overthrow of the Philippine Government by
armed struggle and to establish in the
Philippines a communist form of government
similar to that of Soviet Russia and Red
China." 29 More recently, in Lansang vs.
Garcia, 30we noted the growth of the
Communist Party of the Philippines and the
organization of Communist fronts among youth
organizations such as the Kabataang
Makabayan (KM) and the emergence of the New
People's Army. After meticulously reviewing the
evidence, we said: "We entertain, therefore, no
doubts about the existence of a sizeable group
of men who have publicly risen in arms to
overthrow the government and have thus been
and still are engaged in rebellion against the
Government of the Philippines.
3. Nor is it enough that the statute specify
persons or groups in order that it may fall
within the ambit of the prohibition against bills
of attainder. It is also necessary that it must
apply retroactively and reach past conduct. This

requirement follows from the nature of a bill of

attainder as a legislative adjudication of guilt.
As Justice Frankfurter observed, "frequently a
bill of attainder was ... doubly objectionable
because of its ex post factofeatures. This is the
historic explanation for uniting the two
mischiefs in one
clause 'No Bill of Attainder or ex post
facto law shall be passed.' ... Therefore, if [a
statute] is a bill of attainder it is also an ex post
facto law. But if it is not an ex post facto law,
the reasons that establish that it is not are
persuasive that it cannot be a bill of
attainder." 31
Thus in Gardner vs. Board of Public
Works, 32 the U.S. Supreme Court upheld the
validity of the Charter of the City of Los Angeles
which provided:
... [N]o person shall hold or retain or
be eligible for any public office or
employment in the service of the City
of Los Angeles, in any office or
department thereof, either elective or
appointive, who has within five (5)

279

years prior to the effective date of

this section advised, advocated, or
taught, or who may, after this section
becomes effective, become a member
of or affiliated with any group,
society, association, organization or
party which advises, advocates or
teaches or has within said period of
five (5) years advised, advocated, or
taught the overthrow by force or
violence of the Government of the
United States of America or of the
State of California.
In upholding the statute, the Court stressed the
prospective application of the Act to the
petitioner therein, thus:
... Immaterial here is any opinion we
might have as to the charter
provision insofar as it purported to
apply restrospectively for a five-year
period to its effective date. We
assume that under the Federal
Constitution the Charter Amendment
is valid to the extent that it bars from

the city's public service persons who,

subsequently to its adoption in 1941,
advise, advocate, or reach the violent
overthrow of the Government or who
are or become affiliated with any
group doing so. The provisions
operating thus prospectively were a
reasonable regulation to protect the
municipal service by establishing an
employment qualification of loyalty to
the State and the United States.
... Unlike the provisions of the charter
and ordinance under which
petitioners were removed, the statute
in the Lovett case did not declare
general and prospectively operative
standards of qualification and
eligibility for public employment.
Rather, by its terms it prohibited any
further payment of compensationto
named individuals or employees.
Under these circumstances, viewed
against the legislative background,
the statutewas held to have imposed
penalties without judicial trial.

280

Indeed, if one objection to the bill of attainder

is thatCongress thereby assumed judicial
magistracy, them it mustbe demonstrated that
the statute claimed to be a bill of
attainderreaches past conduct and that the
penalties it imposesare inescapable. As the U.S.
Supreme Court observedwith respect to the
U.S. Federal Subversive Activities ControlAct of
1950:
Nor is the statute made an act of
"outlawry" or of attainderby the fact
that the conduct which it regulates is
describedwith such particularity that,
in probability, few organizationswill
come within the statutory terms.
Legislatures may act tocurb behaviour
which they regard as harmful to the
public welfare,whether that conduct is
found to be engaged in by
manypersons or by one. So long as
the incidence of legislation issuch that
the persons who engage in the
regulated conduct, bethey many or
few, can escape regulation merely by
altering thecourse of their own

present activities, there can be no

complaintof an attainder. 33
This statement, mutatis mutandis, may be said
of theAnti-Subversion Act. Section 4 thereof
expressly statesthat the prohibition therein
applies only to acts committed"After the
approval of this Act." Only those who
"knowingly,willfully and by overt acts affiliate
themselves with,become or remain members of
the Communist Party of thePhilippines and/or
its successors or of any subversive
association"after June 20, 1957, are punished.
Those whowere members of the Party or of any
other subversive associationat the time of the
enactment of the law, weregiven the
opportunity of purging themselves of liability
byrenouncing in writing and under oath their
membershipin the Party. The law expressly
provides that such renunciationshall operate to
exempt such persons from penalliability. 34 The
penalties prescribed by the Act are thereforenot
inescapable.
III. The Act and the Requirements of Due
Process

281

1. As already stated, the legislative declaration

in section 2 of the Act that the Communist Party
of the Philippinesis an organized conspiracy for
the overthrow of theGovernment is inteded not
to provide the basis for a legislativefinding of
guilt of the members of the Party butrather to
justify the proscription spelled out in section 4.
Freedom of expression and freedom of
association are sofundamental that they are
thought by some to occupy a"preferred
position" in the hierarchy of constitutional
values. 35 Accordingly, any limitation on their
exercise mustbe justified by the existence of a
substantive evil. This isthe reason why before
enacting the statute in question
Congressconducted careful investigations and
then stated itsfindings in the preamble, thus:
... [T]he Communist Party of the
Philippines althoughpurportedly a
political party, is in fact an organized
conspiracyto overthrow the
Government of the Republic of the
Philippinesnot only by force and
violence but also by deceit,
subversionand other illegal means,

for the purpose of establishing in

thePhilippines a totalitarian regime
subject to alien dominationand
control;
... [T]he continued existence and
activities of the CommunistParty of
the Philippines constitutes a clear,
present andgrave danger to the
security of the Philippines;
... [I]n the face of the organized,
systematice and
persistentsubversion, national in
scope but international in
direction,posed by the Communist
Party of the Philippines and its
activities,there is urgent need for
special legislation to cope withthis
continuing menace to the freedom
and security of the country.
In truth, the constitutionality of the Act would
be opento question if, instead of making these
findings in enactingthe statute, Congress
omitted to do so.

282

In saying that by means of the Act Congress

has assumed judicial magistracy, the trial courd
failed to takeproper account of the distinction
between legislative fact and adjudicative fact.
Professor Paul Freund elucidatesthe crucial
distinction, thus:
... A law forbidding the sale of
beverages containingmore than 3.2
per cent of alcohol would raise a
question of legislativefact, i.e.,
whether this standard has a
reasonable relationto public health,
morals, and the enforcement
problem. Alaw forbidding the sale of
intoxicating beverages (assuming itis
not so vague as to require
supplementation by rulemaking)would raise a question of
adjudicative fact, i.e., whether thisor
that beverage is intoxicating within
the meaning of the statuteand the
limits on governmental action
imposed by the Constitution. Of
course what we mean by fact in each
case is itselfan ultimate conclusion

founded on underlying facts and

oncriteria of judgment for weighing
them.
A conventional formulation is that
legislative facts those facts which
are relevant to the legislative
judgment will not be canvassed
save to determine whether there is a
rationalbasis for believing that they
exist, while adjudicativefacts those
which tie the legislative enactment to
the litigant are to be demonstrated
and found according to the
ordinarystandards prevailing for
judicial trials. 36
The test formulated in Nebbia vs. new
York, 37 andadopted by this Court in Lansang
vs. Garcia, 38 is that 'if laws are seen to have a
reasonable relation to a proper legislative
purpose, and are neither arbitrary nor
discriminatory, the requirements of due process
are satisfied, and judicial determination to that
effect renders a court functus officio." The

283

recital of legislative findings implements this

test.
With respect to a similar statement of
legislative findingsin the U.S. Federal
Subversive Activities Control Actof 1950 (that
"Communist-action organizations" are
controlledby the foreign government controlling
the worldCommunist movement and that they
operate primarily to"advance the objectives of
such world Communist movement"),the U.S.
Supreme Court said:
It is not for the courts to reexamine
the validity of theselegislative findings
and reject them....They are the
productof extensive investigation by
Committes of Congress over
morethan a decade and a half. Cf.
Nebbia v. New York, 291 U.S.502,
516, 530. We certainly cannot dismiss
them as unfoundedirrational
imaginings. ... And if we accept them,
as we mustas a not unentertainable
appraisal by Congress of the
threatwhich Communist organizations

pose not only to existing

governmentin the United States, but
to the United States as asovereign,
independent Nation. ...we must
recognize that thepower of Congress
to regulate Communist organizations
of thisnature is
extensive. 39
This statement, mutatis mutandis, may be said
of thelegislative findings articulated in the AntiSubversion Act.
That the Government has a right to protect
itself againstsubversion is a proposition too
plain to require elaboration.Self-preservation is
the "ultimate value" of society. It surpasses and
transcendes every other value, "forif a society
cannot protect its very structure from
armedinternal attack, ...no subordinate value
can be protected" 40 As Chief Justice Vinson so
aptly said in Dennis vs. United States: 41
Whatever theoretical merit there may
be to the argumentthat there is a
'right' to rebellion against dictatorial
governmentsis without force where

284

the existing structure of government

provides for peaceful and orderly
change. We rejectany principle of
governmental helplessness in the face
of preparationfor revolution, which
principle, carried to its logical
conclusion,must lead to anarchy. No
one could conceive that it isnot within
the power of Congress to prohibit acts
intended tooverthrow the government
by force and violence.

Membership in an organization
renders aid and encouragement to
the organization; and when
membership is acceptedor retained
with knowledge that the organization
is engaged inan unlawful purpose, the
one accepting or retaining
membershipwith such knowledge
makes himself a party to the
unlawfulenterprise in which it is
engaged. 44

2. By carefully delimiting the reach of the Act to

conduct (as explicitly described in sectin 4
thereof), Congressreaffirmed its respect for the
rule that "even throughthe governmental
purpose be legitimate and substantial,that
purpose cannot be pursued by means that
broadly stiflefundamental personal liberties
when the end can be more narrowly
achieved." 42 The requirement
of knowing membership,as distinguished
from nominalmembership, hasbeen held as a
sufficient basis for penalizing membershipin a
subversive organization. 43 For, as has been
stated:

3. The argument that the Act is

unconstitutionallyoverbroad because section 2
merely speaks of "overthrow"of the Government
and overthrow may be achieved
by peaceful means, misconceives the function
of the phrase"knowingly, willfully and by overt
acts" in section 4. Section 2 is merely a
legislative declaration; the definitionsof and the
penalties prescribed for the different acts
prescribedare stated in section 4 which requires
that membershipin the Communist Party of the
Philippines, to be unlawful, must be acquired
"knowingly, willfully and by overt acts." Indeed,
the first "whereas" clause makes clear thatthe

285

overthrow contemplated is "overthrow not only

by forceand violence but also be deceit,
subversion and other illegalmeans." The
absence of this qualificatio in section 2
appearsto be due more to an oversight rather
than to deliberateomission.
Moreover, the word "overthrow' sufficiently
connotesthe use of violent and other illegal
means. Only in a metaphoricalsense may one
speak of peaceful overthrow ofgovernments,
and certainly the law does not speak in
metaphors.In the case of the Anti-Subversion
Act, the use ofthe word "overthrow" in a
metaphorical sense is hardlyconsistent with the
clearly delineated objective of the
"overthrow,"namely, "establishing in the
Philippines a totalitarianregime and place [sic]
the Government under thecontrol and
domination of an alien power." What thisCourt
once said in a prosecution for sedition
is appropos: "The language used by the
appellant clearly imported anoverthrow of the
Government by violence, and it should
beinterpreted in the plain and obvious sense in
which it wasevidently intended to be

understood. The word 'overthrow'could not have

been intended as referring to an ordinarychange
by the exercise of the elective franchise. The
useof the whip [which the accused exhorted his
audience to useagainst the Constabulary], an
instrument designed toleave marks on the sides
of adversaries, is inconsistentwith the mild
interpretation which the appellant wouldhave us
impute to the language." 45
IV. The Act and the Guaranty of Free
Expression
As already pointed out, the Act is aimed against
conspiracies to overthrow the Government by
force, violence orother illegal means. Whatever
interest in freedom of speechand freedom of
association is infringed by the prohibitionagainst
knowing membership in the Communist Party
ofthe Philippines, is so indirect and so
insubstantial as to beclearly and heavily
outweighed by the overriding considerationsof
national security and the preservartion of
democraticinstitutions in his country.
The membership clause of the U.S. Federal
Smith Actis similar in many respects to the

286

membership provision ofthe Anti-Subversion

Act. The former provides:
Whoever organizes or helps or
attempts to organize anysociety,
group, or assembly of persons who
teach, advocate, orencourage the
overthrow or destruction of any such
governmentby force or violence; or
becomes or is a member of, or
affiliatedwith, any such society, group
or assembly of persons, knowingthe
purpose thereof
Shall be fined not more than $20,000
or imprisoned notmore than twenty
years, or both, and shall be ineligible
for emplymentby the United States or
any department or agencythereof, for
the five years next following his
conviction.... 46
In sustaining the validity of this provision, the
"Court said in Scales vs. United States: 47
It was settled in Dennis that advocacy
with which we arehere concerned is

not constitutionally protected speech,

and itwas further established that a
combination to promote
suchadvocacy, albeit under the aegis
of what purports to be a
politicalparty, is not such association
as is protected by the
firstAmendment. We can discern no
reason why membership, whenit
constitutes a purposeful form of
complicity in a group engagingin this
same forbidden advocacy, should
receive anygreater degree of
protection from the guarantees of
that Amendment.
Moreover, as was held in another case, where
the problemsof accommodating the exigencies
of self-preservationand the values of liberty are
as complex and intricate as inthe situation
described in the legislative findings stated inthe
U.S. Federal Subversive Activities Control Act of
1950,the legislative judgment as to how that
threat may best bemet consistently with the
safeguards of personal freedomsis not to be set
aside merely because the judgment of

287

judgeswould, in the first instance, have chosen

other methods. 48 For in truth, legislation,
"whether it restrains freedom tohire or freedom
to speak, is itself an effort at
compromisebetween the claims of the social
order and individual freedom,and when the
legislative compromise in either case isbrought
to the judicial test the court stands one step
removedfrom the conflict and its resolution
through law." 49
V. The Act and its Title
The respondent Tayag invokes the constitutional
commandthat "no bill which may be enacted
into law shall embrace more than one subject
which shall be expressed in the title of the
bill." 50
What is assailed as not germane to or embraced
in thetitle of the Act is the last proviso of
section 4 which reads:
And provided, finally, That one who
conspires with anyother person to
overthrow the Government of the
Republic ofthe Philippines, or the

government of any of its political

subdivisionsby force, violence, deceit,
subversion or illegal means,for the
purpose of placing such Government
or political subdivisionunder the
control and domination of any lien
power, shallbe punished by prision
correccional to prision mayor with
allthe accessory penalties provided
therefor in the same code.
It is argued that the said proviso, in reality,
punishes notonly membership in the Communist
Party of the Philippinesor similar associations,
but as well "any conspiracyby two persons to
overthrow the national or any local
governmentby illegal means, even if their intent
is not to establisha totalitarian regime, burt a
democratic regime, evenif their purpose is not
to place the nation under an aliencommunist
power, but under an alien democratic power
likethe United States or England or Malaysia or
even an anti-communistpower like Spain,
Japan, Thailand or Taiwanor Indonesia."

288

The Act, in addition to its main title ("An Act to

Outlawthe Communist Party of the Philippines
and SimilarAssociations, Penalizing Membership
Therein, and forOther Purposes"), has a short
title. Section 1 providesthat "This Act shall be
known as the
Anti-Subversion Act."Together with the main
title, the short title of the statuteunequivocally
indicates that the subject matter is subversionin
general which has for its fundamental purpose
the substitutionof a foreign totalitarian regime
in place of theexisting Government and not
merely subversion by Communistconspiracies..
The title of a bill need not be a catalogue or an
indexof its contents, and need not recite the
details of the Act. 51 It is a valid title if it
indicates in broad but clear termsthe nature,
scope, and consequences of the proposed
lawand its operation. 52 A narrow or technical
construction isto be avoided, and the statute
will be read fairly and reasonablyin order not to
thwart the legislative intent. We holdthat the
Anti-Subversion Act fully satisfies these
requirements.

VI. Conclusion and Guidelines

In conclusion, even as we uphold the validity of
theAnti-Subversion Act, we cannot
overemphasize the needfor prudence and
circumspection in its enforcement, operatingas
it does in the sensitive area of freedom of
expressionand belief. Accordingly, we set the
following basic guidelines to be observed in any
prosecution under the Act.The Government, in
addition to proving such circumstancesas may
affect liability, must establish the following
elementsof the crime of joining the Communist
Party of the Philippinesor any other subversive
association:
(1) In the case of subversive organizations
other thanthe Communist Party of the
Philippines, (a) that thepurpose of the
organization is to overthrow the
presentGovernment of the Philippines and to
establish in thiscountry a totalitarian regime
under the domination of aforeign power; (b)
that the accused joined such organization;and
(c) that he did so knowingly, willfully and
byovert acts; and

289

(2) In the case of the Communist Party of the

Philippines,(a) that the CPP continues to pursue
the objectiveswhich led Congress in 1957 to
declare it to be an organizedconspiracy for the
overthrow of the Government by illegalmeans
for the purpose of placing the country under
thecontrol of a foreign power; (b) that the
accused joined theCPP; and (c) that he did so
willfully, knowingly and byovert acts.
We refrain from making any pronouncement as
to thecrime or remaining a member of the
Communist Party ofthe Philippines or of any
other subversive association: weleave this
matter to future determination.
ACCORDINGLY, the questioned resolution of
September15, 1970 is set aside, and these two
cases are herebyremanded to the court a quo
for trial on the merits. Costs de oficio.
Makalintal, Zaldivar, Teehankee, Barredo and
Esguerra, JJ., concur.
Concepcion, C.J., concurs in the result.
Makasiar and Antonio, JJ., took no part.

290

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-18208

February 14, 1922

THE UNITED STATES, plaintiff-appellee,

vs.
VICENTE DIAZ CONDE and APOLINARIA R.
DE CONDE, defendants-appellants.
Araneta & Zaragoza for appellants.
Attorney-General Villareal for appellee.
JOHNSON, J.:
It appears from the record that on the 6th day
of May, 1921, a complaint was presented in the
Court of First Instance of the city of Manila,
charging the defendants with a violation of the
Usury Law (Act No. 2655). Upon said complaint
they were each arrested, arraigned, and
pleaded not guilty. The cause was finally
brought on for trial on the 1st day of
September, 1921. At the close of the trial, and
after a consideration of the evidence adduced,

the Honorable M. V. del Rosario, judge, found

that the defendants were guilty of the crime
charged in the complaint and sentenced each of
them to pay a fine of P120 and, in case of
insolvency, to suffer subsidiary imprisonment in
accordance with the provisions of the law. From
that sentence each of the defendants appealed
to this court.
The appellants now contend: (a) That the
contract upon which the alleged usurious
interest was collected was executed before Act
No. 2655 was adopted; (b) that at the time said
contract was made (December 30, 1915), there
was no usury law in force in the Philippine
Islands; (c) that said Act No. 2655 did not
become effective until the 1st day of May, 1916,
or four months and a half after the contract in
question was executed; (d) that said law could
have no retroactive effect or operation, and (e)
that said law impairs the obligation of a
contract, and that for all of said reasons the
judgment imposed by the lower court should be
revoked; that the complaint should be
dismissed, and that they should each be
discharged from the custody of the law.

291

The essential facts constituting the basis of the

criminal action are not in dispute, and may be
stated as follows: (1) That on the 30th day of
December, 1915, the alleged offended persons
Bartolome Oliveros and Engracia Lianco
executed and delivered to the defendants a
contract (Exhibit B) evidencing the fact that the
former had borrowed from the latter the sum of
P300, and (2) that, by virtue of the terms of
said contract, the said Bartolome Oliveros and
Engracia Lianco obligated themselves to pay to
the defendants interest at the rate of five per
cent (5%) per month, payable within the first
ten days of each and every month, the first
payment to be made on the 10th day of
January, 1916. There were other terms in the
contract which, however, are not important for
the decision in the present case.
The lower court, in the course of its opinion,
stated that at the time of the execution and
delivery of said contract (Exhibit B), there was
no law in force in the Philippine Islands
punishing usury; but, inasmuch as the
defendants had collected a usurious rate of
interest after the adoption of the Usury Law in

the Philippine Islands (Act No. 2655), they were

guilty of a violation of that law and should be
punished in accordance with its provisions.
The law, we think, is well established that when
a contract contains an obligation to pay interest
upon the principal, the interest thereby
becomes part of the principal and is included
within the promise to pay. In other words, the
obligation to pay interest on money due under a
contract, be it express or implied, is a part of
the obligation of the contract. Laws adopted
after the execution of a contract, changing or
altering the rate of interest, cannot be made to
apply to such contract without violating the
provisions of the constitution which prohibit the
adoption of a law "impairing the obligation of
contract." (8 Cyc., 996; 12 Corpus Juris, 10581059.)
The obligation of the contract is the law which
binds the parties to perform their agreement if
it is not contrary to the law of the land, morals
or public order. That law must govern and
control the contract in every aspect in which it
is intended to bear upon it, whether it affect its

292

validity, construction, or discharge. Any law

which enlarges, abridges, or in any manner
changes the intention of the parties, necessarily
impairs the contract itself. If a law impairs the
obligation of a contract, it is prohibited by the
Jones Law, and is null and void. The laws in
force in the Philippine Islands prior to any
legislation by the American sovereignty,
prohibited the Legislature from giving to any
penal law a retroactive effect unless such law
was favorable to the person accused. (Articles
21 and 22, Penal Code.)
A law imposing a new penalty, or a new liability
or disability, or giving a new right of action,
must not be construed as having a retroactive
effect. It is an elementary rule of contract that
the laws in force at the time the contract was
made must govern its interpretation and
application. Laws must be construed
prospectively and not retrospectively. If a
contract is legal at its inception, it cannot be
rendered illegal by any subsequent legislation.
If that were permitted then the obligations of a
contract might be impaired, which is prohibited
by the organic law of the Philippine Islands.

(U.S. vs. Constantino Tan Quingco Chua, 39

Phil., 552; Aguilar vs. Rubiato and Gonzales
Vila, 40 Phil., 570.)
Ex post facto laws, unless they are favorable to
the defendant, are prohibited in this
jurisdiction. Every law that makes an action,
done before the passage of the law, and which
was innocent when done, criminal, and
punishes such action, is an ex post facto law. In
the present case Act No. 2655 made an act
which had been done before the law was
adopted, a criminal act, and to make said Act
applicable to the act complained of would be to
give it an ex post facto operation. The
Legislature is prohibited from adopting a law
which will make an act done before its adoption
a crime. A law may be given a retroactive effect
in civil action, providing it is curative in
character, but ex post facto laws are absolutely
prohibited unless its retroactive effect is
favorable to the defendant.
For the reason, therefore, that the acts
complained of in the present case were legal at
the time of their occurrence, they cannot be

293

made criminal by any subsequent or ex post

facto legislation. What the courts may say,
considering the provisions of article 1255 of the
Civil Code, when a civil action is brought upon
said contract, cannot now be determined. A
contract may be annulled by the courts when it
is shown that it is against morals or public
order.
For all of the foregoing reasons, we are of the
opinion, and so decide, that the acts
complained of by the defendants did not
constitute a crime at the time they were
committed, and therefore the sentence of the
lower court should be, and is hereby, revoked;
and it is hereby ordered and decreed that the
complaint be dismissed, and that the
defendants be discharged from the custody of
the law, with costs de oficio. So ordered.
Araullo, C.J., Street, Malcolm, Avancea,
Ostrand, Johns and Romualdez, JJ., concur.

294

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-1960

November 26, 1948

THE PEOPLE OF THE PHILIPPINES, plaintiffappellee,

vs.
FLORENTINO ABILONG, defendant-appellant.
Carlos Perfecto for appellant.
Assistant Solicitor General Ruperto Kapunan,
Jr., and Solicitor Manuel Tomacruz for appellee.
MONTEMAYOR, J.:
Florentino Abilong was charged in the Court of
First Instance of Manila with evasion of service
of sentence under the following information:
That on or about the 17th day of
September, 1947, in the City of Manila,
Philippines, the said accused, being then a
convict sentenced and ordered to serve
two (2) years, four (4) months and one (1)
day of destierro during which he should
not enter any place within the radius of

100 kilometers from the City of Manila, by

virtue of final judgment rendered by the
municipal court on April 5, 1946, in
criminal case No. B-4795 for attempted
robbery, did then and there wilfully,
unlawfully and feloniously evade the
service of said sentence by going beyond
the limits made against him and commit
vagrancy.
Contrary to law.
Upon arraignment he pleaded guilty and was
sentenced to two (2) years, four (4) months
and one (1) day ofprision correccional, with the
accessory penalties of the law and to pay the
costs. He is appealing from that decision with
the following assignment of error:
1. The lower court erred in imposing a
penalty on the accused under article 157
of the Revised Penal Code, which does not
cover evasion of service of "destierro."
Counsel for the appellant contends that a
person like the accused evading a sentence
of destierro is not criminally liable under the
provisions of the Revised Penal Code,
particularly article 157 of the said Code for the
reason that said article 157 refers only to

295

persons who are imprisoned in a penal

institution and completely deprived of their
liberty. He bases his contention on the word
"imprisonment" used in the English text of said
article which in part reads as follows:
Evasion of service of sentence. The
penalty of prision correccional in its
medium and maximum periods shall be
imposed upon any convict who shall evade
service of his sentence by escaping during
the term of his imprisonment by reason of
final judgment.
The Solicitor General in his brief says that had
the original text of the Revised Penal Code been
in the English language, then the theory of the
appellant could be uphold. However, it is the
Spanish text that is controlling in case of doubt.
The Spanish text of article 157 in part reads
thus:
ART. 157. Quebrantamiento de sentencia.
Sera castigado con prision correccional
en sus grados medio y maximo el
sentenciado que quebrantare su condena,
fugandose mientras estuviere sufriendo
privacion de libertad por sentencia firme; .
...

We agree with the Solicitor General that

inasmuch as the Revised Penal Code was
originally approved and enacted in Spanish, the
Spanish text governs (People vs. Manaba, 58
Phil., 665, 668). It is clear that the word
"imprisonment" used in the English text is a
wrong or erroneous translation of the phrase
"sufriendo privacion de libertad" used in the
Spanish text. It is equally clear that although
the Solicitor General impliedly admits destierro
as not constituting imprisonment, it is a
deprivation of liberty, though partial, in the
sense that as in the present case, the appellant
by his sentence of destierro was deprived of the
liberty to enter the City of Manila. This view has
been adopted in the case of People vs.
Samonte, No. 36559 (July 26, 1932; 57 Phil.,
968) wherein this Court held, as quoted in the
brief of the Solicitor General that "it is clear that
a person under sentence of destierro is
suffering deprivation of his liberty and escapes
from the restrictions of the penalty when he
enters the prohibited area." Said ruling in that
case was ratified by this Court, though,
indirectly in the case of People vs. Jose de
Jesus, (45 Off. Gaz. Supp. to No. 9, p. 370)1,
where it was held that one evades the service
of his sentence of destierrowhen he enters the
prohibited area specified in the judgment of
conviction, and he cannot invoke the provisions

296

of the Indeterminate Sentence Law which

provides that its provisions do not apply to
those who shall have escaped from confinement
or evaded sentence.
In conclusion we find and hold that the
appellant is guilty of evasion of service of
sentence under article 157 of the Revised Penal
Code (Spanish text), in that during the period of
his sentence of destierro by virtue of final
judgment wherein he was prohibited from
entering the City of Manila, he entered said
City.
Finding no reversible error in the decision
appealed from, the same is hereby affirmed
with costs against the appellant. So ordered.

297

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-3246

November 29, 1950

THE PEOPLE OF THE PHILIPPINES, plaintiffappellee,

vs.
ABELARDO FORMIGONES, defendantappellant.
Luis Contreras for appellant.
Office of the Solicitor General Felix Bautista
Angelo and Solicitor Felix V. Makasiar for
appellee.
MONTEMAYOR, J.:
This is an appeal from the decision of the Court
of First Instance of Camarines Sur finding the
appellant guilty of parricide and sentencing him
to reclusion perpetua, to indemnify the heirs of
the deceased in the amount of P2,000, and to
pay the costs. The following facts are not
disputed.

In the month of November, 1946, the defendant

Abelardo Formigones was living on his farm in
Bahao, Libmanan, municipality of Sipocot,
Camarines Sur, with his wife, Julia Agricola, and
his five children. From there they went to live in
the house of his half-brother, Zacarias
Formigones, in the barrio of Binahian of the
same municipality of Sipocot, to find
employment as harvesters of palay. After about
a month's stay or rather on December 28,
1946, late in the afternoon, Julia was sitting at
the head of the stairs of the house. The
accused, without any previous quarrel or
provocation whatsoever, took his bolo from the
wall of the house and stabbed his wife, Julia, in
the back, the blade penetrating the right lung
and causing a severe hemorrhage resulting in
her death not long thereafter. The blow sent
Julia toppling down the stairs to the ground,
immediately followed by her husband Abelardo
who, taking her up in his arms, carried her up
the house, laid her on the floor of the living
room and then lay down beside her. In this
position he was found by the people who came
in response to the shouts for help made by his
eldest daughter, Irene Formigones, who

298

witnessed and testified to the stabbing of her

mother by her father.
Investigated by the Constabulary, defendant
Abelardo signed a written statement, Exhibit D,
wherein he admitted that he killed The motive
was admittedly of jealousy because according
to his statement he used to have quarrels with
his wife for the reason that he often saw her in
the company of his brother Zacarias; that he
suspected that the two were maintaining illicit
relations because he noticed that his had
become indifferent to him (defendant).
During the preliminary investigation conducted
by the justice of the peace of Sipocot, the
accused pleaded guilty, as shown by Exhibit E.
At the trial of the case in the Court of First
Instance, the defendant entered a plea of not
guilty, but did not testify. His counsel presented
the testimony of two guards of the provincial
jail where Abelardo was confined to the effect
that his conduct there was rather strange and
that he behaved like an insane person; that
sometimes he would remove his clothes and go
stark naked in the presence of his fellow

prisoners; that at times he would remain silent

and indifferent to his surroundings; that he
would refused to take a bath and wash his
clothes until forced by the prison authorities;
and that sometimes he would sing in chorus
with his fellow prisoners, or even alone by
himself without being asked; and that once
when the door of his cell was opened, he
suddenly darted from inside into the prison
compound apparently in an attempt to regain
his liberty.
The appeal is based merely on the theory that
the appellant is an imbecile and therefore
exempt from criminal liability under article 12 of
the Revised Penal Code. The trial court rejected
this same theory and we are inclined to agree
with the lower court. According to the very
witness of the defendant, Dr. Francisco Gomez,
who examined him, it was his opinion that
Abelardo was suffering only from
feeblemindedness and not imbecility and that
he could distinguish right from wrong.
In order that a person could be regarded as an
imbecile within the meaning of article 12 of the

299

Revised Penal Code so as to be exempt from

criminal liability, he must be deprived
completely of reason or discernment and
freedom of the will at the time of committing
the crime. The provisions of article 12 of the
Revised Penal Code are copied from and based
on paragraph 1, article 8, of the old Penal Code
of Spain. Consequently, the decisions of the
Supreme Court of Spain interpreting and
applying said provisions are pertinent and
applicable. We quote Judge Guillermo Guevara
on his Commentaries on the Revised Penal
Code, 4th Edition, pages 42 to 43:
The Supreme Court of Spain held that in
order that this exempting circumstances
may be taken into account, it is necessary
that there be a complete deprivation of
intelligence in committing the act, that is,
that the accused be deprived of reason;
that there be no responsibility for his own
acts; that he acts without the least
discernment;1 that there be a complete
absence of the power to discern, or that
there be a total deprivation of freedom of
the will. For this reason, it was held that

the imbecility or insanity at the time of the

commission of the act should absolutely
deprive a person of intelligence or freedom
of will, because mere abnormality of his
mental faculties does not exclude
imputability.2
The Supreme Court of Spain likewise held
that deaf-muteness cannot be equaled to
imbecility or insanity.
The allegation of insanity or imbecility
must be clearly proved. Without positive
evidence that the defendant had
previously lost his reason or was
demented, a few moments prior to or
during the perpetration of the crime, it will
be presumed that he was in a normal
condition. Acts penalized by law are always
reputed to be voluntary, and it is improper
to conclude that a person acted
unconsciously, in order to relieve him from
liability, on the basis of his mental
condition, unless his insanity and absence
of will are proved.

300

As to the strange behaviour of the accused

during his confinement, assuming that it was
not feigned to stimulate insanity, it may be
attributed either to his being feebleminded or
eccentric, or to a morbid mental condition
produced by remorse at having killed his wife.
From the case of United States vs. Vaquilar (27
Phil. 88), we quote the following syllabus:
Testimony of eye-witnesses to a parricide,
which goes no further than to indicate that
the accused was moved by a wayward or
hysterical burst of anger or passion, and
other testimony to the effect that, while in
confinement awaiting trial, defendant
acted absentmindedly at times, is not
sufficient to establish the defense of
insanity. The conduct of the defendant
while in confinement appears to have been
due to a morbid mental condition produced
by remorse.
After a careful study of the record, we are
convinced that the appellant is not an imbecile.
According to the evidence, during his marriage
of about 16 years, he has not done anything or

conducted himself in anyway so as to warrant

an opinion that he was or is an imbecile. He
regularly and dutifully cultivated his farm,
raised five children, and supported his family
and even maintained in school his children of
school age, with the fruits of his work.
Occasionally, as a side line he made copra. And
a man who could feel the pangs of jealousy to
take violent measure to the extent of killing his
wife whom he suspected of being unfaithful to
him, in the belief that in doing so he was
vindicating his honor, could hardly be regarded
as an imbecile. Whether or not his suspicions
were justified, is of little or no import. The fact
is that he believed her faithless.
But to show that his feeling of jealousy had
some color of justification and was not a mere
product of hallucination and aberrations of a
disordered mind as that an imbecile or a
lunatic, there is evidence to the following effect.
In addition to the observations made by
appellant in his written statement Exhibit D, it is
said that when he and his wife first went to live
in the house of his half brother, Zacarias
Formigones, the latter was living with his

301

grandmother, and his house was vacant.

However, after the family of Abelardo was
settled in the house, Zacarias not only
frequented said house but also used to sleep
there nights. All this may have aroused and
even partly confirmed the suspicions of
Abelardo, at least to his way of thinking.
The appellant has all the sympathies of the
Court. He seems to be one of those unfortunate
beings, simple, and even feebleminded, whose
faculties have not been fully developed. His
action in picking up the body of his wife after
she fell down to the ground, dead, taking her
upstairs, laying her on the floor, and lying
beside her for hours, shows his feeling of
remorse at having killed his loved one though
he thought that she has betrayed him. Although
he did not exactly surrender to the authorities,
still he made no effort to flee and compel the
police to hunt him down and arrest him. In his
written statement he readily admitted that he
killed his wife, and at the trial he made no effort
to deny or repudiate said written statement,
thus saving the government all the trouble and

expense of catching him, and insuring his

conviction.
Although the deceased was struck in the back,
we are not prepared to find that the
aggravating circumstance of treachery attended
the commission of the crime. It seems that the
prosecution was not intent or proving it. At least
said aggravating circumstance was not alleged
in the complaint either in the justice of the
peace court or in the Court of First Instance. We
are inclined to give him the benefit of the doubt
and we therefore declined to find the existence
of this aggravating circumstance. On the other
hand, the fact that the accused is feebleminded
warrants the finding in his favor of the
mitigating circumstance provided for in either
paragraph 8 or paragraph 9 of article 13 of the
Revised Penal Code, namely that the accused is
"suffering some physical defect which thus
restricts his means of action, defense, or
communication with his fellow beings," or such
illness "as would diminish the exercise of his will
power." To this we may add the mitigating
circumstance in paragraph 6 of the same
article, that of having acted upon an impulse

302

so powerful as naturally to have produced

passion or obfuscation. The accused evidently
killed his wife in a fit of jealousy.
With the presence of two mitigating
circumstances without any aggravating
circumstance to offset them, at first we thought
of the possible applicability of the provisions of
article 64, paragraph 5 of the Revised Penal
Code for the purpose of imposing the penalty
next lower to that prescribed by article 246 for
parricide, which is reclusion perpetua to death.
It will be observed however, that article 64
refers to the application of penalties which
contain three periods whether it be a single
divisible penalty or composed of three different
penalties, each one of which forms a period in
accordance with the provisions of articles 76
and 77, which is not true in the present case
where the penalty applicable for parricide is
composed only of two indivisible penalties. On
the other hand, article 63 of the same Code
refers to the application of indivisible penalties
whether it be a single divisible penalty, or two
indivisible penalties like that of reclusion
perpetua to death. It is therefore clear that

article 63 is the one applicable in the present

case.
Paragraph 2, rule 3 of said article 63 provides
that when the commission of the act is attended
by some mitigating circumstance and there is
no aggravating circumstance, the lesser penalty
shall be applied. Interpreting a similar legal
provision the Supreme Court in the case
of United States vs. Guevara (10 Phil. 37),
involving the crime of parricide, in applying
article 80, paragraph 2 (rule 3 of the old Penal
Code) which corresponds to article 63,
paragraph 2 (rule 3 of the present Revised
Penal Code), thru Chief Justice Arellano said the
following:
And even though the court should take
into consideration the presence of two
mitigating circumstances of a qualifying
nature, which it can not afford to overlook,
without any aggravating one, the penalty
could not be reduced to the next lower to
that imposed by law, because, according
to a ruling of the court of Spain, article 80
above-mentioned does not contain a

303

precept similar to that contained in Rule 5

of article 81 (now Rule 5, art. 64 of the
Rev. Penal Code.) (Decision of September
30, 1879.)
Yet, in view of the excessive penalty
imposed, the strict application of which is
inevitable and which, under the law, must
be sustained, this court now resorts to the
discretional power conferred by paragraph
2 of article 2 of the Penal Code; and.
Therefore, we affirm the judgment
appealed from with costs, and hereby
order that a proper petition be filed with
the executive branch of the Government in
order that the latter, if it be deemed
proper in the exercise of the prerogative
vested in it by the sovereign power, may
reduce the penalty to that of the next
lower.
Then, in the case of People vs. Castaeda (60
Phil. 604), another parricide case, the Supreme
Court in affirming the judgment of conviction
sentencing defendant to reclusion perpetua,
said that notwithstanding the numerous

mitigating circumstances found to exist,

inasmuch as the penalty for parricide as fixed
by article 246 of the Revised Penal Code is
composed of two indivisible penalties,
namely, reclusion perpetua to death, paragraph
3 of article 63 of the said Code must be applied.
The Court further observed:
We are likewise convinced that appellant
did not have that malice nor has exhibited
such moral turpitude as requires life
imprisonment, and therefore under the
provisions of article 5 of the Revised Penal
Code, we respectfully invite the attention
of the Chief Executive to the case with a
view to executive clemency after appellant
has served an appreciable amount of
confinement.
In conclusion, we find the appellant guilty of
parricide and we hereby affirm the judgment of
the lower court with the modification that the
appellant will be credited with one-half of any
preventive imprisonment he has undergone.
Appellant will pay costs.

304

Following the attitude adopted and the action

taken by this same court in the two cases above
cited, and believing that the appellant is entitled
to a lighter penalty, this case should be brought
to the attention of the Chief Executive who, in
his discretion may reduce the penalty to that
next lower to reclusion perpetua to death or
otherwise apply executive clemency in the
manner he sees fit.
Moran, Bengzon, C. J., Paras, Feria, Pablo,
Tuason, Reyes, and Jugo, JJ., concur.

305

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-35748

December 14, 1931

THE PEOPLE OF THE PHILIPPINE

ISLANDS, plaintiff-appellee,
vs.
ROMANA SILVESTRE and MARTIN
ATIENZA, defendants-appellants.
Teofilo Mendoza for appellants.
Attorney-General Jaranilla for appellee.

VILLA-REAL, J.:
Martin Atienza and Romana Silvestre appeal to
this court from the judgment of the Court of
First Instance of Bulacan convicting them upon
the information of the crime of arson as follows:
The former as principal by direct participation,
sentenced to fourteen years, eight months, and
one day of cadena temporal, in accordance with

paragraph 2 of article 550, Penal Code; and the

latter as accomplice, sentenced to six years and
one day ofpresidio mayor; and both are further
sentenced to the accessories of the law, and to
pay each of the persons whose houses were
destroyed by the fire, jointly and severally, the
amount set forth in the information, with costs.
Counsel appointed by the court to defend the
accused- appellants de oficio, after delivering
his argument, prayed for the affirmance of the
judgment with reference to the appellant Martin
Atienza, and makes the following assignments
of error with reference to Romana Silvestre, to
wit:
1. The lower court erred in convincing
Romana Silvestre as accomplice of the
crime charged in the information.
2. Finally, the court erred in not acquitting
said defendant from the information upon
the ground of insufficient evidence, or at
the least, of reasonable doubt.
The following facts were proved at the hearing
beyond a reasonable doubt:

306

Romana Silvestre, wife of Domingo Joaquin by

her second marriage, cohabited with her
codefendant Martin Atienza from the month of
March, 1930, in the barrio of Masocol,
municipality of Paombong, Province of Bulacan.
On May 16, 1930, the complaining husband,
Domingo Joaquin, filed with the justice of the
peace for that municipality, a sworn complaint
for adultery, supported by affidavits of Gerardo
Cabigao and Castor de la Cruz (Exhibit B). On
the same date, May 16, 1930, the said accused
were arrested on a warrant issued by said
justice of the peace. On the 20th of the month,
they were released on bail, each giving a
personal bond of P6,000. Pending the
preliminary investigation of the case, the two
defendants begged the municipal president of
Paombong, Francisco Suerte Felipe, to speak to
the complaint, Domingo Joaquin, urging him to
withdraw the complaint, the two accused
binding themselves to discontinue cohabitation,
and promising not to live again in the barrio of
Masocol; Martin Atienza voluntarily signed the
promise (Exhibit A). The municipal president
transmitted the defendants' petition to the
complaining husband, lending it his support.

Domingo Joaquin acceded to it, and on May 20,

1930, filed a motion for the dismissal of his
complaint. In consideration of this petition, the
justice of the peace of Paombong dismissed the
adultery case commenced against the accused,
and cancelled the bonds given by them, with
the costs against the complainant.
The accused then left the barrio of Masocol and
went to live in that of Santo Nio, in the same
municipality of Paombong.
About November 20, 1930, the accused
Romana Silvestre met her son by her former
marriage, Nicolas de la Cruz, in the barrio of
Santo Nio, and under pretext of asking him for
some nipa leaves, followed him home to the
village of Masocol, and remained there. The
accused, Martin Atienza, who had continued to
cohabit with said Romana Silvestre, followed
her and lived in the home of Nicolas de la Cruz.
On the night of November 25, 1930, while
Nicolas de la Cruz and his wife, Antonia de la
Cruz, were gathered together with the
appellants herein after supper, Martin Atienza
told said couple to take their furniture out of the

307

house because he was going to set fire to it.

Upon being asked by Nicolas and Antonia why
he wanted to set fire to the house, he answered
that that was the only way he could be
revenged upon the people of Masocol who, he
said, had instigated the charge of adultery
against him and his codefendant, Romana
Silvestre. As Martin Atienza was at that time
armed with a pistol, no one dared say anything
to him, not even Romana Silvestre, who was
about a meter away from her codefendant.
Alarmed at what Martin Atienza had said, the
couple left the house at once to communicate
with the barrio lieutenant, Buenaventura Ania,
as to what they had just heard Martin Atienza
say; but they had hardly gone a hundred arms'
length when they heard cries of "Fire! Fire!"
Turning back they saw their home in flames,
and ran back to it; but seeing that the fire had
assumed considerable proportions, Antonia took
refuge in the schoolhouse with her 1 year old
babe in her arms, while Nicolas went to the
home of his parents-in-law, took up the
furniture he had deposited there, and carried it
to the schoolhouse. The fire destroyed about
forty-eight houses. Tomas Santiago coming

from the barrio artesian well, and Tomas

Gonzalez, teacher at the barrio school of
Masocol, and Felipe Clemente, an old man 61
years of age, coming from their homes, to the
house on fire, saw Martin Atienza going away
from the house where the fire started, and
Romana Silvestre leaving it.lawphil.net
As stated in the beginning, counsel appointed
by this court to defend the accusedappellant de oficio, prays for the affirmance of
the judgment appealed from with reference to
defendant Martin Atienza. The facts related
heretofore, proved beyond a reasonable doubt
at the hearing, justify this petition of the de
oficio counsel, and establish beyond a
reasonable doubt said defendant's guilt of arson
as charged, as principal by direct participation.
With respect to the accused-appellant Romana
Silvestre, the only evidence of record against
her are: That, being married, she lived
adulterously with her codefendant Martin
Atienza, a married man; that both were
denounced for adultery by Domingo Joaquin,
Romana Silvestre's second husband; that in

308

view of the petition of the accused, who

promised to discontinue their life together, and
to leave the barrio of Masocol, and through the
good offices of the municipal president of
Paombong, the complaining husband asked for
the dismissal of the complaint; that in
pursuance of their promise, both of the accused
went to lived in the barrio of Santo Nio, in the
same municipality; that under pretext for some
nipa leaves from her son by her former
marriage, Nicolas de la Cruz, who had gone to
the barrio of Santo Nio, Romana Silvestre
followed him to his house in the barrio of
Masocol on November 23, 1930, and remained
there; that her codefendant, Martin Atienza
followed her, and stayed with his coaccused in
the same house; that on the night of November
25, 1930, at about 8 o'clock, while all were
gathered together at home after supper, Martin
Atienza expressed his intention of burning the
house as the only means of taking his revenge
on the Masocol resident, who had instigated
Domingo Joaquin to file the complaint for
adultery against them, which compelled them to
leave the barrio of Masocol; that Romana
Silvestre listened to her codefendant's threat

without raising a protest, and did not give the

alarm when the latter set fire to the house.
Upon the strength of these facts, the court
below found her guilty of arson as accomplice.
Article 14 of the Penal Code, considered in
connection with article 13, defines an
accomplice to be one who does not take a direct
part in the commission of the act, who does not
force or induce other to commit it, nor
cooperates in the commission of the act by
another act without which it would not have
been accomplished, yet cooperates in the
execution of the act by previous or
simultaneous actions.
Now then, which previous or simultaneous acts
complicate Romana Silvestre in the crime of
arson committed by her codefendant Martin
Atienza? Is it her silence when he told the
spouses, Nicolas de la Cruz and Antonia de la
Cruz, to take away their furniture because he
was going to set fire to their house as the only
means of revenging himself on the barrio
residents, her passive presence when Martin
Atienza set fire to the house, where there is no

309

evidence of conspiracy or cooperation, and her

failure to give the alarm when the house was
already on fire?
The complicity which is penalized requires a
certain degree of cooperation, whether moral,
through advice, encouragement, or agreement,
or material, through external acts. In the case
of the accused-appellant Romana Silvestre,
there is no evidence of moral or material
cooperation, and none of an agreement to
commit the crime in question. Her mere
presence and silence while they are
simultaneous acts, do not constitute
cooperation, for it does not appear that they
encouraged or nerved Martin Atienza to commit
the crime of arson; and as for her failure to give
the alarm, that being a subsequent act it does
not make her liable as an accomplice.
The trial court found the accused-appellant
Martin Atienza guilty of arson, defined and
penalized in article 550, paragraph 2, of the
Penal Code, which reads as follows:
ART. 550. The penalty of cadena
temporal shall be imposed upon:

xxx

xxx

xxx

2. Any person who shall set fire to any

inhabited house or any building in which
people are accustomed to meet together,
without knowing whether or not such
building or house was occupied at the
time, or any freight train in motion, if the
damage caused in such cases shall exceed
six thousand two hundred and fiftypesetas.
While the defendant indeed knew that besides
himself and his codefendant, Romana Silvestre,
there was nobody in De la Cruz's house at the
moment of setting fire to it, he cannot be
convicted merely arson less serious than what
the trial court sentenced him for, inasmuch as
that house was the means of destroying the
others, and he did not know whether these
were occupied at the time or not. If the greater
seriousness of setting fire to an inhabited
house, when the incendiary does not know
whether there are people in it at the time,
depends upon the danger to which the inmates
are exposed, not less serious is the arson
committed by setting fire to inhabited houses

310

by means of another inhabited house which the

firebrand knew to be empty at the moment of
committing the act, if he did not know whether
there were people or not in the others,
inasmuch as the same danger exists.
With the evidence produced at the trial, the
accused-appellant Martin Atienza might have
been convicted of the crime of arson in the
most serious degree provided for in article 549
of the Penal Code, if the information had
alleged that at the time of setting fire to the
house, the defendant knew that the other
houses were occupied, taking into account that
barrio residents are accustomed to retire at the
tolling of the bell for the souls in purgatory, i.e.,
at 8 o'clock at night.
For all the foregoing considerations, we are of
the opinion and so hold, that: (1) Mere passive
presence at the scene of another's crime, mere
silence and failure to give the alarm, without
evidence of agreement or conspiracy, do not
constitute the cooperation required by article 14
of the Penal Code for complicity in the
commission of the crime witnessed passively, or

with regard to which one has kept silent; and

(2) he who desiring to burn the houses in a
barrio, without knowing whether there are
people in them or not, sets fire to one known to
be vacant at the time, which results in
destroying the rest, commits the crime of
arson, defined and penalized in article 550,
paragraph 2, Penal Code.
By virtue wherefore, the judgment appealed
from is modified as follows: It is affirmed with
reference to the accused-appellant Martin
Atienza, and reversed with reference to the
accused-appellant Romana Silvestre, who is
hereby acquitted with
one-half of the costs de oficio. So ordered.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-32126 July 6, 1978

311

THE PEOPLE OF THE PHILIPPINES, plaintiffappellee,

vs.
NEMESIO TALINGDAN, MAGELLAN TOBIAS,
AUGUSTO BERRAS, PEDRO BIDES and
TERESA DOMOGMA,accused-appellants.

PER CURIAM:
Appeal from the conviction for the crime of
murder and the sentence of life imprisonment,
with indemnity to the offended party, the heirs
of the deceased Bernardo Bagabag, in the
amount of P12,000, rendered by the Court of
First Instance of Abra in its Criminal Case No.
686, of all the accused the namely, Nemesio
Talingdan, Magellan Tobias, Augusta Berras,
Pedro Bides and Teresa Domogma, the last
being the supposed wife of the deceased, who,
because no certificate nor any other proof of
their marriage could be presented by the
prosecution, could not be charged with
parricide.

Prior to the violent death of Bernardo Bagabag

on the night of June 24, 1967, he and appellant
Teresa Domogma and their children, arrived
together in their house at Sobosob, Salapadan,
Abra, some 100 meters distant from the
municipal building of the place. For sometime,
however, their relationship had been strained
and beset with troubles, for Teresa had
deserted their family home a couple of times
and each time Bernardo took time out to look
for her. On two (2) different occasions,
appellant Nemesis Talingdan had visited Teresa
in their house while Bernardo was out at work,
and during those visits Teresa had made
Corazon, their then 12-year old daughter living
with them, go down the house and leave them.
Somehow, Bernardo had gotten wind that illicit
relationship was going on between Talingdan
and Teresa, and during a quarrel between him
and Teresa, he directly charged the latter that
should she get pregnant, the child would not be
his. About a month or so before Bernardo was
killed, Teresa had again left their house and did
not come back for a period of more than three
(3) weeks, and Bernardo came to know later
that she and Talingdan were seen together in

312

the town of Tayum Abra during that time; then

on Thursday night, just two (2) days before he
was gunned down, Bernardo and Teresa had a
violent quarrel; Bernardo slapped Teresa
several times; the latter went down the house
and sought the help of the police, and shortly
thereafter, accused Talingdan came to the
vicinity of Bernardo's house and called him to
come down; but Bernardo ignored him, for
accused Talingdan was a policeman at the time
and was armed, so the latter left the place, but
not without warning Bernardo that someday he
would kin him. Between 10:00 and 11:00
o'clock the following Friday morning, Bernardo's
daughter, Corazon, who was then in a creek to
wash clothes saw her mother, Teresa, meeting
with Talingdan and their co-appellants Magellan
Tobias, Augusto Berras and Pedro Bides in a
small hut owned by Bernardo, some 300 to 400
meters away from the latter's house; as she
approached them, she heard one of them say
"Could he elude a bullet"; and when accused
Teresa Domogma noticed the presence of her
daughter, she shoved her away saying "You tell
your father that we will kill him".

Shortly after the sun had set on the following

day, a Saturday, June 24, 1967, while the same
12-year old daughter of Bernardo was cooking
food for supper in the kitchen of their house,
she saw her mother go down the house through
the stairs and go to the yard where she again
met with the other appellants. As they were
barely 3-4 meters from the place where the
child was in the "batalan", she heard them
conversing in subdued tones, although she
could not discern what they were saying. She
was able to recognize all of them through the
light coming from the lamp in the kitchen
through the open "batalan" and she knows
them well for they are all residents of Sobosob
and she used to see them almost everytime.
She noted that the appellants had long guns at
the time. Their meeting did not last long, after
about two (2) minutes Teresa came up the
house and proceeded to her room, while the
other appellants went under an avocado tree
nearby. As supper was then ready, the child
caged her parents to eat, Bernardo who was in
the room adjoining the kitchen did not heed his
daughter's call to supper but continued working
on a plow, while Teresa also excused herself by

313

saying she would first put her small baby to

sleep. So Corazon ate supper alone, and as
soon as she was through she again called her
parents to eat. This time, she informed her
father about the presence of persons
downstairs, but Bernardo paid no heed to what
she said. He proceeded to the kitchen and sat
himself on the floor near the door. Corazon
stayed nearby watching him. At that moment,
he was suddenly fired upon from below the
stairs of the "batalan". The four accused then
climbed the stairs of the "batalan" carrying their
long guns and seeing that Bernardo was still
alive, Talingdan and Tobias fired at him again.
Bides and Berras did not fire their guns at that
precise time, but when Corazon tried to call for
help Bides warned her, saying "You call for help
and I will kill you", so she kept silent. The
assailants then fled from the scene, going
towards the east.
The first to come to the aid of the family was
Corazon's male teacher who lived nearby.
Teresa came out of her "silid" later; she pulled
Corazon aside and questioned her, and when
Corazon informed her that she recognized the

killers of her father to be her co-appellants

herein, she warned her not to reveal the matter
to anyone, threatening to kill her if she ever did
so. Still later on, other persons arrived and
helped fix and dress the lifeless body of the
victim, Bernardo, autopsy on which was
performed in his own house by the Municipal
Health Officer of the place on June 26, 1967,
about 36 hours after death; burial took place on
the same day. The victim's brother who came
from Manila arrived one day after the burial
followed by their mother who came from La
Paz, Abra where she resides. Corazon, who had
not earlier revealed the Identities of the killers
of her father because she was afraid of her own
mother, was somehow able to reveal the
circumstances surrounding his killing to these
immediate relatives of hers, and the sworn
statement she thereafter executed on August 5,
1967 (Exh. B) finally led to the filing of the
information for murder against the herein five
(5) appellants.
On the other hand, according to the evidence
for the defense: Teresa prior to her marriage
with Bernardo, was a resident of the town of

314

Manabo, Abra. She has a sister in Manila and

two (2) brothers in America who love her
dearly, that is why said brothers of hers had
been continuously and regularly sending her
monthly $100.00 in checks, starting from the
time she was still single up to the time of her
husband's violent death on June 24, 1967, and
thereafter. After their marriage, they moved to
and resided in her husband's place in
Sallapadan, Abra, bringing with them three (3)
carabaos and two (2) horses, which Bernardo
and she used in tilling a parcel of land in said
place, separate and distinct from the parcel of
land worked on by Bernardo's parents and their
other children. She and Bernardo lived in their
own house which was about 4-5 meters away
from the house of her parents-in-law. She loved
Bernardo dearly, they never quarreled, and her
husband never maltreated her; although
sometimes she had to talk to Bernardo when he
quarrels with his own mother who wanted that
Bernardo's earnings be given to her, (the
mother) which Bernardo never did, and at those
times, Bernardo would admonish Teresa "You
leave me alone". Her in-laws also hated her
because her mother-in-law could not get the

earnings of Bernardo for the support of her

other son, Juanito, in his schooling. On his part,
Juanito also disliked her because she did not
give him any of the carpentry tools which her
brothers in America were sending over to her.
She never left their conjugal home for any long
period of time as charged by her mother-in-law,
and if she ever did leave the house to go to
other places they were only during those times
when she had to go to Bangued to cash her
dollar checks with the PNB branch there, and
even on said trips, she was sometimes
accompanied by Bernardo, or if she had to go
alone and leaves Sallapadan in the morning,
she rode in a weapons carrier along with
merchants going to Bangued in the morning
and always rode back with them to Sallapadan
in the afternoon of the same day because the
weapons carrier is owned by a resident of
Sallapadan who waits for them. Teresa came to
know Talingdan only when the latter became a
policeman in Sallapadan, as whenever any of
the carabaos and horses they brought from
Manabo to Sallapadan got lost, she and
Bernardo would go and report the matter to the
Mayor who would then refer the matter to his

315

policemen, one of whom is Talingdan, so that

they may help locate the lost animals; Teresa
knew Talingdan well because they are
neighbors, the latter's home being only about
250-300 meters away from theirs. But illicit
relationship had never existed between them.
Early in the evening of June 24, 1967, Teresa
was in the kitchen of their house cooking their
food for supper. Two of the children, Corazon
and Judit, were with her. Her husband,
Bernardo, was then in the adjoining room
making a plow. He had to make the plow at that
time of the night because at daytime he worked
as a carpenter in the convent. As soon as the
food was ready, she and the children moved
over to the adjoining room where Bernardo was
to call him for supper, and he then proceeded to
the kitchen to eat. Teresa and the two children
were about to follow him to the kitchen when
suddenly they heard more than five (5) or six
(6) successive gun shots coming from near their
"batalan". They were all so terrified that they
immediately cried for help, albeit she did not
know yet at that precise time that her husband
was shot, as she and the children were still in

the other room on their way to the kitchen,

about three (3) meters away from Bernardo.
But soon Teresa heard her husband crying in
pain, and as soon as she reached him, she took
Bernardo into her arms. She did not see the
killers of her husband, as the night was then
very dark and it was raining. Bernardo was in
her arms when the first group of people who
responded to their cry for help arrived. Among
them were the chief of police, some members of
the municipal council and appellant Tobias who
even advised Teresa not to carry the lifeless
body of Bernardo to avoid abortion as she was
then six (6) months pregnant. The chief of
police then conducted an investigation of the
surroundings and he found some empty shells
and foot prints on the ground some meters
away from the "batalan". He also found some
bullet holes on the southern walls of said
"batalan" and on the nothern wallings of the
kitchen. Later, Teresa requested some persons
to relay the information about the death of her
husband to her relatives in Manabo, Abra, and
they in turn passed on the news to Bernardo's
mother and her family in La Paz, Abra, where
they were then residing, as they have left their

316

house in Sallapadan about two (2) months

previous after they lost the land they used to till
there in a case with the natives called Tingians.
Two (2) PC soldiers arrived in the afternoon of
June 26, 1967, and after Bernardo's remains
was autopsied and he was buried under their
house, they conducted an investigation, but she
did not give them any information relative to
the Identity of the persons who shot her
husband because she did not really see them.
Her mother-in-law and a brother-in-law, Juanita
Bagabag, arrived later, the former from the
town of La Paz, Abra, and the latter from
Manila, and after the usual nine (9) days
mourning was over, they left Sallapadan, taking
Teresa's children under their custody. Teresa
suspects that since her mother-in-law and her
brother-in-law have axes to grind against her
and they have her daughter, Corazon, under
their custody, they had forced the said child to
testify against her. She further declared that her
late husband, Bernardo, had enemies during his
lifetime, as he had quarrels with some people
over the land they work on.

Furthermore, the defense presented evidence to

the effect that: Talingdan was not in Sallapadan
at the time of the killing of Bernardo on June
24, 1967; being a policeman of the place at the
time, he was one of the two (2) policemen who
escorted and acted as bodyguard of the Mayor,
when the latter attended the cursillo in
Bangued, all of them leaving Sallapadan on
June 22 and returning thereto four (4) days
later on June 26, hence, he could not have
anything to do with the said killing. On the
other hand, Tobias claimed to be in the house of
one Mrs. Bayongan in Sallapadan on the date of
said killing, but he was one of the persons who
was called upon by the chief of police of the
place to accompany him in answer to the call
for help of the wife of the victim. The other two
appellants Bides and Berras also alleged that
they were in the same house of Mrs. Bayongan
on that date; they are tillers of the land of said
Mrs. Bayongan and had been staying in her
house for a long time. They were sleeping when
the chief of police came that evening and asked
Tobias, who was then municipal secretary, to
accompany him to the place of the shooting.
They did not join them, but continued sleeping.

317

They never left the said house of Mrs.

Bayongan, which is about 250-300 meters away
from the place of the killing, that evening of
June 24, 1967.
After carefully weighing the foregoing conflicting
evidence of the prosecution and defense, We
have no doubt in Our mind that in that fatal
evening of June 24, 1967, appellants Nemesio
Talingdan, Magellan Tobias, Augusto Berras and
Pedro Bides, all armed with long firearms and
acting inconspiracy with each other gunned
down Bernardo as the latter was sitting by the
supper table in their house at Sobosob,
Sallapadan, Abra. They were actually seen
committing the offense by the witness Corazon.
She was the one who prepared the food and
was watching her father nearby. They were all
known to her, for they were all residents of
Sobosob and she used to see them often before
that night. Although only Talingdan and Tobias
continued firing at her father after they had
climbed the stairs of the "batalan", it was Bides
who threatened her that he would kill her if she
called for help. Berras did not fire any shot
then. But even before the four appellants went

up the "batalan", they already fired shots from

downstairs.
We also fully believe Corazon's testimony that
two nights before, or on Thursday, June 22,
1967, the deceased Bernardo and appellant
Teresa had a violent quarrel during which he
slapped her several times. She went to seek the
help of the police, and it was appellant
Talingdan, a policeman of their town, who went
to the vicinity of their house and challenged her
father to come down, but the latter refused
because the former was a policeman and was
armed. And so, Talingdan left after shouting to
her father that "If I will find you someday, I will
kill you."
We likewise accept as truthful, Corazon's
declaration regarding the amorous relationship
between her mother and appellant Talingdan, as
already related earlier above. So also her
testimony that in the morning following the
quarrel between her father and her mother and
the threat made by Talingdan to the former,
between 10:00 and 11:00 o'clock, she saw all
the herein four male accused-appellants

318

meeting with her mother in a small hut some

300 or 400 meters away from their house, near
where she was then washing clothes, and that
on said occasion she overheard one of them ask
"Could (sic) he elude a bullet?", We have our
doubts, however, as to whether or not her
mother did say to her in shoving her away upon
seeing her approach, "You tell your father we
will kill him." If it were true that there was
really such a message, it is to be wondered why
she never relayed the same to her father,
specially when she again saw the said
appellants on the very night in question shortly
before the shooting talking together in subdued
tones with her mother and holding long arms.
Moreover, it is quite unnatural that such a
warning could have been done in such a
manner.
Accordingly, it is Our conclusion from the
evidence related above and which We have
carefully reviewed that appellants Nemesio
Talingdan, Magellan Tobias, Augusto Berras and
Pedro Bides are guilty of murder qualified by
treachery, as charged, and that they committed
the said offense in conspiracy with each other,

with evident premeditation and in the dwelling

of the offended party. In other words, two
aggravating circumstances attended the
commission of the offense, namely, evident
premeditation and that it was committed in the
dwelling of the victim. No mitigating
circumstance has been proven.
Appellants insist in their brief that the lone
testimony of Corazon suffered from vital
contradictions and inconsistencies and badges
of falsehood because of patently unnatural
circumstances alleged by her. We do not agree.
As the Solicitor General has well pointed out,
the fact that the witness varied on crossexamination the exact time of some of the
occurrences she witnessed, such as, (1)
whether it was before or after Bernardo had
began eating when he was shot; (2) whether it
was before or after seeing her mother's meeting
with her co-accused in the morning of Friday,
June 23, 1967, that she went to wash clothes;
and (3) whether or not the accused were
already upstairs or still downstairs when they
first fired their guns, cannot alter the veracity of
her having seen appellants in the act of

319

mercilessly and cold-bloodedly shooting her

father to death.
Contrary to the contention of appellants, there
was nothing inherently unnatural in the
circumstances related by her. We agree with the
following rebuttal of the Solicitor General:
Appellants also attempt to buttress
their attack against the credibility of
Corazon Bagabag by pointing out five
supposed unnatural declarations in
her testimony; First, she said that her
father, appeared unconcerned when
she informed him of the presence of
people downstairs. But as correctly
observed by the prosecuting fiscal the
witness does not know then "the
mentality of her father" (p. 62, t.s.n.,
hearing of March 29, 1968). Second,
Corazon also declared that the
accused conversed that Saturday
night preceding the day the crime
charged was committed in a lighted
place although there was a place
which was unlighted in the same

premises. But this only proves that

the accused were too engrossed in
their conversation, unmindful of
whether the place where they were
talking was lighted or not, and
unmindful even of the risk of
recognition. Third, witness declared
that Pedro Bides and Augusto Berras
did not fire their guns. Even if these
accused did withhold their fire,
however, since they were privies to
the same criminal design, would this
alter their culpability? Should the
witness Corazon Bagabag be
discredited for merely stating an
observation on her part which is not
inherently unnatural? Fourth, Corazon
also declared that only three bullets
from the guns of the four male
accused found their mark on the body
of her father. But would this not
merely prove that not all the accused
were good shots? And fifth, the
witness declared that her father was
still able to talk after he was shot yet
Dr. Jose Dalisan declared that his

320

death was instantaneous It is

respectfully submitted, however, that
the doctor's opinion could yield to the
positive testimony of Corazon
Bagabag in this regard without in the
least affecting the findings of said
doctor as regards the cause of the
death of the deceased. As thus
viewed, there are no evident badges
of falsehood in the whole breadth and
length of Corazon Bagabag's
testimony. (Pp. 9-10, People's Brief.)
Why and how Corazon could have concocted her
version of the killing of her father, if it were not
basically true, is hardly conceivable, considering
she was hardly thirteen (13) years old when she
testified, an age when according to Moore, a
child , is, as a rule, but little influenced by the
suggestion of others" because "he has already
got some principles, lying is distasteful to him,
because he thinks it is mean, he is no stranger
to the sentiment of self- respect, and he never
loses an opportunity of being right in what he
affirms." (II Moore on Facts, pp. 1055-1056.)
No cogent explanation has been offered why

she would attribute the assault on her father to

three other men, aside from Talingdan whom
she knew had relations with her mother, were
she merely making-up her account of how he
was shot, no motive for her to do so having
been shown.
Demolishing the theory of the accused that
such testimony was taught to her by her uncle,
His Honor pointed out that said "testimony, both
direct and cross, would show that she was
constant, firm and steady in her answers to
questions directed to her." We have Ourselves
read said testimony and We are convinced of
the sincerity and truthfulness of the witness. We
cannot, therefore, share appellants'
apprehension in their Seventh Assignment of
Error that the grave imputation of a mother's
infidelity and her suggested participation in the
killing of her husband, would if consistently
impressed in the mind of their child, constitute
a vicious poison enough to make the child, right
or wrong, a willing instrument in any scheme to
get even with her wicked mother. We feel
Corazon was too young to he affected by the
infidelity of her mother in the manner the

321

defense suggests. We are convinced from a

reading of her whole testimony that it could not
have been a fabrication. On the whole, it is too
consistent for a child of thirteen years to be
able to substantially maintain throughout her
stay on the witness stand without any fatal
flaw, in the face of severe and long crossinterrogations, if she had not actually witnessed
the event she had described. We reject the
possibility of her having been "brainwashed or
coached" to testify as she did.
The second to the sixth assignments of error in
the appeal brief do not merit serious
consideration. Anent these alleged errors,
suffice it to say that the following refutations of
the Solicitor General are well taken:
Appellants also decry that the trial
court allegedly failed to consider the
testimony of Dr. Dalisan that the
distance between the assailants and
the deceased could have been 4 to 5
meters when the shots were fired.
But the appellants overlook the
testimony of Corazon Bagabag that

when the first shot was fired, the

gunman was about 3- meters from
her father (p. 60, t.s.n., hearing of
March 29, 1968), which disproves the
theory of the defense that the killers
fired from a stonepile under
an avocado tree some 4 to 5 meters
away from the deceased's house.
Appellants also insist that the Court a
quoignored the testimonies of
defense witness Cpl. Bonifacio Hall
and Chief of Police Rafael Berras on
their having found bullet marks on
the southern walling of the house of
the deceased, as well as empty cal.
30 carbine shells under the
aforementioned avocado tree. The
trial court, however, made the
following apt observations on the
testimony of defense witness Cpl.
Bonifacio Hall:
This witness stated that we went to
the house of the deceased to
investigate the crime after the
deceased had already been buried;

322

that he investigated the widow as

well as the surroundings of the house
where the deceased was shot. He
found empty shells of carbine under
the avocado tree. He stated that the
'batalan' of the house of the deceased
has a siding of about 1- meters
high and that he saw bullet holes on
the top portion of the wall directly
pointing to the open door of the
'batalan' of the house of the
deceased. When the court asked the
witness what could have been the
position of the assailant in shooting
the deceased, he stated that the
assailant might have been standing.
The assailant could not have made a
bullet hole on the top portion of the
sidings of the 'batalan' because the
'batalan' is only 1- meters high, and
further, when asked as to the level of
the ground in relation to the top
sidings of the 'batalan,' he answered
that it is in the same level with the
ground. If this is true, it is impossible
for the assailant to make a bullet hole

at the top portion sidings of the

'batalan,' hence, the testimony of this
witness who is a PC corporal is of no
consequence and without merit. The
court is puzzled to find a PC corporal
testifying for the defense in this case,
which case was filed by another PC
sergeant belonging to the same unit
and assigned in the same province of
Abra (pp. 324- 325, rec.).
As regards the empty shells also
found in the vicinity of the shooting,
suffice it to state that no testimony
has been presented, expert or
otherwise, linking said shells to the
bullets that were fired during the
shooting incident. Surmises in this
respect surely would not overcome
the positive testimony of Corazon
Bagabag that the accused shot her
father as they came up the 'batalan'
of their house. (Pp. 11-12, People's
Brief.)

323

At the trial, the four male appellants tried to

prove that they were not at the scene of the
crime when it happened. This defense of alibi
was duly considered by the trial court, but it
was properly brushed aside as untenable. In
their brief, no mention thereof is made, which
goes to show that in the mind of the defense
itself,. it cannot be successfully maintained and
they do not, therefore, insist on it. Nonetheless,
it would do well for this Court to specifically
affirm the apt pertinent ratiocination of His
Honor in reference thereto thus:
This defense, therefore, is alibi which,
in the opinion of the court, can not
stand firmly in the face of a positive
and unwavering testimony of the
prosecution witness who pointed out
to the accused as the authors of the
crime. This is so because, first,
according to the three accused
Bides, Tobias and Berras they were
sleeping at 8:00 o'clock that night in
the house of Mrs. Bayongan which is
only 250 meters away from the scene
of the crime. Granting, for the sake of

argument, but without admitting, that

they were already sleeping at 8:00
o'clock in the house of Mrs.
Bayongan, Corazon Bagabag clearly
stated that her father was gunned
down at sunset which is
approximately between 6:00 and
6:30 in the evening, hence, the
accused Tobias, Berras and Bides
could have committed the crime and
went home to sleep in the house of
Mrs. Bayongan after the commission
of the crime. According to Pedro
Bides, the house of Mrs. Bayongan is
only 250 meters away from the house
of the victim. Second, the three
accused have failed miserably to
present the testimony of Mrs.
Bayongan, the owner of the house
where they slept that night to
corroborate or bolster their defense of
alibi. (Pp. 27A-28A, Annex of
Appellants' Brief.)
xxx xxx xxx

324

Nemesio Talingdan, alias Oming, the

last of the accused, also in his
defense of alibi, stated that on June
22, 1967, he accompanied Mayor
Gregorio Banawa of Sallapadan to
Bangued, together with policeman
Cresencio Martinez for the purpose of
attending a cursillo in Bangued They
started in Sallapadan in the early
morning of June 22, 1967 and arrived
in Bangued the same day. According
to him, he went to accompany the
mayor to the cursillo house near the
Bangued Cathedral and after
conducting the mayor to the cursillo
house, he went to board in the house
of the cousin of Mayor Banawa near
the Filoil Station at Bangued, Abra.
From that time, he never saw the
mayor until after they went home to
Sallapadan on June 26th.
This kind of alibi could not gain much
weight because he could have
returned anytime on the evening of
June 22 or anytime before the

commission of the offense to

Sallapadan and commit the crime on
the 24th at sunset, then returned to
Bangued, Abra to fetch the mayor
and bring him back to Sallapadan on
the 26th.
The irony of this defense of alibi is
that the mayor who was alleged to
have been accompanied by witnessaccused is still living and very much
alive. As a matter of fact, Mayor
Gregorio Banawa is still the mayor of
Sallapadan, Abra, and also policeman
Cresencio Martinez, another
policeman who accompanied the
mayor to Bangued, is also still living
and still a policeman of Sallapadan.
Why were not the mayor and the
policeman presented to corroborate
or deny the testimony of Nemesio
Talingdan?
Conrado B. Venus, Municipal Judge of
Penarrubia Abra, and a member of
the Cursillo Movement, was presented

325

as rebuttal witness for the

prosecution. On the witness stand, he
stated that he belongs to Cursillo No.
3 of the Parish of Bangued, Abra, and
said cursillo was held on October 20
to 23, 1966, at the St. Joseph
Seminary in Galicia, Pidigan Abra,
and not on June 23 to 26, 1967. As a
matter of fact, Mayor Banawa of
Sallapadan also attended the cursillo
held on October 20 to 23, 1966, as
could be seen in his 'Guide Book'
where the signature of Gregorio
Banawa appears because they both
attended Cursillo No. 3 of the Parish
of Bangued.
(To) this testimony of the rebuttal
witness belies partly, if not in full, the
testimony of accused Nemesio
Talingdan. (Pp. 29A-30A, Annex of
Appellants' Brief.)
Coming now to the particular case of appellant
Teresa Domogma, as to whom the Solicitor
General has submitted a recommendation of

acquittal, We find that she is not as wholly

innocent in law as she appears to the Counsel
of the People. It is contended that there is no
evidence proving that she actually joined in the
conspiracy to kill her husband because there is
no showing of 'actual cooperation" on her part
with her co-appellants in their culpable acts that
led to his death. If at all, what is apparent, it is
claimed, is "mere cognizance, acquiescence or
approval" thereof on her part, which it is argued
is less than what is required for her conviction
as a conspirator per People vs. Mahlon, 99 Phil.
1068. We do not see it exactly that way.
True it is that the proof of her direct
participation in the conspiracy is not beyond
reasonable doubt, for which reason, sue cannot
have the same liability as her co-appellants.
Indeed, she had no hand at all in the actual
shooting of her husband. Neither is it clear that
she helped directly in the planning and
preparation thereof, albeit We are convinced
that she knew it was going to be done and did
not object. (U.S. vs. Romulo, 15 Phil. 408, 411414.) It is not definitely shown that she
masterminded it either by herself alone or

326

together with her co-appellant Talingdan. At

best, such conclusion could be plain surmise,
suspicion and conjecture, not really includible.
After all, she had been having her own
unworthy ways with him for quite a long time,
seemingly without any need of his complete
elimination. Why go to so much trouble for
something she was already enjoying, and not
even very surreptitiously? In fact, the only
remark Bernardo had occasion to make to
Teresa one time was "If you become pregnant,
the one in your womb is not my child." The
worst he did to her for all her faults was just to
slap her.
But this is not saying that she is entirely free
from criminal liability. There is in the record
morally convincing proof that she is at the very
least an accessory to the offense committed by
her co-accused. She was inside the room when
her husband was shot. As she came out after
the shooting, she inquired from Corazon if she
was able to recognize the assailants of her
father. When Corazon Identified appellants
Talingdan, Tobias, Berras and Bides as the
culprits, Teresa did not only enjoin her daughter

not to reveal what she knew to anyone, she

went to the extent of warning her, "Don't tell it
to anyone. I will kill you if you tell this to
somebody." Later, when the peace officers who
repaired to their house to investigate what
happened, instead of helping them with the
information given to her by Corazon, she
claimed she had no suspects in mind. In other
words, whereas, before the actual shooting of
her husband, she was more or less passive in
her attitude regarding her co-appellants'
conspiracy, known to her, to do away with him,
after Bernardo was killed, she became active in
her cooperation with them. These subsequent
acts of her constitute "concealing or assisting in
the escape of the principal in the crime" which
makes her liable as an accessory after the fact
under paragraph 3 of Article 19 of the Revised
Penal Code.
As already indicated earlier, the offense
committed by appellants was murder qualified
by treachery. It being obvious that appellants
deliberately chose nighttime to suddenly and
without warning assault their victim, taking
advantage of their number and arms, it is

327

manifest that they employed treachery to insure

success in attaining their malevolent objective.
In addition, it is indisputable that appellants
acted with evident premeditation. Talingdan
made the threat to kill Bernardo Thursday
night, then he met with his co-accused to work
out their conspiracy Friday and again on
Saturday evening just before the actual
shooting. In other words, they had motive
Talingdan's taking up the cudgels for his
paramour, Teresa and enough time to meditate,
and desist, if they were not resolved to proceed
with their objective. Finally, they committed the
offense in the dwelling of the offended party.
In these premises, the crime committed by the
male appellants being murder, qualified by
treachery, and attended by the generic
aggravating circumstances of evident
premeditation and that the offense was
committed in the dwelling of the offended party,
the Court has no alternative under the law but
to impose upon them the capital penalty.
However, as to appellant Teresa, she is hereby
found guilty only as an accessory to the same
murder.

WHEREFORE, with the above finding of guilt

beyond reasonable doubt of the appellants
Nemesio Talingdan, Magellan Tobias, Augusto
Berras and Pedro Bides of the crime of murder
with two aggravating circumstances, without
any mitigating circumstance to offset them,
they are each hereby sentenced to DEATH to be
executed in accordance with law. Guilty beyond
reasonable doubt as accessory to the same
murder, appellant Teresa Domogma is hereby
sentenced to suffer the indeterminate penalty of
five (5) years of prision correccional as
minimum to eight (8) years of prision mayor as
maximum, with the accessory penalties of the
law. In all other respects, the judgment of the
trial court is affirmed, with costs against
appellants.

328

Republic of the Philippines

SUPREME COURT
Manila

G.R. No. 97471 February 17, 1993

267 of the Revised Penal Code, as charged in

the information; or a violation of Presidential
Decree No. 532 (Anti-Piracy and Anti-Highway
Robbery Law of 1974), as contended by the
Solicitor General and found by the trial court; or
the offense of simple robbery punished by
Paragraph 5, Article 294 of the Revised Penal
Code, as claimed by the defense.

PEOPLE OF THE PHILIPPINES, plaintiffappellee,

vs.
ISABELO PUNO y GUEVARRA, alias "Beloy,"
and ENRIQUE AMURAO y PUNO, alias
"Enry," accused-appellants.

In an information dated and filed on May 31,

1989 in the Regional Trial Court of Quezon City,
Branch 103, as Criminal Case No. Q-57404
thereof, appellants were charged with
kidnapping for ransom allegedly committed in
the following manner:

SECOND DIVISION

The Solicitor General for plaintiff-appellee.

Edward C. Castaeda for accused-appellants.

REGALADO, J.:
The primal issue for resolution in this case is
whether accused-appellants committed the
felony of kidnapping for ransom under Article

That on or about the 13th day of

January, 1988 in Quezon City,
Philippines and within the jurisdiction
of this Honorable Court, the said
accused, being then private
individuals, conspiring together,
confederating with and mutually
helping each other, did, then and
there, wilfully, unlawfully and
feloniously kidnap and carry away

329

one MARIA DEL SOCORRO

SARMIENTO y MUTUC * for the
purpose of extorting ransom, to the
damage and prejudice of the said
offended party in such amount as
may be awarded to her under the
provisions of the Civil Code. 1
On a plea of not guilty when
arraigned, 2 appellants went to trial which
ultimately resulted in a judgment promulgated
on September 26, 1990 finding them guilty of
robbery with extortion committed on a highway,
punishable under Presidential Decree No. 532,
with this disposition in the fallo thereof:
ACCORDINGLY, judgment is hereby
rendered finding the accused
ISABELO PUNO and ENRIQUE
AMURAO GUILTY as principals of
robbery with extortion committed on
a highway and, in accordance with
P.D. 532, they are both sentenced to
a jail term of reclusion perpetua.
The two accused are likewise ordered
to pay jointly and severally the

offended private victim Ma. Socorro

M. Sarmiento the sum of P7,000.00
as actual damages and P3,000.00 as
temperate damages. 3
Before us now in this appeal, appellants
contend that the court a quo erred (1) in
convicting them under Presidential Decree No.
532 since they were not expressly charged with
a crime therein; (2) in applying Sections 4 and
5, Rule 120 of the Rules of Court since the
charge under said presidential decree is not the
offense proved and cannot rightly be used as
the offense proved which is necessarily included
in the offense charged. 4
For the material antecedents of this case, we
quote with approval the following counterstatement of facts in the People's brief 5 which
adopted the established findings of the court a
quo, documenting the same with page
references to the transcripts of the proceedings,
and which we note are without any substantial
divergence in the version proffered by the
defense.

330

This is a prosecution for kidnapping

for ransom allegedly done on January
13, 1988 by the two accused (tsn,
Jan. 8, 1990, p. 7).
Mrs. Maria Socorro Mutuc-Sarmiento
owns a bakeshop in Araneta Avenue,
Quezon City called Nika Cakes and
Pastries. She has a driver of her own
just as her husband does (Ibid., pp.
4-6).
At around 5:00 in the afternoon of
January 13, 1988, the accused
Isabelo Puno, who is the personal
driver of Mrs. Sarmiento's husband
(who was then away in Davao
purportedly on account of local
election there) arrived at the
bakeshop. He told Mrs. Socorro that
her own driver Fred had to go to
Pampanga on an emergency
(something bad befell a child), so
Isabelo will temporary (sic) take his
place (Id., pp. 8-9).

Mrs. Socorro's time to go home to

Valle Verde in Pasig came and so she
got into the Mercedes Benz of her
husband with Isabelo on (sic) the
wheel. After the car turned right in
(sic) a corner of Araneta Avenue, it
stopped. A young man, accused
Enrique Amurao, boarded the car
beside the driver (Id., pp. 9-10).
Once inside, Enrique clambered on
top of the back side of the front seat
and went onto where Ma. Socorro
was seated at the rear. He poke (sic)
a gun at her (Id., p. 10).
Isabelo, who earlier told her that
Enrique is his nephew announced,
"ma'm, you know, I want to get
money from you." She said she has
money inside her bag and they may
get it just so they will let her go. The
bag contained P7,000.00 and was
taken (Id., pp. 11-14).
Further on, the two told her they
wanted P100,000.00 more. Ma.

331

Socorro agreed to give them that but

would they drop her at her gas
station in Kamagong St., Makati
where the money is? The car went
about the Sta. Mesa area. Meanwhile,
Ma. Socorro clutched her Rosary and
prayed. Enrique's gun was
menacingly storing (sic) at her soft
bread (sic) brown, perfumed neck. He
said he is an NPA and threatened her
(Id., p.15).

towards Pampanga. Ma. Socorro,

according to her, jumped out of the
car then, crossed to the other side of
the superhighway and, after some
vehicles ignored her, she was finally
able to flag down a fish vendors van.
Her dress had blood because,
according to Ma. Socorro, she fell
down on the ground and was injured
when she jumped out of the car. Her
dress was torn too (Id., pp. 23-26).

The car sped off north towards the

North superhighway. There Isabelo,
Beloy as he is called, asked Ma.
Socorro to issue a check for
P100,000.00. Ma. Socorro complied.
She drafted 3 checks in
denominations of two for P30
thousand and one for P40 thousand.
Enrique ordered her to swallow a pill
but she refused (Id., pp. 17-23).

On reaching Balintawak, Ma. Socorro

reported the matter to CAPCOM (Id.,
p. 27).

Beloy turned the car around towards

Metro Manila. Later, he changed his
mind and turned the car again

Both accused were, day after,

arrested. Enrique was arrested trying
to encash Ma. Socorro's P40,000.00
check at PCI Bank, Makati. (tsn, Oct.
18, 1989, pp. 10-13) 6
As observed by the court below, the defense
does not dispute said narrative of complainant,
except that, according to appellant Puno, he
stopped the car at North Diversion and freely
allowed complainant to step out of the car. He

332

even slowed the car down as he drove away,

until he saw that his employer had gotten a
ride, and he claimed that she fell down when
she stubbed her toe while running across the
highway. 7
Appellants further testified that they brought
the Mercedez Benz car to Dolores, San
Fernando, Pampanga and parked it near a
barangay or police outpost. They thereafter ate
at a restaurant and divided their loot. 8 Much
later, when he took the stand at the trial of this
case, appellant Puno tried to mitigate his
liability by explaining that he was in dire need
of money for the medication of his ulcers. 9
On these relatively simple facts, and as noted at
the start of this opinion, three theories have
been advanced as to what crime was committed
by appellants. The trial court cohered with the
submission of the defense that the crime could
not be kidnapping for ransom as charged in the
information. We likewise agree.
Prefatorily, it is worth recalling an accepted
tenet in criminal law that in the determination
of the crime for which the accused should be

held liable in those instances where his acts

partake of the nature of variant offenses, and
the same holds true with regard to the
modifying or qualifying circumstances thereof,
his motive and specific intent in perpetrating
the acts complained of are invaluable aids in
arriving at a correct appreciation and accurate
conclusion thereon.
Thus, to illustrate, the motive of the accused
has been held to be relevant or essential to
determine the specific nature of the crime as,
for instance, whether a murder was committed
in the furtherance of rebellion in which case the
latter absorbs the former, or whether the
accused had his own personal motives for
committing the murder independent of his
membership in the rebellious movement in
which case rebellion and murder would
constitute separate offenses. 10 Also, where
injuries were inflicted on a person in authority
who was not then in the actual performance of
his official duties, the motive of the offender
assumes importance because if the attack was
by reason of the previous performance of
official duties by the person in authority, the

333

crime would be direct assault; otherwise, it

would only be physical injuries. 11
In the case at bar, there is no showing
whatsoever that appellants had any motive,
nurtured prior to or at the time they committed
the wrongful acts against complainant, other
than the extortion of money from her under the
compulsion of threats or intimidation. This
much is admitted by both appellants, without
any other esoteric qualification or dubious
justification. Appellant Puno, as already stated,
candidly laid the blame for his predicament on
his need for funds for, in his own testimony,
"(w)hile we were along the way Mam (sic)
Corina was telling me "Beloy, I know your
family very well and I know that your (sic) not
(a) bad person, why are you doing this?" I told
her "Mam, (sic), because I need money and I
had an ulcer and that I have been getting an
(sic) advances from our office but they refused
to give me any bale (sic). . . ." 12
With respect to the specific intent of
appellants vis-a-vis the charge that they had
kidnapped the victim, we can rely on the

proverbial rule of ancient respectability that for

this crime to exist, there must be indubitable
proof that
the actual intent of the malefactors was to
deprive the offended party of her liberty, 13 and
not where such restraint of her freedom of
action was merely an incident in the
commission of another offense primarily
intended by the offenders. Hence, as early
as United States vs. Ancheta, 14 and
consistently reiterated thereafter, 15 it has been
held that the detention and/or forcible taking
away of the victims by the accused, even for an
appreciable period of time but for the primary
and ultimate purpose of killing them, holds the
offenders liable for taking their lives or such
other offenses they committed in relation
thereto, but the incidental deprivation of the
victims' liberty does not constitute kidnapping
or serious illegal detention.
That appellants in this case had no intention
whatsoever to kidnap or deprive the
complainant of her personal liberty is clearly
demonstrated in the veritably confessional
testimony of appellant Puno:

334

Q At what point did Mrs.

Sarmiento handed (sic) the
bag containing the
P7,000.00 to your nephew?
A Santo Domingo Exit.
Q And how about the
checks, where were you
already when the checks
was (sic) being handed to
you?
A Also at the Sto. Domingo
exit when she signed the
checks.
Q If your intention was just
to robbed (sic) her, why is
it that you still did not allow
her to stay at Sto.
Domingo, after all you
already received the money
and the checks?
A Because we had an
agreement with her that

when she signed the checks

we will take her to her
house at Villa (sic) Verde.
Q And why did you not
bring her back to her house
at Valle Verde when she is
(sic) already given you the
checks?
A Because while we were
on the way back I (sic)
came to my mind that if we
reach Balintawak or some
other place along the way
we might be apprehended
by the police. So when we
reached Santa Rita exit I
told her "Mam (sic) we will
already stop and allow you
to get out of the car." 16
Neither can we consider the amounts given to
appellants as equivalent to or in the nature of
ransom, considering the immediacy of their
obtention thereof from the complainant
personally. Ransom, in municipal criminal law, is

335

the money, price or consideration paid or

demanded for redemption of a captured person
or persons, a payment that releases from
captivity. 17 It can hardly be assumed that when
complainant readily gave the cash and checks
demanded from her at gun point, what she
gave under the circumstances of this case can
be equated with or was in the concept of
ransom in the law of kidnapping. These were
merely amounts involuntarily surrendered by
the victim upon the occasion of a robbery or of
which she was summarily divested by
appellants. Accordingly, while we hold that the
crime committed is robbery as defined in Article
293 of the Code, we, however, reject the theory
of the trial court that the same constitutes the
highway robbery contemplated in and punished
by Presidential Decree No. 532.
The lower court, in support of its theory, offers
this ratiocination:
The court agrees that the crime is
robbery. But it is also clear from the
allegation in the information that the
victim was carried away and extorted

for more money. The accused

admitted that the robbery was carried
on from Araneta Avenue up to the
North Superhighway. They likewise
admitted that along the way they
intimidated Ma. Socorro to produce
more money that she had with her at
the time for which reason Ma.
Socorro, not having more cash, drew
out three checks. . . .
In view of the foregoing the court is
of the opinion that the crimes
committed is that punishable under
P.D. 532 (Anti-Piracy and AntiHighway Robbery Law of 1974) under
which where robbery on the highway
is accompanied by extortion the
penalty is reclusion perpetua. 18
The Solicitor General concurs, with the
observation that pursuant to the repealing
clause in Section 5 of said decree, "P.D. No- 532
is a modification of the provisions of the
Revised Penal Code, particularly Article 267
which

336

are inconsistent with it." 19 Such opinion and

complementary submission consequently
necessitate an evaluation of the correct
interplay between and the legal effects of
Presidential Decree No. 532 on the pertinent
Provisions of the Revised Penal Code, on which
matter we are not aware that any definitive
pronouncement has as yet been made.
Contrary to the postulation of the Solicitor
General, Presidential Decree No. 532 is not a
modification of Article 267 of the Revised Penal
Code on kidnapping and serious illegal
detention, but of Articles 306 and 307 on
brigandage. This is evident from the fact that
the relevant portion thereof which treats of
"highway robbery" invariably uses this term in
the alternative and synonymously with
brigandage, that is, as "highway
robbery/brigandage." This is but in line with our
previous ruling, and which still holds sway in
criminal law, that highway robbers (ladrones)
and brigands are synonymous. 20
Harking back to the origin of our law on
brigandage (bandolerismo) in order to put our

discussion thereon in the proper context and

perspective, we find that a band of brigands,
also known as highwaymen or freebooters, is
more than a gang of ordinary robbers.
Jurisprudence on the matter reveals that during
the early part of the American occupation of our
country, roving bands were organized for
robbery and pillage and since the then existing
law against robbery was inadequate to cope
with such moving bands of outlaws, the
Brigandage Law was passed. 21
The following salient distinctions between
brigandage and robbery are succinctly
explained in a treatise on the subject and are of
continuing validity:
The main object of the Brigandage
Law is to prevent the formation of
bands of robbers. The heart of the
offense consists in the formation of a
band by more than three armed
persons for the purpose indicated in
art. 306. Such formation is sufficient
to constitute a violation of art. 306. It
would not be necessary to show, in a

337

prosecution under it, that a member

or members of the band actually
committed robbery or kidnapping or
any other purpose attainable by
violent means. The crime is proven
when the organization and purpose of
the band are shown to be such as are
contemplated by art 306. On the
other hand, if robbery is committed
by a band, whose members were not
primarily organized for the purpose of
committing robbery or kidnapping,
etc., the crime would not be
brigandage, but only robbery. Simply
because robbery was committed by a
band of more than three armed
persons, it would not follow that it
was committed by a band of
brigands. In the Spanish text of art.
306, it is required that the band "sala
a los campos para dedicarse a
robar." 22 (Emphasis supplied).
In fine, the purpose of brigandage is, inter alia,
indiscriminate highway robbery. If the purpose
is only a particular robbery, the crime is only

robbery, or robbery in band if there are at least

four armed participants. 23 The martial law
legislator, in creating and promulgating
Presidential Decree No. 532 for the objectives
announced therein, could not have been
unaware of that distinction and is presumed to
have adopted the same, there being no
indication to the contrary. This conclusion is
buttressed by the rule on contemporaneous
construction, since it is one drawn from the
time when and the circumstances under which
the decree to be construed originated.
Contemporaneous exposition or construction is
the best and strongest in the law. 24
Further, that Presidential Decree No. 532
punishes as highway robbery or brigandage
only acts of robbery perpetrated by outlaws
indiscriminately against any person or persons
on Philippine highways as defined therein, and
not acts of robbery committed against only a
predetermined or particular victim, is evident
from the preambular clauses thereof, to wit:
WHEREAS, reports from lawenforcement agencies reveal that

338

lawless elements are still committing

acts of depredation upon the persons
and properties of innocent and
defenseless inhabitants who travel
from one place to another, thereby
disturbing the peace, order and
tranquility of the nation andstunting
the economic and social progress of
the people:
WHEREAS, such acts of depredations
constitute . . . highway
robbery/brigandage which are among
the highest forms of lawlessness
condemned by the penal statutes of
all countries;
WHEREAS, it is imperative that said
lawless elements be discouraged from
perpetrating such acts of depredaions
by imposing heavy penalty on the
offenders, with the end in view
of eliminating all obstacles to the
economic, social, educational and
community progress of the people.
(Emphasis supplied).

Indeed, it is hard to conceive of how a single

act of robbery against a particular person
chosen by the accused as their specific victim
could be considered as committed on the
"innocent and defenseless inhabitants who
travel from one place to another," and which
single act of depredation would be capable of
"stunting the economic and social progress of
the people" as to be considered "among the
highest forms of lawlessness condemned by the
penal statutes of all countries," and would
accordingly constitute an obstacle "to the
economic, social, educational and community
progress of the people, " such that said isolated
act would constitute the highway robbery or
brigandage contemplated and punished in said
decree. This would be an exaggeration
bordering on the ridiculous.
True, Presidential Decree No. 532 did introduce
amendments to Articles 306 and 307 of the
Revised Penal Code by increasing the penalties,
albeit limiting its applicability to the offenses
stated therein when committed on the highways
and without prejudice to the liability for such
acts if committed. Furthermore, the decree

339

does not require that there be at least four

armed persons forming a band of robbers; and
the presumption in the Code that said accused
are brigands if they use unlicensed firearms no
longer obtains under the decree. But, and this
we broadly underline, the essence of
brigandage under the Code as a crime of
depredation wherein the unlawful acts are
directed not only against specific, intended or
preconceived victims, but against any and all
prospective victims anywhere on the highway
and whosoever they may potentially be, is the
same as the concept of brigandage which is
maintained in Presidential Decree No. 532, in
the same manner as it was under its
aforementioned precursor in the Code and, for
that matter, under the old Brigandage Law. 25
Erroneous advertence is nevertheless made by
the court below to the fact that the crime of
robbery committed by appellants should be
covered by the said amendatory decree just
because it was committed on a highway. Aside
from what has already been stressed regarding
the absence of the requisite elements which
thereby necessarily puts the offense charged

outside the purview and intendment of that

presidential issuance, it would be absurd to
adopt a literal interpretation that any unlawful
taking of property committed on our highways
would be covered thereby. It is an elementary
rule of statutory construction that the spirit or
intent of the law should not be subordinated to
the letter thereof. Trite as it may appear, we
have perforce to stress the elementary caveat
that he who considers merely the letter of an
instrument goes but skin deep into its
meaning, 26 and the fundamental rule that
criminal justice inclines in favor of the milder
form of liability in case of doubt.
If the mere fact that the offense charged was
committed on a highway would be the
determinant for the application of Presidential
Decree No. 532, it would not be farfetched to
expect mischievous, if not absurd, effects on
the corpus of our substantive criminal law.
While we eschew resort to a reductio ad
absurdum line of reasoning, we apprehend that
the aforestated theory adopted by the trial
court falls far short of the desideratum in the
interpretation of laws, that is, to avoid

340

absurdities and conflicts. For, if a motor vehicle,

either stationary or moving on a highway, is
forcibly taken at gun point by the accused who
happened to take a fancy thereto, would the
location of the vehicle at the time of the
unlawful taking necessarily put the offense
within the ambit of Presidential Decree No. 532,
thus rendering nugatory the categorical
provisions of the Anti-Carnapping Act of
1972? 27 And, if the scenario is one where the
subject matter of the unlawful asportation is
large cattle which are incidentally being herded
along and traversing the same highway and are
impulsively set upon by the accused, should we
apply Presidential Decree No. 532 and
completely disregard the explicit prescriptions
in the Anti-Cattle Rustling Law of 1974? 28
We do not entertain any doubt, therefore, that
the coincidental fact that the robbery in the
present case was committed inside a car which,
in the natural course of things, was casually
operating on a highway, is not within the
situation envisaged by Section 2(e) of the
decree in its definition of terms. Besides, that
particular provision precisely defines "highway

robbery/brigandage" and, as we have amply

demonstrated, the single act of robbery
conceived and committed by appellants in this
case does not constitute highway robbery or
brigandage.
Accordingly, we hold that the offense committed
by appellants is simple robbery defined in
Article 293 and punished under Paragraph 5 of
Article 294 of the Revised Penal Code
with prision correccional in its maximum period
to prision mayor in its medium period.
Appellants have indisputably acted in conspiracy
as shown by their concerted acts evidentiary of
a unity of thought and community of purpose.
In the determination of their respective
liabilities, the aggravating circumstances of
craft 29 shall be appreciated against both
appellants and that of abuse of confidence shall
be further applied against appellant Puno, with
no mitigating circumstance in favor of either of
them. At any rate, the intimidation having been
made with the use of a firearm, the penalty
shall be imposed in the maximum period as
decreed by Article 295 of the Code.

341

We further hold that there is no procedural

obstacle to the conviction of appellants of the
crime of simple robbery upon an information
charging them with kidnapping for ransom,
since the former offense which has been proved
is necessarily included in the latter offense with
which they are charged. 30 For the former
offense, it is sufficient that the elements of
unlawful taking, with intent to gain, of personal
property through intimidation of the owner or
possessor thereof shall be, as it has been,
proved in the case at bar. Intent to gain
(animus lucrandi) is presumed to be alleged in
an information where it is charged that there
was unlawful taking (apoderamiento) and
appropriation by the offender of the things
subject of the robbery. 31
These foregoing elements are necessarily
included in the information filed against
appellants which, as formulated, allege that
they wilfully, unlawfully and feloniously
kidnapped and extorted ransom from the
complainant. Such allegations, if not expressly
but at the very least by necessary implication,
clearly convey that the taking of complainant's

money and checks (inaccurately termed as

ransom) was unlawful, with intent to gain, and
through intimidation. It cannot be logically
argued that such a charge of kidnapping for
ransom does not include but could negate the
presence of any of the elements of robbery
through intimidation of persons. 32
WHEREFORE, the assailed judgment of the trial
court is hereby SET ASIDE and another one is
rendered CONVICTING accused-appellants
Isabelo Puno y Guevarra and Enrique Amurao y
Puno of robbery as Punished in Paragraph 5 of
Article 294, in relation to Article 295, of the
Revised Penal Code and IMPOSING on each of
them an indeterminate sentence of four (4)
years and two (2) months of prision
correccional, as minimum, to ten (10) years
of prision mayor, as maximum, and jointly and
severally pay the offended party, Maria del
Socorro M. Sarmiento, the amounts of
P7,000.00 as actual damages and P20,000.00
as moral damages, with costs.
SO ORDERED.

342

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-5272

March 19, 1910

THE UNITED STATES, plaintiff-appellee,

vs.
AH CHONG, defendant-appellant.
Gibb & Gale, for appellant.
Attorney-General Villamor, for appellee.
CARSON, J.:
The evidence as to many of the essential and
vital facts in this case is limited to the
testimony of the accused himself, because from
the very nature of these facts and from the
circumstances surrounding the incident upon
which these proceedings rest, no other evidence
as to these facts was available either to the
prosecution or to the defense. We think,
however, that, giving the accused the benefit of
the doubt as to the weight of the evidence
touching those details of the incident as to

which there can be said to be any doubt, the

following statement of the material facts
disclose by the record may be taken to be
substantially correct:
The defendant, Ah Chong, was employed as a
cook at "Officers' quarters, No. 27," Fort Mc
Kinley, Rizal Province, and at the same place
Pascual Gualberto, deceased, was employed as
a house boy or muchacho. "Officers' quarters
No. 27" as a detached house situates some 40
meters from the nearest building, and in
August, 19087, was occupied solely as an
officers' mess or club. No one slept in the house
except the two servants, who jointly occupied a
small room toward the rear of the building, the
door of which opened upon a narrow porch
running along the side of the building, by which
communication was had with the other part of
the house. This porch was covered by a heavy
growth of vines for its entire length and height.
The door of the room was not furnished with a
permanent bolt or lock, and occupants, as a
measure of security, had attached a small hook
or catch on the inside of the door, and were in
the habit of reinforcing this somewhat insecure

343

means of fastening the door by placing against

it a chair. In the room there was but one small
window, which, like the door, opened on the
porch. Aside from the door and window, there
were no other openings of any kind in the room.
On the night of August 14, 1908, at about 10
o'clock, the defendant, who had received for the
night, was suddenly awakened by some trying
to force open the door of the room. He sat up in
bed and called out twice, "Who is there?" He
heard no answer and was convinced by the
noise at the door that it was being pushed open
by someone bent upon forcing his way into the
room. Due to the heavy growth of vines along
the front of the porch, the room was very dark,
and the defendant, fearing that the intruder
was a robber or a thief, leaped to his feet and
called out. "If you enter the room, I will kill
you." At that moment he was struck just above
the knee by the edge of the chair which had
been placed against the door. In the darkness
and confusion the defendant thought that the
blow had been inflicted by the person who had
forced the door open, whom he supposed to be
a burglar, though in the light of after events, it

is probable that the chair was merely thrown

back into the room by the sudden opening of
the door against which it rested. Seizing a
common kitchen knife which he kept under his
pillow, the defendant struck out wildly at the
intruder who, it afterwards turned out, was his
roommate, Pascual. Pascual ran out upon the
porch and fell down on the steps in a
desperately wounded condition, followed by the
defendant, who immediately recognized him in
the moonlight. Seeing that Pascual was
wounded, he called to his employers who slept
in the next house, No. 28, and ran back to his
room to secure bandages to bind up Pascual's
wounds.
There had been several robberies in Fort
McKinley not long prior to the date of the
incident just described, one of which took place
in a house in which the defendant was
employed as cook; and as defendant alleges, it
was because of these repeated robberies he
kept a knife under his pillow for his personal
protection.

344

The deceased and the accused, who roomed

together and who appear to have on friendly
and amicable terms prior to the fatal incident,
had an understanding that when either returned
at night, he should knock at the door and
acquiant his companion with his identity.
Pascual had left the house early in the evening
and gone for a walk with his friends, Celestino
Quiambao and Mariano Ibaez, servants
employed at officers' quarters No. 28, the
nearest house to the mess hall. The three
returned from their walk at about 10 o'clock,
and Celestino and Mariano stopped at their
room at No. 28, Pascual going on to his room at
No. 27. A few moments after the party
separated, Celestino and Mariano heard cries
for assistance and upon returning to No. 27
found Pascual sitting on the back steps fatally
wounded in the stomach, whereupon one of
them ran back to No. 28 and called Liuetenants
Jacobs and Healy, who immediately went to the
aid of the wounded man.
The defendant then and there admitted that he
had stabbed his roommate, but said that he did
it under the impression that Pascual was "a

ladron" because he forced open the door of

their sleeping room, despite defendant's
warnings.
No reasonable explanation of the remarkable
conduct on the part of Pascuals suggests itself,
unless it be that the boy in a spirit of mischief
was playing a trick on his Chinese roommate,
and sought to frightened him by forcing his way
into the room, refusing to give his name or say
who he was, in order to make Ah Chong believe
that he was being attacked by a robber.
Defendant was placed under arrest forthwith,
and Pascual was conveyed to the military
hospital, where he died from the effects of the
wound on the following day.
The defendant was charged with the crime of
assassination, tried, and found guilty by the
trial court of simple homicide, with extenuating
circumstances, and sentenced to six years and
one day presidio mayor, the minimum penalty
prescribed by law.
At the trial in the court below the defendant
admitted that he killed his roommate, Pascual

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Gualberto, but insisted that he struck the fatal

blow without any intent to do a wrongful act, in
the exercise of his lawful right of self-defense.
Article 8 of the Penal Code provides that
The following are not delinquent and are
therefore exempt from criminal liability:
xxx

xxx

xxx

4 He who acts in defense of his person or

rights, provided there are the following
attendant circumstances:
(1) Illegal aggression.
(2) Reasonable necessity of the means
employed to prevent or repel it.
(3) Lack of sufficient provocation on the
part of the person defending himself.
Under these provisions we think that there can
be no doubt that defendant would be entitle to
complete exception from criminal liability for
the death of the victim of his fatal blow, if the
intruder who forced open the door of his room

had been in fact a dangerous thief or "ladron,"

as the defendant believed him to be. No one,
under such circumstances, would doubt the
right of the defendant to resist and repel such
an intrusion, and the thief having forced open
the door notwithstanding defendant's thricerepeated warning to desist, and his threat that
he would kill the intruder if he persisted in his
attempt, it will not be questioned that in the
darkness of the night, in a small room, with no
means of escape, with the thief advancing upon
him despite his warnings defendant would have
been wholly justified in using any available
weapon to defend himself from such an assault,
and in striking promptly, without waiting for the
thief to discover his whereabouts and deliver
the first blow.
But the evidence clearly discloses that the
intruder was not a thief or a "ladron." That
neither the defendant nor his property nor any
of the property under his charge was in real
danger at the time when he struck the fatal
blow. That there was no such "unlawful
aggression" on the part of a thief or "ladron" as
defendant believed he was repelling and

346

resisting, and that there was no real "necessity"

for the use of the knife to defend his person or
his property or the property under his charge.
The question then squarely presents it self,
whether in this jurisdiction one can be held
criminally responsible who, by reason of a
mistake as to the facts, does an act for which
he would be exempt from criminal liability if the
facts were as he supposed them to be, but
which would constitute the crime of homicide or
assassination if the actor had known the true
state of the facts at the time when he
committed the act. To this question we think
there can be but one answer, and we hold that
under such circumstances there is no criminal
liability, provided always that the alleged
ignorance or mistake or fact was not due to
negligence or bad faith.
In broader terms, ignorance or mistake of fact,
if such ignorance or mistake of fact is sufficient
to negative a particular intent which under the
law is a necessary ingredient of the offense
charged (e.g., in larcerny, animus furendi; in
murder, malice; in crimes intent) "cancels the

presumption of intent," and works an acquittal;

except in those cases where the circumstances
demand a conviction under the penal provisions
touching criminal negligence; and in cases
where, under the provisions of article 1 of the
Penal Code one voluntarily committing a crime
or misdeamor incurs criminal liability for any
wrongful act committed by him, even though it
be different from that which he intended to
commit. (Wharton's Criminal Law, sec. 87 and
cases cited; McClain's Crim. Law, sec. 133 and
cases cited; Pettit vs. S., 28 Tex. Ap., 240;
Commonwealth vs. Power, 7 Met., 596;
Yates vs. People, 32 N.Y., 509; Isham vs. State,
38 Ala., 213; Commonwealth vs. Rogers, 7
Met., 500.)
The general proposition thus stated hardly
admits of discussion, and the only question
worthy of consideration is whether malice or
criminal intent is an essential element or
ingredient of the crimes of homicide and
assassination as defined and penalized in the
Penal Code. It has been said that since the
definitions there given of these as well as most
other crimes and offense therein defined, do not

347

specifically and expressly declare that the acts

constituting the crime or offense must be
committed with malice or with criminal intent in
order that the actor may be held criminally
liable, the commission of the acts set out in the
various definitions subjects the actor to the
penalties described therein, unless it appears
that he is exempted from liability under one or
other of the express provisions of article 8 of
the code, which treats of exemption. But while
it is true that contrary to the general rule of
legislative enactment in the United States, the
definitions of crimes and offenses as set out in
the Penal Code rarely contain provisions
expressly declaring that malice or criminal
intent is an essential ingredient of the crime,
nevertheless, the general provisions of article 1
of the code clearly indicate that malice, or
criminal intent in some form, is an essential
requisite of all crimes and offense therein
defined, in the absence of express provisions
modifying the general rule, such as are those
touching liability resulting from acts negligently
or imprudently committed, and acts done by
one voluntarily committing a crime or
misdemeanor, where the act committed is

different from that which he intended to

commit. And it is to be observed that even
these exceptions are more apparent than real,
for "There is little distinction, except in degree,
between a will to do a wrongful thing and
indifference whether it is done or not. Therefore
carelessness is criminal, and within limits
supplies the place of the affirmative criminal
intent" (Bishop's New Criminal Law, vol. 1, s.
313); and, again, "There is so little difference
between a disposition to do a great harm and a
disposition to do harm that one of them may
very well be looked upon as the measure of the
other. Since, therefore, the guilt of a crime
consists in the disposition to do harm, which the
criminal shows by committing it, and since this
disposition is greater or less in proportion to the
harm which is done by the crime, the
consequence is that the guilt of the crime
follows the same proportion; it is greater or less
according as the crime in its own nature does
greater or less harm" (Ruth. Ints. C. 18, p. 11);
or, as it has been otherwise stated, the thing
done, having proceeded from a corrupt mid, is
to be viewed the same whether the corruption
was of one particular form or another.

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Article 1 of the Penal Code is as follows:

Crimes or misdemeanors are voluntary
acts and ommissions punished by law.
Acts and omissions punished by law are
always presumed to be voluntarily unless
the contrary shall appear.
An person voluntarily committing a crime
or misdemeanor shall incur criminal
liability, even though the wrongful act
committed be different from that which he
had intended to commit.
The celebrated Spanish jurist Pacheco,
discussing the meaning of the word "voluntary"
as used in this article, say that a voluntary act
is a free, intelligent, and intentional act, and
roundly asserts that without intention (intention
to do wrong or criminal intention) there can be
no crime; and that the word "voluntary" implies
and includes the words "con malicia," which
were expressly set out in the definition of the
word "crime" in the code of 1822, but omitted
from the code of 1870, because, as Pacheco
insists, their use in the former code was

redundant, being implied and included in the

word "voluntary." (Pacheco, Codigo Penal, vol.
1, p. 74.)
Viada, while insisting that the absence of
intention to commit the crime can only be said
to exempt from criminal responsibility when the
act which was actually intended to be done was
in itself a lawful one, and in the absence of
negligence or imprudence, nevertheless admits
and recognizes in his discussion of the
provisions of this article of the code that in
general without intention there can be no crime.
(Viada, vol. 1, p. 16.) And, as we have shown
above, the exceptions insisted upon by Viada
are more apparent than real.
Silvela, in discussing the doctrine herein laid
down, says:
In fact, it is sufficient to remember the
first article, which declared that where
there is no intention there is no crime . . .
in order to affirm, without fear of mistake,
that under our code there can be no crime
if there is no act, an act which must fall
within the sphere of ethics if there is no

349

moral injury. (Vol. 2, the Criminal Law,

folio 169.)
And to the same effect are various decisions of
the supreme court of Spain, as, for example in
its sentence of May 31, 1882, in which it made
use of the following language:
It is necessary that this act, in order to
constitute a crime, involve all the malice
which is supposed from the operation of
the will and an intent to cause the injury
which may be the object of the crime.
And again in its sentence of March 16, 1892,
wherein it held that "considering that, whatever
may be the civil effects of the inscription of his
three sons, made by the appellant in the civil
registry and in the parochial church, there can
be no crime because of the lack of the
necessary element or criminal intention, which
characterizes every action or ommission
punished by law; nor is he guilty of criminal
negligence."

And to the same effect in its sentence of

December 30, 1896, it made use of the
following language:
. . . Considering that the moral element of
the crime, that is, intent or malice or their
absence in the commission of an act
defined and punished by law as criminal, is
not a necessary question of fact submitted
to the exclusive judgment and decision of
the trial court.
That the author of the Penal Code deemed
criminal intent or malice to be an essential
element of the various crimes and
misdemeanors therein defined becomes clear
also from an examination of the provisions of
article 568, which are as follows:
He who shall execute through reckless
negligence an act that, if done with malice,
would constitute a grave crime, shall be
punished with the penalty of arresto
mayor in its maximum degree, to prision
correccional in its minimum degrees if it
shall constitute a less grave crime.

350

He who in violation of the regulations shall

commit a crime through simple
imprudence or negligence shall incur the
penalty of arresto mayor in its medium
and maximum degrees.
In the application of these penalties the
courts shall proceed according to their
discretion, without being subject to the
rules prescribed in article 81.
The provisions of this article shall not be
applicable if the penalty prescribed for the
crime is equal to or less than those
contained in the first paragraph thereof, in
which case the courts shall apply the next
one thereto in the degree which they may
consider proper.
The word "malice" in this article is manifestly
substantially equivalent to the words "criminal
intent," and the direct inference from its
provisions is that the commission of the acts
contemplated therein, in the absence of malice
(criminal intent), negligence, and imprudence,
does not impose any criminal liability on the
actor.

The word "voluntary" as used in article 1 of the

Penal Code would seem to approximate in
meaning the word "willful" as used in English
and American statute to designate a form of
criminal intent. It has been said that while the
word "willful" sometimes means little more than
intentionally or designedly, yet it is more
frequently understood to extent a little further
and approximate the idea of the milder kind of
legal malice; that is, it signifies an evil intent
without justifiable excuse. In one case it was
said to mean, as employed in a statute in
contemplation, "wantonly" or "causelessly;" in
another, "without reasonable grounds to believe
the thing lawful." And Shaw, C. J., once said
that ordinarily in a statute it means "not merely
`voluntarily' but with a bad purpose; in other
words, corruptly." In English and the American
statutes defining crimes "malice," "malicious,"
"maliciously," and "malice aforethought" are
words indicating intent, more purely technical
than "willful" or willfully," but "the difference
between them is not great;" the word "malice"
not often being understood to require general
malevolence toward a particular individual, and
signifying rather the intent from our legal

351

justification. (Bishop's New Criminal Law, vol. 1,

secs. 428 and 429, and cases cited.)
But even in the absence of express words in a
statute, setting out a condition in the definition
of a crime that it be committed "voluntarily,"
willfully," "maliciously" "with malice
aforethought," or in one of the various modes
generally construed to imply a criminal intent,
we think that reasoning from general principles
it will always be found that with the rare
exceptions hereinafter mentioned, to constitute
a crime evil intent must combine with an act.
Mr. Bishop, who supports his position with
numerous citations from the decided cases,
thus forcely present this doctrine:
In no one thing does criminal
jurisprudence differ more from civil than in
the rule as to the intent. In controversies
between private parties the quo
animo with which a thing was done is
sometimes important, not always; but
crime proceeds only from a criminal mind.
So that

There can be no crime, large or small,

without an evil mind. In other words,
punishment is the sentence of wickedness,
without which it can not be. And neither in
philosophical speculation nor in religious or
mortal sentiment would any people in any
age allow that a man should be deemed
guilty unless his mind was so. It is
therefore a principle of our legal system,
as probably it is of every other, that the
essence of an offense is the wrongful
intent, without which it can not exists. We
find this doctrine confirmed by
Legal maxims. The ancient wisdom of
the law, equally with the modern, is
distinct on this subject. It consequently
has supplied to us such maxims as Actus
non facit reum nisi mens sit rea, "the act
itself does not make man guilty unless his
intention were so;" Actus me incito factus
non est meus actus, "an act done by me
against my will is not my act;" and others
of the like sort. In this, as just said,
criminal jurisprudence differs from civil. So
also

352

Moral science and moral sentiment teach

the same thing. "By reference to the
intention, we inculpate or exculpate others
or ourselves without any respect to the
happiness or misery actually produced. Let
the result of an action be what it may, we
hold a man guilty simply on the ground of
intention; or, on the dame ground, we hold
him innocent." The calm judgment of
mankind keeps this doctrine among its
jewels. In times of excitement, when
vengeance takes the place of justice, every
guard around the innocent is cast down.
But with the return of reason comes the
public voice that where the mind is pure,
he who differs in act from his neighbors
does not offend. And
In the spontaneous judgment which
springs from the nature given by God to
man, no one deems another to deserve
punishment for what he did from an
upright mind, destitute of every form of
evil. And whenever a person is made to
suffer a punishment which the community
deems not his due, so far from its placing

an evil mark upon him, it elevates him to

the seat of the martyr. Even infancy itself
spontaneously pleads the want of bad
intent in justification of what has the
appearance of wrong, with the utmost
confidence that the plea, if its truth is
credited, will be accepted as good. Now
these facts are only the voice of nature
uttering one of her immutable truths. It is,
then, the doctrine of the law, superior to
all other doctrines, because first in nature
from which the law itself proceeds, that no
man is to be punished as a criminal unless
his intent is wrong. (Bishop's New Criminal
Law, vol. 1, secs. 286 to 290.)
Compelled by necessity, "the great master of all
things," an apparent departure from this
doctrine of abstract justice result from the
adoption of the arbitrary rule that Ignorantia
juris non excusat ("Ignorance of the law
excuses no man"), without which justice could
not be administered in our tribunals; and
compelled also by the same doctrine of
necessity, the courts have recognized the power
of the legislature to forbid, in a limited class of

353

cases, the doing of certain acts, and to make

their commission criminal without regard to the
intent of the doer. Without discussing these
exceptional cases at length, it is sufficient here
to say that the courts have always held that
unless the intention of the lawmaker to make
the commission of certain acts criminal without
regard to the intent of the doer is clear and
beyond question the statute will not be so
construed (cases cited in Cyc., vol. 12, p. 158,
notes 76 and 77); and the rule that ignorance
of the law excuses no man has been said not to
be a real departure from the law's fundamental
principle that crime exists only where the mind
is at fault, because "the evil purpose need not
be to break the law, and if suffices if it is simply
to do the thing which the law in fact forbids."
(Bishop's New Criminal Law, sec. 300, and
cases cited.)
But, however this may be, there is no technical
rule, and no pressing necessity therefore,
requiring mistake in fact to be dealt with
otherwise that in strict accord with the
principles of abstract justice. On the contrary,
the maxim here is Ignorantia facti

excusat ("Ignorance or mistake in point of fact

is, in all cases of supposed offense, a sufficient
excuse"). (Brown's Leg. Max., 2d ed., 190.)
Since evil intent is in general an inseparable
element in every crime, any such mistake of
fact as shows the act committed to have
proceeded from no sort of evil in the mind
necessarily relieves the actor from criminal
liability provided always there is no fault or
negligence on his part; and as laid down by
Baron Parke, "The guilt of the accused must
depend on the circumstances as they appear to
him." (Reg. vs. Thurborn, 1 Den. C., 387;
P. vs.Anderson, 44 Cal.., 65; P. vs. Lamb, 54
Barb., 342; Yates vs. P., 32 N. Y., 509;
Patterson vs. P., 46 Barb., 625; Reg. vs. Cohen,
8 Cox C. C., 41; P. vs. Miles, 55 Cal., 207, 209;
Nalley vs. S., 28 Tex. Ap., 387.) That is to say,
the question as to whether he honestly, in good
faith, and without fault or negligence fell into
the mistake is to be determined by the
circumstances as they appeared to him at the
time when the mistake was made, and the
effect which the surrounding circumstances
might reasonably be expected to have on his

354

mind, in forming the intent, criminal or other

wise, upon which he acted.
If, in language not uncommon in the
cases, one has reasonable cause to
believe the existence of facts which will
justify a killing or, in terms more nicely
in accord with the principles on which the
rule is founded, if without fault or
carelessness he does believe them he is
legally guiltless of the homicide; though he
mistook the facts, and so the life of an
innocent person is unfortunately
extinguished. In other words, and with
reference to the right of self-defense and
the not quite harmonious authorities, it is
the doctrine of reason and sufficiently
sustained in adjudication, that
notwithstanding some decisions apparently
adverse, whenever a man undertakes selfdefense, he is justified in acting on the
facts as they appear to him. If, without
fault or carelessness, he is misled
concerning them, and defends himself
correctly according to what he thus
supposes the facts to be the law will not

punish him though they are in truth

otherwise, and he was really no occassion
for the extreme measures. (Bishop's New
Criminal Law, sec. 305, and large array of
cases there cited.)
The common illustration in the American and
English textbooks of the application of this rule
is the case where a man, masked and disguised
as a footpad, at night and on a lonely road,
"holds up" his friends in a spirit of mischief, and
with leveled pistol demands his money or his
life, but is killed by his friend under the
mistaken belief that the attack is a real one,
that the pistol leveled at his head is loaded, and
that his life and property are in imminent
danger at the hands of the aggressor. No one
will doubt that if the facts were such as the
slayer believed them to be he would be
innocent of the commission of any crime and
wholly exempt from criminal liability, although if
he knew the real state of the facts when he
took the life of his friend he would undoubtedly
be guilty of the crime of homicide or
assassination. Under such circumstances, proof
of his innocent mistake of the facts overcomes

355

the presumption of malice or criminal intent,

and (since malice or criminal intent is a
necessary ingredient of the "act punished by
law" in cases of homicide or assassination)
overcomes at the same time the presumption
established in article 1 of the code, that the
"act punished by law" was committed
"voluntarily."
Parson, C.J., in the Massachusetts court, once
said:
If the party killing had reasonable grounds
for believing that the person slain had a
felonious design against him, and under
that supposition killed him, although it
should afterwards appear that there was
no such design, it will not be murder, but it
will be either manslaughter or excusable
homicide, according to the degree of
caution used and the probable grounds of
such belief. (Charge to the grand jury in
Selfridge's case, Whart, Hom., 417, 418,
Lloyd's report of the case, p.7.)
In this case, Parker, J., charging the petit jury,
enforced the doctrine as follows:

A, in the peaceable pursuit of his affairs,

sees B rushing rapidly toward him, with an
outstretched arms and a pistol in his hand,
and using violent menaces against his life
as he advances. Having approached near
enough in the same attitude, A, who has a
club in his hand, strikes B over the head
before or at the instant the pistol is
discharged; and of the wound B dies. It
turns out the pistol was loaded
with powder only, and that the real design
of B was only to terrify A. Will any
reasonable man say that A is more
criminal that he would have been if there
had been a bullet in the pistol? Those who
hold such doctrine must require that a
man so attacked must, before he strikes
the assailant, stop and ascertain how the
pistol is loaded a doctrine which would
entirely take away the essential right of
self-defense. And when it is considered
that the jury who try the cause, and not
the party killing, are to judge of the
reasonable grounds of his apprehension,
no danger can be supposed to flow from
this principle. (Lloyd's Rep., p. 160.)

356

To the same effect are various decisions of the

supreme court of Spain, cited by Viada, a few of
which are here set out in full because the facts
are somewhat analogous to those in the case at
bar.
QUESTION III. When it is shown that the
accused was sitting at his hearth, at night,
in company only of his wife, without other
light than reflected from the fire, and that
the man with his back to the door was
attending to the fire, there suddenly
entered a person whom he did not see or
know, who struck him one or two blows,
producing a contusion on the shoulder,
because of which he turned, seized the
person and took from his the stick with
which he had undoubtedly been struck,
and gave the unknown person a blow,
knocking him to the floor, and afterwards
striking him another blow on the head,
leaving the unknown lying on the floor, and
left the house. It turned out the unknown
person was his father-in-law, to whom he
rendered assistance as soon as he learned
his identity, and who died in about six days

in consequence of cerebral congestion

resulting from the blow. The accused, who
confessed the facts, had always sustained
pleasant relations with his father-in-law,
whom he visited during his sickness,
demonstrating great grief over the
occurrence. Shall he be considered free
from criminal responsibility, as having
acted in self-defense, with all the
circumstances related in paragraph 4,
article 8, of the Penal Code? The criminal
branch of the Audiencia of Valladolid found
that he was an illegal aggressor, without
sufficient provocation, and that there did
not exists rational necessity for the
employment of the force used, and in
accordance with articles 419 and 87 of the
Penal Code condemned him to twenty
months of imprisonment, with accessory
penalty and costs. Upon appeal by the
accused, he was acquitted by the supreme
court, under the following sentence:
"Considering, from the facts found by the
sentence to have been proven, that the
accused was surprised from behind, at
night, in his house beside his wife who was

357

nursing her child, was attacked, struck,

and beaten, without being able to
distinguish with which they might have
executed their criminal intent, because of
the there was no other than fire light in
the room, and considering that in such a
situation and when the acts executed
demonstrated that they might endanger
his existence, and possibly that of his wife
and child, more especially because his
assailant was unknown, he should have
defended himself, and in doing so with the
same stick with which he was attacked, he
did not exceed the limits of self-defense,
nor did he use means which were not
rationally necessary, particularly because
the instrument with which he killed was
the one which he took from his assailant,
and was capable of producing death, and
in the darkness of the house and the
consteration which naturally resulted from
such strong aggression, it was not given
him to known or distinguish whether there
was one or more assailants, nor the arms
which they might bear, not that which they
might accomplish, and considering that the

lower court did not find from the accepted

facts that there existed rational necessity
for the means employed, and that it did
not apply paragraph 4 of article 8 of the
Penal Code, it erred, etc." (Sentence of
supreme court of Spain, February 28,
1876.) (Viada, Vol. I, p. 266.) .
QUESTION XIX. A person returning, at
night, to his house, which was situated in
a retired part of the city, upon arriving at a
point where there was no light, heard the
voice of a man, at a distance of some 8
paces, saying: "Face down, hand over you
money!" because of which, and almost at
the same money, he fired two shots from
his pistol, distinguishing immediately the
voice of one of his friends (who had before
simulated a different voice) saying, "Oh!
they have killed me," and hastening to his
assistance, finding the body lying upon the
ground, he cried, "Miguel, Miguel, speak,
for God's sake, or I am ruined," realizing
that he had been the victim of a joke, and
not receiving a reply, and observing that
his friend was a corpse, he retired from

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the place. Shall he be declared exempt in

toto from responsibility as the author of
this homicide, as having acted in just selfdefense under the circumstances defined
in paragraph 4, article 8, Penal Code? The
criminal branch of the Audiencia of Malaga
did not so find, but only found in favor of
the accused two of the requisites of said
article, but not that of the reasonableness
of the means employed to repel the attack,
and, therefore, condemned the accused to
eight years and one day of prison mayor,
etc. The supreme court acquitted the
accused on his appeal from this sentence,
holding that the accused was acting under
a justifiable and excusable mistake of fact
as to the identity of the person calling to
him, and that under the circumstances,
the darkness and remoteness, etc., the
means employed were rational and the
shooting justifiable. (Sentence supreme
court, March 17, 1885.) (Viada, Vol. I, p.
136.)
QUESTION VI. The owner of a mill,
situated in a remote spot, is awakened, at

night, by a large stone thrown against his

window at this, he puts his head out of
the window and inquires what is wanted,
and is answered "the delivery of all of his
money, otherwise his house would be
burned" because of which, and
observing in an alley adjacent to the mill
four individuals, one of whom addressed
him with blasphemy, he fired his pistol at
one the men, who, on the next morning
was found dead on the same spot. Shall
this man be declared exempt from criminal
responsibility as having acted in just selfdefense with all of the requisites of law?
The criminal branch of the requisites of
law? The criminal branch of
the Audiencia of Zaragoza finds that there
existed in favor of the accused a majority
of the requisites to exempt him from
criminal responsibility, but not that of
reasonable necessity for the means,
employed, and condemned the accused to
twelve months of prision correctional for
the homicide committed. Upon appeal, the
supreme court acquitted the condemned,
finding that the accused, in firing at the

359

malefactors, who attack his mill at night in

a remote spot by threatening robbery and
incendiarism, was acting in just selfdefense of his person, property, and
family. (Sentence of May 23, 1877). (I
Viada, p. 128.)
A careful examination of the facts as disclosed
in the case at bar convinces us that the
defendant Chinaman struck the fatal blow
alleged in the information in the firm belief that
the intruder who forced open the door of his
sleeping room was a thief, from whose assault
he was in imminent peril, both of his life and of
his property and of the property committed to
his charge; that in view of all the
circumstances, as they must have presented
themselves to the defendant at the time, he
acted in good faith, without malice, or criminal
intent, in the belief that he was doing no more
than exercising his legitimate right of selfdefense; that had the facts been as he believed
them to be he would have been wholly exempt
from criminal liability on account of his act; and
that he can not be said to have been guilty of
negligence or recklessness or even carelessness

in falling into his mistake as to the facts, or in

the means adopted by him to defend himself
from the imminent danger which he believe
threatened his person and his property and the
property under his charge.
The judgment of conviction and the sentence
imposed by the trial court should be reversed,
and the defendant acquitted of the crime with
which he is charged and his bail bond
exonerated, with the costs of both instance de
oficio. So ordered.
Johnson Moreland and Elliott, JJ., concur.
Arellano, C.J., and Mapa, J., dissent.

360

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-47722

July 27, 1943

THE PEOPLE OF THE PHILIPPINES, plaintiffappellee,

vs.
ANTONIO Z. OANIS and ALBERTO
GALANTA, defendants-appellants.
Antonio Z. Oanis in his own behalf.
Maximo L. Valenzuela for appellant Galanta.
Acting Solicitor-General Ibaez and Assistant
Attorney Torres for appellee.
MORAN, J.:
Charged with the crime of murder of one
Serapio Tecson, the accused Antonio Z. Oanis
and Alberto Galanta, chief of police of
Cabanatuan and corporal of the Philippine
Constabulary, respectively, were, after due trial,
found guilty by the lower court of homicide
through reckless imprudence and were

sentenced each to an indeterminate penalty of

from one year and six months to two years and
two months of prison correccional and to
indemnify jointly and severally the heirs of the
deceased in the amount of P1,000. Defendants
appealed separately from this judgment.
In the afternoon of December 24, 1938. Captain
Godofredo Monsod, Constabulary Provincial
Inspector at Cabanatuan, Nueva Ecija, received
from Major Guido a telegram of the following
tenor: "Information received escaped convict
Anselmo Balagtas with bailarina and Irene in
Cabanatuan get him dead or alive." Captain
Monsod accordingly called for his first sergeant
and asked that he be given four men.
Defendant corporal Alberto Galanta, and
privates Nicomedes Oralo, Venancio Serna and
D. Fernandez, upon order of their sergeant,
reported at the office of the Provincial Inspector
where they were shown a copy of the abovequoted telegram and a newspaper clipping
containing a picture of Balagtas. They were
instructed to arrest Balagtas and, if
overpowered, to follow the instruction contained
in the telegram. The same instruction was given

361

to the chief of police Oanis who was likewise

called by the Provincial Inspector. When the
chief of police was asked whether he knew one
Irene, a bailarina, he answered that he knew
one of loose morals of the same name. Upon
request of the Provincial Inspector, the chief of
police tried to locate some of his men to guide
the constabulary soldiers in ascertaining
Balagtas' whereabouts, and failing to see
anyone of them he volunteered to go with the
party. The Provincial Inspector divided the party
into two groups with defendants Oanis and
Galanta, and private Fernandez taking the route
to Rizal street leading to the house where Irene
was supposedly living. When this group arrived
at Irene's house, Oanis approached one Brigida
Mallare, who was then stripping banana stalks,
and asked her where Irene's room was. Brigida
indicated the place and upon further inquiry
also said that Irene was sleeping with her
paramour. Brigida trembling, immediately
returned to her own room which was very near
that occupied by Irene and her paramour.
Defendants Oanis and Galanta then went to the
room of Irene, and an seeing a man sleeping
with his back towards the door where they

were, simultaneously or successively fired at

him with their .32 and .45 caliber revolvers.
Awakened by the gunshots, Irene saw her
paramour already wounded, and looking at the
door where the shots came, she saw the
defendants still firing at him. Shocked by the
entire scene. Irene fainted; it turned out later
that the person shot and killed was not the
notorious criminal Anselmo Balagtas but a
peaceful and innocent citizen named Serapio
Tecson, Irene's paramour. The Provincial
Inspector, informed of the killing, repaired to
the scene and when he asked as to who killed
the deceased. Galanta, referring to himself and
to Oanis, answered: "We two, sir." The corpse
was thereafter brought to the provincial hospital
and upon autopsy by Dr. Ricardo de Castro,
multiple gunshot wounds inflicted by a .32 and
a .45 caliber revolvers were found on Tecson's
body which caused his death.
These are the facts as found by the trial court
and fully supported by the evidence, particularly
by the testimony of Irene Requinea. Appellants
gave, however, a different version of the
tragedy. According to Appellant Galanta, when

362

he and chief of police Oanis arrived at the

house, the latter asked Brigida where Irene's
room was. Brigida indicated the place, and upon
further inquiry as to the whereabouts of
Anselmo Balagtas, she said that he too was
sleeping in the same room. Oanis went to the
room thus indicated and upon opening the
curtain covering the door, he said: "If you are
Balagtas, stand up." Tecson, the supposed
Balagtas, and Irene woke up and as the former
was about to sit up in bed. Oanis fired at him.
Wounded, Tecson leaned towards the door, and
Oanis receded and shouted: "That is Balagtas."
Galanta then fired at Tecson.
On the other hand, Oanis testified that after he
had opened the curtain covering the door and
after having said, "if you are Balagtas stand
up." Galanta at once fired at Tecson, the
supposed Balagtas, while the latter was still
lying on bed, and continued firing until he had
exhausted his bullets: that it was only
thereafter that he, Oanis, entered the door and
upon seeing the supposed Balagtas, who was
then apparently watching and picking up
something from the floor, he fired at him.

The trial court refused to believe the appellants.

Their testimonies are certainly incredible not
only because they are vitiated by a natural urge
to exculpate themselves of the crime, but also
because they are materially contradictory. Oasis
averred that be fired at Tecson when the latter
was apparently watching somebody in an
attitudes of picking up something from the
floor; on the other hand, Galanta testified that
Oasis shot Tecson while the latter was about to
sit up in bed immediately after he was
awakened by a noise. Galanta testified that he
fired at Tecson, the supposed Balagtas, when
the latter was rushing at him. But Oanis
assured that when Galanta shot Tecson, the
latter was still lying on bed. It is apparent from
these contradictions that when each of the
appellants tries to exculpate himself of the
crime charged, he is at once belied by the
other; but their mutual incriminating averments
dovetail with and corroborate substantially, the
testimony of Irene Requinea. It should be
recalled that, according to Requinea, Tecson
was still sleeping in bed when he was shot to
death by appellants. And this, to a certain
extent, is confirmed by both appellants

363

themselves in their mutual recriminations.

According, to Galanta, Oanis shot Tecson when
the latter was still in bed about to sit up just
after he was awakened by a noise. And Oanis
assured that when Galanta shot Tecson, the
latter was still lying in bed. Thus corroborated,
and considering that the trial court had the
opportunity to observe her demeanor on the
stand, we believe and so hold that no error was
committed in accepting her testimony and in
rejecting the exculpatory pretensions of the two
appellants. Furthermore, a careful examination
of Irene's testimony will show not only that her
version of the tragedy is not concocted but that
it contains all indicia of veracity. In her crossexamination, even misleading questions had
been put which were unsuccessful, the witness
having stuck to the truth in every detail of the
occurrence. Under these circumstances, we do
not feel ourselves justified in disturbing the
findings of fact made by the trial court.
The true fact, therefore, of the case is that,
while Tecson was sleeping in his room with his
back towards the door, Oanis and Galanta, on
sight, fired at him simultaneously or

successively, believing him to be Anselmo

Balagtas but without having made previously
any reasonable inquiry as to his identity. And
the question is whether or not they may, upon
such fact, be held responsible for the death thus
caused to Tecson. It is contended that, as
appellants acted in innocent mistake of fact in
the honest performance of their official duties,
both of them believing that Tecson was
Balagtas, they incur no criminal liability.
Sustaining this theory in part, the lower court
held and so declared them guilty of the crime of
homicide through reckless imprudence. We are
of the opinion, however, that, under the
circumstances of the case, the crime committed
by appellants is murder through specially
mitigated by circumstances to be mentioned
below.
In support of the theory of non-liability by
reasons of honest mistake of fact, appellants
rely on the case of U.S. v. Ah Chong, 15 Phil.,
488. The maxim is ignorantia facti excusat, but
this applies only when the mistake is committed
without fault or carelessness. In the Ah Chong
case, defendant therein after having gone to

364

bed was awakened by someone trying to open

the door. He called out twice, "who is there,"
but received no answer. Fearing that the
intruder was a robber, he leaped from his bed
and called out again., "If you enter the room I
will kill you." But at that precise moment, he
was struck by a chair which had been placed
against the door and believing that he was then
being attacked, he seized a kitchen knife and
struck and fatally wounded the intruder who
turned out to be his room-mate. A common
illustration of innocent mistake of fact is the
case of a man who was marked as a footpad at
night and in a lonely road held up a friend in a
spirit of mischief, and with leveled, pistol
demanded his money or life. He was killed by
his friend under the mistaken belief that the
attack was real, that the pistol leveled at his
head was loaded and that his life and property
were in imminent danger at the hands of the
aggressor. In these instances, there is an
innocent mistake of fact committed without any
fault or carelessness because the accused,
having no time or opportunity to make a further
inquiry, and being pressed by circumstances to
act immediately, had no alternative but to take

the facts as they then appeared to him, and

such facts justified his act of killing. In the
instant case, appellants, unlike the accused in
the instances cited, found no circumstances
whatsoever which would press them to
immediate action. The person in the room being
then asleep, appellants had ample time and
opportunity to ascertain his identity without
hazard to themselves, and could even effect a
bloodless arrest if any reasonable effort to that
end had been made, as the victim was
unarmed, according to Irene Requinea. This,
indeed, is the only legitimate course of action
for appellants to follow even if the victim was
really Balagtas, as they were instructed not to
kill Balagtas at sight but to arrest him, and to
get him dead or alive only if resistance or
aggression is offered by him.
Although an officer in making a lawful arrest is
justified in using such force as is reasonably
necessary to secure and detain the offender,
overcome his resistance, prevent his escape,
recapture him if he escapes, and protect himself
from bodily harm (People vs. Delima, 46 Phil,
738), yet he is never justified in using

365

unnecessary force or in treating him with

wanton violence, or in resorting to dangerous
means when the arrest could be effected
otherwise (6 C.J.S., par. 13, p. 612). The
doctrine is restated in the new Rules of Court
thus: "No unnecessary or unreasonable force
shall be used in making an arrest, and the
person arrested shall not be subject to any
greater restraint than is necessary for his
detention." (Rule 109, sec. 2, par. 2). And a
peace officer cannot claim exemption from
criminal liability if he uses unnecessary force or
violence in making an arrest (5 C.J., p. 753;
U.S.vs. Mendoza, 2 Phil., 109). It may be true
that Anselmo Balagtas was a notorious criminal,
a life-termer, a fugitive from justice and a
menace to the peace of the community, but
these facts alone constitute no justification for
killing him when in effecting his arrest, he offers
no resistance or in fact no resistance can be
offered, as when he is asleep. This, in effect, is
the principle laid down, although upon different
facts, in U.S. vs. Donoso (3 Phil., 234, 242).
It is, however, suggested that a notorious
criminal "must be taken by storm" without

regard to his right to life which he has by such

notoriety already forfeited. We may approve of
this standard of official conduct where the
criminal offers resistance or does something
which places his captors in danger of imminent
attack. Otherwise we cannot see how, as in the
present case, the mere fact of notoriety can
make the life of a criminal a mere trifle in the
hands of the officers of the law. Notoriety
rightly supplies a basis for redoubled official
alertness and vigilance; it never can justify
precipitate action at the cost of human life.
Where, as here, the precipitate action of the
appellants has cost an innocent life and there
exist no circumstances whatsoever to warrant
action of such character in the mind of a
reasonably prudent man, condemnation not
condonation should be the rule; otherwise we
should offer a premium to crime in the shelter
of official actuation.
The crime committed by appellants is not
merely criminal negligence, the killing being
intentional and not accidental. In criminal
negligence, the injury caused to another should
be unintentional, it being simply the incident of

366

another act performed without malice.

(People vs. Sara, 55 Phil., 939). In the words of
Viada, "para que se celifique un hecho de
imprudencia es preciso que no haya mediado en
el malicia ni intencion alguna de daar;
existiendo esa intencion, debera calificarse el
hecho del delito que ha producido, por mas que
no haya sido la intencion del agente el causar
un mal de tanta gravedad como el que se
produjo." (Tomo 7, Viada Codigo Penal
Comentado, 5.a ed. pag. 7). And, as once held
by this Court, a deliberate intent to do an
unlawful act is essentially inconsistent with the
idea of reckless imprudence
(People vs. Nanquil, 43 Phil., 232;
People vs. Bindor, 56 Phil., 16), and where such
unlawful act is wilfully done, a mistake in the
identity of the intended victim cannot be
considered as reckless imprudence
(People vs. Gona, 54 Phil., 605) to support a
plea of mitigated liability.
As the deceased was killed while asleep, the
crime committed is murder with the qualifying
circumstance ofalevosia. There is, however, a
mitigating circumstance of weight consisting in

the incomplete justifying circumstance defined

in article 11, No. 5, of the Revised Penal Code.
According to such legal provision, a person
incurs no criminal liability when he acts in the
fulfillment of a duty or in the lawful exercise of
a right or office. There are two requisites in
order that the circumstance may be taken as a
justifying one: (a) that the offender acted in the
performance of a duty or in the lawful exercise
of a right; and (b) that the injury or offense
committed be the necessary consequence of the
due performance of such duty or the lawful
exercise of such right or office. In the instance
case, only the first requisite is present
appellants have acted in the performance of a
duty. The second requisite is wanting for the
crime by them committed is not the necessary
consequence of a due performance of their
duty. Their duty was to arrest Balagtas or to get
him dead or alive if resistance is offered by him
and they are overpowered. But through
impatience or over-anxiety or in their desire to
take no chances, they have exceeded in the
fulfillment of such duty by killing the person
whom they believed to be Balagtas without any
resistance from him and without making any

367

previous inquiry as to his identity. According to

article 69 of the Revised Penal Code, the
penalty lower by one or two degrees than that
prescribed by law shall, in such case, be
imposed.
For all the foregoing, the judgment is modified
and appellants are hereby declared guilty of
murder with the mitigating circumstance above
mentioned, and accordingly sentenced to an
indeterminate penalty of from five (5) years
of prision correctional to fifteen (15) years
of reclusion temporal, with the accessories of
the law, and to pay the heirs of the deceased
Serapio Tecson jointly and severally an
indemnity of P2,000, with costs.
Yulo, C.J., Bocobo, Generoso and Lopez Vito,
A., concur.

368

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
Adm. Case No. 3086 February 23, 1988
ALEXANDER PADILLA, complainant,
vs.
THE HON. BALTAZAR R. DIZON, Presiding
Judge of the Regional Trial Court of Pasay
City Branch 113,respondent.
RESOLUTION

PER CURIAM:
This is an administrative complaint, dated
August 6, 1987, filed by the then Commissioner
of Customs, Alexander Padilla, against
respondent Baltazar R. Dizon, RTC Judge,
Branch 115, Pasay City, for rendering a
manifestly erroneous decision due, at the very
least, to gross incompetence and gross
ignorance of the law, in Criminal Case No. 8610126-P, entitled "People of the Philippines vs.
Lo Chi Fai", acquitting said accused of the

offense charged, i.e., smuggling of foreign

currency out of the country.
Required by the Court to answer the complaint,
the respondent judge filed an Answer, dated
October 6, 1987, reciting his "commendable
record as a fearless prosecutor" since his
appointment as Assistant City Fiscal of Manila
on December 4, 1962, until his appointment
eventually as RTC Judge on February 18, 1983;
that at in the reorganization of the judiciary
after the February 26, 1986 revolution, he was
reappointed to his present position; that his
length of service as prosecutor and judge is
"tangible proof that would negate the
allegations of the petitioner" (should be
complainant), whereas the latter did not last
long in the service for reasons only known to
him; that the decision involved in the complaint
was promulgated by respondent on September
29, 1986, but the complaint against him was
filed only on August 6, 1987, a clear indication
of malice and ill-will of the complainant to
subject respondent to harassment, humiliation
and vindictiveness; that his decision, of which
he submits a copy (Annex A) as part of his
Answer, is based on "fundamental principles and
the foundation of rights and justice" and that if
there are mistakes or errors in the questioned

369

decision, they are committed in good faith.

Accordingly, respondent prays for the dismissal
of the petition (should be complaint).
The issue before the Court is whether or not the
respondent judge is guilty of gross
incompetence or gross ignorance of the law in
rendering the decision in question. A judge can
not be held to account or answer, criminally,
civilly or administratively, for an erroneous
decision rendered by him in good faith.
The case in which the respondent rendered a
decision of acquittal involved a tourist, Lo Chi
Fai, who was caught by a Customs guard at the
Manila International Airport while attempting to
smuggle foreign currency and foreign exchange
instruments out of the country. Lo Chi Fai, was
apprehended by a customs guard and two
PAFSECOM officers on July 9, 1986, while on
board Flight PR 300 of the Philippine Air Lines
bound for Hongkong. At the time of his
apprehension, he was found carrying with him
foreign currency and foreign exchange
instruments (380 pieces) amounting to US$
355,349.57, in various currency denominations,
to wit: Japanese Yen, Swiss Franc, Australian
Dollar, Singapore Dollar, HFL Guilder, French
Franc, U.S. Dollar, English Pound, Malaysian
Dollar, Deutsche Mark, Canadian Dollar and

Hongkong Dollar, without any authority as

provided by law. At the time the accused was
apprehended, he was able to exhibit two
currency declarations which he was supposed to
have accomplished upon his arrival in Manila in
previous trips, namely, CB Currency Declaration
No. 05048, dated May 4, 1986 for
US$39,600.00 and Japanese Yen 4,000,000.00,
and CB Currency Declaration No. 06346, dated
June 29, 1986 for Japanese Yen 6,600,000.00.
An information was filed against Lo Chi Fai, with
the RTC of Pasay City for violation of Sec. 6,
Central Bank Circular No. 960, as follows:
That on or about the 9th day of July,
1986, in the City of Pasay, Metro
Manila, Philippines and within the
jurisdiction of this Honorable Court,
the above-named accused, Mr. LO
CHI FAI, did then and there wilfully,
unlawfully and feloniously attempt to
take out of the Philippines through
the Manila International Airport the
following foreign currencies in cash
and in checks:
Japanese Yen

Y 32,800,000.00

370

Swiss Franc

SW. FR
6,9000.00

Australian
Dollar

A$ 17,425.00

371

Singapore
Dollar

S$ 9,945.00

Deutsche
Marck

DM 18,595.00

372

Canadian Dollar

CS 13,330.00

Australian
Dollar

A$ 7,750.00

Hongkong
Dollar

HK$ 15,630.00
British Pound

700.00

HFL Guilder

HFL 430.00

US Dollar

US$ 17,630.00

French Franc

F/6,860.00

Canadian Dollar

C$ 990.00

US Dollar

US$ 73,950.00

English Pound

5,318.00

Malaysian
Dollar

(in checks)

M$. 14,760.00

without authority from the

Central Bank.
Contrary to Law.
The case, which was docketed as Criminal Case
No. 86-10126-P, was subsequently raffled to
Branch 113, presided by herein respondent
Judge Baltazar A. Dizon.
Section 6 of Circular No. 960 of the Central
Bank provides as follows:
Sec. 6. Export, import of foreign
exchange; exceptions. No person
shall take out or transmit or attempt

373

to take out or transmit foreign

exchange in any form, out of the
Philippines directly, through other
persons, through the mails or through
international carriers except when
specifically authorized by the Central
Bank or allowed under existing
international agreements or Central
Bank regulations.
Tourists and non-resident visitors
may take out or send out from the
Philippine foreign exchange in
amounts not exceeding such amounts
of foreign exchange brought in by
them. For purposes of establishing
the amount of foreign exchange
brought in or out of the Philippines,
tourists and non-resident temporary
visitors bringing with them more than
US$3,000.00 or its equivalent in
other foreign currencies shall declare
their foreign exchange in the form
prescribed by the Central Bank at
points of entries upon arrival in the
Philippines.
The penal sanction is provided by Section 1,
P.D. No. 1883, which reads as follows:

Section 1. Blackmarketing of Foreign

Exchange . That any person who
shall engage in the trading or
purchase and sale of foreign currency
in violation of existing laws or rules
and regulations of the Central Bank
shall be guilty of the crime of
blackmarketing of foreign exchange
and shall suffer the penalty
of reclusion temporal, (minimum of
12 years and I day and maximum of
20 years) and a fine of no less than
fifty thousand (P50,000.00) Pesos.
At the trial, the accused tried to establish that
he was a businessman from Kowloon,
Hongkong, engaged in the garment business, in
which he had invested 4 to 5 million Hongkong
Dollars; that he had come to the Philippines 9
to 1 0 times, although the only dates he could
remember were April 2, 1986, May 4, 1986,
June 28,1986, and July 8, 1986; that the
reason for his coming to the Philippines was to
invest in business in the Philippines and also to
play in the casino; that he had a group of
business associates who decided to invest in
business with him, namely: Wakita Noboyuki,
Kobayashi Nabuo, Lee Shiang Pin, Lee Chin and
Cze Kai Kwan, who had their own businesses in
Japan and Hongkong; that when he came to the

374

Philippines on April 2,1986, he brought

US$50,000.00 and 8,500,000.00 Japanese Yen
which he tried to declare but the Central Bank
representative refused to accept his declaration,
until he could get a confirmation as to the
source of the money, for which reason he
contacted his bank in Hongkong and a telex was
sent to him on April 3,1986 (Exh. 4). He also
brought in with him US$39,000.00 and
4,000,000.00 Japanese Yen when he arrived on
May 4,1986 which he declared (Exh. 1). Again,
he declared 8,600,000.00 Japanese Yen when
he arrived on June 28, 1986 (Exh. 2). He also
testified that his business associates, as per
their agreement to invest in some business with
him in the Philippines, started putting their
money for this purpose in a common fund,
hence, every time anyone of them came to the
Philippines, they would declare the money they
were bringing in, and all declarations were
handed to and kept by him; these currency
declarations were presented at the trial as
exhibits for the defense. When asked by the
court why he did not present all of these
declarations when he was apprehended at the
airport, his answer was that he was not asked
to present the declaration papers of his
associates, and besides, he does not
understand English and he was not told to do
so. He also testified on cross-examination that

the reason he was going back to Hongkong

bringing with him all the money intended to be
invested in the Philippines was because of the
fear of his group that the "revolution" taking
place in Manila might become widespread. It
was because of this fear that he was urged by
his associates to come to Manila on July 8, 1986
to bring the money out of the Philippines.
The respondent judge, in his decision acquitting
the accused, stated:
The factual issue for this Court to
determine is whether or not the
accused wilfully violated Section 6 of
Circular No. 960. The fact that the
accused had in his possession the
foreign currencies when he was about
to depart from the Philippines did not
by that act alone make him liable for
Violation of Section 6.
What is imperative is the purpose for
which the act of bringing foreign
currencies out of the country was
done the very intention. It is that
which qualifies the act as criminal or
not. There must be that clear
intention to violate and benefit from
the act done. Intent is a mental state,

375

the existence of which is shown by

overt acts of a person.
The respondent proceeded to analyze the
evidence which, according to him, tended to
show that the accused had no wilfull intention
to violate the law. According to the respondent
in his decision:
... this Court is persuaded to accept
the explanation of the defense that
the currencies confiscated and/or
seized from the accused belong to
him and his business associates
abovenamed. And from the
unwavering and unequivocal
testimonies of Mr. Templo and all of
currencies in question came from
abroad and not from the local source
which is what is being prohibited by
the government. Yes, simply reading
the provisions of said circular will,
readily show that the currency
declaration is required for the
purpose of establishing the amount of
currency being brought by tourist or
temporary non-resident visitors into
the country. The currency
declarations, therefore, is already
(sic) intended to serve as a guideline

for the Customs authorities to

determine the amounts actually
brought in by them to correspond to
the amounts that could be allowed to
be taken out. Indeed, this Court is
amazed and really has its misgivings
in the manner currency declarations
were made as testified to by the
Central Bank employees. Why the
Bureau of Customs representative
never took part in all these
declarations testified to by no less
than five (5) Central Bank
employees? Seemingly, these
employees are the favorites of these
travellers. It is the hope of this Court
that the authorities must do
something to remedy the evident flaw
in the system for effective
implementation of the questioned
Central Bank Circular No. 960.
But even with a doubtful mind this
Court would not be able to pin
criminal responsibility on the accused.
This is due to its steadfast adherence
and devotion to the rule of law-a
factor in restoring the almost lost
faith and erosion of confidence of the
people in the administration of

376

justice. Courts of Justice are guided

only by the rule of evidence.
The respondent-judge has shown gross
incompetence or gross ignorance of the law in
holding that to convict the accused for violation
of Central Bank Circular No. 960, the
prosecution must establish that the accused had
the criminal intent to violate the law. The
respondent ought to know that proof of malice
or deliberate intent (mens rea) is not essential
in offenses punished by special laws, which
are mala prohibita. In requiring proof of malice,
the respondent has by his gross ignorance
allowed the accused to go scot free. The
accused at the time of his apprehension at the
Manila International Airport had in his
possession the amount of US$355,349.57 in
assorted foreign currencies and foreign
exchange instruments (380 pieces), without any
specific authority from the Central Bank as
required by law. At the time of his
apprehension, he was able to exhibit only two
foreign currency declarations in his possession.
These were old declarations made by him on
the occasion of his previous trips to the
Philippines.
Although lack of malice or wilfull intent is not a
valid defense in a case for violation of Central

Bank Circular No. 960, the respondent

nonetheless chose to exonerate the accused
based on his defense that the foreign currency
he was bringing out of the country at the time
he was apprehended by the customs authorities
were brought into the Philippines by him and his
alleged business associates on several previous
occasions when they came to the Philippines,
supposedly to be used for the purpose of
investing in some unspecified or undetermined
business ventures; that this money was kept in
the Philippines and he precisely came to the
Philippines to take the money out as he and his
alleged business associates were afraid that the
"attempted revolution" which occurred on July
6,1986 might spread. Such fantastic tale,
although totally irrelevant to the matter of the
criminal liability of the accused under the
information, was swallowed by the respondentjudge "hook, line and sinker." It did not matter
to the respondent that the foreign currency and
foreign currency instruments found in the
possession of the accused when he was
apprehended at the airport-380 pieces in alland the amounts of such foreign exchange did
not correspond to the foreign currency
declarations presented by the accused at the
trial. It did not matter to the respondent that
the accused by his own story admitted, in
effect, that he was a carrier" of foreign currency

377

for other people. The respondent closed his

eyes to the fact that the very substantial
amounts of foreign exchange found in the
possession of the accused at the time of his
apprehension consisted of personal checks of
other people, as well as cash in various
currency denominations (12 kinds of currency in
all), which clearly belied the claim of the
accused that they were part of the funds which
he and his supposed associates had brought in
and kept in the Philippines for the purpose of
investing in some business ventures. The
respondent ignored the fact that most of the CB
Currency declarations presented by the defense
at the trial were declarations belonging to other
people which could not be utilized by the
accused to justify his having the foreign
exchange in his possession. Although contrary
to ordinary human experience and behavior, the
respondent judge chose to give credence to the
fantastic tale of the accused that he and his
alleged business associates had brought in from
time to time and accumulated and kept in the
Philippines foreign exchange (of very
substantial amounts in cash and checks in
various foreign currency denominations) for the
purpose of investing in business even before
they knew and had come to an agreement as to
the specific business venture in which they were
going to invest. These and other circumstances

which make the story concocted by the accused

so palpably unbelievable as to render the
findings of the respondent judge obviously
contrived to favor the acquittal of the accused,
thereby clearly negating his claim that he
rendered the decision "in good faith." His
actuations in this case amount to grave
misconduct prejudicial to the interest of sound
and fair administration of justice.
He not only acquitted the accused Lo Chi Fai,
but directed in his decision the release to the
accused of at least the amount of US$3,000.00,
allowed, according to respondent, under Central
Bank Circular No. 960. This, in spite of the fact
that forfeiture proceedings had already been
instituted by the Bureau of Customs over the
currency listed in the information, which
according to the respondent should be
respected since the Bureau of Customs "has the
exclusive jurisdiction in the matter of seizure
and forfeiture of the property involved in the
alleged infringements of the aforesaid Central
Bank Circular." In invoking the provisions of CB
Circular No. 960 to justify the release of US$
3,000.00 to the accused, the respondent judge
again displayed gross incompetence and gross
ignorance of the law. There is nothing in the
said CB Circular which could be taken as
authority for the trial court to release the said

378

amount of U.S. Currency to the accused.

According to the above-cited CB Circular,
tourists may take out or send out from the
Philippines foreign exchange in amounts not
exceeding such amounts of foreign exchange
brought in by them; for the purpose of
establishing such amount, tourists or nonresident temporary visitors bringing with them
more than US$3,000.00 or its equivalent in
other foreign currencies must declare their
foreign exchange at points of entries upon
arrival in the Philippines. In other words, CB
Circular No. 960 merely provides that for the
purpose of establishing the amount of foreign
currency brought in or out of the Philippines, a
tourist upon arrival is required to declare any
foreign exchange he is bringing in at the time of
his arrival, if the same exceeds the amount of
US$3,000.00 or its equivalent in other foreign
currencies. There is nothing in said circular that
would justify returning to him the amount of at
least US$3,000.00, if he is caught attempting to
bring out foreign exchange in excess of said
amount without specific authority from the
Central Bank.
Accordingly, the Court finds the respondent
Regional Trial Court Judge, Baltazar R. Dizon,
guilty of gross incompetence, gross ignorance
of the law and grave and serious misconduct

affecting his integrity and efficiency, and

consistent with the responsibility of this Court
for the just and proper administration of justice
and for the attainment of the objective of
maintaining the people's faith in the judiciary
(People vs. Valenzuela, 135 SCRA 712), it is
hereby ordered that the Respondent Judge be
DISMISSED from the service. All leave and
retirement benefits and privileges to which he
may be entitled are hereby forfeited with
prejudice to his being reinstated in any branch
of government service, including governmentowned and/or controlled agencies or
corporations.
This resolution is immediately executory.
SO ORDERED.

379

G.R. No. 96132 June 26, 1992

ORIEL MAGNO, petitioner,
vs.
HONORABLE COURT OF APPEALS and
PEOPLE OF THE PHILIPPINES, respondents.

PARAS, J.:
This is an appeal by certiorari under Rule 45 of
the Revised Rules of Court, from the decision*
of the respondent Court of Appeals which
affirmed in toto the decision of the Regional
Trial Court of Quezon City, Branch 104 finding
the accused petitioner, guilty of violations of
Batas Pambansa Blg. 22, in Criminal Cases Q35693 to 35696 before they were elevated on
appeal to the respondent appellate Court under
CA-G.R. CR No. 04889.
The antecedent facts and circumstances of the
four (4) counts of the offense charged, have
been clearly illustrated, in the Comment of the
Office of the Solicitor General as official counsel
for the public respondent, thus:

380

Petitioner was in the process of putting up a car

repair shop sometime in April 1983, but a did
not have complete equipment that could make
his venture workable. He also had another
problem, and that while he was going into this
entrepreneurship, he lacked funds with which to
purchase the necessary equipment to make
such business operational. Thus, petitioner,
representing Ultra Sources International
Corporation, approached Corazon Teng, (private
complainant) Vice President of Mancor
Industries (hereinafter referred to as Mancor)
for his needed car repair service equipment of
which Mancor was a distributor, (Rollo, pp. 4041)
Having been approached by petitioner on his
predicament, who fully bared that he had no
sufficient funds to buy the equipment needed,
the former (Corazon Teng) referred Magno to LS
Finance and Management Corporation (LB
Finance for brevity) advising its Vice-President,
Joey Gomez, that Mancor was willing and able
to supply the pieces of equipment needed if LS
Finance could accommodate petitioner and
provide him credit facilities. (Ibid., P. 41)

The arrangement went through on condition

that petitioner has to put up a warranty deposit
equivalent to thirty per centum (30%) of the
total value of the pieces of equipment to be
purchased, amounting to P29,790.00. Since
petitioner could not come up with such amount,
he requested Joey Gomez on a personal level to
look for a third party who could lend him the
equivalent amount of the warranty deposit,
however, unknown to petitioner, it was Corazon
Teng who advanced the deposit in question, on
condition that the same would be paid as a
short term loan at 3% interest (Ibid., P. 41)
The specific provision in the Leasing Agreement,
reads:
1.1. WARRANTY DEPOSIT Before or
upon delivery of each item of
Equipment, the Lessee shall deposit
with the Lessor such sum or sums
specified in Schedule A to serve as
security for the faithful performance
of its obligations.
This deposit shall be refunded to the
Lessee upon the satisfactory

381

completion of the entire period of

Lease, subject to the conditions of
clause 1.12 of this Article. (Ibid., p.
17)
As part of the arrangement, petitioner and LS
Finance entered into a leasing agreement
whereby LS Finance would lease the garage
equipments and petitioner would pay the
corresponding rent with the option to buy the
same. After the documentation was completed,
the equipment were delivered to petitioner who
in turn issued a postdated check and gave it to
Joey Gomez who, unknown to the petitioner,
delivered the same to Corazon Teng. When the
check matured, Petitioner requested through
Joey Gomez not to deposit the check as he
(Magno) was no longer banking with Pacific
Bank.
To replace the first check issued, petitioner
issued another set of six (6) postdated checks.
Two (2) checks dated July 29, 1983 were
deposited and cleared while the four (4) others,
which were the subject of the four counts of the
aforestated charges subject of the petition,

were held momentarily by Corazon Teng, on the

request of Magno as they were not covered with
sufficient funds. These checks were a) Piso
Bank Check Nos. 006858, dated August 15,
1983, 006859 dated August 28, 1983 and
006860 dated September 15, 1983, all in the
amount of P5,038.43 and No. 006861 dated
September 28, 1983, in the amount of
P10,076.87. (Ibid., pp. 42 & 43).
Subsequently, petitioner could not pay LS
Finance the monthly rentals, thus it pulled out
the garage equipments. It was then on this
occasion that petitioner became aware that
Corazon Teng was the one who advanced the
warranty deposit. Petitioner with his wife went
to see Corazon Teng and promised to pay the
latter but the payment never came and when
the four (4) checks were deposited they were
returned for the reason "account closed." (Ibid.,
p. 43)
After joint trial before the Regional Trial Court of
Quezon City, Branch 104, the accused-petitioner
was convicted for violations of BP Blg. 22 on the
four (4) cases, as follows:

382

. . . finding the accused-appellant

guilty beyond reasonable doubt of the
offense of violations of B.P. Blg. 22
and sentencing the accused to
imprisonment for one year in each
Criminal Case Nos. Q-35693, Q35695 and Q-35696 and to pay to
complainant the respective amounts
reflected in subject checks. (Ibid., pp.
25, 27)

Reviewing the above and the affirmation of the

above-stated decision of the court a quo, this
Court is intrigued about the outcome of the
checks subject of the cases which were
intended by the parties, the petitioner on the
one hand and the private complainant on the
other, to cover the "warranty deposit"
equivalent to the 30% requirement of the
financing company. Corazon Teng is one of the
officers of Mancor, the supplier of the
equipment subject of the Leasing Agreement
subject of the high financing scheme
undertaken by the petitioner as lessee of the
repair service equipment, which was arranged
at the instance of Mrs. Teng from the very
beginning of the transaction.
By the nature of the "warranty deposit"
amounting to P29,790.00 corresponding to 30%
of the "purchase/lease" value of the equipments
subject of the transaction, it is obvious that the
"cash out" made by Mrs. Teng was not used by
petitioner who was just paying rentals for the
equipment. It would have been different if
petitioner opted to purchase the pieces of
equipment on or about the termination of the

383

lease-purchase agreement in which case he had

to pay the additional amount of the warranty
deposit which should have formed part of the
purchase price. As the transaction did not ripen
into a purchase, but remained a lease with
rentals being paid for the loaned equipment,
which were pulled out by the Lessor (Mancor)
when the petitioner failed to continue paying
possibly due to economic constraints or
business failure, then it is lawful and just that
the warranty deposit should not be charged
against the petitioner.
To charge the petitioner for the refund of a
"warranty deposit" which he did not withdraw as
it was not his own account, it having remained
with LS Finance, is to even make him pay an
unjust "debt", to say the least, since petitioner
did not receive the amount in question. All the
while, said amount was in the safekeeping of
the financing company, which is managed,
supervised and operated by the corporation
officials and employees of LS Finance. Petitioner
did not even know that the checks he issued
were turned over by Joey Gomez to Mrs. Teng,
whose operation was kept from his knowledge

on her instruction. This fact alone evoke

suspicion that the transaction is irregular and
immoral per se, hence, she specifically
requested Gomez not to divulge the source of
the "warranty deposit".
It is intriguing to realize that Mrs. Teng did not
want the petitioner to know that it was she who
"accommodated" petitioner's request for Joey
Gomez, to source out the needed funds for the
"warranty deposit". Thus it unfolds the kind of
transaction that is shrouded with mystery,
gimmickry and doubtful legality. It is in simple
language, a scheme whereby Mrs. Teng as the
supplier of the equipment in the name of her
corporation, Mancor, would be able to "sell or
lease" its goods as in this case, and at the same
time, privately financing those who desperately
need petty accommodations as this one.
This modus operandi has in so many instances
victimized unsuspecting businessmen, who
likewise need protection from the law, by
availing of the deceptively called "warranty
deposit" not realizing that they also fall prey to
leasing equipment under the guise of a lease-

384

purchase agreement when it is a scheme

designed to skim off business clients.
This maneuvering has serious implications
especially with respect to the threat of the
penal sanction of the law in issue, as in this
case. And, with a willing court system to apply
the full harshness of the special law in question,
using the "mala prohibitia" doctrine, the noble
objective of the law is tainted with materialism
and opportunism in the highest, degree.

This angle is bolstered by the fact that since the

petitioner or lessee referred to above in the
lease agreement knew that the amount of
P29,790.00 subject of the cases, were mere
accommodation-arrangements with somebody
thru Joey Gomez, petitioner did not even
attempt to secure the refund of said amount
from LS Finance, notwithstanding the
agreement provision to the contrary. To argue
that after the termination of the lease
agreement, the warranty deposit should be
refundable in full to Mrs. Teng by petitioner
when he did not cash out the "warranty deposit"
for his official or personal use, is to stretch the
nicety of the alleged law (B.P. No, 22) violated.
For all intents and purposes, the law was
devised to safeguard the interest of the banking
system and the legitimate public checking
account user. It did not intend to shelter or
favor nor encourage users of the system to
enrich themselves through manipulations and
circumvention of the noble purpose and
objective of the law. Least should it be used
also as a means of jeopardizing honest-togoodness transactions with some color of "get-

385

rich" scheme to the prejudice of well-meaning

businessmen who are the pillars of society.
Under the utilitarian theory, the "protective
theory" in criminal law, "affirms that the
primary function of punishment is the protective
(sic) of society against actual and potential
wrongdoers." It is not clear whether petitioner
could be considered as having actually
committed the wrong sought to be punished in
the offense charged, but on the other hand, it
can be safely said that the actuations of Mrs.
Carolina Teng amount to that of potential
wrongdoers whose operations should also be
clipped at some point in time in order that the
unwary public will not be failing prey to such a
vicious transaction (Aquino, The Revised Penal
Code, 1987 Edition, Vol. I, P. 11)
Corollary to the above view, is the application of
the theory that "criminal law is founded upon
that moral disapprobation . . . of actions which
are immoral, i.e., which are detrimental (or
dangerous) to those conditions upon which
depend the existence and progress of human
society. This disappropriation is inevitable to the

extent that morality is generally founded and

built upon a certain concurrence in the moral
opinions of all. . . . That which we call
punishment is only an external means of
emphasizing moral disapprobation the method
of punishment is in reality the amount of
punishment," (Ibid., P. 11, citing People v.
Roldan Zaballero, CA 54 O.G. 6904, Note also
Justice Pablo's view in People v. Piosca and
Peremne, 86 Phil. 31).
Thus, it behooves upon a court of law that in
applying the punishment imposed upon the
accused, the objective of retribution of a
wronged society, should be directed against the
"actual and potential wrongdoers." In the
instant case, there is no doubt that petitioner's
four (4) checks were used to collateralize an
accommodation, and not to cover the receipt of
an actual "account or credit for value" as this
was absent, and therefore petitioner should not
be punished for mere issuance of the checks in
question. Following the aforecited theory, in
petitioner's stead the "potential wrongdoer",
whose operation could be a menace to society,

386

should not be glorified by convicting the

petitioner.
While in case of doubt, the case should have
been resolved in favor of the accused, however,
by the open admission of the appellate court
below, oven when the ultimate beneficiary of
the "warranty deposit" is of doubtful certainty,
the accused was convicted, as shown below:
Nor do We see any merit in
appellant's claim that the obligation
of the accused to complainant had
been extinguished by the termination
of the leasing agreement by the
terms of which the warranty deposit
advanced by complainant was
refundable to the accused as lessee
and that as the lessor L.S. Finance
neither made any liquidation of said
amount nor returned the same to the
accused, it may he assumed that the
amount was already returned to the
complainant. For these allegations,
even if true, do not change the fact,
admitted by appellant and

established by the evidence, that the

four checks were originally issued on
account or for value. And as We have
already observed, in order that there
may be a conviction under the from
paragraph of Section 2 of B.P. Blg 22
with respect to the element of said
offense that the check should have
been made and issued on account or
for value it is sufficient, all the
other elements of the offense being
present, that the check must have
been drawn and issued in payment of
an obligation.
Moreover, even granting, arguendo,
that the extinguishment, after the
issuance of the checks, of the
obligation in consideration of which
the checks were issued, would have
resulted in placing the case at bar
beyond the purview of the prohibition
in Section 1 of BP Blg. 22, there is no
satisfactory proof that there was such
an extinguishment in the present
case. Appellee aptly points out that

387

appellant had not adduced any direct

evidence to prove that the amount
advanced by the complainant to
cover the warranty deposit must
already have been returned to her.
(Rollo, p. 30)
It is indubitable that the respondent Court of
Appeals even disregarded the cardinal rule that
the accused is presumed innocent until proven
guilty beyond reasonable doubt. On the
contrary, the same court even expected the
petitioner-appellant to adduce evidence to show
that he was not guilty of the crime charged. But
how can be produce documents showing that
the warranty deposit has already been taken
back by Mrs. Teng when she is an officer of
Mancor which has interest in the transaction,
besides being personally interested in the profit
of her side-line. Thus, even if she may have
gotten back the value of the accommodation,
she would still pursue collecting from the
petitioner since she had in her possession the
checks that "bounced".

That the court a quo merely relied on the law,

without looking into the real nature of the
warranty deposit is evident from the following
pronouncement:
And the trail court concluded that
there is no question that the accused
violated BP Blg. 22, which is a special
statutory law, violations of which
are mala prohibita. The court relied
on the rule that in cases of mala
prohibita, the only inquiry is whether
or not the law had been violated,
proof of criminal intent not being
necessary for the conviction of the
accused, the acts being prohibited for
reasons of public policy and the
defenses of good faith and absence of
criminal intent being unavailing in
prosecutions for said offenses." (Ibid.,
p. 26)
The crux of the matter rests upon the reason
for the drawing of the postdated checks by the
petitioner, i.e.,whether they were drawn or
issued "to apply on account or for value", as

388

required under Section 1 of B.P. Blg, 22. When

viewed against the following definitions of the
catch-terms "warranty" and "deposit", for which
the postdated checks were issued or drawn, all
the more, the alleged crime could not have
been committed by petitioner:
a) Warranty A promise that a
proposition of fact is true. A promise
that certain facts are truly as they are
represented to be and that they will
remain so: . . . (Black's Law
Dictionary, Fifth Edition, (1979) p.
1423)
A cross-reference to the following term shows:
Fitness for Particular Purpose:
Where the seller at the time of
contracting has reason to know any
particular purpose for which the
goods are required and that the buyer
is relying on the seller's skill or
judgment to select or furnish suitable
goods, there is, unless excluded or
modified, an implied warranty that

the goods shall be fit for such

purpose, (Ibid., p. 573)
b) Deposit: Money lodged with a
person as an earnest or security for
the performance of some contract, to
be forfeited if the depositor fails in his
undertaking. It may be deemed to be
part payment and to that extent may
constitute the purchaser the actual
owner of the estate.
To commit to custody, or to lay down;
to place; to put. To lodge for safekeeping or as a pledge to intrust to
the care of another.
The act of placing money in the
custody of a bank or banker, for
safety or convenience, to be
withdrawn at the will of the depositor
or under rules and regulations agreed
on. Also, the money so deposited, or
the credit which the depositor
receives for it. Deposit, according to
its commonly accepted and generally
understood among bankers and by

389

the public, includes not only deposits

payable on demand and for which
certificates, whether interest-bearing
or not, may be issued, payable on
demand, or on certain notice or at a
fixed future time. (Ibid., pp. 394-395)
Furthermore, the element of "knowing at the
time of issue that he does not have sufficient
funds in or credit with the drawee bank for the
payment of such check in full upon its
presentment, which check is subsequently
dishonored by the drawee bank for insufficiency
of funds or credit or would have been
dishonored for the same reason . . . is inversely
applied in this case. From the very beginning,
petitioner never hid the fact that he did not
have the funds with which to put up the
warranty deposit and as a matter of fact, he
openly intimated this to the vital conduit of the
transaction, Joey Gomez, to whom petitioner
was introduced by Mrs. Teng. It would have
been different if this predicament was not
communicated to all the parties he dealt with
regarding the lease agreement the financing of

which was covered by L.S. Finance

Management.
WHEREFORE, the appealed decision is
REVERSED and the accused-petitioner is hereby
ACQUITTED of the crime charged.
SO ORDERED.

390

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 157171

March 14, 2006

ARSENIA B. GARCIA, Petitioner,

vs.
HON. COURT OF APPEALS and the PEOPLE
OF THE PHILIPPINES, Respondents
DECISION
QUISUMBING, J.:
This petition seeks the review of the judgment
of the Court of Appeals in CA-G.R. CR No.
245471that affirmed the conviction of petitioner
by the Regional Trial Court2of Alaminos City,
Pangasinan, Branch 54, for violation of Section
27(b) of Republic Act No. 6646.3
Based on the complaint-affidavit of Aquilino Q.
Pimentel, Jr., who ran in the 1995 senatorial
elections, an information dated March 30, 1998,
was filed in the Regional Trial Court of Alaminos,

charging Herminio R. Romero, Renato R. Viray,

Rachel Palisoc and Francisca de Vera, and
petitioner, with violation of Section 27(b). The
information reads:
That on or about May 11, 1995, which was
within the canvassing period during the May 8,
1995 elections, in the Municipality of Alaminos,
Province of Pangasinan, Philippines, and within
the jurisdiction of this Honorable Court, the
above-named accused, Election Officer Arsenia
B. Garcia, Municipal Treasurer Herminio R.
Romero, Public School District Supervisor
Renato R. Viray, Chairman, Vice-Chairman, and
Member-Secretary, respectively, of the
Municipal Board of Canvassers of Alaminos,
Pangasinan, tabulators Rachel Palisoc and
Francisca de Vera, conspiring with,
confederating together and mutually helping
each other, did, then and there, willfully, and
unlawfully decrease[d] the votes received by
senatorial candidate Aquilino Q. Pimentel, Jr.
from six thousand nine hundred ninety-eight
(6,998) votes, as clearly disclosed in the total
number of votes in the one hundred fifty-nine
(159) precincts of the Statement of Votes by

391

Precincts of said municipality, with Serial Nos.

008417, 008418, 008419, 008420, 008421,
008422 and 008423 to one thousand nine
hundred twenty-one (1,921) votes as reflected
in the Statement of Votes by Precincts with
Serial No. 008423 and Certificate of Canvass
with Serial No. 436156 with a difference of five
thousand seventy-seven (5,077) votes.
CONTRARY TO LAW.4
In a Decision dated September 11, 2000, the
RTC acquitted all the accused for insufficiency of
evidence, except petitioner who was convicted
as follows:
xxx
5. And finally, on the person of Arsenia B.
Garcia, the Court pronounces her GUILTY
beyond reasonable doubt, of the crime defined
under Republic Act 6646, Section 27 (b) for
decreasing the votes of Senator Pimentel in the
total of 5,034 and in relation to BP Blg. 881,
considering that this finding is a violation of
Election Offense, she is thus sentenced to suffer
an imprisonment of SIX (6) YEARS as

maximum, but applying the INDETERMINATE

SENTENCE LAW, the minimum penalty is the
next degree lower which is SIX (6) MONTHS;
however, accused Arsenia B. Garcia is not
entitled to probation; further, she is sentenced
to suffer disqualification to hold public office
and she is also deprived of her right of suffrage.
The bailbond posted by her is hereby ordered
cancelled, and the Provincial Warden is ordered
to commit her person to the Bureau of
Correctional Institution for Women, at Metro
Manila, until further orders from the court.
No pronouncement as to costs.
IT IS SO ORDERED.5
Petitioner appealed before the Court of Appeals
which affirmed with modification the RTC
Decision, thus,
WHEREFORE, foregoing considered, the
appealed decision is hereby affirmed with
modification, increasing the minimum penalty
imposed by the trial court from six (6) months
to one (1) year.

392

SO ORDERED.6
The Court of Appeals likewise denied the motion
for reconsideration. Hence, this appeal
assigning the following as errors of the
appellate court:

ON THE FOURTH GROUND, NAMELY, THAT THE

PETITIONER WAS THE ONE WHO ENTERED THE
REDUCED FIGURE OF 1,921 IN THE
CERTIFICATE OF CANVASS (COC), Exh. "7",
WHEN THE DUTY WAS THAT OF THE
SECRETARY OF THE BOARD.

IV

ON THE FIRST AND SECOND GROUNDS RELIED

UPON BY THE RESPONDENT COURT, NAMELY,
THAT IT COULD NOT HAVE BEEN SECRETARY
VIRAY WHO DECREASED THE VOTES OF
COMPLAINANT PIMENTEL SINCE HE MERELY
RELIED ON WHAT THE PETITIONER DICTATED,
AND THAT IT COULD NOT HAVE ALSO BEEN
THE TABULATORS BECAUSE PETITIONER WAS
THE ONE WHO READ THE ADDING [MACHINE]
TAPE.

THE REDUCTION OF THE VOTES OF CANDIDATE

PIMENTEL WAS CLEARLY NOT WILLFUL OR
INTENTIONAL.7

II

Respondent on the other hand contends that

good faith is not a defense in the violation of an
election law, which falls under the class of mala
prohibita.

ON THE THIRD GROUND, NAMELY, THAT

PETITIONER DID NOT PRODUCE THE TAPES
DURING THE TRIAL BECAUSE IF PRODUCED, IT
IS GOING TO BE ADVERSE TO HER.
III

Petitioner contends that (1) the Court of

Appeals judgment is erroneous, based on
speculations, surmises and conjectures, instead
of substantial evidence; and (2) there was no
motive on her part to reduce the votes of
private complainant.

The main issue is, Is a violation of Section

27(b) of Rep. Act No. 6646, classified

393

under mala in se or mala prohibita? Could good

faith and lack of criminal intent be valid
defenses?
Generally, mala in se felonies are defined and
penalized in the Revised Penal Code. When the
acts complained of are inherently immoral, they
are deemed mala in se, even if they are
punished by a special law.8Accordingly, criminal
intent must be clearly established with the
other elements of the crime; otherwise, no
crime is committed. On the other hand, in
crimes that are mala prohibita, the criminal acts
are not inherently immoral but become
punishable only because the law says they are
forbidden. With these crimes, the sole issue is
whether the law has been violated.9Criminal
intent is not necessary where the acts are
prohibited for reasons of public policy.10
Section 27(b) of Republic Act No.
664611provides:

SEC. 27. Election Offenses.- In addition to the

prohibited acts and election offenses
enumerated in Sections 261 and 262 of Batas
Pambansa Blg. 881, as amended, the following
shall be guilty of an election offense:
xxx
(b) Any member of the board of election
inspectors or board of canvassers who tampers,
increases, or decreases the votes received by a
candidate in any election or any member of the
board who refuses, after proper verification and
hearing, to credit the correct votes or deduct
such tampered votes.
xxx
Clearly, the acts prohibited in Section 27(b)
are mala in se.12For otherwise, even errors and
mistakes committed due to overwork and
fatigue would be punishable. Given the volume
of votes to be counted and canvassed within a
limited amount of time, errors and
miscalculations are bound to happen. And it
could not be the intent of the law to punish
unintentional election canvass errors. However,

394

intentionally increasing or decreasing the

number of votes received by a candidate is
inherently immoral, since it is done with malice
and intent to injure another.
Criminal intent is presumed to exist on the part
of the person who executes an act which the
law punishes, unless the contrary shall
appear.13Thus, whoever invokes good faith as a
defense has the burden of proving its existence.
Records show that the canvassing of votes on
May 11, 1995 before the Board of Canvassers of
the Municipality of Alaminos, Pangasinan was
conducted as follows:
1. After the votes in the 159 precincts of
the municipality of Alaminos were tallied,
the results thereof were sealed and
forwarded to the Municipal Board of
Canvassers for canvassing;
2. The number of votes received by each
candidate in each precinct was then
recorded in the Statement of Votes with
appellant, in her capacity as Chairman,
reading the figures appearing in the results

from the precincts and accused Viray, in

his capacity as secretary of the Board,
entering the number in the Statements of
Votes as read by the appellant. Six
Statements of Votes were filled up to
reflect the votes received by each
candidate in the 159 precincts of the
Municipality of Alaminos, Pangasinan.
3. After the number of votes received by
each candidate for each precincts were
entered by accused Viray in the
Statements of Votes, these votes were
added by the accused Palisoc and de Vera
with the use of electrical adding machines.
4. After the tabulation by accused Palisoc
and de Vera, the corresponding machine
tapes were handed to appellant who reads
the subtotal of votes received by each
candidate in the precincts listed in each
Statement of Votes. Accused Viray [then]
records the subtotal in the proper column
in the Statement of Votes.
5. After the subtotals had been entered by
accused Viray, tabulators accused Palisoc

395

and de Vera added all the subtotals

appearing in all Statement of Votes.
6. After the computation, the
corresponding machine tape on which the
grand total was reflected was handed to
appellant who reads the same and accused
Viray enters the figure read by appellant in
the column for grand total in the
Statement of Votes.14
Neither the correctness of the number of votes
entered in the Statement of Votes (SOV) for
each precinct, nor of the number of votes
entered as subtotals of votes received in the
precincts listed in SOV Nos. 008417 to 008422
was raised as an issue.
At first glance, however, there is a noticeable
discrepancy in the addition of the subtotals to
arrive at the grand total of votes received by
each candidate for all 159 precincts in SOV No.
008423.15The grand total of the votes for
private complainant, Senator Aquilino Pimentel,
was only 1,921 instead of 6,921, or 5,000 votes
less than the number of votes private
complainant actually received. This error is also

evident in the Certificate of Canvass (COC) No.

436156 signed by petitioner, Viray and
Romero.16
During trial of this case, petitioner admitted
that she was indeed the one who announced
the figure of 1,921, which was subsequently
entered by then accused Viray in his capacity as
secretary of the board.17Petitioner likewise
admitted that she was the one who prepared
the COC (Exhibit A-7), though it was not her
duty. To our mind, preparing the COC even if it
was not her task, manifests an intention to
perpetuate the erroneous entry in the COC.18
Neither can this Court accept petitioners
explanation that the Board of Canvassers had
no idea how the SOV (Exhibit "6") and the COC
reflected that private complainant had only
1,921 votes instead of 6,921 votes. As
chairman of the Municipal Board of Canvassers,
petitioners concern was to assure accurate,
correct and authentic entry of the votes. Her
failure to exercise maximum efficiency and
fidelity to her trust deserves not only censure
but also the concomitant sanctions as a matter

396

of criminal responsibility pursuant to the

dictates of the law.19
The fact that the number of votes deducted
from the actual votes received by private
complainant, Sen. Aquilino Pimentel, Jr. was not
added to any senatorial candidate does not
relieve petitioner of liability under Section 27(b)
of Rep. Act No. 6646. The mere decreasing of
the votes received by a candidate in an election
is already punishable under the said provision.20
At this point, we see no valid reason to disturb
the factual conclusions of the appellate court.
The Court has consistently held that factual
findings of the trial court, as well as of the
Court of Appeals are final and conclusive and
may not be reviewed on appeal, particularly
where the findings of both the trial court and
the appellate court on the matter coincide.21
Public policy dictates that extraordinary
diligence should be exercised by the members
of the board of canvassers in canvassing the
results of the elections. Any error on their part
would result in the disenfranchisement of the
voters. The Certificate of Canvass for senatorial

candidates and its supporting statements of

votes prepared by the municipal board of
canvassers are sensitive election documents
whose entries must be thoroughly scrutinized.22
In our review, the votes in the SOV should total
6,998.23
As between the grand total of votes alleged to
have been received by private complainant of
6,921 votes and statement of his actual votes
received of 6,998 is a difference of 77 votes.
The discrepancy may be validly attributed to
mistake or error due to fatigue. However, a
decrease of 5,000 votes as reflected in the
Statement of Votes and Certificate of Canvass is
substantial, it cannot be allowed to remain on
record unchallenged, especially when the error
results from the mere transfer of totals from
one document to another.
WHEREFORE, the instant petition is DENIED.
The assailed Decision of the Court of Appeals
sustaining petitioners conviction but increasing
the minimum penalty in her sentence to one
year instead of six months isAFFIRMED.

397

SO ORDERED.

398

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-74324 November 17, 1988
THE PEOPLE OF THE PHILIPPINES, plaintiffappellee,
vs.
FERNANDO PUGAY y BALCITA, &
BENJAMIN SAMSON y
MAGDALENA, accused-appellants.
The Solicitor General for plaintiff-appellee.
Citizens Legal Assistance Office for accusedappellants.

MEDIALDEA, J.:
For the death of Bayani Miranda, a retardate,
FERNANDO PUGAY y BALCITA and BENJAMIN
SAMSON y MAGDALENA were charged with the
crime of MURDER in Criminal Case No. L-175-82

of the Court of First Instance (now Regional

Trial Court) of Cavite, under an information
which reads as follows:
That on or about May 19, 1982 at the
town plaza of the Municipality of
Rosario, Province of Cavite,
Philippines, and within the jurisdiction
of this Honorable Court, the abovenamed accused, conspiring,
confederating and mutually helping
and assisting one another, with
treachery and evident premeditation,
taking advantage of their superior
strength, and with the decided
purpose to kill, poured gasoline, a
combustible liquid to the body of
Bayani Miranda and with the use of
fire did then and there, wilfully,
unlawfully and feloniously, burn the
whole body of said Bayani Miranda
which caused his subsequent death,
to the damage and prejudice of the
heirs of the aforenamed Bayani
Miranda.

399

That the crime was committed with

the qualifying circumstance of
treachery and the aggravating
circumstances of evident
premeditation and superior strength,
and the means employed was to
weaken the defense; that the wrong
done in the commission of the crime
was deliberately augmented by
causing another wrong, that is the
burning of the body of Bayani
Miranda.
CONTRARY TO LAW (p. 1, Records).
Upon being arraigned, both accused pleaded
not guilty to the offense charged. After trial, the
trial court rendered a decision finding both
accused guilty on the crime of murder but
crediting in favor of the accused Pugay the
mitigating circumstance of lack of intention to
commit so grave a wrong, the dispositive
portion of which reads as follows:
WHEREFORE, the accused Fernando
Pugay y Balcita and Benjamin
Samson y Magdalena are pronounced

guilty beyond reasonable doubt as

principals by direct participation of
the crime of murder for the death of
Bayani Miranda, and appreciating the
aforestated mitigating circumstance
in favor of Pugay, he is sentenced to
a prison term ranging from twelve
(12) years of prision mayor, as
minimum, to twenty (20) years
of reclusion temporal, as maximum,
and Samson to suffer the penalty
of reclusion perpetua together with
the accessories of the law for both of
them. The accused are solidarily held
liable to indemnify the heirs of the
victim in the amount of P13,940.00
plus moral damages of P10,000.00
and exemplary damages of
P5,000.00.
Let the preventive imprisonment of
Pugay be deducted from the principal
penalty.
Cost against both accused.
SO ORDERED (p. 248, Records).

400

Not satisfied with the decision, both accused

interposed the present appeal and assigned the
following errors committed by the court a quo:
1. THE COURT A QUO ERRED IN
UTILIZING THE STATEMENTS OF
ACCUSED-APPELLANTS IN ITS
APPRECIATION OF FACTS DESPITE
ITS ADMISSION THAT THE ACCUSEDAPPELLANTS WERE NOT ASSISTED
BY A COUNSEL DURING THE
CUSTODIAL INVESTIGATION.
2. THE COURT A QUO ERRED IN NOT
FINDING THAT THE SUPPRESSION BY
THE PROSECUTION OF SOME
EVIDENCE IS FATAL TO ITS CASE.
3. THE COURT A QUO ERRED IN
LENDING CREDENCE TO THE
INCREDIBLE TESTIMONY OF
EDUARDO GABION WHO WAS ONE
OF THE MANY SUSPECTS ARRESTED
BY THE POLICE (Accused-appellants'
Brief, p. 48, Rollo).
The antecedent facts are as follows:

The deceased Miranda, a 25-year old retardate,

and the accused Pugay were friends. Miranda
used to run errands for Pugay and at times they
slept together. On the evening of May 19, 1982,
a town fiesta fair was held in the public plaza of
Rosario, Cavite. There were different kinds of
ride and one was a ferris wheel.
Sometime after midnight of the same date,
Eduardo Gabion was sitting in the ferris wheel
and reading a comic book with his friend Henry.
Later, the accused Pugay and Samson with
several companions arrived. These persons
appeared to be drunk as they were all happy
and noisy. As the group saw the deceased
walking nearby, they started making fun of him.
They made the deceased dance by tickling him
with a piece of wood.
Not content with what they were doing with the
deceased, the accused Pugay suddenly took a
can of gasoline from under the engine of the
ferns wheel and poured its contents on the body
of the former. Gabion told Pugay not to do so
while the latter was already in the process of
pouring the gasoline. Then, the accused

401

Samson set Miranda on fire making a human

torch out of him.
The ferris wheel operator later arrived and
doused with water the burning body of the
deceased. Some people around also poured
sand on the burning body and others wrapped
the same with rags to extinguish the flame.
The body of the deceased was still aflame when
police officer Rolando Silangcruz and other
police officers of the Rosario Police Force arrived
at the scene of the incident. Upon inquiring as
to who were responsible for the dastardly act,
the persons around spontaneously pointed to
Pugay and Samson as the authors thereof.
The deceased was later rushed to the Grace
Hospital for treatment. In the meantime, the
police officers brought Gabion, the two accused
and five other persons to the Rosario municipal
building for interrogation. Police officer
Reynaldo Canlas took the written statements of
Gabion and the two accused, after which Gabion
was released. The two accused remained in
custody.

After a careful review of the records, We find

the grounds relied upon by the accusedappellants for the reversal of the decision of the
court a quo to be without merit.
It bears emphasis that barely a few hours after
the incident, accused-appellants gave their
written statements to the police. The accused
Pugay admitted in his statement, Exhibit F, that
he poured a can of gasoline on the deceased
believing that the contents thereof was water
and then the accused Samson set the deceased
on fire. The accused Samson, on the other
hand, alleged in his statement that he saw
Pugay pour gasoline on Miranda but did not see
the person who set him on fire. Worthy of note
is the fact that both statements did not impute
any participation of eyewitness Gabion in the
commission of the offense.
While testifying on their defense, the accusedappellants repudiated their written statements
alleging that they were extracted by force. They
claimed that the police maltreated them into
admitting authorship of the crime. They also

402

engaged in a concerted effort to lay the blame

on Gabion for the commission of the offense.
Thus, while it is true that the written
statements of the accused-appellants were
mentioned and discussed in the decision of the
court a quo, the contents thereof were not
utilized as the sole basis for the findings of facts
in the decision rendered. The said court
categorically stated that "even without Exhibits
'F' and 'G', there is still Gabion's
straightforward, positive and convincing
testimony which remains unaffected by the
uncorroborated, self-serving and unrealiable
testimonies of Pugay and Samson" (p.
247, Records).

Accused-appellants next assert that the

prosecution suppressed the testimonies of other
eyewitnesses to the incident. They claim that
despite the fact that there were other persons
investigated by the police, only Gabion was
presented as an eyewitness during the trial of
the case. They argue that the deliberate nonpresentation of these persons raises the
presumption that their testimonies would be
adverse to the prosecution.
There is no dispute that there were other
persons who witnessed the commission of the
crime. In fact there appears on record (pp. 1617, Records) the written statements of one
Abelardo Reyes and one Monico Alimorong
alleging the same facts and imputing the
respective acts of pouring of gasoline and
setting the deceased on fire to the accusedappellants as testified to by Gabion in open
court. They were listed as prosecution
witnesses in the information filed. Considering
that their testimonies would be merely
corroborative, their non-presentation does not
give rise to the presumption that evidence
wilfully suppressed would be adverse if

403

produced. This presumption does not apply to

the suppression of merely corroborative
evidence (U.S. vs. Dinola, 37 Phil. 797).<re||
an1w> Besides, the matter as to whom to
utilize as witness is for the prosecution to
decide.
Accused-appellants also attack the credibility of
the eyewitness Gabion alleging that not only
was the latter requested by the mother of the
deceased to testify for the prosecution in
exchange for his absolution from liability but
also because his testimony that he was reading
a comic book during an unusual event is
contrary to human behavior and experience.
Gabion testified that it was his uncle and not
the mother of the deceased who asked him to
testify and state the truth about the incident.
The mother of the deceased likewise testified
that she never talked to Gabion and that she
saw the latter for the first time when the instant
case was tried. Besides, the accused Pugay
admitted that Gabion was his friend and both
Pugay and the other accused Samson testified
that they had no previous misunderstanding

with Gabion. Clearly, Gabion had no reason to

testify falsely against them.
In support of their claim that the testimony of
Gabion to the effect that he saw Pugay pour
gasoline on the deceased and then Samson set
him on fire is incredible, the accused-appellants
quote Gabion's testimony on cross-examination
that, after telling Pugay not to pour gasoline on
the deceased, he (Gabion) resumed reading
comics; and that it was only when the victim's
body was on fire that he noticed a commotion.
However, explaining this testimony on re-direct
examination, Gabion stated:
Q. Mr. Gabion, you told the
Court on cross-examination
that you were reading
comics when you saw
Pugay poured gasoline unto
Bayani Miranda and lighted
by Samson. How could you
possibly see that incident
while you were reading
comics?

404

A. I put down the comics

which I am reading and I
saw what they were doing.
Q. According to you also
before Bayani was poured
with gasoline and lighted
and burned later you had a
talk with Pugay, is that
correct?
A. When he was pouring
gasoline on Bayani Miranda
I was trying to prevent him
from doing so.
Q. We want to clarify.
According to you a while
ago you had a talk with
Pugay and as a matter of
fact, you told him not to
pour gasoline. That is what
I want to know from you, if
that is true?
A. Yes, sir.

Q. Aside from Bayani being

tickled with a stick on his
ass, do you mean to say
you come to know that
Pugay will pour gasoline
unto him?
A. I do not know that would
be that incident.
Q. Why did you as(k) Pugay
in the first place not to
pour gasoline before he did
that actually?
A. Because I pity Bayani,
sir.
Q. When you saw Pugay
tickling Bayani with a stick
on his ass you tried
according to you to ask him
not to and then later you
said you asked not to pour
gasoline. Did Pugay tell you
he was going to pour
gasoline on Bayani?

405

A. I was not told, sir.

Q. Did you come to
know..... how did you come
to know he was going to
pour gasoline that is why
you prevent him?
A. Because he was holding
on a container of gasoline.
I thought it was water but
it was gasoline.
Q. It is clear that while
Pugay was tickling Bayani
with a stick on his ass, he
later got hold of a can of
gasoline, is that correct?
A. Yes, sir.
Q. And when he pick up the
can of gasoline, was that
the time you told him not
to pour gasoline when he
merely pick up the can of
gasoline.

A. I saw him pouring the

gasoline on the body of
Joe.
Q. So, it is clear when you
told Pugay not to pour
gasoline he was already in
the process of pouring
gasoline on the body of
Bayani?
A. Yes, sir (Tsn, July 30,
1983, pp. 32-33).
It is thus clear that prior to the incident in
question, Gabion was reading a comic book;
that Gabion stopped reading when the group of
Pugay started to make fun of the deceased;
that Gabion saw Pugay get the can of gasoline
from under the engine of the ferris wheel; that
it was while Pugay was in the process of
pouring the gasoline on the body of the
deceased when Gabion warned him not to do
so; and that Gabion later saw Samson set the
deceased on fire.

406

However, there is nothing in the records

showing that there was previous conspiracy or
unity of criminal purpose and intention between
the two accused-appellants immediately before
the commission of the crime. There was no
animosity between the deceased and the
accused Pugay or Samson. Their meeting at the
scene of the incident was accidental. It is also
clear that the accused Pugay and his group
merely wanted to make fun of the deceased.
Hence, the respective criminal responsibility of
Pugay and Samson arising from different acts
directed against the deceased is individual and
not collective, and each of them is liable only
for the act committed by him (U.S. vs.
Magcomot, et. al. 13, Phil. 386; U.S. vs. Abiog,
et. al. 37 Phil. 1371).
The next question to be determined is the
criminal responsibility of the accused Pugay.
Having taken the can from under the engine of
the ferris wheel and holding it before pouring its
contents on the body of the deceased, this
accused knew that the can contained gasoline.
The stinging smell of this flammable liquid could
not have escaped his notice even before

pouring the same. Clearly, he failed to exercise

all the diligence necessary to avoid every
undesirable consequence arising from any act
that may be committed by his companions who
at the time were making fun of the deceased.
We agree with the Solicitor General that the
accused is only guilty of homicide through
reckless imprudence defined in Article 365 of
the Revised Penal Code, as amended. In U.S.
vs. Maleza, et. al. 14 Phil. 468, 470, this Court
ruled as follows:
A man must use common sense and
exercise due reflection in all his acts;
it is his duty to be cautious, careful,
and prudent, if not from instinct, then
through fear of incurring punishment.
He is responsible for such results as
anyone might foresee and for acts
which no one would have performed
except through culpable abandon.
Otherwise his own person, rights and
property, all those of his fellowbeings, would ever be exposed to all
manner of danger and injury.

407

The proper penalty that the accused Pugay

must suffer is an indeterminate one ranging
from four (4) months ofarresto mayor, as
minimum, to four (4) years and two (2) months
of prision correccional, as maximum. With
respect to the accused Samson, the Solicitor
General in his brief contends that "his
conviction of murder, is proper considering that
his act in setting the deceased on fire knowing
that gasoline had just been poured on him is
characterized by treachery as the victim was
left completely helpless to defend and protect
himself against such an outrage" (p. 57, Rollo).
We do not agree.
There is entire absence of proof in the record
that the accused Samson had some reason to
kill the deceased before the incident. On the
contrary, there is adequate evidence showing
that his act was merely a part of their funmaking that evening. For the circumstance of
treachery to exist, the attack must be
deliberate and the culprit employed means,
methods, or forms in the execution thereof
which tend directly and specially to insure its
execution, without risk to himself arising from

any defense which the offended party might

make.
There can be no doubt that the accused
Samson knew very well that the liquid poured
on the body of the deceased was gasoline and a
flammable substance for he would not have
committed the act of setting the latter on fire if
it were otherwise. Giving him the benefit of
doubt, it call be conceded that as part of their
fun-making he merely intended to set the
deceased's clothes on fire. His act, however,
does not relieve him of criminal responsibility.
Burning the clothes of the victim would cause at
the very least some kind of physical injuries on
his person, a felony defined in the Revised
Penal Code. If his act resulted into a graver
offense, as what took place in the instant case,
he must be held responsible therefor. Article 4
of the aforesaid code provides, inter alia, that
criminal liability shall be incurred by any person
committing a felony (delito) although the
wrongful act done be different from that which
he intended.

408

As no sufficient evidence appears in the record

establishing any qualifying circumstances, the
accused Samson is only guilty of the crime of
homicide defined and penalized in Article 249 of
the Revised Penal Code, as amended. We are
disposed to credit in his favor the ordinary
mitigating circumstance of no intention to
commit so grave a wrong as that committed as
there is evidence of a fact from which such
conclusion can be drawn. The eyewitness
Gabion testified that the accused Pugay and
Samson were stunned when they noticed the
deceased burning (Tsn, June 1, 1983, pp. 1617).<re||an1w>
The proper penalty that the accused Samson
must suffer is an indeterminate one ranging
from eight (8) years ofprision mayor, as
minimum, to fourteen (14) years of reclusion
temporal, as maximum.
The lower court held the accused solidarily
liable for P13,940.00, the amount spent by
Miranda's parents for his hospitalization, wake
and interment. The indemnity for death is
P30,000.00. Hence, the indemnity to the heirs

of the deceased Miranda is increased to

P43,940.00.
Both accused shall be jointly and severally liable
for the aforesaid amount plus the P10,000.00
as moral damages and P5,000.00 as exemplary
damages as found by the court a quo.
Accordingly, the judgment is affirmed with the
modifications above-indicated. Costs against the
accused-appellants.
SO ORDERED.

409

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 172716
2010

November 17,

JASON IVLER y AGUILAR, Petitioner,

vs.
HON. MARIA ROWENA MODESTO-SAN
PEDRO, Judge of the Metropolitan Trial
Court, Branch 71, Pasig City, and
EVANGELINE PONCE, Respondents.
DECISION
CARPIO, J.:
The Case
The petition seeks the review1 of the Orders2 of
the Regional Trial Court of Pasig City affirming
sub-silencio a lower courts ruling finding
inapplicable the Double Jeopardy Clause to bar
a second prosecution for Reckless Imprudence
Resulting in Homicide and Damage to Property.

This, despite the accuseds previous conviction

for Reckless Imprudence Resulting in Slight
Physical Injuries arising from the same incident
grounding the second prosecution.
The Facts
Following a vehicular collision in August 2004,
petitioner Jason Ivler (petitioner) was charged
before the Metropolitan Trial Court of Pasig City,
Branch 71 (MeTC), with two separate offenses:
(1) Reckless Imprudence Resulting in Slight
Physical Injuries (Criminal Case No. 82367) for
injuries sustained by respondent Evangeline L.
Ponce (respondent Ponce); and (2) Reckless
Imprudence Resulting in Homicide and Damage
to Property (Criminal Case No. 82366) for the
death of respondent Ponces husband Nestor C.
Ponce and damage to the spouses Ponces
vehicle. Petitioner posted bail for his temporary
release in both cases.
On 7 September 2004, petitioner pleaded guilty
to the charge in Criminal Case No. 82367 and
was meted out the penalty of public censure.
Invoking this conviction, petitioner moved to
quash the Information in Criminal Case No.

410

82366 for placing him in jeopardy of second

punishment for the same offense of reckless
imprudence.
The MeTC refused quashal, finding no identity of
offenses in the two cases.3
After unsuccessfully seeking reconsideration,
petitioner elevated the matter to the Regional
Trial Court of Pasig City, Branch 157 (RTC), in a
petition for certiorari (S.C.A. No. 2803).
Meanwhile, petitioner sought from the MeTC the
suspension of proceedings in Criminal Case No.
82366, including the arraignment on 17 May
2005, invoking S.C.A. No. 2803 as a prejudicial
question. Without acting on petitioners motion,
the MeTC proceeded with the arraignment and,
because of petitioners absence, cancelled his
bail and ordered his arrest.4 Seven days later,
the MeTC issued a resolution denying
petitioners motion to suspend proceedings and
postponing his arraignment until after his
arrest.5 Petitioner sought reconsideration but as
of the filing of this petition, the motion
remained unresolved.

Relying on the arrest order against petitioner,

respondent Ponce sought in the RTC the
dismissal of S.C.A. No. 2803 for petitioners loss
of standing to maintain the suit. Petitioner
contested the motion.
The Ruling of the Trial Court
In an Order dated 2 February 2006, the RTC
dismissed S.C.A. No. 2803, narrowly grounding
its ruling on petitioners forfeiture of standing to
maintain S.C.A. No. 2803 arising from the
MeTCs order to arrest petitioner for his nonappearance at the arraignment in Criminal Case
No. 82366. Thus, without reaching the merits of
S.C.A. No. 2803, the RTC effectively affirmed
the MeTC. Petitioner sought reconsideration but
this proved unavailing.6
Hence, this petition.
Petitioner denies absconding. He explains that
his petition in S.C.A. No. 2803 constrained him
to forego participation in the proceedings in
Criminal Case No. 82366. Petitioner
distinguishes his case from the line of
jurisprudence sanctioning dismissal of appeals

411

for absconding appellants because his appeal

before the RTC was a special civil action seeking
a pre-trial relief, not a post-trial appeal of a
judgment of conviction.7
Petitioner laments the RTCs failure to reach the
merits of his petition in S.C.A. 2803. Invoking
jurisprudence, petitioner argues that his
constitutional right not to be placed twice in
jeopardy of punishment for the same offense
bars his prosecution in Criminal Case No.
82366, having been previously convicted in
Criminal Case No. 82367 for the same offense
of reckless imprudence charged in Criminal
Case No. 82366. Petitioner submits that the
multiple consequences of such crime are
material only to determine his penalty.
Respondent Ponce finds no reason for the Court
to disturb the RTCs decision forfeiting
petitioners standing to maintain his petition in
S.C.A. 2803. On the merits, respondent Ponce
calls the Courts attention to jurisprudence
holding that light offenses (e.g. slight physical
injuries) cannot be complexed under Article 48
of the Revised Penal Code with grave or less

grave felonies (e.g. homicide). Hence, the

prosecution was obliged to separate the charge
in Criminal Case No. 82366 for the slight
physical injuries from Criminal Case No. 82367
for the homicide and damage to property.
In the Resolution of 6 June 2007, we granted
the Office of the Solicitor Generals motion not
to file a comment to the petition as the public
respondent judge is merely a nominal party and
private respondent is represented by counsel.
The Issues
Two questions are presented for resolution: (1)
whether petitioner forfeited his standing to seek
relief in S.C.A. 2803 when the MeTC ordered his
arrest following his non-appearance at the
arraignment in Criminal Case No. 82366; and
(2) if in the negative, whether petitioners
constitutional right under the Double Jeopardy
Clause bars further proceedings in Criminal
Case No. 82366.
The Ruling of the Court

412

We hold that (1) petitioners non-appearance at

the arraignment in Criminal Case No. 82366 did
not divest him of personality to maintain the
petition in S.C.A. 2803; and (2) the protection
afforded by the Constitution shielding petitioner
from prosecutions placing him in jeopardy of
second punishment for the same offense bars
further proceedings in Criminal Case No. 82366.
Petitioners Non-appearance at the Arraignment
in
Criminal Case No. 82366 did not Divest him of
Standing
to Maintain the Petition in S.C.A. 2803
Dismissals of appeals grounded on the
appellants escape from custody or violation of
the terms of his bail bond are governed by the
second paragraph of Section 8, Rule 124,8 in
relation to Section 1, Rule 125, of the Revised
Rules on Criminal Procedure authorizing this
Court or the Court of Appeals to "also, upon
motion of the appellee or motu proprio, dismiss
the appeal if the appellant escapes from prison
or confinement, jumps bail or flees to a foreign
country during the pendency of the appeal."

The "appeal" contemplated in Section 8 of Rule

124 is a suit to review judgments of
convictions.
The RTCs dismissal of petitioners special civil
action for certiorari to review a pre-arraignment
ancillary question on the applicability of the Due
Process Clause to bar proceedings in Criminal
Case No. 82366 finds no basis under procedural
rules and jurisprudence. The RTCs reliance
on People v. Esparas9 undercuts the cogency of
its ruling because Esparas stands for a
proposition contrary to the RTCs ruling. There,
the Court granted review to an appeal by an
accused who was sentenced to death for
importing prohibited drugs even though she
jumped bail pending trial and was thus tried
and convicted in absentia. The Court in Esparas
treated the mandatory review of death
sentences under Republic Act No. 7659 as an
exception to Section 8 of Rule 124.10
The mischief in the RTCs treatment of
petitioners non-appearance at his arraignment
in Criminal Case No. 82366 as proof of his loss
of standing becomes more evident when one

413

considers the Rules of Courts treatment of a

defendant who absents himself from postarraignment hearings. Under Section 21, Rule
11411 of the Revised Rules of Criminal
Procedure, the defendants absence merely
renders his bondsman potentially liable on its
bond (subject to cancellation should the
bondsman fail to produce the accused within 30
days); the defendant retains his standing and,
should he fail to surrender, will be tried in
absentia and could be convicted or acquitted.
Indeed, the 30-day period granted to the
bondsman to produce the accused underscores
the fact that mere non-appearance does not
ipso facto convert the accuseds status to that
of a fugitive without standing.
Further, the RTCs observation that petitioner
provided "no explanation why he failed to
attend the scheduled proceeding"12 at the MeTC
is belied by the records. Days before the
arraignment, petitioner sought the suspension
of the MeTCs proceedings in Criminal Case No.
82366 in light of his petition with the RTC in
S.C.A. No. 2803. Following the MeTCs refusal to
defer arraignment (the order for which was

released days after the MeTC ordered

petitioners arrest), petitioner sought
reconsideration. His motion remained
unresolved as of the filing of this petition.
Petitioners Conviction in Criminal Case No.
82367
Bars his Prosecution in Criminal Case No. 82366
The accuseds negative constitutional right not
to be "twice put in jeopardy of punishment for
the same offense"13protects him from, among
others, post-conviction prosecution for the
same offense, with the prior verdict rendered by
a court of competent jurisdiction upon a valid
information.14 It is not disputed that petitioners
conviction in Criminal Case No. 82367 was
rendered by a court of competent jurisdiction
upon a valid charge. Thus, the case turns on
the question whether Criminal Case No. 82366
and Criminal Case No. 82367 involve the "same
offense." Petitioner adopts the affirmative view,
submitting that the two cases concern the same
offense of reckless imprudence. The MeTC ruled
otherwise, finding that Reckless Imprudence
Resulting in Slight Physical Injuries is an

414

entirely separate offense from Reckless

Imprudence Resulting in Homicide and Damage
to Property "as the [latter] requires proof of an
additional fact which the other does not."15

medium periods shall be imposed; if it would

have constituted a light felony, the penalty of
arresto menor in its maximum period shall be
imposed.

We find for petitioner.

Any person who, by simple imprudence or

negligence, shall commit an act which would
otherwise constitute a grave felony, shall suffer
the penalty of arresto mayor in its medium and
maximum periods; if it would have constituted
a less serious felony, the penalty of arresto
mayor in its minimum period shall be imposed.

Reckless Imprudence is a Single Crime,

its Consequences on Persons and
Property are Material Only to Determine
the Penalty
The two charges against petitioner, arising from
the same facts, were prosecuted under the
same provision of the Revised Penal Code, as
amended, namely, Article 365 defining and
penalizing quasi-offenses. The text of the
provision reads:
Imprudence and negligence. Any person
who, by reckless imprudence, shall commit any
act which, had it been intentional, would
constitute a grave felony, shall suffer the
penalty of arresto mayor in its maximum period
to prision correccional in its medium period; if it
would have constituted a less grave felony, the
penalty of arresto mayor in its minimum and

When the execution of the act covered by this

article shall have only resulted in damage to the
property of another, the offender shall be
punished by a fine ranging from an amount
equal to the value of said damages to three
times such value, but which shall in no case be
less than twenty-five pesos.
A fine not exceeding two hundred pesos and
censure shall be imposed upon any person who,
by simple imprudence or negligence, shall cause
some wrong which, if done maliciously, would
have constituted a light felony.

415

In the imposition of these penalties, the court

shall exercise their sound discretion, without
regard to the rules prescribed in Article sixtyfour.
The provisions contained in this article shall not
be applicable:
1. When the penalty provided for the
offense is equal to or lower than those
provided in the first two paragraphs of this
article, in which case the court shall
impose the penalty next lower in degree
than that which should be imposed in the
period which they may deem proper to
apply.
2. When, by imprudence or negligence and
with violation of the Automobile Law, to
death of a person shall be caused, in which
case the defendant shall be punished by
prision correccional in its medium and
maximum periods.
Reckless imprudence consists in voluntary, but
without malice, doing or failing to do an act
from which material damage results by reason

of inexcusable lack of precaution on the part of

the person performing or failing to perform such
act, taking into consideration his employment or
occupation, degree of intelligence, physical
condition and other circumstances regarding
persons, time and place.
Simple imprudence consists in the lack of
precaution displayed in those cases in which the
damage impending to be caused is not
immediate nor the danger clearly manifest.
The penalty next higher in degree to those
provided for in this article shall be imposed
upon the offender who fails to lend on the spot
to the injured parties such help as may be in
this hand to give.
Structurally, these nine paragraphs are
collapsible into four sub-groupings relating to
(1) the penalties attached to the quasi-offenses
of "imprudence" and "negligence" (paragraphs
1-2); (2) a modified penalty scheme for either
or both quasi-offenses (paragraphs 3-4, 6 and
9); (3) a generic rule for trial courts in imposing
penalties (paragraph 5); and (4) the definition
of "reckless imprudence" and "simple

416

imprudence" (paragraphs 7-8). Conceptually,

quasi-offenses penalize "the mental attitude or
condition behind the act, the dangerous
recklessness, lack of care or foresight, the
imprudencia punible,"16 unlike willful offenses
which punish the intentional criminal act. These
structural and conceptual features of quasioffenses set them apart from the mass of
intentional crimes under the first 13 Titles of
Book II of the Revised Penal Code, as amended.
Indeed, the notion that quasi-offenses, whether
reckless or simple, are distinct species of crime,
separately defined and penalized under the
framework of our penal laws, is nothing new. As
early as the middle of the last century, we
already sought to bring clarity to this field by
rejecting in Quizon v. Justice of the Peace of
Pampanga the proposition that "reckless
imprudence is not a crime in itself but simply a
way of committing it x x x"17 on three points of
analysis: (1) the object of punishment in quasicrimes (as opposed to intentional crimes); (2)
the legislative intent to treat quasi-crimes as
distinct offenses (as opposed to subsuming
them under the mitigating circumstance of

minimal intent) and; (3) the different penalty

structures for quasi-crimes and intentional
crimes:
The proposition (inferred from Art. 3 of the
Revised Penal Code) that "reckless imprudence"
is not a crime in itself but simply a way of
committing it and merely determines a lower
degree of criminal liability is too broad to
deserve unqualified assent. There are crimes
that by their structure cannot be committed
through imprudence: murder, treason, robbery,
malicious mischief, etc. In truth, criminal
negligence in our Revised Penal Code is treated
as a mere quasi offense, and dealt with
separately from willful offenses. It is not a mere
question of classification or terminology. In
intentional crimes, the act itself is punished; in
negligence or imprudence, what is principally
penalized is the mental attitude or condition
behind the act, the dangerous recklessness,
lack of care or foresight, the imprudencia
punible. x x x x
Were criminal negligence but a modality in the
commission of felonies, operating only to

417

reduce the penalty therefor, then it would be

absorbed in the mitigating circumstances of Art.
13, specially the lack of intent to commit so
grave a wrong as the one actually committed.
Furthermore, the theory would require that the
corresponding penalty should be fixed in
proportion to the penalty prescribed for each
crime when committed willfully. For each
penalty for the willful offense, there would then
be a corresponding penalty for the negligent
variety. But instead, our Revised Penal Code
(Art. 365) fixes the penalty for reckless
imprudence at arresto mayor maximum, to
prision correccional [medium], if the willful act
would constitute a grave felony,
notwithstanding that the penalty for the latter
could range all the way from prision mayor to
death, according to the case. It can be seen
that the actual penalty for criminal negligence
bears no relation to the individual willful crime,
but is set in relation to a whole class, or series,
of crimes.18 (Emphasis supplied)

This explains why the technically correct way to

allege quasi-crimes is to state that their
commission results in damage, either to person
or property.19
Accordingly, we found the Justice of the Peace
in Quizon without jurisdiction to hear a case for
"Damage to Property through Reckless
Imprudence," its jurisdiction being limited to
trying charges for Malicious Mischief, an
intentional crime conceptually incompatible with
the element of imprudence obtaining in quasicrimes.
Quizon, rooted in Spanish law20 (the normative
ancestry of our present day penal code) and
since repeatedly reiterated,21 stands on solid
conceptual foundation. The contrary doctrinal
pronouncement in People v. Faller22that
"[r]eckless impudence is not a crime in itself x x
x [but] simply a way of committing it x x
x,"23 has long been abandoned when the Court
en banc promulgated Quizon in 1955 nearly two
decades after the Court decided Faller in 1939.
Quizon rejected Fallers conceptualization of
quasi-crimes by holding that quasi-crimes under

418

Article 365 are distinct species of crimes and

not merely methods of committing crimes.
Faller found expression in post-Quizon
jurisprudence24 only by dint of lingering
doctrinal confusion arising from an
indiscriminate fusion of criminal law rules
defining Article 365 crimes and the complexing
of intentional crimes under Article 48 of the
Revised Penal Code which, as will be shown
shortly, rests on erroneous conception of quasicrimes. Indeed, the Quizonian conception of
quasi-crimes undergirded a related branch of
jurisprudence applying the Double Jeopardy
Clause to quasi-offenses, barring second
prosecutions for a quasi-offense alleging one
resulting act after a prior conviction or acquittal
of a quasi-offense alleging another resulting act
but arising from the same reckless act or
omission upon which the second prosecution
was based.
Prior Conviction or Acquittal of
Reckless Imprudence Bars
Subsequent Prosecution for the Same
Quasi-Offense

The doctrine that reckless imprudence under

Article 365 is a single quasi-offense by itself
and not merely a means to commit other crimes
such that conviction or acquittal of such quasioffense bars subsequent prosecution for the
same quasi-offense, regardless of its various
resulting acts, undergirded this Courts
unbroken chain of jurisprudence on double
jeopardy as applied to Article 365 starting with
People v. Diaz,25 decided in 1954. There, a full
Court, speaking through Mr. Justice
Montemayor, ordered the dismissal of a case for
"damage to property thru reckless imprudence"
because a prior case against the same accused
for "reckless driving," arising from the same act
upon which the first prosecution was based, had
been dismissed earlier. Since then, whenever
the same legal question was brought before the
Court, that is, whether prior conviction or
acquittal of reckless imprudence bars
subsequent prosecution for the same quasioffense, regardless of the consequences alleged
for both charges, the Court unfailingly and
consistently answered in the affirmative in
People v. Belga26 (promulgated in 1957 by the
Court en banc, per Reyes, J.), Yap v.

419

Lutero27 (promulgated in 1959, unreported, per

Concepcion, J.), People v.
Narvas28 (promulgated in 1960 by the Court en
banc, per Bengzon J.), People v.
Silva29(promulgated in 1962 by the Court en
banc, per Paredes, J.), People v.
Macabuhay30 (promulgated in 1966 by the Court
en banc, per Makalintal, J.), People v.
Buan31 (promulgated in 1968 by the Court en
banc, per Reyes, J.B.L., acting C. J.), Buerano v.
Court of Appeals32 (promulgated in 1982 by the
Court en banc, per Relova, J.), and People v.
City Court of Manila33 (promulgated in 1983 by
the First Division, per Relova, J.). These cases
uniformly barred the second prosecutions as
constitutionally impermissible under the Double
Jeopardy Clause.
The reason for this consistent stance of
extending the constitutional protection under
the Double Jeopardy Clause to quasi-offenses
was best articulated by Mr. Justice J.B.L. Reyes
in Buan, where, in barring a subsequent
prosecution for "serious physical injuries and
damage to property thru reckless imprudence"
because of the accuseds prior acquittal of

"slight physical injuries thru reckless

imprudence," with both charges grounded on
the same act, the Court explained:34
Reason and precedent both coincide in that
once convicted or acquitted of a specific act of
reckless imprudence, the accused may not be
prosecuted again for that same act. For the
essence of the quasi offense of criminal
negligence under article 365 of the Revised
Penal Code lies in the execution of an imprudent
or negligent act that, if intentionally done,
would be punishable as a felony. The law
penalizes thus the negligent or careless act, not
the result thereof. The gravity of the
consequence is only taken into account to
determine the penalty, it does not qualify the
substance of the offense. And, as the careless
act is single, whether the injurious result should
affect one person or several persons, the
offense (criminal negligence) remains one and
the same, and can not be split into different
crimes and prosecutions.35 x x x (Emphasis
supplied)

420

Evidently, the Diaz line of jurisprudence on

double jeopardy merely extended to its logical
conclusion the reasoning of Quizon.
There is in our jurisprudence only one ruling
going against this unbroken line of authority.
Preceding Diaz by more than a decade, El
Pueblo de Filipinas v. Estipona,36 decided by the
pre-war colonial Court in November 1940,
allowed the subsequent prosecution of an
accused for reckless imprudence resulting in
damage to property despite his previous
conviction for multiple physical injuries arising
from the same reckless operation of a motor
vehicle upon which the second prosecution was
based. Estiponas inconsistency with the postwar Diaz chain of jurisprudence suffices to
impliedly overrule it. At any rate, all doubts on
this matter were laid to rest in 1982 in
Buerano.37 There, we reviewed the Court of
Appeals conviction of an accused for "damage
to property for reckless imprudence" despite his
prior conviction for "slight and less serious
physical injuries thru reckless imprudence,"
arising from the same act upon which the
second charge was based. The Court of Appeals

had relied on Estipona. We reversed on the

strength of Buan:38
Th[e] view of the Court of Appeals was inspired
by the ruling of this Court in the pre-war case of
People vs. Estipona decided on November 14,
1940. However, in the case of People vs. Buan,
22 SCRA 1383 (March 29, 1968), this Court,
speaking thru Justice J. B. L. Reyes, held that
Reason and precedent both coincide in that
once convicted or acquitted of a specific act of
reckless imprudence, the accused may not be
prosecuted again for that same act. For the
essence of the quasi offense of criminal
negligence under Article 365 of the Revised
Penal Code lies in the execution of an imprudent
or negligent act that, if intentionally done,
would be punishable as a felony. The law
penalizes thus the negligent or careless act, not
the result thereof. The gravity of the
consequence is only taken into account to
determine the penalty, it does not qualify the
substance of the offense. And, as the careless
act is single, whether the injurious result should
affect one person or several persons, the

421

offense (criminal negligence) remains one and

the same, and can not be split into different
crimes and prosecutions.
xxxx
. . . the exoneration of this appellant, Jose
Buan, by the Justice of the Peace (now
Municipal) Court of Guiguinto, Bulacan, of the
charge of slight physical injuries through
reckless imprudence, prevents his being
prosecuted for serious physical injuries through
reckless imprudence in the Court of First
Instance of the province, where both charges
are derived from the consequences of one and
the same vehicular accident, because the
second accusation places the appellant in
second jeopardy for the same
offense.39 (Emphasis supplied)
Thus, for all intents and purposes, Buerano had
effectively overruled Estipona.
It is noteworthy that the Solicitor General in
Buerano, in a reversal of his earlier stance in
Silva, joined causes with the accused, a fact
which did not escape the Courts attention:

Then Solicitor General, now Justice Felix V.

Makasiar, in his MANIFESTATION dated
December 12, 1969 (page 82 of the Rollo)
admits that the Court of Appeals erred in not
sustaining petitioners plea of double jeopardy
and submits that "its affirmatory decision dated
January 28, 1969, in Criminal Case No. 05123CR finding petitioner guilty of damage to
property through reckless imprudence should
be set aside, without costs." He stressed that "if
double jeopardy exists where the reckless act
resulted into homicide and physical injuries.
then the same consequence must perforce
follow where the same reckless act caused
merely damage to property-not death-and
physical injuries. Verily, the value of a human
life lost as a result of a vehicular collision
cannot be equated with any amount of damages
caused to a motors vehicle arising from the
same mishap."40 (Emphasis supplied)
Hence, we find merit in petitioners submission
that the lower courts erred in refusing to extend
in his favor the mantle of protection afforded by
the Double Jeopardy Clause. A more fitting
jurisprudence could not be tailored to

422

petitioners case than People v. Silva, 41 a Diaz

progeny. There, the accused, who was also
involved in a vehicular collision, was charged in
two separate Informations with "Slight Physical
Injuries thru Reckless Imprudence" and
"Homicide with Serious Physical Injuries thru
Reckless Imprudence." Following his acquittal of
the former, the accused sought the quashal of
the latter, invoking the Double Jeopardy Clause.
The trial court initially denied relief, but, on
reconsideration, found merit in the accuseds
claim and dismissed the second case. In
affirming the trial court, we quoted with
approval its analysis of the issue following Diaz
and its progeny People v. Belga:42
On June 26, 1959, the lower court reconsidered
its Order of May 2, 1959 and dismissed the
case, holding:
[T]he Court believes that the case falls squarely
within the doctrine of double jeopardy
enunciated in People v. Belga, x x x In the case
cited, Ciriaco Belga and Jose Belga were
charged in the Justice of the Peace Court of
Malilipot, Albay, with the crime of physical

injuries through reckless imprudence arising

from a collision between the two automobiles
driven by them (Crim. Case No. 88). Without
the aforesaid complaint having been dismissed
or otherwise disposed of, two other criminal
complaints were filed in the same justice of the
peace court, in connection with the same
collision one for damage to property through
reckless imprudence (Crim. Case No. 95) signed
by the owner of one of the vehicles involved in
the collision, and another for multiple physical
injuries through reckless imprudence (Crim.
Case No. 96) signed by the passengers injured
in the accident. Both of these two complaints
were filed against Jose Belga only. After trial,
both defendants were acquitted of the charge
against them in Crim. Case No. 88. Following
his acquittal, Jose Belga moved to quash the
complaint for multiple physical injuries through
reckless imprudence filed against him by the
injured passengers, contending that the case
was just a duplication of the one filed by the
Chief of Police wherein he had just been
acquitted. The motion to quash was denied and
after trial Jose Belga was convicted, whereupon
he appealed to the Court of First Instance of

423

Albay. In the meantime, the case for damage to

property through reckless imprudence filed by
one of the owners of the vehicles involved in
the collision had been remanded to the Court of
First Instance of Albay after Jose Belga had
waived the second stage of the preliminary
investigation. After such remand, the Provincial
Fiscal filed in the Court of First Instance two
informations against Jose Belga, one for
physical injuries through reckless imprudence,
and another for damage to property through
reckless imprudence. Both cases were
dismissed by the Court of First Instance, upon
motion of the defendant Jose Belga who alleged
double jeopardy in a motion to quash. On
appeal by the Prov. Fiscal, the order of
dismissal was affirmed by the Supreme Court in
the following language: .
The question for determination is whether the
acquittal of Jose Belga in the case filed by the
chief of police constitutes a bar to his
subsequent prosecution for multiple physical
injuries and damage to property through
reckless imprudence.

In the case of Peo[ple] v. F. Diaz, G. R. No. L6518, prom. March 30, 1954, the accused was
charged in the municipal court of Pasay City
with reckless driving under sec. 52 of the
Revised Motor Vehicle Law, for having driven an
automobile in a fast and reckless manner ...
thereby causing an accident. After the accused
had pleaded not guilty the case was dismissed
in that court for failure of the Government to
prosecute. But some time thereafter the city
attorney filed an information in the Court of
First Instance of Rizal, charging the same
accused with damage to property thru reckless
imprudence. The amount of the damage was
alleged to be P249.50. Pleading double
jeopardy, the accused filed a motion, and on
appeal by the Government we affirmed the
ruling. Among other things we there said
through Mr. Justice Montemayor
The next question to determine is the relation
between the first offense of violation of the
Motor Vehicle Law prosecuted before the Pasay
City Municipal Court and the offense of damage
to property thru reckless imprudence charged in
the Rizal Court of First Instance. One of the

424

tests of double jeopardy is whether or not the

second offense charged necessarily includes or
is necessarily included in the offense charged in
the former complaint or information (Rule 113,
Sec. 9). Another test is whether the evidence
which proves one would prove the other that is
to say whether the facts alleged in the first
charge if proven, would have been sufficient to
support the second charge and vice versa; or
whether one crime is an ingredient of the other.
xxx
xxxx
The foregoing language of the Supreme Court
also disposes of the contention of the
prosecuting attorney that the charge for slight
physical injuries through reckless imprudence
could not have been joined with the charge for
homicide with serious physical injuries through
reckless imprudence in this case, in view of the
provisions of Art. 48 of the Revised Penal Code,
as amended. The prosecutions contention
might be true. But neither was the prosecution
obliged to first prosecute the accused for slight
physical injuries through reckless imprudence

before pressing the more serious charge of

homicide with serious physical injuries through
reckless imprudence. Having first prosecuted
the defendant for the lesser offense in the
Justice of the Peace Court of Meycauayan,
Bulacan, which acquitted the defendant, the
prosecuting attorney is not now in a position to
press in this case the more serious charge of
homicide with serious physical injuries through
reckless imprudence which arose out of the
same alleged reckless imprudence of which the
defendant have been previously cleared by the
inferior court.43
Significantly, the Solicitor General had urged us
in Silva to reexamine Belga (and hence, Diaz)
"for the purpose of delimiting or clarifying its
application."44 We declined the invitation, thus:
The State in its appeal claims that the lower
court erred in dismissing the case, on the
ground of double jeopardy, upon the basis of
the acquittal of the accused in the JP court for
Slight Physical Injuries, thru Reckless
Imprudence. In the same breath said State,
thru the Solicitor General, admits that the facts

425

of the case at bar, fall squarely on the ruling of

the Belga case x x x, upon which the order of
dismissal of the lower court was anchored. The
Solicitor General, however, urges a reexamination of said ruling, upon certain
considerations for the purpose of delimiting or
clarifying its application. We find, nevertheless,
that further elucidation or disquisition on the
ruling in the Belga case, the facts of which are
analogous or similar to those in the present
case, will yield no practical advantage to the
government. On one hand, there is nothing
which would warrant a delimitation or
clarification of the applicability of the Belga
case. It was clear. On the other, this Court has
reiterated the views expressed in the Belga
case, in the identical case of Yap v. Hon. Lutero,
etc., L-12669, April 30, 1959.45 (Emphasis
supplied)
Article 48 Does not Apply to Acts Penalized
Under Article 365 of the Revised Penal Code
The confusion bedeviling the question posed in
this petition, to which the MeTC succumbed,
stems from persistent but awkward attempts to

harmonize conceptually incompatible

substantive and procedural rules in criminal law,
namely, Article 365 defining and penalizing
quasi-offenses and Article 48 on complexing of
crimes, both under the Revised Penal Code.
Article 48 is a procedural device allowing single
prosecution of multiple felonies falling under
either of two categories: (1) when a single act
constitutes two or more grave or less grave
felonies (thus excluding from its operation light
felonies46); and (2) when an offense is a
necessary means for committing the other. The
legislature crafted this procedural tool to benefit
the accused who, in lieu of serving multiple
penalties, will only serve the maximum of the
penalty for the most serious crime.
In contrast, Article 365 is a substantive rule
penalizing not an act defined as a felony but
"the mental attitude x x x behind the act, the
dangerous recklessness, lack of care or
foresight x x x,"47 a single mental attitude
regardless of the resulting consequences. Thus,
Article 365 was crafted as one quasi-crime
resulting in one or more consequences.

426

Ordinarily, these two provisions will operate

smoothly. Article 48 works to combine in a
single prosecution multiple intentional crimes
falling under Titles 1-13, Book II of the Revised
Penal Code, when proper; Article 365 governs
the prosecution of imprudent acts and their
consequences. However, the complexities of
human interaction can produce a hybrid quasioffense not falling under either models that of
a single criminal negligence resulting in multiple
non-crime damages to persons and property
with varying penalties corresponding to light,
less grave or grave offenses. The ensuing
prosecutorial dilemma is obvious: how should
such a quasi-crime be prosecuted? Should
Article 48s framework apply to "complex" the
single quasi-offense with its multiple (noncriminal) consequences (excluding those
amounting to light offenses which will be tried
separately)? Or should the prosecution proceed
under a single charge, collectively alleging all
the consequences of the single quasi-crime, to
be penalized separately following the scheme of
penalties under Article 365?

Jurisprudence adopts both approaches. Thus,

one line of rulings (none of which involved the
issue of double jeopardy) applied Article 48 by
"complexing" one quasi-crime with its multiple
consequences48 unless one consequence
amounts to a light felony, in which case charges
were split by grouping, on the one hand,
resulting acts amounting to grave or less grave
felonies and filing the charge with the second
level courts and, on the other hand, resulting
acts amounting to light felonies and filing the
charge with the first level courts.49 Expectedly,
this is the approach the MeTC impliedly
sanctioned (and respondent Ponce invokes),
even though under Republic Act No. 7691,50 the
MeTC has now exclusive original jurisdiction to
impose the most serious penalty under Article
365 which is prision correccional in its medium
period.
Under this approach, the issue of double
jeopardy will not arise if the "complexing" of
acts penalized under Article 365 involves only
resulting acts penalized as grave or less grave
felonies because there will be a single
prosecution of all the resulting acts. The issue

427

of double jeopardy arises if one of the resulting

acts is penalized as a light offense and the
other acts are penalized as grave or less grave
offenses, in which case Article 48 is not deemed
to apply and the act penalized as a light offense
is tried separately from the resulting acts
penalized as grave or less grave offenses.
The second jurisprudential path nixes Article 48
and sanctions a single prosecution of all the
effects of the quasi-crime collectively alleged in
one charge, regardless of their number or
severity,51 penalizing each consequence
separately. Thus, in Angeles v. Jose,52 we
interpreted paragraph three of Article 365, in
relation to a charge alleging "reckless
imprudence resulting in damage to property
and less serious physical injuries," as follows:
[T]he third paragraph of said article, x x x reads
as follows:
When the execution of the act covered by this
article shall have only resulted in damage to the
property of another, the offender shall be
punished by a fine ranging from an amount
equal to the value of said damage to three

times such value, but which shall in no case be

less than 25 pesos.
The above-quoted provision simply means that
if there is only damage to property the amount
fixed therein shall be imposed, but if there are
also physical injuries there should be
an additional penalty for the latter. The
information cannot be split into two; one for the
physical injuries, and another for the damage to
property, x x x.53(Emphasis supplied)
By "additional penalty," the Court meant,
logically, the penalty scheme under Article 365.
Evidently, these approaches, while parallel, are
irreconcilable. Coherence in this field demands
choosing one framework over the other. Either
(1) we allow the "complexing" of a single quasicrime by breaking its resulting acts into
separate offenses (except for light felonies),
thus re-conceptualize a quasi-crime, abandon
its present framing under Article 365, discard
its conception under the Quizon and Diaz lines
of cases, and treat the multiple consequences
of a quasi-crime as separate intentional felonies
defined under Titles 1-13, Book II under the

428

penal code; or (2) we forbid the application of

Article 48 in the prosecution and sentencing of
quasi-crimes, require single prosecution of all
the resulting acts regardless of their number
and severity, separately penalize each as
provided in Article 365, and thus maintain the
distinct concept of quasi-crimes as crafted
under Article 365, articulated in Quizon and
applied to double jeopardy adjudication in the
Diaz line of cases.1avvphi1
A becoming regard of this Courts place in our
scheme of government denying it the power to
make laws constrains us to keep inviolate the
conceptual distinction between quasi-crimes
and intentional felonies under our penal code.
Article 48 is incongruent to the notion of quasicrimes under Article 365. It is conceptually
impossible for a quasi-offense to stand for (1) a
single act constituting two or more grave or less
grave felonies; or (2) anoffense which is a
necessary means for committing another. This
is why, way back in 1968 in Buan, we rejected
the Solicitor Generals argument that double
jeopardy does not bar a second prosecution for
slight physical injuries through reckless

imprudence allegedly because the charge for

that offense could not be joined with the other
charge for serious physical injuries through
reckless imprudence following Article 48 of the
Revised Penal Code:
The Solicitor General stresses in his brief that
the charge for slight physical injuries through
reckless imprudence could not be joined with
the accusation for serious physical injuries
through reckless imprudence, because Article
48 of the Revised Penal Code allows only the
complexing of grave or less grave felonies. This
same argument was considered and rejected by
this Court in the case of People vs. [Silva] x x
x:
[T]he prosecutions contention might be true.
But neither was the prosecution obliged to first
prosecute the accused for slight physical
injuries through reckless imprudence before
pressing the more serious charge of homicide
with serious physical injuries through reckless
imprudence. Having first prosecuted the
defendant for the lesser offense in the Justice of
the Peace Court of Meycauayan, Bulacan, which

429

acquitted the defendant, the prosecuting

attorney is not now in a position to press in this
case the more serious charge of homicide with
serious physical injuries through reckless
imprudence which arose out of the same
alleged reckless imprudence of which the
defendant has been previously cleared by the
inferior court.
[W]e must perforce rule that the exoneration of
this appellant x x x by the Justice of the Peace x
x x of the charge of slight physical injuries
through reckless imprudence, prevents his
being prosecuted for serious physical injuries
through reckless imprudence in the Court of
First Instance of the province, where both
charges are derived from the consequences of
one and the same vehicular accident, because
the second accusation places the appellant in
second jeopardy for the same
offense.54 (Emphasis supplied)
Indeed, this is a constitutionally compelled
choice. By prohibiting the splitting of charges
under Article 365, irrespective of the number
and severity of the resulting acts, rampant

occasions of constitutionally impermissible

second prosecutions are avoided, not to
mention that scarce state resources are
conserved and diverted to proper use.
Hence, we hold that prosecutions under Article
365 should proceed from a single charge
regardless of the number or severity of the
consequences. In imposing penalties, the judge
will do no more than apply the penalties under
Article 365 for each consequence alleged and
proven. In short, there shall be no splitting of
charges under Article 365, and only one
information shall be filed in the same first level
court.55
Our ruling today secures for the accused facing
an Article 365 charge a stronger and simpler
protection of their constitutional right under the
Double Jeopardy Clause. True, they are thereby
denied the beneficent effect of the favorable
sentencing formula under Article 48, but any
disadvantage thus caused is more than
compensated by the certainty of nonprosecution for quasi-crime effects qualifying as
"light offenses" (or, as here, for the more

430

serious consequence prosecuted belatedly). If it

is so minded, Congress can re-craft Article 365
by extending to quasi-crimes the sentencing
formula of Article 48 so that only the most
severe penalty shall be imposed under a single
prosecution of all resulting acts, whether
penalized as grave, less grave or light offenses.
This will still keep intact the distinct concept of
quasi-offenses. Meanwhile, the lenient schedule
of penalties under Article 365, befitting crimes
occupying a lower rung of culpability, should
cushion the effect of this ruling.
WHEREFORE, we GRANT the petition.
We REVERSE the Orders dated 2 February
2006 and 2 May 2006 of the Regional Trial
Court of Pasig City, Branch 157.
We DISMISS the Information in Criminal Case
No. 82366 against petitioner Jason Ivler y
Aguilar pending with the Metropolitan Trial
Court of Pasig City, Branch 71 on the ground of
double jeopardy.
Let a copy of this ruling be served on the
President of the Senate and the Speaker of the
House of Representatives.

SO ORDERED.

431

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-1477

January 18, 1950

THE PEOPLE OF THE PHILIPPINES, plaintiffappellee,

vs.
JULIO GUILLEN, defendant-appellant.
Mariano A. Albert for appellant.
Office of the Solicitor General Felix Bautista
Angelo and Solicitor Francisco A. Carreon for
appellee.
PER CURIAM, J.:

This case is before us for review of, and by

virtue of appeal from, the judgment rendered
by the Court of First Instance of Manila in case
No. 2746, whereby Julio Guillen y Corpus, or
Julio C. Guillen, is found guilty beyond
reasonable doubt of the crime of murder and
multiple frustrated murder, as charged in the
information, and is sentenced to the penalty of
death, to indemnify the of the deceased Simeon
Valera (or Barrela) in the sum of P2,000 and to
pay the costs.
Upon arraignment the accused entered a plea of
not guilty to the charges contained in the
information.
Then the case was tried in one of the branches
of the Court of First Instance of Manila presided
over by the honorable Buenaventura Ocampo
who, after the submission of the evidence of the
prosecution and the defense, rendered
judgment as above stated.
In this connection it should be stated that, at
the beginning of the trial and before
arraignment, counsel de oficiofor the accused
moved that the mental condition of Guillen be
examined. The court, notwithstanding that it
had found out from the answers of the accused

432

to questions propounded to him in order to test

the soundness of his mind, that he was not
suffering from any mental derangement,
ordered that Julio Guillen be confined for
Hospital, there to be examined by medical
experts who should report their findings
accordingly. This was done, and, according to
the report of the board of medical experts,
presided over by Dr. Fernandez of the National
Psychopathic Hospital, Julio Guillen was not
insane. Said report (Exhibit L), under the
heading "Formulation and Diagnosis," at pages
13 and 14, reads:
FORMULATION AND DIAGNOSIS
Julio C. Guillen was placed under constant
observation since admission. There was
not a single moment during his whole 24
hours daily, that he was not under
observation.
The motive behind the commission of the
crime is stated above. The veracity of this
motivation was determined in the
Narcosynthesis. That the narco-synthesis
was successful was checked up the day
after the test. The narco-synthesis proved
not only reveal any conflict or complex

that may explain a delusional or

hallucinatory motive behind the act.
Our observation and examination failed to
elicit any sign or symptom of insanity in
Mr. Julio C. Guillen. He was found to be
intelligent, always able to differentiate
right from wrong, fully aware of the nature
of the crime he committed and is equally
decided to suffer for it in any manner or
form.
His version of the circumstances of the
crime, his conduct and conversation
relative thereto, the motives, temptations
and provocations that preceded the act,
were all those of an individual with a
sound mind.
On the other hand he is an man of strong
will and conviction and once arriving at a
decision he executes, irrespective of
consequences and as in this case, the
commission of the act at Plaza Miranda.
What is of some interest in the personality
of Julio C. Guillen is his commission of
some overt acts. This is seen not only in
the present instance, but sometime when
an employee in la Clementina Cigar

433

Factory he engaged in a boxing bout Mr.

Manzano, a Span-wanted to abuse the
women cigar makers, and felt it his duty to
defend them. One time he ran after a
policeman with a knife in hand after being
provoked to a fight several times. He even
challenged Congressman Nueno to a fight
sometime before when Mr. Nueno was
running for a seat in the Municipal Board
of the City of Manila, after hearing him
deliver one of his apparently outspoken
speeches.
All these mean a defect in his personality
characterized by a weakness of censorship
especially in relation to rationalization
about the consequences of his acts.
In view of the above findings it is our
considered opinion that Julio C. Guillen is
not insane but is an individual with a
personality defect which in Psychiatry is
termed, Constitutional Psychopathic
Inferiority.
Final Diagnosis
Not insane: Constitutional Psychopathic
Inferiority, without psychosis.

In view of the above-quoted findings of the

medical board, and notwithstanding the
contrary opinion of one Dr. Alvarez, who was
asked by the defense to give his opinion on the
matter, the court ruled that Guillen, not being
insane, could be tired, as he was tired, for the
offenses he committed on the date in question.
THE FACTS
Upon careful perusal of the evidence and the
briefs submitted by counsel for the accused, the
Solicitor General and their respective
memoranda, we find that there is no
disagreement between the prosecution and the
defense, as to the essential facts which caused
the filing of the present criminal case against
this accused. Those facts may be stated as
follows:
On the dates mentioned in this decision, Julio
Guillen y Corpus, although not affirmed with
any particular political group, has voted for the
defeated candidate in the presidential elections
held in 1946. Manuel A. Roxas, the successful
candidate, assumed the office of President of
the Commonwealth and subsequently President
of the President of the Philippine Republic.
According to Guillen, he became disappointed in
President Roxas for his alleged failure to

434

redeem the pledges and fulfill the promises

made by him during the presidential election
campaign; and his disappointment was
aggravated when, according to him, President
Roxas, instead of looking after the interest of
his country, sponsored and campaigned for the
approval of the so-called "parity" measure.
Hence he determined to assassinate the
President.
After he had pondered for some time over the
ways and means of assassinating President
Roxas, the opportunity presented itself on the
night of March 10, 1947, when at a popular
meeting held by the Liberal Party at Plaza de
Miranda, Quiapo, Manila attended by a big
crowd, President Roxas, accompanied by his
wife and daughter and surrounded by a number
of ladies and gentlemen prominent in
government and politics, stood on a platform
erected for that purpose and delivered his
speech expounding and trying to convince his
thousand of listeners of the advantages to be
gained by the Philippines, should the
constitutional amendment granting American
citizens the same rights granted to Filipino
nationals be adopted.
Guillen had first intended to use a revolver for
the accomplishment of his purpose, but having

lost said firearm, which was duly licensed, he

thought of two hand grenades which were given
him by an American soldier in the early days of
the liberation of Manila in exchange for two
bottles of whisky. He had likewise been
weighing the chances of killing President Roxas,
either by going to Malacaan, or following his
intended victim in the latter's trips to provinces,
for instance, to Tayabas (now Quezon) where
the President was scheduled to speak, but
having encountered many difficulties, he
decided to carry out his plan at the pro-parity
meeting held at Plaza de Miranda on the night
of March 10, 1947.
On the morning of that he went to the house of
Amando Hernandez whom he requested to
prepare for him a document (Exhibit B), in
accordance with their pervious understanding in
the preceding afternoon, when they met at the
premises of the Manila Jockey Club on the
occasion of an "anti-parity" meeting held there.
On account of its materially in this case, we
deem it proper to quote hereunder the contents
of said document. An English translation
(Exhibit B-2) from its original Tagalog reads:
FOR THE SAKE OF A FREE PHILIPPINES

435

I am the only one responsible for what

happened. I conceived it, I planned it, and
I carried it out all by myself alone. It took
me many days and nights pondering over
this act, talking to my own conscience, to
my God, until I reached my conclusion. It
was my duty.
I did not expected to live long; I only had
on life to spare. And had I expected to
lives to spare, I would not have hesitated
either ton sacrifice it for the sake of a
principle which was the welfare of the
people.
Thousands have died in Bataan; many
more have mourned the loss of their
husbands, of their sons, and there are
millions now suffering. Their deeds bore no
fruits; their hopes were frustrated.
I was told by my conscience and by my
God that there was a man to be blamed
for all this: he had deceived the people, he
had astounded them with no other purpose
than to entice them; he even went to the
extent of risking the heritage of our future
generations. For these reasons he should
not continue any longer. His life would
mean nothing as compared with the

welfare of eighteen million souls. And why

should I not give up my life too if only the
good of those eighteen million souls.
These are the reasons which impelled me
to do what I did and I am willing to bear
up the consequences of my act. I t matters
not if others will curse me. Time and
history will show, I am sure, that I have
only displayed a high degree of patriotism
in my performance of my said act.
Hurrah for a free Philippines.
Cheers for the happiness of every Filipino
home.
May God pity on me.
Amen.
JULIO C. GUILLEN
A copy (Exhibit B-1) of the original in Tagalog
(Exhibit B), made at the request of Guillen by
his nephew, was handed to him only at about 6
o'clock in the afternoon of March 10, 1947, for
which reason said Exhibit B-1 appears

436

unsigned, because he was in a hurry for that

meeting at Plaza de Miranda.
When he reached Plaza de Miranda, Guillen was
carrying two hand grenades concealed in a
paper bag which also contained peanuts. He
buried one of the hand grenades (Exhibit D), in
a plant pot located close to the platform, and
when he decided to carry out his evil purpose
he stood on the chair on which he had been
sitting and, from a distance of about seven
meters, he hurled the grenade at the President
when the latter had just closed his speech, was
being congratulated by Ambassador Romulo and
was about to leave the platform.
General Castaeda, who was on the platform,
saw the smoking, hissing, grenade and without
losing his presence of mind, kicked it away from
the platform, along the stairway, and towards
an open space where the general thought the
grenade was likely to do the least harm; and,
covering the President with his body, shouted to
the crowd that everybody should lie down. The
grenade fell to the ground and exploded in the
middle of a group of persons who were standing
close to the platform. Confusion ensued, and
the crowd dispersed in a panic. It was found
that the fragments of the grenade had seriously
injured Simeon Varela (or Barrela ) who died

on the following day as the result of mortal

wounds caused by the fragments of the grenade
(Exhibits F and F-1) Alfredo Eva, Jose Fabio,
Pedro Carrillo and Emilio Maglalang.
Guillen was arrested by members of the Police
Department about two hours after the
occurrence. It appears that one Angel Garcia,
who was one spectators at that meeting, saw
how a person who was standing next to him
hurled an object at the platform and, after the
explosion, ran away towards a barber shop
located near the platform at Plaza de Miranda.
Suspecting that person was the thrower of the
object that exploded, Garcia went after him and
had almost succeeded in holding him, but
Guillen offered stiff resistance, got loose from
Garcia and managed to escape. Garcia pursued
him, but some detectives, mistaking the former
for the real criminal and the author of the
explosion, placed him under arrest. In the
meantime, while the City Mayor and some
agents of the Manila Police Department were
investigating the affair, one Manuel Robles
volunteered the information that the person
with whom Angel Garcia was wrestling was Julio
Guillen; that he (Manuel Robles) was
acquainted with Julio Guillen for the previous
ten years and had seen each other in the plaza
a few moments previous to the explosion.

437

The police operatives interrogated Garcia and

Robles, and Julio Guillen was, within two hours
after the occurrence, found in his home at 1724
Juan Luna Street, Manila, brought to the police
headquarters and identified by Angel Garcia, as
the same person who hurled towards the
platform the object which exploded and whom
Garcia tried to hold when he was running away.
During the investigation conducted by the police
he readily admitted his responsibility, although
at the same time he tried to justify his action in
throwing the bomb at President Roxas. He also
indicated to his captors the place where he had
hidden his so called last will quoted above and
marked Exhibit B, which was then unsigned by
him and subsequently signed at the police
headquarters.

Re-enacting the crime (Exhibit C), he pointed

out to the police where he had buried (Exhibit
C-1) the other hand grenade (Exhibit D), and,
in the presence of witnesses he signed a
statement which contained his answers to
question propounded to him by Major A.
Quintos of the Manila Police, who investigated
him soon after his arrest (Exhibit E). From a
perusal of his voluntary statement, we are
satisfied that it tallies exactly with the
declarations and made by him on the witness
stand during the trial of this case.
THE ISSUES
In the brief submitted by counsel de oficio for
this appellant, several errors are assigned
allegedly committed by the trial court,
namely: first, "in finding the appellant guilty of
murder for the death of Simeon
Varela"; second, "in declaring the appellant
guilty of the complex crime of murder and
multiple frustrated murder"; third, "in applying
sub-section 1 of article 49 of the Revised Penal
Code in determining the penalty to be imposed
upon the accused"; and fourth, "in considering
the concurrence of the aggravating
circumstances of nocturnity and of contempt of
public authorities in the commission of crime."

438

The evidence for the prosecution, supported by

the brazen statements made by the accused,
shows beyond any shadow of doubt that, when
Guillen attended that meeting, carrying with
him two hand grenades, to put into execution
his preconceived plan to assassinate President
Roxas, he knew fully well that, by throwing one
of those two hand grenades in his possession at
President Roxas, and causing it to explode, he
could not prevent the persons who were around
his main and intended victim from being killed
or at least injured, due to the highly explosive
nature of the bomb employed by him to carry
out his evil purpose.
Guillen, testifying in his own behalf, in answer
to questions propounded by the trial judge
(page 96 of transcript) supports our conclusion.
He stated that he performed the act voluntarily;
that his purpose was to kill the President, but
that it did not make any difference to him if
there were some people around the President
when he hurled that bomb, because the killing
of those who surrounded the President was
tantamount to killing the President, in view of
the fact that those persons, being loyal to the
President being loyal to the President, were
identified with the latter. In other word,
although it was not his main intention to kill the
persons surrounding the President, he felt no

conjunction in killing them also in order to

attain his main purpose of killing the President.
The facts do not support the contention of
counsel for appellant that the latter is guilty
only of homicide through reckless imprudence
in regard to the death of Simeon Varela and of
less serious physical injuries in regard to
Alfredo Eva, Jose Fabio, Pedro Carrillo and
Emilio Maglalang, and that he should be
sentenced to the corresponding penalties for
the different felonies committed, the sum total
of which shall not exceed three times the
penalty to be imposed for the most serious
crime in accordance with article 70 in relation to
article 74 of the Revised Penal Code.
In throwing hand grenade at the President with
the intention of killing him, the appellant acted
with malice. He is therefore liable for all the
consequences of his wrongful act; for in
accordance with article 4 of the Revised Penal
Code, criminal liability is incurred by any person
committing felony (delito) although the
wrongful act done be different from that which
he intended. In criminal negligence, the injury
caused to another should be unintentional, it
being simply the incident of another act
performed without malice. (People vs. Sara, 55
Phil., 939.) In the words of Viada, "in order that

439

an act may be qualified as imprudence it is

necessary that either malice nor intention to
cause injury should intervene; where such
intention exists, the act should qualified by the
felony it has produced even though it may not
have been the intention of the actor to cause an
evil of such gravity as that produced.' (Viada's
Comments on the Penal Code, vol. 7, 5th ed.,
p.7.) And, as held by this Court, a deliberate
intent to do an unlawful act is essentially
inconsistent with the idea of reckless
imprudence. (People vs. Nanquil, 43 Phil., 232.)
Where such unlawful act is wilfully done, a
mistake in the identity of the intended victim
cannot be considered as reckless imprudence.
(People vs. Gona, 54 Phil., 605)
Squarely on the point by counsel is the
following decision of the Supreme Court of
Spain:
Cuestion 62. Se presenta A, a las ocho de
la noche, en el estanco de B a comprar
tabaco, y habiendose negado este a
darselo al fiado, se retira a quel sin mediar
entre ambos disputa alguna; pero;
trnscurrido un cuarto de hora, hallandose
el estanquero despachando a C, se oye la
detonacion de un arma de fuego disparada
por A desde la calle, quedando muertos en

el acto C y el estanquero; supuesta la no

intencion en A de matar a C y si solo al
estanquero, cabe calificar la muerte de
este de homicidio y la de c de imprudencia
temeraria? La Sala de lo Criminal de la
Auudiencia de Granada lo estimo asi, y
condeno al procesado a catorse anos de
reclusion por el homivcidio y a un ao de
prision correctional por la imprudencia.
Aparte de que la muerte del estanquero
debio calificarse de assesinato y no de
homicidio, por haberse ejecutado con
aleviosa. es evidente que la muerte de C,
suponiendo que no se propusiera
ejecutaria el procesado, no pudo calificarse
de imprudencia teme raria, sino que
tambien debio declararsele responsable de
la misma, a tenor de lo puesto en este
apartado ultimo del articulo; y que siendo
ambas muertes producidas por un solo
hecho, o sea por un solo disparo, debio
imponerse al reo la pena del delito de
asesinato en el grado maximo, a tenor de
lo dispuesto en el art. 90 del Codigo, o sea
la pena de muerte. Se ve, pues,
claramente que en el antedicha sentencia,
aparte de otros articulos del Codigo, se
infringio por la Sala la disposicion de este
apartado ultimo del articulo muy
principalmente, y asi lo declaro el Tribunal

440

Supremo en S. de 18 junio de 1872.

(Gaceta de 1,0 de agosto.) (I Viada, 5th
Ed., p. 42.)
Article 48 of the Revised Penal Code provides as
follows:
Art. 48. Penalty for Complex Crimes.
When a single act constitutes two or more
grave or less grave felonies, or when an
offense is a necessary means for
committing the other, the penalty for the
most serious crime shall be imposed, the
same to be applied in its maximum period.
We think it is the above-quoted article and not
paragraph 1 of article 49 that is applicable. The
case before us is clearly governed by the first
clause of article 48 because by a single act, that
a throwing highly explosive hand grenade at
President Roxas, the accused committed two
grave felonies, namely: (1) murder, of which
Simeon Varela was the victim; and (2) multiple
attempted murder, of which President Roxas,
Alfredo Eva, Jose Fabio, Pedro Carrillo and
Emilio Maglalang were the injured parties.
The killing of Simeon Varela was attended by
the qualifying circumstance of treachery. In the
case of People vs. Mabug-at, supra, this court

held that the qualifying circumstance of

treachery may be properly considered, even
when the victim of the attack was not the one
whom the defendant intended to kill, if it
appears from the evidence that neither of the
two persons could in any manner put up
defense against the attack, or become aware of
it. In the same case it was held that the
qualifying circumstance of premeditation may
not be properly taken into the account when the
person whom the defendant proposed to kill
was different from the one who became his
victim.
There can be no question that the accused
attempted to kill President Roxas by throwing a
hand grenade at him with the intention to kill
him, thereby commencing the commission of a
felony by over acts, but he did not succeed in
assassinating him "by reason of some cause or
accident other than his own spontaneous
desistance." For the same reason we qualify the
injuries caused on the four other persons
already named as merely attempted and not
frustrated murder.
In this connection, it should be stated that ,
although there is abundant proof that , in
violation of the provisions of article 148 of the
Revised Penal Code, the accused Guillen has

441

committed among others the offense of assault

upon a person in authority, for in fact his efforts
were directed towards the execution of his main
purpose of eliminating President Roxas for his
failure to redeem his electoral campaign
promises, by throwing at him in his official
capacity as the Chief Executive of the nation the
hand grenade in question, yet, in view of the
appropriate allegation charging Guillen with the
commission of said offense, we shall refrain
making a finding to that effect.
The complex crimes of murder and multiple
attempted murder committed by the accused
with the single act of throwing a hand grenade
at the President, was attended by the various
aggravating circumstances alleged in the
information, without any mitigating
circumstance. But we do not deem it necessary
to consider said aggravating circumstances
because in any event article 48 of the Revised
Penal Code above-quoted requires that the
penalty for the most serious of said crimes be
applied in its maximum period. The penalty for
murder is reclusion temporalin its maximum
period to death. (Art. 248.)

It is our painful duty to apply the law and mete

out to the accused the extreme penalty
provided by it upon the facts and circumstances
hereinabove narrated.
The sentence of the trial court being correct, we
have no alternative but to affirm it, and we
hereby do so by a unanimous vote. The death
sentence shall be executed in accordance with
article 81 of the Revised Penal Code, under
authority of the Director of Prisons, on such
working day as the trial court may fix within 30
days from the date the record shall have been
remanded. It is so ordered.

442

FIRST DIVISION

[G.R. No. 123485. August 31, 1998]

PEOPLE OF THE PHILIPPINES, plaintiffappellee,

vs. ROLUSAPE
SABALONES alias Roling,
ARTEMIO
TIMOTEO
BERONGA,
TEODULO
ALEGARBES
and
EUFEMIO
CABANERO, accused,
ROLUSAPE
SABALONES alias Roling and ARTEMIO
TIMOTEO
BERONGA, accusedappellants.
DECISION
PANGANIBAN, J.:

Factual findings of trial courts which are

affirmed by the Court of Appeals are, as a
general rule, binding and conclusive upon the
Supreme Court. Alibi, on the other hand, cannot
prevail over positive identification by credible
witnesses. Furthermore, alleged violations of
constitutional
rights
during
custodial
investigation are relevant only when the
conviction of the accused by the trial court is
based on the evidence obtained during such
investigation.
The Case
These are the principles relied upon by the
Court in resolving this appeal from the Court of
Appeals (CA)[1] Decision[2] dated September 28,
1995, convicting Rolusape Sabalones and
Timoteo Beronga of murder and frustrated
murder. The convictions arose from a shooting
incident on June 1, 1985 in Talisay, Cebu, which
resulted in the killing of two persons and the
wounding of three others, who were all riding in
two vehicles which were allegedly ambushed by
appellants.
After conducting a preliminary investigation,
Second Assistant Provincial Prosecutor Juanito
M. Gabiana Sr. filed before the Regional Trial

443

Court (RTC) of Cebu City, Branch 7,[3] five

amended Informations charging four John Does,
who were later identified as Rolusape
Sabalones, Artemio Timoteo Beronga, Teodulo
Alegarbes and Eufemio Cabanero, with two
counts of murder and three counts of frustrated
murder. The
Informations
are
quoted
hereunder.
1) Crim Case No. CBU-9257 for murder:
That on the 1st day of June, 1985, at 11:45
oclock in the evening, more or less, at
Mansueto Village, Bulacao, Municipality of
Talisay, Province of Cebu, Philippines, and within
the jurisdiction of this Honorable Court, the
above-named accused, conspiring,
confederating and mutually helping one
another, armed with high-powered firearms,
with intent to kill and treachery, did then and
there wilfully, unlawfully and feloniously attack,
assault and shoot GLENN TIEMPO, who was
riding [i]n a jeep and who gave no provocation,
thereby inflicting upon the latter several
gunshot wounds, thereby causing his
instantaneous death.
CONTRARY TO Article 248 of the Revised Penal
Code.

2) Criminal Case No. 9258 for murder:

That on the 1st day of June, 1985 at 11:45
oclock in the evening, more or less at Mansueto
Village, Barangay Bulacao, Municipality of
Talisay, Province of Cebu, Philippines, and within
the jurisdiction of this Honorable Court, the
above-named accused, conspiring,
confederating and mutually helping one
another, armed with high-powered firearms,
with intent to kill and treachery, did [then] and
there wilfully, unlawfully and feloniously attack,
assault and shoot ALFREDO NARDO, who was
riding on a jeep and who gave no provocation,
thereby inflicting upon the latter several
gunshot wounds, thereby causing his
instantaneous death.
CONTRARY TO Article 248 of the Revised Penal
Code.
3) Crim Case No. CBU-9259 for frustrated
murder:
That on the 1st day of June, 1985 at 11:45
oclock in the evening, more or less, at
Mansueto Village, Barangay Bulacao,
Municipality of Talisay, Province of Cebu,
Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused

444

conspiring, confederating and mutually helping

one another, armed with high-powered
firearms, with intent to kill and treachery, did
and there wilfully, unlawfully and feloniously
attack, assault and shoot REY BOLO who was
riding in a car and who gave no provocation,
thereby inflicting upon the latter the following
injuries to wit:
laceration, mouth due to gunshot
wound, gunshot wound (L) shoulder penetrating
(L) chest; gunshot wound (R) hand
(palm); open fracture (L) clavicle (L) scapula;
contusion (L) lung;
thereby performing all the acts of execution
which would produce the crime of [m]urder as a
consequence but which, nevertheless, did not
produce it by reason of causes independent of
the will of the perpetrator, i.e. the timely
medical attendance.
IN VIOLATION of Article 248 of the Revised
Penal Code.
4) Criminal Case No. 9260 for frustrated
murder:
That on the 1st day of June, 1985 at 11:45
oclock in the evening, more or less, at
Mansueto Village, Barangay Bulacao,

Municipality of Talisay, Province of Cebu,

Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused
conspiring, confederating and mutually helping
one another, armed with high-powered
firearms, with intent to kill and treachery, did
then and there wilfully, unlawfully and
feloniously attack, assault and shoot ROGELIO
PRESORES, who was riding in a car and who
gave no provocation, thereby inflicting upon the
latter the following injuries, to wit:
gunshot wound, thru and thru right chest
thereby performing all the acts of execution
which would produce the crime of [m]urder as a
consequence but which, nevertheless, did not
produce it by reason of causes independent of
the will of the perpetrator, i.e. the timely
medical attendance.
IN VIOLATION of Article 248 of the Revised
Penal Code.
5) Criminal Case No. 9261 for frustrated
murder:
That on the 1st day of June, 1985 at 11:45
oclock in the evening, more or less, at
Mansueto Village, Barangay Bulacao,
Municipality of Talisay, Province of Cebu,

445

Philippines, and within the jurisdiction of this

Honorable Court, the above-named accused
conspiring, confederating and mutually helping
one another, armed with high-powered
firearms, with intent to kill and treachery, did
then and there wilfully, unlawfully and
feloniously attack, assault and shoot NELSON
TIEMPO, who was riding in a car and who gave
no provocation, thereby inflicting upon the
latter the following injuries, to wit:

Informations. When arraigned, said accused,

assisted by their respective lawyers, pleaded
not guilty to the five Informations.

Gunshot wound neck penetrating wound

perforating trachea (cricoid) thereby performing
all the acts of execution which would produce
the crime of [m]urder as a consequence but
which nevertheless, did not produce it by
reason of causes independent of the will of the
perpetrator, i.e. the timely medical attendance.

The cases against Sabalones and Beronga

were jointly tried. Thereafter, the lower court
found them guilty beyond reasonable doubt of
the crimes charged. The RTC disposed as
follows:

Alegarbes died in the course of trial; thus,

the cases against him were dismissed. Accused
Cabanero remained at large. Sabalones, on the
other
hand,
was
eventually
arrested. Subsequently, he jumped bail but was
recaptured in 1988 and thereafter pleaded not
guilty during his arraignment.

IN VIOLATION of Article 248 of the Revised

Penal Code.

WHEREFORE, premises above-set forth, the

Court finds accused ROLUSAPE SABALONES and
(ARTEMIO) TIMOTEO BERONGA, [g]uilty beyond
reasonable doubt, as principals:

Of the four indictees in the five Informations,

Teodulo Alegarbes and Artemio Timoteo
Beronga were the first to be arraigned. Upon
the arrest of the two, the Informations were
amended by the public prosecutor, with the
conformity of the defense counsel, by
substituting the names of the two accused for
the John Does appearing in the original

In Crim. Case No. CBU-9257, for MURDER,

defined and penalized in Art. 248 of the Revised
Penal Code, hereby sentences each said
accused to suffer the penalty of [f]ourteen (14)
years, [e]ight (8) months and [o]ne (1) day, as
minimum, to [s]eventeen (17) years, [f]our (4)
months and [o]ne (1) day, of
[r]eclusion [t]emporal, as maximum, to

446

indemnify the heirs of deceased, Glenn Tiempo,

the sum of P50,000.00;
In Crim. Case No. CBU-9258, for MURDER,
defined and penalized in Art. 248 of the Revised
Penal Code, hereby sentences each said
accused to suffer the penalty of [f]ourteen (14)
years, [e]ight (8) months and [o]ne (1) day, as
minimum, to [s]eventeen (17) years, [f]our (4)
months and [o]ne (1) day, of
[r]eclusion [t]emporal, as maximum, to
indemnify the heirs of deceased, Alfredo Nardo,
the sum of P50,000.00;
In Crim. Case No. CBU-9259, for FRUSTRATED
MURDER, defined and penalized in Art. 248 in
relation to Art. 50 of the Revised Penal Code,
hereby sentences each said accused to suffer
the penalty of [e]ight (8) years ofprision mayor,
as minimum, to [f]ourteen (14) years and
[e]ight (8) months of [re]clusion [t]emporal, as
maximum, to indemnify the victim, Rey Bolo,
the sum of P20,000.00;
In Crim. Case No. CBU-9260, for FRUSTRATED
MURDER, defined and penalized in Art. 248 in
relation to Art. 50 of the Revised Penal Code,
hereby sentences each said accused to suffer
the penalty of [e]ight (8) years ofprision mayor,
as minimum, to [f]ourteen (14) years and

[e]ight months of [r]eclusion [t]emporal, as

maximum, to indemnify the victim, Rogelio
Presores, the sum of P20,000.00;
In Crim. Case no. CBU-9261, for FRUSTRATED
MURDER, defined and penalized in Art. 248 in
relation to Art. 50 of the Revised Penal Code,
hereby sentences each said accused to suffer
the penalty of [e]ight (8) years ofprision
mayor, as minimum, to [f]ourteen (14) years
and [e]ight (8) months of
[r]eclusion [t]emporal, as maximum, to
indemnify the victim, Nelson Tiempo, the sum
of P20,000.00; and
To pay the costs in all instances. The period of
their preventive imprisonment shall be credited
to each accused in full.
SO ORDERED.[4]
Appellants filed a notice of appeal to the
Court of Appeals. Thereafter, the CA affirmed
their conviction but sentenced them to reclusion
perpetua for the murders they were found
guilty of. Accordingly, the appellate court,
without entering judgment, certified the case to
the Supreme Court in accordance with Section
13, Rule 124 of the Rules of Court. The
dispositive portion of the CA Decision reads:

447

WHEREFORE, the Decision of the trial court

convicting accused-appellants Rolusa[p]e
Sabalones and Artemio Timoteo Beronga for
murder in Crim. Cases Nos. CBU-9257 and
CBU-9258, and [f]rustrated [m]urder in Crim.
Cases Nos. CBU-9259, CBU-9260, and CBU9261 is hereby AFFIRMED; however, the
penalties in the [f]rustrated [m]urder and
[m]urder cases are hereby MODIFIED, such that
both accused-appellants are each sentenced to
imprisonment of TEN (10) YEARS of
[p]rision [m]ayor medium as minimum to
SEVENTEEN (17) YEARS and FOUR (4) MONTHS
of [r]eclusion [t]emporal medium as maximum
in each of the three [f]rustrated [m]urder cases
(Crim. Cases Nos. CBU-9259, CBU-9260 and
CBU-9261); and are each sentenced to
[r]eclusion [p]erpetua in each of the two
[m]urder cases (Crim. Cases Nos. CBU-9257
and CBU-9258). The indemnity to the victim in
each [f]rustrated [m]urder case shall remain. In
conformity with Rule 124, Section 13 of the
Rules of Court, however, this Court refrains
from entering judgment, and hereby certifies
the case and orders that the entire record
hereof be elevated to the Supreme Court for
review.[5]
After the Court of Appeals certified the case
to this Court, we required appellants to file

supplemental briefs. Appellants failed to comply

within the prescribed period and were deemed
to have waived their right to do so.[6]Thus, in
resolving this case, this Court will address
primarily the arguments raised by the
appellants in their Brief before the Court of
Appeals, which assailed the RTC Decision.
The Facts
Version of the Prosecution
The solicitor general[7] quoted the following
factual findings of the trial court:
Edwin Santos, a resident of Mambaling, Cebu
City stated that on June 1, 1985 at 6:00 oclock
in the evening, he was at the residence of Inday
Presores, sister of Rogelio Presores, located at
Rizal Ave., Cebu City to attend a wedding. He
stayed until 9:00 oclock in the evening and
proceeded to the house of Maj. Tiempo at
Basak, Mambaling, Cebu City where a small
gathering was also taking place. (pp. 3-6, tsn,
April 7, 1987)
Arriving thereat, he saw Nelson and Glenn
Tiempo as well as Rogelio Presores, Rogelio

448

Oliveros, Junior Villoria, Rey Bolo and Alfredo

Nardo. (p. 7, ibid.)
At about 11:00 oclock in the evening, Stephen
Lim, who was also at the party, called their
group and requested them to push his
car. When the engine started, the former asked
them to drive his car home. (pp. 7-11, ibid.)
Together with Nelson Tiempo, who was at the
wheel, Rogelio Presores, Rogelio Oliveros and
Junior Villoria, they drove to the residence of
Stephen Lim at Mansueto Compound, Bulacao,
Talisay, Cebu. (p. 12, ibid.)

vehicle. Except for Teodulo Alegarbes, who was

naked from [the] waist up, the gunmen wore
clothes. (pp. 21-23; 13-16; 33, ibid.)
After firing at the jeep, the assailants shot the
car they were riding[,] hitting Nelson Tiempo on
the throat and Rogelio Presores on the
breast. Despite the injury he sustained, Nelson
Tiempo was able to maneuver the car back to
their residence. (pp. 17-19, ibid.)
He immediately informed Maj. Tiempo about
the incident and the lat[t]er brought the victims
to the Cebu Doctors Hospital. (p. 20, ibid.)

Glenn Tiempo, Rey Bolo and Alfredo Nardo also

went with them riding in an owner-type jeep,
driven by the latter, in order to bring back the
group [as] soon as the car of Mr. Lim was
parked in his home. (p. 21, ibid.)

Rogelio Presores corroborated in substance the

testimony of Edwin Santos, being one of those
who were in the car driven by Nelson Tiempo to
the residence of Stephen Lim. (pp. 4-6, tsn,
Aug. 14, 1987)

The two vehicles traveled in convoy with the

jeep 3 to 4 meters ahead of the car. When they
arrived at the gate of the house of Stephen Lim,
they were met with a sudden burst of
gunfire. He looked at the direction where the
gunfire came, and saw [the] persons [who]
fired at the jeep. He identified accused, Teodulo
Alegarbes, Rolusape Sabalones and Timoteo
Beronga as the persons who fired at the

He further testified that when the jeep driven

by Alfredo Nardo with Rey Bolo and Glenn
Tiempo as passengers arrived at the front gate
of Lims residence and while their car was 3
meters from the rear end of the jeep, there was
a volley of gunfire. He glanced at the direction
of the gunfire and saw the jeep being fired at
by four persons, who were standing behind a
concrete wall, 42 inches in height, and armed

449

with long firearms. Thenceforth, he saw Alfredo

Nardo, Glenn Tiempo and Rey Bolo f[a]ll to the
ground. (pp. 6-7, ibid.)

examination on the dead body of Glenn Tiempo

on June 2, 1985 at the Cosmopolitan Funeral
Homes, Cebu City. (p. 7, tsn, Nov. 11, 1987)

He recognized accused, Rolusape Sabalones, as

one of those who fired at the jeep. He also
identified in Court accused, Teodulo Alegarbes,
Timoteo Beronga and another person, whom he
recognized only through his facial
appearance. (pp. 7-8, ibid.)

He issued the necessary Death Certificate, (Exh.

D) and Necropsy Report, (Exh. F) and indicated
therein that the victims cause of death was
[c]ardio respiratory arrest due to [s]hock and
[h]emorrhage [s]econdary to [g]unshot wounds
to the trunk. (p. 8, ibid.)

When the shots were directed [at] their car[,]

they were able to bend their heads low. When
the firing stopped, he directed Nelson Tiempo to
back out from the place. As the latter was
maneuvering the car, the shooting continued
and he was hit in the breast while Nelson
Tiempo, in the neck, and the windshield of the
vehicle was shattered. (p. 10, ibid.)

The victim sustained gunshot wounds in the

right chest and left lumbar area. (pp. 1011, ibid.)

Arriving at the house of Maj. Tiempo, they were

brought to Cebu Doctors Hospital. He and
Nelson Tiempo were operated on. He had
incurred hospital expenses in the sum
of P5,412.69, (Exh. I, K). (pp. 11-12, ibid.)

He explained that in gunshot wound no. 1, the

wound entrance[,] which [was] characterized by
invaginated edges and contusion collar[,] was
located in the right chest and the bullet went up
to the left clavicle hitting a bone which
incompletely fractured it causing the navigation
of the bullet to the left and to the anterior side
of the body. He recovered a slug, (Exh. G)
below the muscles of the left clavicle. (p.
21, ibid.)

Ladislao Diola, Jr., [m]edico-[l]egal [o]fficer of

the PC Crime Laboratory, Regional Unit 7
stationed at Camp Sotero Cabahug, Cebu City
remembered having performed a post-mortem

Based on the trajectory of the bullet, the

assailant could have been [o]n the right side of
the victim or in front of the victim but [o]n a
lower level than the latter.

450

In both gunshot wounds, he did not find any

powder burns which would indicate that the
muzzle of the gun was beyond a distance of 12
inches from the target. (p. 15, ibid.)
At the time he conducted the autopsy, he noted
that rigor mortis in its early stage had already
set in which denote[s] that death had occurred
5 to 6 hours earlier. (pp. 34-5, ibid.)
Maj. Juan Tiempo, father of the victims, Glenn
and Nelson Tiempo, testified that when he
learned about the incident in question, he
immediately summoned military soldiers and
together they proceeded to the scene. (pp. 4-6,
tsn, Nov. 12, 1988)
Arriving thereat, he saw the lifeless body of his
son, Glenn. He immediately carried him in his
arms and rushed him to the hospital but the
victim was pronounced Dead on Arrival. (pp. 67, ibid.)
They buried his son, who was then barely 14
years old, at Cebu Memorial Park and had
incurred funeral expenses (Exhs. K, L, O). (pp.
7-8, ibid.)
His other son, Nelson, then 21 years old and a
graduate of [m]edical [t]echology, was admitted
at the Cebu Doctors Hospital for gunshot wound

in the neck. The latter survived but could hardly

talk as a result of the injuries he sustained. He
had incurred medical and hospitalization
expenses in the sum of P21,594.22, (Exh. H),
(pp. 8-10, ibid.)
He had also incurred expenses in connection
with the hospitalization of the injured victims,
Rogelio Presores and Rey Bolo in the amount[s]
of P5,412.69, (exh. I) and P9,431.10, (Exh. J),
respectively. (p. 11, ibid.)
He further stated that he [was] familiar with the
accused, Roling Sabalones, because the latter
had a criminal record in their office in
connection with the kidnapping of a certain
Zabate and Macaraya. (p. 16, ibid.)
xxxxxxxxx
Dr. Jesus P. Cerna, [m]edico-[l]egal [o]fficer of
the PC/INP, Cebu Metrodiscom, had conducted
an autopsy on the dead body of Alfredo Nardo,
who sustained two (2) gunshot wounds in the
lower lip and left intraclavicular region, upon
the request of the [c]hief of the Homicide
Section of Cebu Metrodiscom. He issued the
victims Necropsy Report, (Exh. F) and Death
Certificate, (Exh. G). (pp. 5-8, tsn, Dec. 4,
1987; pp. 4-6, tsn, Nov. 29, 1988)

451

He stated that the wound of entrance in

gunshot wound no. 1 was located in the lower
lip, more or less[,] on the left side making an
exit in the left mandibular region. (pp. 9-11,
tsn, Dec. 4, 1987; pp. 6-8, tsn, Nov. 29, 1988)
In gunshot wound no. 2, the wound of entrance
was in the left intraclavicular region exiting at
the back as reflected in the sketch, (Exh. F2). This wound was fatal and [could] almost
cause an instantaneous death considering that
the bullet penetrated the thoracic cavity,
lacerating the lungs and perforating the heart
before making an exit. (pp. 11-13, tsn, Dec. 4,
1987; pp. 13-15, tsn, Nov. 29, 1988)
He found no tattooing around the wound of
entrance in both gunshot wounds. (pp. 8-9, tsn,
Nov. 29, 1988)
He prepared and issued th[e] Necropsy Report,
(Exh. F) and Death Certificate, (Exh. G) of
Alfredo Nardo who was identified to him by the
latters daughter, Anita Nardo. (pp. 26-27, ibid.)

Rey Bolo, one of the victims, testified that when

the jeep he was riding [in] together with Glenn
Tiempo and Alfredo Nardo, reached the gate of
the residence of Stephen Lim, they were
suddenly fired upon. (pp. 5-8, tsn, March 6,
1989)
He was hit in the right palm and left cheek. He
jumped out of the vehicle and ran towards the
car which was behind them but he was again
shot at [,] [and hit] in the left scapular
region. He was still able to reach the road
despite the injuries he sustained and tried to
ask help from the people who were in the
vicinity but nobody dared to help him, [they]
simply disappeared from the scene,
instead. (pp. 8-9, ibid.)
He took a passenger jeepney to the city and
had himself treated at the Cebu Doctors
Hospital, and incurred medical expenses in the
sum of P9,000.00. (p. 9, ibid.)
He was issued a Medical Certificate, (Exh. N) by
his attending physician.
Dr. Miguel Mancao, a [p]hysician-[s]urgeon,
recalled having attended [to] the victims,
Nelson Tiempo, Rey Bolo and Rogelio Presores

452

at the Cebu Doctors Hospital on June 2,

1985. (pp. 7-8, 11, 14, tsn, May 30, 1989)
Nelson Tiempo sustained gunshot wound[s] in
the neck and in the right chest but the bullet
did not penetrate the chest cavity but only the
left axilla. He was not able to recover any slugs
because the same disintegrated while the other
was thru and thru. The wound could have
proved fatal but the victim miraculously
survived. As a consequence of the injury he
sustained, Nelson Tiempo permanently lost his
voice because his trachea was shattered. His
only chance of recovery is by coaching and
speech therapy. He issued his Medical
Certificate. (Exh. O). (pp. 8-11, ibid.)
With regard to the patient, Rey Bolo, the latter
suffered multiple gunshot wounds in the left
shoulder penetrating the chest and fracturing
the 2nd, 3rd, and 4th ribs in the process, in the
right hand fracturing the proximal right thumb
and in the mouth lacerating its soft tissues, per
Medical Certificate, (Exh. N) which he
issued. (pp. 11-16, ibid.)
Based on the trajectory of the bullet, the
gunman could have been in front of the victim,
when gunshot would no. 1 was inflicted. (p.
30, ibid.)

With respect to the patient, Rogelio Presores,

the latter suffered [a] gunshot wound in the
chest with the wound of entrance in the right
anterior chest exiting at the back which was
slightly lower than the wound of entrance. He
issued the victims Medical Certificate, (Exh.
M). (pp. 34-35, ibid.)
Based on the location of the wound, the
gunman could have been in front of the victim
but [o]n a slightly higher elevation than the
latter. (pp. 35-36, ibid.)[8]
Version of the Defense
Appellants interposed denial and alibi. Their
version of the facts is summarized by the trial
court[9] thus:
xxx Timoteo Beronga, a cristo or bet caller in
the cockpit, testified that in the afternoon of
June 1, 1985, he was in the Talisay Sports
Complex located at Tabunok, Talisay, Cebu to
attend a cock-derby.
At about 7:00 oclock in the evening, he was
fetched by his wife and they left taking a
taxicab going to their residence in Lapulapu
City. After passing by the market place, they

453

took a tricycle and arrived home at 8:00 oclock

in the evening.
After taking his supper with his family, he went
home to sleep at 10:30 in the evening. The
following morning, after preparing breakfast, he
went back to sleep until 11:00 in the morning.
On February 24, 1987, while he was playing
mahjong at the corner of R.R. Landon and D.
Jakosalem Sts., Cebu City, complainant, Maj.
Juan Tiempo with some companions, arrived
and after knowing that he [was] Timmy, [which
was] his nickname, the former immediately held
him by the neck.
He ran away but the latter chased him and
kicked the door of the house where he hid. He
was able to escape through the back door and
took refuge in Mandaue at the residence of Nito
Seno, a driver of Gen. Emilio Narcissi.(TsnAbangan, pp. 4-17, October 19, 1989)
On February 27, 1987, upon the advi[c]e of his
friend, they approached Gen. Narcissi and
informed him of the incident. The latter brought
him to the Provincial Command Headquarters in
Lahug, Cebu City to confront Maj. Juan Tiempo.
After several days, he was brought by Maj.
Tiempo to the PC Headquarter[s] in Jones Ave.,

Cebu City where he was provided with a lawyer

to defend him but he was instructed that he
should assent to whatever his lawyer would ask
of him.
He was introduced to Atty. Marcelo Guinto, his
lawyer, who made him sign an Affidavit, (Exh.
U) the contents of which, co[u]ched in the
dialect, were read to him.
He also testified that before he was detained at
the CPDRC, complainant brought him inside the
shop of a certain Den Ong, where he was again
mauled after he denied having any knowledge
of the whereabouts of Roling Sabalones and the
carbine.
At the instance of Col. Medija, he was physically
examined at the Southern Islands Hospital,
Cebu City and was issued a [M]edical
Certificate. (Tsn-Formentera, pp. 3-36, Jan. 18,
1990).
Justiniano Cuizon, [a]ccount [o]fficer of the
Visayan Electric Company (VECO) South
Extension Office, who is in charge of the billing,
disconnection and reconnection of electric
current, testified that based on the entries in
their logbook, (Exh. 3) made by their checker,
Remigio Villaver, the electrical supply at the

454

Mansueto Compound, Bulacao, Talisay, Cebu,

particularly the Mansueto Homeowners covered
by Account No. 465-293000-0, (Exh. 4-B) was
disconnected on January 10, 1985, (Exh. 3-A)
for non-payment of electric bills from March
1984 to January 1985 and was reconnected
only on June 17, 1985 (Exh. 4, 4-A). (TsnAbangan, pp. 22-27, Jan. 31, 1990).

between 10:00 oclock and 11:00 oclock in the

evening, he heard a burst of gunfire about 15 to
20 armslength [sic] from his residence.

Remigio Villaver, a checker of VECO, whose area

of responsibility cover[ed] the towns of Talisay
and San Fernando, Cebu had kept the record of
disconnection of electrical supply of Mansueto
Subdivision in Bulacao, Talisay, Cebu and the
same showed that on January 10, 1985, (Exh.
3-A), a service order was issued by their office
to the Mansueto Homeowners for the
permanent disconnection of their electric lights
due to non-payment of their electric bills from
March 1984 until January 1985. The actual
disconnection took place on December 29,
1984.

Marilyn Boc, another witness for the accused,

stated that on the date and time of the incident
in question, while she was at the wake of Junior
Sabalones, younger brother of Roling
Sabalones, who died on May 26, 1985, a
sudden burst of gunfire occurred more or less
60 meters away.

Witness Fredo Canete made efforts to

corroborate their testimony. (Tsn-Formentera,
pp.3-5, Apr. 20, 1990).
Vicente Cabanero, a resident of Mansueto
Compound in Talisay, Cebu since 1957 until the
present, remembered that on June 1, 1985,

He did not bother to verify because he was

scared since the whole place was in total
darkness. (Tsn-Abangan, pp. 18-23, Feb. 22,
1990).

Frightened, she went inside a room to hide and

saw accused, Roling Sabalones, sound asleep.
She came to know accused, Timoteo Beronga,
only during one of the hearings of this case and
during the entire period that the body of the
late Junior Sabalones [lay] in state at his
residence, she never saw said accused.
She was requested to testify in this case by
Thelma Beronga, wife of Timoteo Beronga.
(Tsn-Abangan, pp. 9-13, February 28, 1990).

455

Dr. Daniel Medina, while then the [r]esident

[p]hysician of Southern Islands Hospital, Cebu
City had treated the patient, Timoteo Beronga
on March 18, 1987.
Upon examination, he found out that the
patient sustained linear abrasion, linear
laceration and hematoma in the different parts
of the body. Except for the linear laceration
which he believed to have been inflicted two or
three days prior to [the] date of examination,
all the other injuries were already healed
indicating that the same were inflicted 10 to 12
days earlier.
He issued the corresponding Medical Certificate
(Exh. 2) to the patient. (Tsn-Abangan, pp. 9-13,
May 21, 1990).

Atty. Jesus Pono, counsel for accused Beronga,

mounted the witness stand and averred that he
[was] a resident of Mansueto Compound,
Bulacao, Talisay, Cebu. As shown in the
pictures, (Exhs. 3, 4 & 5 with submarkings) his
house is enclosed by a concrete fence about 5
feet 6 inches tall. It is situated 6 meters from
the residence of accused, Roling Sabalones,
which was then being rented by Stephen
Lim. Outside the fence [are] shrubs and at the
left side is a lamp post provided with 200 watts
fluorescent bulb.
On June 1, 1985 at about 7:00 oclock in the
evening, he saw Roling Sabalones, whom he
personally [knew] because they used to be
neighbors in Talisay, Cebu, at the wake of his
brother, Federico Sabalones, Jr. or Junior
Sabalones, as mentioned repeatedly
hereabout. They even had a talk and he noticed
accused to be physically indisposed being
gravely affected by the loss of his only brother,
who met a violent death in the hands of an
unknown hitman on May 26, 1985.
He went home after he saw accused [lie] down
on a bamboo bench to rest.
At about 12:00 oclock midnight, he was
awakened by a rapid burst of gunfire which

456

emanated near his house. He did not attempt to

go down or look outside. He [was] in no
position to tell whether or not the street light
was lighted.
When he verified the following morning, he
noticed bloodstains on the ground as well as
inside the jeep which was parked 2 to 3 meters
from his fence and 50 to 70 meters from the
house where Junior Sabalones [lay] in state. He
observed that the jeep was riddled with bullets
and its windshield shattered. (Tsn-Abangan, pp.
3-16, June 6, 1990).
He admitted that he used to be a counsel of
accused, Roling Sabalones, in several cases,
among which involved the death of a certain
Garces and Macaraya, which cases were
however, dismissed by the Office of the
Provincial Fiscal of Cebu. (Tsn-Tumarao, pp. 23, June 13, 1990).
Doroteo Ejares, a relative of accused, testified
that when he attended the wake of Junior
Sabalones on June 1, 1985 at 8:00 oclock in the
evening, he saw accused lying on a bamboo
bench in the yard of the house of the deceased.
At past 10:00 oclock in the evening, accused
excused himself as he was not feeling well and

entered a room to rest while he remained by

the door and slept.
At almost 12:00 oclock midnight, he was
awakened by a burst of gunfire which took
place more or less 20 meters away and saw the
people scamper[ing] for safety. He hid inside
the room where accused was sleeping and
peeped thru the door. Not long after, Marilyn
Boc entered and in a low voice talked about the
incident.
They decided to wake up the accused to inform
him of what was happening, but the latter
merely opened his eyes and realizing that
accused was too weak, they allowed him to go
back to sleep.
When he went home at past 5:00 oclock in the
morning of June 2, 1985, he saw a jeep outside
of the compound. He did not bother to
investigate or inquire about the incident as he
was in a hurry to go home and prepare for the
burial of Junior Sabalones.
He was requested to testify in this case by his
aunt and mother of accused Rolusape
Sabalones. (Tsn-Tumarao, pp. 10-15, June 13,
1990).

457

Russo Sabalones, uncle of accused, Sabalones,

averred that the latter was once, one of his
undercover agents while he was then the [c]hief
of the Intelligence Service of the PC from 1966
until 1968.
As part of their intelligence tradition, an
undercover agent is not allowed to carry his real
name. In the case of his nephew and accused,
Rolusape Sabalones, the latter chose the name
Paciano Laput which name was recorded in their
code of names.
When he retired in 1968, the accused ceased to
be an agent and xxx likewise ceased to have
the authority to use the name Paciano Laput.
(Tsn-Abangan, p. 12, July 23, 1990).
Alfonso Allere, a distant relative of the accused,
remembered having received a call from Roling
Sabalones, one morning after the burial of the
latters brother, asking for his advise because of
the threats [to] his life which he received thru
telephone from the group of Nabing Velez and
the group of the military.
After he had advised accused to lie low, he had
not heard of him, since then.
Godofredo Mainegro of the Public Assistance
and Complaint Action Office of the Regional

Unified Command 7, received a complaint from

one Inocencia Sabalones on March 13, 1986.
He recorded the complaint in their Complaint
Sheet, (Exh. 6) and let complainant affix her
signature.
After the document was subscribed and sworn
to before him, (Exh. 6-C), he indorsed it to their
[c]ommanding [o]fficer, Apolinario Castano.
(Tsn-Formentera, pp. 3-10, July 24, 1990).
Ret. Col. Apolinario Castano, recalled that while
he was then with the Regional Unified
Command 7, his niece, Racquel Sabalones
together with her husband Roling Sabalones,
came to him for advi[c]e because the latter was
afraid of his life brought about by the rampant
killings of which his brother and the son of Maj.
Tiempo were victims.
Considering that accuseds problem was a police
matter, they approached Gen. Ecarma, the then
[c]ommander of the PC/INP, Recom 7, and the
latter referred them to his [c]hief of [s]taff, Col.
Roger Denia, who informed them that there was
no case filed against the accused. Nevertheless,
the latter was advised to be careful and consult
a lawyer.

458

Inocencia Sabalones, mother of accused, Roling

Sabalones, narrated that on March 12, 1986 at
past 10:00 oclock in the evening, she was
roused from sleep by a shout of a man
demanding for Roling Sabalones.
Upon hearing the name of her son, she
immediately stood up and peeped through the
door of her store and saw men in fatigue
uniforms carrying long firearms. Thenceforth,
these men boarded a vehicle and left.
On the following morning, she was again
awakened by the persistent shouts and pushing
of the gate. When she verified, the man who
introduced himself to her as Maj. Tiempo,
ordered her to open the gate. Once opened, the
men of Maj. Tiempo entered the house and
proceeded to search for Roling Sabalones,
whom Maj. Tiempo suspected to have killed his
son and shot another to near death. When she
demanded for a search warrant, she was only
shown a piece of paper but was not given the
chance to read its contents.
Racquel Sabalones, wife of accused, Rolusape
Sabalones, maintained that on June 1, 1985 at
1:00 oclock in the afternoon, she was at the
wake of her brother-in-law, Junior Sabalones, at
his residence in Bulacao, Talisay, Cebu.

At 11:00 oclock in the evening of the same day,

together with her 3 daughters as well as Marlyn
Sabarita, Rose Lapasaran and Gloria Mondejar,
left the place in order to sleep in an unoccupied
apartment situated 30 meters away from the
house where her deceased, brother-in-law,
Junior, was lying in state, as shown in the
Sketch, (Exh. 7 and submarkings) prepared by
her. They brought with them a flashlight
because the whole place was in total darkness.
As they were about to enter the gate leading to
her apartment she noticed a sedan car coming
towards them. She waited for the car to come
nearer as she thought that the same belong[ed]
to her friend, but the vehicle instead stopped at
the corner of the road, (Exh. 7-F) and then
proceeded to the end portion of Mansueto
Compound, (Exh. 7-G). As it moved slowly
towards the highway, she rushed inside the
apartment.
Few minutes later, she heard a burst of gunfire
outside their gate. She immediately gathered
her children and instructed Marlyn Sabarita to
use the phone situated at the third door
apartment and call the police.
After the lull of gunfire, she went to the terrace
and saw people in civilian and in fatigue

459

uniforms with firearms, gathered around the

place. One of these men even asked her about
the whereabouts of her husband, whom she left
sleeping in the house of the deceased.

other cities to avoid those who were after

him. When she learned about the threat made
by Maj. Tiempo on her husband, she
forewarned the latter not to return to Cebu.

At 8:30 in the morning of June 2, 1985, during

the burial of Junior Sabalones, they were
informed by Pedro Cabanero that Roling
Sabalones was a suspect for the death of
Nabing Velez and the son of Maj. Tiempo.

Marlyn Sabarita, an illegitimate daughter of

Rolusape Sabalones, stated that in the night in
question, she was at the wake of Junior
Sabalones and saw her Papa Roling, the herein
accused, lying on the lawn of the house of the
deceased.

She believed that the reason why her husband

was implicated in the killing of Nabing Velez was
because of the slapping incident involving her
father-in-law, Federico Sabalones, Sr. and
Nabing Velez which took place prior to the
death of Junior Sabalones.
After the funeral, she began to receive
mysterious calls at their residence in Sikatuna
St., Cebu City where they began staying since
1978. She also noticed cars with tinted windows
strangely parked in front of their residence.
Frightened and cowed, they decided to seek the
advice of Col. Apolinario Castano, who after
relating to him their fears, advised her husband
to lie low and to consult a lawyer.
To allay their apprehension, accused, Roling
Sabalones, left Cebu City for Iligan, Manila and

She was already in the apartment with her

Mama Racquel when she heard a burst of
gunfire. Upon instructions of the latter, she
went out to call the police thru the phone
located [in] the third apartment occupied by a
certain Jet. (Tsn-Tumarao, pp. 3-15, Oct. 15,
1990).
Edward Gutang, [a]sst. lay-out [e]ditor and
[a]sst. [s]ports [e]ditor of Sun-Star Daily, while
then a military and police reporter had covered
the shooting incident which took place on June
1, 1985 at the Mansueto Compound, Bulacao,
Talisay, Cebu.
At past 1:00 oclock dawn, together with their
newspaper photographer, Almario Bitang, they
went to the crime scene boarding the vehicle of

460

the Cosmopolitan Funeral Homes. Arriving

thereat, they decided not to proceed inside the
compound because of fear. The place was then
in complete darkness.
Upon being informed that the victims were
brought to Cebu City Medical Center, they
rushed to the place and met Maj. Tiempo
hugging the dead body of his 14-year old
son. His photographer took a picture of that
pathetic scene.(Exh. 8-B).
Samson Sabalones, a retired [a]mbassador and
uncle of Rolusape Sabalones, posted a bail bond
for his nephew with Eastern Insurance
Company, when a warrant for his arrest was
issued by the Municipal Court, on March 12,
1986 because he was bothered by the fact that
the latter was being unreasonably hunted by
several groups. He even advised the accused to
appear in [c]ourt to clarify the nature of the
case filed against him.
Virgincita Pajigal, a resident of Butuan City, met
accused, Rolusape Sabalones, who introduced
himself to her as Paciano Laput nicknamed,
Ondo, in a massage clinic where she was
working.

For less than a year, they lived together as

husband and wife without the benefit of
marriage because according to her the accused
was married but separated from his wife, whose
name was never mentioned to her. For such a
short span of time being together, her love for
the accused developed to the extent that
whatever happen[ed] to him, she [would]
always be there to defend him.
With the help of Maj. delos Santos, who advised
her to always stay close [to] the accused, she
was able to board the same vessel. She saw the
latter clad in green T-shirt, (Exh. 14) and pants,
handcuffed and guarded.
Reaching Cebu City, they took a taxicab and as
the vehicle went around the city, she was
instructed by Maj. Tiempo to place the towel,
(Exh. 15) which she found inside her bag, on
the head of the accused. They stopped at the
Reclamation Area and Maj. Tiempo pulled them
out of the vehicle but she held on tightly to
Ondo, ripping his shirt. This pulling incident
happened for several times but complainant
failed to let them out of the vehicle.
The accused was finally brought to the
Provincial Jail while she stayed in the residence
of the accused. She returned to Butuan after a

461

week. (Tsn-Formentera, pp. 5-33, Jan. 22,

1991).
Accused, Rolusape Sabalones, alias Roling, in
his defense, with ancillary incidental narrations,
testified , that on June 1, 1985 at 6:00 oclock in
the evening, he was at the wake of his only
brother, Junior Sabalones, who was killed on
May 26, 1985.
He had no idea as to who was responsible for
the killing of his brother inasmuch as the latter
had plenty of enemies. He also did not exert
effort to look into the case and to place it under
police authority since he had lost faith in the
capabilities of the police. The matter was
however reported by his uncle, Ambassador
Sabalones, to the authorities.
He stayed at the wake until 10:00 oclock in the
evening because he was not feeling well. He
retired in a small room adjacent to the sala of
the house of the deceased. Not long after, he
felt somebody waking him up but he merely
opened his eyes and went back to sleep as he
was really exhausted.
At 6:30 the following morning, he was roused
by his wife so he could prepare for the
burial. He came to know about the burst of

gunfire which took place the previous night

upon the information of his wife. He did not
take the news seriously as he was busy
preparing for the burial of his deceased brother,
Jun.
The funeral started at past 8:00 oclock in the
morning and he noticed the presence of Maj.
Eddie Ricardo and his men, who were sent by
Col. Castano purposely to provide the burial
with military security, upon the request of his
wife.
He had a conversation with Maj. Ricardo who
inquired about the shooting incident which
resulted in the death of the son of Maj. Tiempo
and others in his company. Also in the course of
their conversation, he came to know that
Nabing Velez was killed earlier on that same
night in Labangon, Cebu [C]ity.
On the same occasion, Pedro Cabanero also
notified him that he was a suspect in the killing
of Nabing Velez, a radio commentator of
ferocious character, who was engaged in a
protection racket with several under his control.
He remembered that a month prior to the death
of Nabing Velez, his father, Federico Sabalones,
Sr. and the deceased while matching their

462

fighting cocks at the Talisay Sports Complex,

had an altercation and the latter slapped his
paralytic father and challenged him to ask one
of his sons to avenge what he had done to
him. He came to know about the incident only
after a week.
He did not deny the fact that he was hurt by the
actuation of the deceased for humiliating his
father but it did not occur to him to file a case
or take any action against the deceased
because he was too busy with his business and
with his work as a bet caller in the cockpit.
He advised his father to stay in Bohol to avoid
further trouble because he knew that the latter
would frequent the cockpit[,] being a
cockfight aficionado.
Likewise, during the burial, he was informed by
a PC soldier, Roger Capuyan, that he was also a
suspect in the killing of the son of Maj. Tiempo
and even advised him to leave the place.
On the following days after the burial, his wife
started to notice cars suspiciously parked in
front of their house and [she] also received
mysterious calls.
Together with his wife, they decided to see Col.
Apolinario Castao to seek his advise. The latter

verified from the Cebu Metrodiscom and learned

that there was no case filed against him.
In the evening of June 6, 1985, he left for Iligan
and after a month, he transferred to Ozamis
and then to Pagadian. He likewise went to
Manila especially when he learned that his
uncle, Samson Sabalones, had arrived from
abroad. The latter posted a bond for his
temporary liberty immediately after being
informed that a case was filed against him,
before the Municipal Court of Talisay.
Despite xxx the bond put up by his uncle, he
did not return to Cebu City because it came to
his knowledge that Maj. Tiempo inquired from
the bonding company as to his address.
He also stayed in Marikina in the house of his
friend and during his stay in the said place, he
registered as a voter and was issued a Voters
Affidavit, (Exh. 19; Exh. R for the prosecution)
which bore the name Paciano Mendoza Laput
which [was] his baptismal name. He explained
that the name[s] Mendoza and Laput [were] the
middle name and surname, respectively of his
mother. The name Rolusape was given to him
by his father and the same [was] not his
registered name because during the old days,
priests would not allow parents to name their

463

children with names not found in the Almanac;

thus, Paciano [was] his chosen name and the
same appeared in his Baptismal Certificate,
(Exh. 20) issued by the Parish of the Blessed
Trinity of Talibon, Bohol. In his Birth Certificate,
it [was] the name Rolusape which appeared
based upon the data supplied by his father.
He had used the name Paciano during the time
when he [was] still a secret agent under his
uncle, Gen. Russo Sabalones, when the latter
was still the [c]hief of the C-2 in 1966 until
1967 and as such, he was issued a firearm. He
likewise used said name at the time he was
employed at the Governors Office in Agusan
and when he registered in the Civil Service
Commission to conceal his identity to protect
himself from those who were after him.
From Marikina he proceeded to Davao and then
to Butuan City where he was made to campaign
for the candidacy of Gov. Eddie Rama. When
the latter won in the election, he was given a
job at the Provincial Capitol and later became
an agent of the PC in Butuan using the name,
Paciano Laput.
During his stay in Butuan, he met Virgie Pajigal,
a manicurist who became his live-in partner.

On October 23, 1988 while he was at the

Octagon Cockpit in Butuan with Sgt. Tambok,
he was arrested by Capt. Ochate and was
brought to the PC Headquarter[s] in Libertad,
Butuan City and was detained. Among the
papers confiscated from him was his
Identification Card No. 028-88, (Exh. 21) issued
by the PC Command bearing the name Paciano
Laput.
On October 26, 1988 he was taken from the
City Jail by Capt. Ochate and some soldiers, one
of whom was Maj. Tiempo whom he met for the
first time.
On their way to Nasipit to board a vessel bound
for Cebu City, Maj. Tiempo made him lie flat on
his belly and stepped on his back and
handcuffed him. He cried in pain because of his
sprained shoulder. A certain soldier also took his
watch and ring.
Arriving in Cebu at 7:00 oclock in the morning,
he and Virgie Pajigal, who followed him in the
boat, were made to board a taxicab. Maj.
Tiempo alighted in certain place and talked to a
certain guy. Thereafter, they were brought to
the Reclamation Area and were forced to go
down from the vehicle but Virgie Pajigal held

464

him tightly. They were again pulled out of the

taxi but they resisted.
From the Capitol Building, they proceeded to
CPDRC and on their way thereto, Maj. Tiempo
sat beside him inside the taxi and boxed him on
the right cheek below the ear and pulled his
cuffed hands apart.
At the Provincial Jail, he was physically
examined by its resident physician, Dr. Dionisio
Sadaya, and was also fingerprinted and
photographed, (Exh. 21). He was issued a
Medical Certificate, (Exh. 22).
He further stated that he [was] acquainted with
his co-accused Timoteo Beronga, known to him
as Timmy being also a bet caller in the
cockpit. (Tsn-Formentera, pp. 5-23, Feb. 26,
1991; Tsn-Abangan, pp. 3-33, Feb. 27, 1991;
Tsn-Abangan, pp. 4-18, Apr. 10, 1991).
As surrebuttal witness, accused Rolusape
Sabalones denied that he bribed a certain
soldier because at the time he was arrested, his
wallet as well as his wristwatch and ring
worth P2,000.00 each were confiscated and his
hands tied behind his back.
He also denied the allegation of Maj. Tiempo
that he offered the latter the amount

of P1,000.000.00 to drop the case against him,

the truth being that while they were on board a
vessel bound for Cebu City, Maj. Tiempo
compelled him to tell [who] the real killers of
his son [were] because he knew that he
(Rolusape Sabalones) was not responsible. The
former also inquired from him as to the
whereabouts of the carbine.
He also rebutted complainants testimony that
upon their arrival here in Cebu City and while
on board a taxicab, he directed the former [to]
first go around the city to locate a certain
Romeo Cabaero, whom he did not know
personally.[10]
Ruling of the Court of Appeals
Giving full credence to the evidence of the
prosecution, the Court of Appeals affirmed the
trial courts Decision convicting appellants of two
counts of murder and three counts of frustrated
murder. Like the trial court, it appreciated the
qualifying circumstance of treachery and
rejected appellants defense of alibi.
The Court of Appeals, however, ruled that
the penalties imposed by the trial court were
erroneous. Hence, for each count of murder, it

465

sentenced appellants to reclusion perpetua. For

each count of frustrated murder, it imposed the
following penalty: ten years (10) of prision
mayor (medium), as minimum, to seventeen
years (17) years and four (4) months
of reclusion
temporal (medium),
as
maximum. Sustaining the trial court, the Court
of Appeals awarded indemnity of P20,000 to
each
of
the
victims
of
frustrated
murder. However, it was silent on the indemnity
of P50,000 awarded by the trial court to the
heirs of each of the two deceased.
Having imposed reclusion perpetua on the
appellants, the Court of Appeals, as earlier
noted, refrained from entering judgment and
certified the case to the Supreme Court for
review, in conformity with Section 13, Rule 124
of the Rules of Court.
Hence, this appeal before this Court.[11]
The Issues
In his Brief,[12] Appellant Sabalones raised
the following errors allegedly committed by the
trial court:
I

The court a quo erred in finding that accused

Sabalones and his friends left the house where
his brother Sabalones Junior was lying in state
and went to their grisly destination amidst the
dark and positioned themselves in defense of
his turf against the invasion of a revengeful
gang of the supporters of Nabing Velez.
II
The court a quo erred in finding that accused
Sabalones and his two co-accused were
identified as among the four gunmen who fired
at the victims.
III
The court a quo erred in overlooking or
disregarding physical evidence that would have
contradicted the testimony of prosecution
witnesses Edwin Santos and Rogelio Presores
that the gunmen were shooting at them from a
standing position.
IV
The court a quo erred in holding that the instant
case is one of aberratio ictus, which is not a
defense, and that the defense of alibi
interposed by the accused may not be
considered.

466

V
The court a quo erred in not finding that the
evidence of the prosecution has not overcome
the constitutional presumption of innocence in
favor of the accused.
VI
The court a quo erred in not acquitting the
accused on ground of reasonable doubt.
In a Manifestation dated December 20, 1995,
Appellant Beronga, through counsel, adopted as
his own the Brief of Sabalones.[13]
The foregoing assignment of errors shall be
reformulated by the Court into these three
issues or topics: (1) credibility of the witnesses
and sufficiency of the prosecution evidence, (2)
defense of denial and alibi, and (3)
characterization of the crimes committed and
the penalty therefor.
The Courts Ruling
The appeal is devoid of merit.
First Issue:

Credibility of Witnesses and Sufficiency of

Evidence
Well-entrenched is the tenet that this Court
will not interfere with the trial courts
assessment of the credibility of the witnesses,
absent any indication or showing that the trial
court has overlooked some material facts or
gravely abused its discretion,[14] especially
where, as in this case, such assessment is
affirmed by the Court of Appeals. As this Court
has reiterated often enough, the matter of
assigning values to declarations at the witness
stand is best and most competently performed
or carried out by a trial judge who, unlike
appellate
magistrates,
can
weigh
such
testimony in light of the accuseds behavior,
demeanor, conduct and attitude at the trial.
[15]
Giving credence to the testimonies of the
prosecution
witnesses,
the
trial
court
concluded:
Stripped of unnecessary verbiage, this Court,
given the evidence, finds that there is more
realism in the conclusion based on a keener and
realistic appraisal of events, circumstances and
evidentiary facts on record, that the gun slaying
and violent deaths of Glenn Tiempo and Alfredo
Nardo, and the near fatal injuries of Nelson
Tiempo, Rey Bolo and Rogelio Presores, resulted

467

from the felonious and wanton acts of the

herein accused for mistaking said victims for
the persons [who were] objects of their wrath.
[16]

We stress that factual findings of the lower

courts, the trial court and the Court of Appeals
are, as a general rule, binding and conclusive
upon the Supreme Court.[17] We find nothing in
the instant case to justify a reversal or
modification of the findings of the trial court
and the Court of Appeals that appellants
committed two counts of murder and three
counts of frustrated murder.
Edwin Santos, a survivor of the assault,
positively pointed to and identified the
appellants as the authors of the crime. His
categorical and straightforward testimony is
quoted hereunder:[18]
COURT:
Q You stated there was a gun fired. What
happened next?
WITNESS:
A There was a rapid fire in succession.
Q When you heard this rapid firing, what did
you do?

A I tried to look from where the firing came

from.
Q After that, what did you find?
A I saw persons firing towards us.
Q Where were these persons situated when
they were firing towards you?
A Near the foot of the electric post and close
to the cemented wall.
Q This electric post, was that lighted at that
moment?
A Yes, sir, it was lighted.
Q How far were these persons firing, to the
place where you were?
A From here to there (The witness indicating
the distance by pointing to a place inside
the courtroom, indicating a distance of
about 6 to 7 meters, making the witness
stand as the point of reference).
Q Were you able to know how many persons
fired towards you?
A I only saw 3 to 4 persons.
Q How long did these persons fire the guns at
you?
A Until we went home. The persons were still
firing, until we went home.

468

Q You stated that you saw these persons who

were firing at you. Do you know these
persons?
A I can identify [them] when I [see] them.
Q Try to look around this courtroom, if these
persons you saw who were firing at you
are present in the courtroom[.]
A Yes, sir.
Q Can you point to these persons?
A Yes, sir.
Q Point at them.
COURT INTERPRETER:
The Court directed the witness to go down
from the witness stand and [point] at
them, Beronga and Alegarbes.
FISCAL GABIANA:

who fired [at] you on that evening, were

there other persons that you saw on that
particular occasion who fired at you?
A Yes, sir, there were[;] if I can see them, I
can identify them.
Corroborating
the
foregoing,
Rogelio
Presores, another survivor, also pointed to
Timoteo Beronga, Teodulo Alegarbes and Roling
Sabalones as the perpetrators of the crime. His
testimony proceeded in this manner:[19]
Q When you arrived at the residence of
Stephen Lim, can you remember of any
unusual incident that took place?
A Yes, sir.
Q What was that?
A When the
following.

jeep

arrived,

the

car

was

I would like to make it of record that on the

bench of prisoner, only the two accused
were seated.

Q What happened next?

COURT:

Q The car was following the jeep, at what

distance?

Make it of record that only two prisoners were

present.
Q Now, Mr. Santos, aside from these two
accused you identified as among those

A When the jeep was near the gate, the car

was following.

A 3 to 4 meters.
Q While the car was following the jeep at that
distance of 3 to 4 meters, what happened?

469

A All of a sudden, we heard the burst of

gunfire.
Q From what direction was the gunfire?

A I can clearly recognize one and the 3

persons[.] I can identify them, if I can see
them again.

Q After hearing the gunfire, what happened?

Q If you are shown these persons, can you

recognize them? Can you name these
persons?

A We looked at the jeep.

A No, sir. Only their facial appearance.

Q What did you see?

Q What about the 3 persons?

A We saw Alfredo Nardo and Glenn Tiempo

and Rey Bolo f[a]ll to the ground. There
were only 3.

A Thats why the 3 persons, I do not know

them. I can recognize only their facial
appearance.

Q Who was driving the jeep at that time?

Q What about one person?

A Alfredo Nardo.

A Yes, sir.

Q What happened after that?

Q What is the name of the person?

A So, I looked, whence the burst of gunfire

came from.

A Roling Sabalones.

A Through the direction of the jeep.

Q What did you see from that gunfire?

Q If Roling Sabalones is inside the courtroom,

can you recognize Roling Sabalones?

A I saw 4 persons standing at the back of the

fence.

A Yes, sir, he is around.

Q What were those 4 persons doing when

they were standing at the back of the
fence?
A They were bringing long firearms.
Q Did you recognize these persons?

Q Can you point to Roling Sabalones?

A Yes, he is there (The witness pointing to
the person who answered the name of
Roling Sabalones).
Q I would like [you] again to please look
around and see, if those persons whom

470

you know through their faces, if they are

here around?
A The two of them (The witness pointing to
the 2 persons, who, when asked,
answered that his name [was] Teofilo
Beronga and the other [was] Alegarbes).
Indeed, we have carefully waded through the
voluminous records of this case and the
testimonies of all the fifty-nine witnesses, and
we find that the prosecution has presented the
required quantum of proof to establish that
appellants
are
indeed
guilty
as
charged. Appellants arguments, as we shall now
discuss, fail to rebut this conclusion.
Positive Identification
Appellants allege that the two witnesses
could not have properly identified the appellants
because, after the first burst of shooting, they
both crouched down, such that they could not
have seen the faces of their assailants. This
contention
does
not
persuade. Both
eyewitnesses testified that the firing was not
continuous; thus, during a lull in the firing, they
raised their heads and managed a peek at the
perpetrators. Edwin Santos testified as follows:

Atty. Albino, counsel for accused Beronga:

Q You mean to say that when you bent you
heard the successive shots, [and] you
again raised your head. Is that correct?
A There were times that the shots were not in
succession and continuous and that was
the time I raised my head again.[20]
Like Santos, Rogelio Presores also stooped
down when the firing started, but he raised his
head during a break in the gunfire:
Atty. Albino:
Q So, what did you do when you first heard
that one shot?
A So, after the first shot, we looked towards
the direction we were facing and when we
heard the second shot, that was the time
we stooped down.[21]
He further testified:
Atty.
Acido:
Sabalones]

[Counsel

for

Appellant

Q And you said you stooped down inside the

car when you heard the first firing to the
jeep. Is that what you want the Court to
understand[?]
Presores:

471

A Yes, sir.
Q So, you never saw who fired the successive
shots to the car as you said you stooped
down inside the car?
A The bursts of gunfire stopped for a while
and that was the time I reared of [sic] my
head.
Q And that was the first time you saw them?
A Yes, sir.[22]
The records clearly show that two vehicles
proceeded to the house of Stephen Lim on that
fateful day. The first was the jeep where Alfredo
Nardo, Glenn Tiempo and Rey Bolo were
riding. About three to four meters behind was
the second car carrying Nelson Tiempo,
Guillermo Viloria, Rogelio Oliveros and the two
prosecution witnesses -- Edwin Santos and
Rogelio Presores.[23] As stated earlier, said
witnesses attested to the fact that after the first
volley of shots directed at the jeep, they both
looked at the direction where the shots were
coming from, and they saw their friends in the
jeep falling to the ground, as well as the faces
of the perpetrators.[24] It was only then that a
rapid succession of gunshots were directed at
them, upon which they started crouching to
avoid being hit.

Hence, they were able to see and identify

the appellants, having had a good look at them
after the initial burst of shots. We stress that
the normal reaction of a person is to direct his
sights towards the source of a startling shout or
occurrence. As held in People v. Dolar,[25] the
most natural reaction for victims of criminal
violence is to strive to see the looks and faces
of their assailants and to observe the manner in
which the crime is committed.
In bolstering their claim that it was
impossible for the witnesses to have identified
them, appellants further aver that the crime
scene was dark, there being no light in the
lampposts at the time. To prove that the service
wire to the street lamps at the Mansueto
Compound was disconnected as early as
December 1984 and reconnected only on June
27, 1985, they presented the testimonies of
Vicente Cabanero,[26] Remigio Villaver,[27] Fredo
Canete[28]and Edward Gutang.[29] The trial court,
however, did not lend weight to said
testimonies, preferring to believe the statement
of other prosecution witnesses that the place
was lighted during that time.
The Court of Appeals sustained said findings
by
citing
the
testimonies
of defense witnesses. Fredo Canete of the
Visayan Electric Company (VECO), for instance,

472

admitted that it was so easy to connect and

disconnect the lights. He testified thus:
Atty. Kintanar:
Q Now, as a cutter, what instruments do you
usually use in cutting the electrical
connection of a certain place?
Canete:
A Pliers and screw driver.
Q Does it need xxx very sophisticated
instruments to disconnect the lights?
A No, these are the only instruments we use.
Q Ordinary pliers and ordinary screw driver?
A Yes, sir.
Q And does [one] need to be an expert in
electronic [sic] in order to conduct the
disconnection?
A No, sir.
Q In other words, Mr. Canete, any ordinary
electrician can cut it?
A That is if they are connected with the
Visayan Electric Company.
Q What I mean is that, can the cutting be
done by any ordinary electrician?
A Yes, sir.[30]

Said witness even admitted that he could not

recall if he did in fact cut the electrical
connection of the Mansueto Compound. [31] The
Court of Appeals further noted that none of the
above witnesses were at the crime scene at or
about the exact time that the ambush
occurred. Thus, none was in a position to state
with absolute certainty that there was allegedly
no light to illuminate the gunmen when they
rained bullets on the victims.[32]
Even assuming arguendo that the lampposts
were not functioning at the time, the headlights
of the jeep and the car were more than
sufficient to illuminate the crime scene. [33] The
Court has previously held that the light from the
stars or the moon, an oven, or a wick lamp
or gasera can give ample illumination to enable
a person to identify or recognize another.[34] In
the same vein, the headlights of a car or a jeep
are sufficient to enable eyewitnesses to identify
appellants at the distance of 4 to 10 meters.
Extrajudicial Statement of Beronga
Appellants insist that Berongas extrajudicial
statement was obtained through violence and
intimidation. Citing the res inter alios acta rule,
they also argue that the said statement is

473

inadmissible
against
Sabalones.Specifically,
they challenge the trial courts reliance on the
following portions of Berongas statement:
Q After Roling knew that Na[b]ing Velez was
killed, have you observed [if] Roling and
his companions prepared themselves for
any eventuality?
A It did not take long after we knew that
Na[b]ing was killed, somebody called up
by telephone looking for Roling, and this
was answered by Roling but we did not
know what they were conversing about
and then Roling went back to the house of
Junior after answering the phone. And
after more than two hours, we heard the
sound of engines of vehicles arriving, and
then Meo, the man who was told by Roling
to guard, shouted saying: They are
already here[;] after that, Roling came out
carrying a carbine accompanied by Tsupe,
and not long after we heard gunshots and
because of that we ran towards the house
where the wake was. But before the gunshots, I heard Pedring Sabalones father of
Roling saying:You clarify, [t]hat you watch
out for mistake[n] in identity, and after
that shout, gunshots followed. [sic] Then
after the gun-shots Roling went back
inside still carrying the carbine and

shouted: GATHER THE EMPTY SHELLS AND

MEO[,] YOU BRING A FLASHLIGHT, and
then I was called by Meo to help him
gather the empty shells of the carbine and
also our third companion to gather the
empty shells.
These arguments have no merit. In the first
place, it is well to stress that appellants were
convicted based primarily on the positive
identification of the two survivors, Edwin Santos
and Rogelio Presores, and not only on the
extrajudicial
statement,
which
merely
corroborates the eyewitness testimonies. Thus,
said arguments have no relevance to this
case. As the Court held in People vs. Tidula:
[35]
Any allegation of violation of rights during
custodial investigation is relevant and material
only to cases in which an extrajudicial
admission or confession extracted from the
accused becomes the basis of their conviction.
In any case, we sustain the trial courts
holding, as affirmed by the Court of Appeals,
that the extrajudicial statement of Beronga was
executed in compliance with the constitutional
requirements.[36] Extrajudicial
confessions,
especially those which are adverse to the
declarants interests are presumed voluntary,
and in the absence of conclusive evidence
showing that the declarants consent in

474

executing the same has been vitiated, such

confession shall be upheld.[37]
The exhaustive testimony of Sgt. Miasco,
who undertook the investigation, shows that the
appellant was apprised of his constitutional
rights to remain silent and to have competent
and independent counsel of his own choice.
[38]
Said witness also stated that Beronga was
assisted by Atty. Marcelo Guinto during the
custodial investigation.[39] In fact, Atty. Guinto
also took the witness stand and confirmed that
Appellant Beronga was informed of his rights,
and that the investigation was proper, legal and
not objectionable. Indeed, other than appellants
bare allegations, there was no showing that
Berongas statement was obtained by force or
duress.[40]
Equally unavailing is appellants reliance on
the res inter alios acta rule under Section 30,
Rule 130 of the Rules of Court, which provides:
The act or declaration of a conspirator relating
to the conspiracy and during its existence, may
be given in evidence against the co-conspirator
after the conspiracy is shown by evidence other
than such act or declaration.
Appellants assert that the admission referred
to in the above provision is considered to be

against a co-conspirator only when it is

given during the
existence
of
the
conspiracy. They
argue
that
Berongas
statement was madeafter the termination of the
conspiracy; thus, it should not be admitted and
used against Sabalones.
The well-settled rule is that the extrajudicial
confession of an accused is binding only upon
himself and is not admissible as evidence
against his co-accused, it being mere hearsay
evidence as far as the other accused are
concerned.[41] But
this
rule
admits
of
exception. It does not apply when the
confession, as in this case, is used as
circumstantial evidence to show the probability
of participation of the co-accused in the killing
of the victims[42] or when the confession of the
co-accused is corroborated by other evidence.
[43]

Berongas extrajudicial statement is, in fact,

corroborated by the testimony of Prosecution
Witness Jennifer Binghoy. Pertinent portions of
said testimony are reproduced hereunder:
Q While you were at the wake of Jun
Sabalones and the group were sitting with
Roling Sabalones, what were they doing?
A They were gathered in one table and they
were conversing with each other.

475

xxxxxxxxx
Q On that same date, time and place, at
about 10:00 [i]n the evening, can you
remember if there was unusual incident
that took place?
A I heard over the radio at the Sabalones
Family that a certain Nabing Velez was
shot.
Q That [a] certain Nabing Velez
shot? What else xxx transpired?

was

A I observed that their reactions were so

queer, - as if they were running.
xxxxxxxxx
Q In that evening of June 1, 1985, when you
went there at the house of Jun Sabalones,
have you seen an armalite?
A Yes, sir.

Q This armalite that you saw, - how far was

this in relation to the groups of Sabalones?
A There (The witness indicating a distance of
about 4 to 5 meters).
ATTY. KINTANAR:
Q When you looked xxx through the window
and saw there were two vehicles and there
were bursts of gunfire, what happened
after that?
A I did not proceed to look xxx through the
window because I stooped down.
Q When you stooped down, what happened?
A After the burst of gunfire, I again opened
the window.
Q And when again you opened the window,
what happened?
A I saw two persons going towards the jeep.

Q Where did you see this armalite?

A At the table where they were conversing.

Q What transpired next after [you saw] those

2 persons?

Q How many armalites or guns [did you see]

that evening in that place?

A When they arrived there, they nodded their

head[s].

A Two (2).

Q After that, what happened?

xxxxxxxxx

A So, they went back to the direction where

they came from, going to the house of
Sabalones.

476

Q While they were going to the direction of

the house of Sabalones, what transpired?

Alleged Inconsistencies

A I saw 5 to 6 persons coming from the

highway and looking to the jeep, and
before they reached the jeep, somebody
shouted that its ours.

Appellants also allege that the prosecution

account had inconsistencies relating to the
number
of
shots
heard,
the
interval
between gunshots and the victims positions
when they were killed. These, however, are
minor
and
inconsequential
flaws
which
strengthen, rather than impair, the credibility of
said eyewitnesses. Such harmless errors are
indicative of truth, not falsehood, and do not
cast serious doubt on the veracity and reliability
of complainants testimony.[46]

Q Who shouted?
A The voice was very familiar to me.
Q Whose voice?
A The voice of Roling Sabalones.
Q What else have you noticed during the
commotion [when] wives were advising
their husbands to go home?
A They were really in chaos.[44]
A careful reading of her testimony buttresses
the finding of the trial court that Rolusape
Sabalones and his friends were gathered at one
table, conversing in whispers with each other,
that there were two rifles on top of the table,
and that they became panicky after hearing of
the death of Nabing Velez on the radio. Hence,
the observation of the trial court that they went
to their grisly destination amidst the dark and
positioned themselves in defense of his turf
against the invasion of a revengeful gang of
supporters of the recently slain Nabing Velez.[45]

Appellants further claim that the relative

positions of the gunmen, as testified to by the
eyewitnesses, were incompatible with the
wounds sustained by the victims. They cite the
testimony of Dr. Ladislao Diola, who conducted
the autopsy on Glenn Tiempo. He declared that
the victim must necessarily be on a higher level
than the assailant, in the light of the path of the
bullet from the entrance wound to where the
slug was extracted. This finding, according to
appellant, negates the prosecutions account
that the appellants were standing side by side
behind a wall when they fired at the victims. If
standing, appellants must have been on a level
higher than that of the occupants of the
vehicles; if beside each other, they could not

477

have inflicted wounds which were supposed to

have come from opposite angles.
We
are
not
persuaded. The
defense
presumes that the victims were sitting still
when they were fired upon, and that they froze
in the same position during and after the
shooting. This
has
no
testimonial
foundation. On the contrary, it was shown that
the victims ducked and hid themselves, albeit in
vain, when the firing began. After the first
volley, they crouched and tried to take cover
from the hail of bullets. It would have been
unnatural for them to remain upright and still in
their seats. Hence, it is not difficult to imagine
that the trajectories of the bullet wounds varied
as the victims shifted their positions. We agree
with the following explanation of the Court of
Appeals:
The locations of the entry wounds can readily
be explained. xxx Glenn Tiempo, after
looking
in
the
direction
of
the
explosion, turned his body around; and
since the ambushers were between the
jeep and the car, he received a bullet in
his right chest (wound no. 1) which
traveled to the left. As to wound No. 2, it
can be explained by the spot where Major
Tiempo found his fallen son.

Atty. Kintanar:
Q: Upon being informed by these occupants
who were ambushed and [you] were able
to return the car, what did you do?
Major Tiempo:
A: I immediately got soldiers and we
immediately proceeded to the area or to
the place where my fallen son was located
and when we reached x x x the place, I
saw my fallen son [in] a kneeling position
where both knees [were] touching the
ground and the toes also and the forehead
was touching towards the ground. (TSN,
Feb. 12, 1988, p. 6)
In such position, the second bullet necessarily
traveled upwards in relation to the body, and
thus the entry wound should be lower than the
exit wound. There is no showing that both
wounds were inflicted at the same time.[47]
In any event, the witnesses saw that the
appellants were the gunmen who were standing
side by side firing at them. They could have
been in a different position and in another
hiding place when they first fired, but this is not
important. They were present at the crime
scene, and they were shooting their rifles at the
victims.

478

Aberratio Ictus
Appellants likewise accuse the trial court of
engaging in conjecture in ruling that there
was aberratio ictus in this case. This allegation
does not advance the cause of the appellants. It
must be stressed that the trial court relied on
the concept of aberratio ictus to explain why
the appellants staged the ambush, not
to prove that appellants did in fact commit the
crimes. Even assuming that the trial court did
err in explaining the motive of the appellants,
this does not detract from its findings, as
affirmed by the Court of Appeals and sustained
by this Court in the discussion above, that the
guilt of the appellants was proven beyond
reasonable doubt.
In any event, the trial court was not
engaging in conjecture in so ruling. The
conclusion of the trial court and the Court of
Appeals that the appellants killed the wrong
persons was based on the extrajudicial
statement of Appellant Beronga and the
testimony of Jennifer Binghoy. These pieces of
evidence sufficiently show that appellants
believed that they were suspected of having
killed the recently slain Nabing Velez, and that
they expected his group to retaliate against
them. Hence, upon the arrival of the victims

vehicles which they mistook to be carrying the

avenging men of Nabing Velez, appellants
opened fire. Nonetheless, the fact that they
were mistaken does not diminish their
culpability. The Court has held that mistake in
the identity of the victim carries the same
gravity as when the accused zeroes in on his
intended victim.[48]
Be that as it may, the observation of the
solicitor general on this point is well-taken. The
case is better characterized as error in
personae or mistake in the identity of the
victims,
rather
than aberratio
ictus which
means mistake in the blow, characterized by
aiming at one but hitting the other due to
imprecision in the blow.
Second Issue:
Denial and Alibi
Appellants decry the lower courts disregard
of their defense of alibi. We disagree.
As constantly enunciated by this Court, the
established doctrine requires the accused to
prove not only that he was at some other place
at the time of the commission of the crime, but
that it was physically impossible for him at the

479

time to have been present at the locus

criminis or its immediate vicinity.[49] This the
appellants miserably failed to do.
Appellant Beronga testified that, at the time
of the incident, he was in his residence in
Lapulapu City, which was not shown to be so
remote and inaccessible that it precluded his
presence in Mansueto Subdivision. The alibi of
Sabalones is even more unworthy of belief; he
sought to establish that he was a mere 20-25
meters away from the scene of the crime. He
was allegedly in the house of his brother who
was lying in state, which was so near the
ambush site that some of the defense witnesses
even testified that they were terrified by the
gunfire. Clearly, appellants failed to establish
the requisites of alibi.
Furthermore, the defense of alibi cannot
overcome the positive identification of the
appellants.[50] As aptly held by this Court
in People v. Nescio:[51]
Alibi is not credible when the accused-appellant
is only a short distance from the scene of the
crime. The defense of alibi is further offset by
the positive identification made by the
prosecution witnesses. Alibi, to reiterate a wellsettled doctrine, is accepted only upon the
clearest proof that the accused-appellant was

not or could not have been at the crime scene

when it was committed.
Flight
Appellants further object to the finding that
Sabalones, after the incident, made himself
scarce from the place of commission. He left for
Manila, thence Mindanao on the supposition
that he want[ed] to escape from the wrath of
Maj. Tiempo and his men for the death of Glenn
Tiempo and the near fatal shooting of the other
son or from the supporters of Nabing Velez. x x
x On his supposedly borrowed freedom, he
jumped bail and hid himself deeper into
Mindanao, under a cloak of an assumed
name. Why, did his conscience bother him for
comfort?[52]
Appellants rationalized that Sabalones was
forced to jump bail in order to escape two
groups, who were allegedly out to get him, one
of Nabing Velez and the other of Major
Tiempo. Their ratiocination is futile. It is wellestablished that the flight of an accused is
competent evidence to indicate his guilt, and
flight, when unexplained, is a circumstance
from which an inference of guilt may be drawn.
[53]
It must be stressed, nonetheless, that

480

appellants were not convicted based on legal

inference alone but on the overwhelming
evidence presented against them.
Third Issue:
Crime and Punishment
We agree with the appellate court that
accused-appellants are guilty of murder for the
deaths of Glenn Tiempo and Alfredo Nardo. The
allegation of treachery as charged in the
Information
was
duly
proven
by
the
prosecution.Treachery is committed when two
conditions concur, namely, that the means,
methods, and forms of execution employed
gave the person attacked no opportunity to
defend himself or to retaliate; and that such
means, methods and forms of execution were
deliberately and consciously adopted by the
accused without danger to his person.[54] These
requisites were evidently present when the
accused, swiftly and unexpectedly, fired at the
victims who were inside their vehicles and were
in no position and without any means to defend
themselves.
The appellate court also correctly convicted
them of frustrated murder for the injuries

sustained by Nelson Tiempo, Rey Bolo and

Rogelio Presores. As evidenced by the medical
certificates and the testimony of Dr. Miguel
Mancao who attended to the victims, Nelson
Tiempo sustained a neck wound which
completely shattered his trachea and rendered
him voiceless, as well as a wound on the right
chest which penetrated his axilla but not his
chest cavity.[55] Rey Bolo sustained three
injuries which affected his clavicle, ribs and
lungs.[56] Rogelio Presores, on the other hand,
sustained an injury to his lungs from a bullet
wound which entered his right chest and exited
through his back.[57]
The wounds sustained by these survivors
would have caused their death had it not been
for the timely medical intervention. Hence, we
sustain the ruling of the Court of Appeals that
appellants are guilty of three counts of
frustrated murder.
We also uphold the Court of Appeals
modification of the penalty for murder, but not
its computation of the sentence for frustrated
murder.
For each of the two counts of murder, the
trial court imposed the penalty of fourteen (14)
years, eight (8) months and one (1) day
of reclusion temporal (medium), as minimum,

481

to seventeen (17) years, four (4) months and

one (1) day of reclusion temporal (maximum),
as maximum. This is incorrect. Under Article
248 of the Revised Penal Code, the imposable
penalty is reclusion temporal, in its maximum
period, to death. There being no aggravating or
mitigating circumstance, aside from the
qualifying circumstance of treachery, the
appellate court correctly imposed reclusion
perpetua for murder.
The Court of Appeals, however, erred in
computing the penalty for each of the three
counts of frustrated murder. It sentenced
appellants to imprisonment of ten years
of prision mayor (medium) as minimum to
seventeen years and four months of reclusion
temporal (medium) as maximum. It modified
the trial courts computation of eight (8) years
of prision mayor (minimum), as minimum, to
fourteen (14) years and eight (8) months
of reclusion temporal(minimum) as maximum.
Under Article 50 of the Revised Penal Code,
the penalty for a frustrated felony is the next
lower in degree than that prescribed by law for
the consummated felony x x x. The imposable
penalty for frustrated murder, therefore,
isprision
mayor in
its
maximum
period
to reclusion temporal in its medium period.
[58]
Because there are no aggravating or

mitigating circumstance as the Court of Appeals

itself held,[59] the penalty prescribed by law
should be imposed in its medium period. With
the application of the Indeterminate Sentence
Law, the penalty for frustrated murder should
be 8 years of prision mayor (minimum), as
minimum, to 14 years and 8 months
of reclusion temporal(minimum) as maximum.
Although the Court of Appeals was silent on
this point, the trial court correctly ordered the
payment of P50,000 as indemnity to the heirs
of each of the two murdered victims. In light of
current jurisprudence, this amount is awarded
without need of proof other than the fact of the
victims death.[60] The trial court and the CA,
however,
erred
in
awarding
indemnity
of P20,000 each to Nelson Tiempo, Rogelio
Presores and Rey Bolo. There is no basis,
statutory or jurisprudential, for the award of a
fixed
amount
to
victims
of
frustrated
murder. Hence, they are entitled only to the
amounts of actual expenses duly proven during
the trial.
Thus, Nelson Tiempo, who was treated for a
gunshot wound on the neck which shattered his
trachea, should be awarded indemnity of
P21,594.22 for his medical expenses. This is
evidenced by a statement of account from Cebu
Doctors Hospital.[61]

482

Rogelio Presores, who was likewise treated

for gunshot wound in the same hospital,
presented a statement of account amounting
to P5,412.69 for his hospitalization.[62] Hence,
he is likewise entitled to indemnity in the said
amount.
Rey Bolo, on the other hand, incurred an
expense of P9,431.10 for the treatment of his
gunshot wounds, as evidenced by a statement
of account from the same hospital. [63] This
amount should be awarded to him as indemnity.
WHEREFORE, the appeal is DENIED and the
assailed Decision is AFFIRMED. However, the
penalties are hereby MODIFIED as follows:
1) In Crim. Case No. CBU-9257, for MURDER,
the accused-appellants are each hereby
sentenced to reclusion perpetua and to
indemnify, jointly and severally, the heirs of the
deceased, Glenn Tiempo, in the sum
of P50,000;
2) In Crim. Case No. CBU-9258, for MURDER,
the accused-appellants are each hereby
sentenced to reclusion perpetua and to
indemnify, jointly and severally, the heirs of the
deceased, Alfredo Nardo, in the sum
of P50,000;

3) In Crim. Case No. CBU-9259, for

FRUSTRATED MURDER, the accused-appellants
are each hereby sentenced to suffer the penalty
of 8 years of prision mayor (minimum), as
minimum, to 14 years and 8 months
of reclusion temporal (minimum) as maximum;
and to jointly and severally pay the victim, Rey
Bolo, in the sum of P9,431.10 as actual
damages;
4) In Crim Case No. CBU-9260, for
FRUSTRATED MURDER, the accused-appellants
are hereby sentenced to suffer the penalty of 8
years of prision mayor (minimum), as
minimum, to 14 years and 8 months
of reclusion temporal (minimum) as maximum;
and to jointly and severally indemnify the
victim, Rogelio Presores, in the sum
of P5,412.69 for actual damages;
5) In Crim. Case No. CBU-9261 for
FRUSTRATED MURDER, the accused-appellants
are hereby sentenced to suffer the penalty of 8
years of prision mayor (minimum), as
minimum, to 14 years and 8 months
of reclusion temporal (minimum) as maximum;
and to jointly and severally indemnify the
victim, Nelson Tiempo, in the sum of
P21,594.22 as actual damages.

483

Let copies of this Decision be furnished the

Secretary of Interior and Local Government and
the Secretary of Justice so that Accused
Eufemio Cabanero may be brought to justice.
Costs against appellants.
SO ORDERED.

484

G.R. No. L-38773

December 19, 1933

THE PEOPLE OF THE PHILIPPINE

ISLANDS, Plaintiff-Appellee, vs. GINES
ALBURQUERQUE Y SANCHEZ, DefendantAppellant.
Gibbs and McDonough and Roman Ozaeta, for
appellant.
Office of the Solicitor-General Hilado for
appellee.
AVANCEA, C.J.: chanrobles virtual law library
The judgment appealed from finds the
appellants Gines Alburquerque guilty of the
crime of homicide committed on the person of
Manuel Osma and sentences him to eight years
and one day of prision mayor, and to indemnify
the heirs of the deceased in the sum of P1,000,
with costs.chanroblesvirtualawlibrary chanrobles
virtual law library
The appellant herein, who is a widower of fiftyfive years of age and father of nine living
children, has been suffering from partial
paralysis for some time, walks dragging one leg

and has lost control of the movement of his

right arm. He has been unable to work since he
suffered the stroke of paralysis. One of his
daughters was named Maria and another, are
married, while still another one is a nun. With
the exemption of the other married daughter
and the nun, of all of them, including the
appellant, live with Maria upon whom they
depend for
support.chanroblesvirtualawlibrary chanrobles
virtual law library
Among the daughters living with Maria, one
named Pilar became acquainted and had
intimate relations later with the deceased
Manuel Osma about the end of the year 1928.
It was then that the appellant became
acquainted with the deceased who frequently
visited Pilar in his house. The relations between
Pilar and the deceased culminated in Pilar's
giving birth to a child. The appellant did not
know that his daughter's relations with the
deceased had gone to such extremes, that he
had to be deceived with the information that
she had gone to her godfather's house in
Singalong, when in fact she had been taken to

485

the Chinese Hospital for delivery. The appellant

learned the truth only when Pilar returned home
with her
child.chanroblesvirtualawlibrary chanrobles
virtual law library
Naturally the appellant was deeply affected by
this incident, since which time he has appeared
sad and worried not only because of the
dishonor it brought upon his family but also
because the child meant an added burden to
Maria upon whom they all depended for
support. For some time the appellant wrote
letters, that at times were hostile and
threatening and at other times entreating the
deceased to legitimize his union with Pilar by
marrying her, or at least, to support her and his
child. Although the deceased agreed to give the
child a monthly allowance by way of support, he
never complied with his
promise.chanroblesvirtualawlibrary chanrobles
virtual law library
The appellant was in such a mood when he
presented himself one day at the office where
the deceased worked and asked leave of the

manager thereof to speak to Osma. They both

went downstairs. What happened later, nobody
witnessed. But the undisputed fact is that on
that occasion the appellant inflicted a wound at
the base of the neck of the deceased, causing
his death.chanroblesvirtualawlibrary chanrobles
virtual law library
After excluding the improbable portions thereof,
the court infers from the testimony of the
appellant that he proposed to said deceased to
marry his daughter and that, upon hearing that
the latter refused to do so, he whipped out his
penknife. Upon seeing the appellant's attitude,
the deceased tried to seize him by the neck
whereupon the said appellant stabbed him on
the face with the said penknife. Due to his lack
of control of the movement of his arm, the
weapon landed on the base of the neck of the
deceased.chanroblesvirtualawlibrary chanrobles
virtual law library
The trial court found that the appellant did not
intend to cause so grave an injury as the death
of the deceased. We find that his conclusion is
supported by the evidence. In his testimony the

486

appellant emphatically affirmed that he only

wanted to inflict a wound that would leave a
permanent scar on the face of the deceased, or
one that would compel him to remain in the
hospital for a week or two but never intended to
kill him, because then it would frustrate his plan
of compelling him to marry or, at least, support
his daughter. The appellant had stated this
intention in some of his letters to the deceased
by way of a threat to induce him to accept his
proposal for the benefit of his daughter. That
the act of the appellant in stabbing the
deceased resulted in the fatal wound at the
base of his neck, was due solely to the fact
hereinbefore mentioned that appellant did not
have control of his right arm on account of
paralysis and the blow, although intended for
the face, landed at the base of the
neck.chanroblesvirtualawlibrary chanrobles
virtual law library
Therefore, the mitigating circumstance of lack
of intention to cause so grave an injury as the
death of the deceased as well as those of his
having voluntarily surrendered himself to the
authorities, and acted under the influence of

passion and obfuscation, should be taken into

consideration in favor of the
appellant.chanroblesvirtualawlibrary chanrobles
virtual law library
Under the facts above stated, we cannot
entertain the appellant's contention that he
acted in legitimate self-defense inasmuch as he
provoked and commenced the aggression by
whipping out and brandishing his
penknife.chanroblesvirtualawlibrary chanrobles
virtual law library
The defense likewise claims that, at all events,
article 49 of the Revised Penal Code, which
refers to cases where the crime committed is
different from that intended by the accused,
should be applied herein. This article is a
reproduction of article 64 of the old Code and
has been interpreted as applicable only in cases
where the crime befalls a different person
(decisions of the Supreme Court of Spain of
October 20, 1897, and June 28,1899), which is
not the case
herein.chanroblesvirtualawlibrary chanrobles
virtual law library

487

The facts as herein proven constitute the crime

of homicide defined and penalized in article 249
of the Revised Penal Code with reclusion
temporal. In view of the concurrence therein of
three mitigating circumstances without any
aggravating circumstance, the penalty next
lower in degree, that is prision mayor, should
be
imposed.chanroblesvirtualawlibrary chanrobles
virtual law library
Wherefore, pursuant to the provisions of Act
No. 4103, the appellant is hereby sentenced to
suffer the indeterminate penalty of from one (1)
year of prision correccional to eight (8) years
and (1) day of prision mayor, affirming the
judgment appealed from in all other respects,
with the costs. So ordered.chanrobles

488

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-10126

October 22, 1957

SALUD VILLANUEVA VDA. DE BATACLAN and

the minors NORMA, LUZVIMINDA, ELENITA,
OSCAR and ALFREDO BATACLAN, represented
by their Natural guardian, SALUD VILLANUEVA
VDA. DE BATACLAN, plaintiffs-appellants,
vs.
MARIANO MEDINA, defendant-appellant.
Lope E. Adriano, Emmanuel Andamo and Jose
R. Francisco for plaintiffs-appellants.
Fortunato Jose for defendant and appellant.
MONTEMAYOR, J.:
Shortly after midnight, on September 13, 1952
bus no. 30 of the Medina Transportation,
operated by its owner defendant Mariano
Medina under a certificate of public
convenience, left the town of Amadeo, Cavite,
on its way to Pasay City, driven by its regular

chauffeur, Conrado Saylon. There were about

eighteen passengers, including the driver and
conductor. Among the passengers were Juan
Bataclan, seated beside and to the right of the
driver, Felipe Lara, sated to the right of
Bataclan, another passenger apparently from
the Visayan Islands whom the witnesses just
called Visaya, apparently not knowing his name,
seated in the left side of the driver, and a
woman named Natalia Villanueva, seated just
behind the four last mentioned. At about 2:00
o'clock that same morning, while the bus was
running within the jurisdiction of Imus, Cavite,
one of the front tires burst and the vehicle
began to zig-zag until it fell into a canal or ditch
on the right side of the road and turned turtle.
Some of the passengers managed to leave the
bus the best way they could, others had to be
helped or pulled out, while the three passengers
seated beside the driver, named Bataclan, Lara
and the Visayan and the woman behind them
named Natalia Villanueva, could not get out of
the overturned bus. Some of the passengers,
after they had clambered up to the road, heard
groans and moans from inside the bus,
particularly, shouts for help from Bataclan and

489

Lara, who said they could not get out of the

bus. There is nothing in the evidence to show
whether or not the passengers already free
from the wreck, including the driver and the
conductor, made any attempt to pull out or
extricate and rescue the four passengers
trapped inside the vehicle, but calls or shouts
for help were made to the houses in the
neighborhood. After half an hour, came about
ten men, one of them carrying a lighted torch
made of bamboo with a wick on one end,
evidently fueled with petroleum. These men
presumably approach the overturned bus, and
almost immediately, a fierce fire started,
burning and all but consuming the bus,
including the four passengers trapped inside it.
It would appear that as the bus overturned,
gasoline began to leak and escape from the
gasoline tank on the side of the chassis,
spreading over and permeating the body of the
bus and the ground under and around it, and
that the lighted torch brought by one of the
men who answered the call for help set it on
fire.

That same day, the charred bodies of the four

deemed passengers inside the bus were
removed and duly identified that of Juan
Bataclan. By reason of his death, his widow,
Salud Villanueva, in her name and in behalf of
her five minor children, brought the present suit
to recover from Mariano Medina compensatory,
moral, and exemplary damages and attorney's
fees in the total amount of P87,150. After trial,
the Court of First Instance of Cavite awarded
P1,000 to the plaintiffs plus P600 as attorney's
fee, plus P100, the value of the merchandise
being carried by Bataclan to Pasay City for sale
and which was lost in the fire. The plaintiffs and
the defendants appealed the decision to the
Court of Appeals, but the latter endorsed the
appeal to us because of the value involved in
the claim in the complaint.
Our new Civil Code amply provides for the
responsibility of common carrier to its
passengers and their goods. For purposes of
reference, we are reproducing the pertinent
codal provisions:

490

ART. 1733. Common carriers, from the

nature of their business and for reasons of
public policy, are bound to observe
extraordinary diligence in the vigilance
over the goods and for the safety of the
passengers transported by them,
according to all the circumstances of each
case.
Such extraordinary diligence in the
vigilance over the goods is further
expressed in articles 1734, 1735, and
1745, Nos. 5, 6, and 7, while the extra
ordinary diligence for the safety of the
passengers is further set forth in articles
1755 and 1756.
ART. 1755. A common carrier is bound to
carry the passengers safely as far as
human care and foresight can provide,
using the utmost diligence of very cautious
persons, with a due regard for all the
circumstances.
ART. 1756. In case of death of or injuries
to passengers, common carriers are
presumed to have been at fault or to have

acted negligently, unless they prove that

they observed extraordinary diligence as
prescribed in articles 1733 and 1755
ART. 1759. Common carriers are liable for
the death of or injuries to passengers
through the negligence or willful acts of
the former's employees, although such
employees may have acted beyond the
scope of their authority or in violation of
the order of the common carriers.
This liability of the common carriers does
not cease upon proof that they exercised
all the diligence of a good father of a
family in the selection and supervision of
their employees.
ART. 1763. A common carrier responsible
for injuries suffered by a passenger on
account of the willful acts or negligence of
other passengers or of strangers, if the
common carrier's employees through the
exercise of the diligence of a good father
of a family could have prevented or
stopped the act or omission.

491

We agree with the trial court that the case

involves a breach of contract of transportation
for hire, the Medina Transportation having
undertaken to carry Bataclan safely to his
destination, Pasay City. We also agree with the
trial court that there was negligence on the part
of the defendant, through his agent, the driver
Saylon. There is evidence to show that at the
time of the blow out, the bus was speeding, as
testified to by one of the passengers, and as
shown by the fact that according to the
testimony of the witnesses, including that of the
defense, from the point where one of the front
tires burst up to the canal where the bus
overturned after zig-zaging, there was a
distance of about 150 meters. The chauffeur,
after the blow-out, must have applied the
brakes in order to stop the bus, but because of
the velocity at which the bus must have been
running, its momentum carried it over a
distance of 150 meters before it fell into the
canal and turned turtle.
There is no question that under the
circumstances, the defendant carrier is liable.
The only question is to what degree. The trial

court was of the opinion that the proximate

cause of the death of Bataclan was not the
overturning of the bus, but rather, the fire that
burned the bus, including himself and his copassengers who were unable to leave it; that at
the time the fire started, Bataclan, though he
must have suffered physical injuries, perhaps
serious, was still alive, and so damages were
awarded, not for his death, but for the physical
injuries suffered by him. We disagree. A
satisfactory definition of proximate cause is
found in Volume 38, pages 695-696 of
American jurisprudence, cited by plaintiffsappellants in their brief. It is as follows:
. . . 'that cause, which, in natural and
continuous sequence, unbroken by any
efficient intervening cause, produces the
injury, and without which the result would
not have occurred.' And more
comprehensively, 'the proximate legal
cause is that acting first and producing the
injury, either immediately or by setting
other events in motion, all constituting a
natural and continuous chain of events,
each having a close causal connection with

492

its immediate predecessor, the final event

in the chain immediately effecting the
injury as a natural and probable result of
the cause which first acted, under such
circumstances that the person responsible
for the first event should, as an ordinary
prudent and intelligent person, have
reasonable ground to expect at the
moment of his act or default that an injury
to some person might probably result
therefrom.
It may be that ordinarily, when a passenger bus
overturns, and pins down a passenger, merely
causing him physical injuries, if through some
event, unexpected and extraordinary, the
overturned bus is set on fire, say, by lightning,
or if some highwaymen after looting the vehicle
sets it on fire, and the passenger is burned to
death, one might still contend that the
proximate cause of his death was the fire and
not the overturning of the vehicle. But in the
present case under the circumstances obtaining
in the same, we do not hesitate to hold that the
proximate cause was the overturning of the
bus, this for the reason that when the vehicle

turned not only on its side but completely on its

back, the leaking of the gasoline from the tank
was not unnatural or unexpected; that the
coming of the men with a lighted torch was in
response to the call for help, made not only by
the passengers, but most probably, by the
driver and the conductor themselves, and that
because it was dark (about 2:30 in the
morning), the rescuers had to carry a light with
them, and coming as they did from a rural area
where lanterns and flashlights were not
available; and what was more natural than that
said rescuers should innocently approach the
vehicle to extend the aid and effect the rescue
requested from them. In other words, the
coming of the men with a torch was to be
expected and was a natural sequence of the
overturning of the bus, the trapping of some of
its passengers and the call for outside help.
What is more, the burning of the bus can also in
part be attributed to the negligence of the
carrier, through is driver and its conductor.
According to the witness, the driver and the
conductor were on the road walking back and
forth. They, or at least, the driver should and
must have known that in the position in which

493

the overturned bus was, gasoline could and

must have leaked from the gasoline tank and
soaked the area in and around the bus, this
aside from the fact that gasoline when spilled,
specially over a large area, can be smelt and
directed even from a distance, and yet neither
the driver nor the conductor would appear to
have cautioned or taken steps to warn the
rescuers not to bring the lighted torch too near
the bus. Said negligence on the part of the
agents of the carrier come under the codal
provisions above-reproduced, particularly,
Articles 1733, 1759 and 1763.
As regard the damages to which plaintiffs are
entitled, considering the earning capacity of the
deceased, as well as the other elements
entering into a damage award, we are satisfied
that the amount of SIX THOUSAND (P6,000)
PESOS would constitute satisfactory
compensation, this to include compensatory,
moral, and other damages. We also believe that
plaintiffs are entitled to attorney's fees, and
assessing the legal services rendered by
plaintiffs' attorneys not only in the trial court,
but also in the course of the appeal, and not

losing sight of the able briefs prepared by them,

the attorney's fees may well be fixed at EIGHT
HUNDRED (P800) PESOS for the loss of
merchandise carried by the deceased in the
bus, is adequate and will not be disturbed.
There is one phase of this case which disturbs if
it does not shock us. According to the evidence,
one of the passengers who, because of the
injuries suffered by her, was hospitalized, and
while in the hospital, she was visited by the
defendant Mariano Medina, and in the course of
his visit, she overheard him speaking to one of
his bus inspectors, telling said inspector to have
the tires of the bus changed immediately
because they were already old, and that as a
matter of fact, he had been telling the driver to
change the said tires, but that the driver did not
follow his instructions. If this be true, it goes to
prove that the driver had not been diligent and
had not taken the necessary precautions to
insure the safety of his passengers. Had he
changed the tires, specially those in front, with
new ones, as he had been instructed to do,
probably, despite his speeding, as we have
already stated, the blow out would not have

494

occurred. All in all, there is reason to believe

that the driver operated and drove his vehicle
negligently, resulting in the death of four of his
passengers, physical injuries to others, and the
complete loss and destruction of their goods,
and yet the criminal case against him, on
motion of the fiscal and with his consent, was
provisionally dismissed, because according to
the fiscal, the witnesses on whose testimony he
was banking to support the complaint, either
failed or appear or were reluctant to testify. But
the record of the case before us shows the
several witnesses, passengers, in that bus,
willingly and unhesitatingly testified in court to
the effect of the said driver was negligent. In
the public interest the prosecution of said erring
driver should be pursued, this, not only as a
matter of justice, but for the promotion of the
safety of passengers on public utility buses. Let
a copy of this decision be furnished the
Department of Justice and the Provincial Fiscal
of Cavite.
In view of the foregoing, with the modification
that the damages awarded by the trial court are
increased from ONE THOUSAND (P1,000)

PESOS TO SIX THOUSAND (P6,000) PESOS,

and from SIX HUNDRED PESOS TO EIGHT
HUNDRED (P800) PESOS, for the death of
Bataclan and for the attorney's fees,
respectively, the decision appealed is from
hereby affirmed, with costs.

495

EN BANC
[G.R. Nos. 137481-83 & 138455. March 7,
2001]
PEOPLE OF THE PHILIPPINES, plaintiffappellee, vs. CONRADO SALADINO Y
DINGLE, accused-appellant.
DECISION
BELLOSILLO, J.:
CONRADO SALADINO y Dingle was convicted
of three (3) counts of rape and one (1)
attempted rape and sentenced to death.[1] He is
now with us on automatic review.
Lourdes Relevo is the niece of accusedappellant Conrado Saladino. Her mother and
Conrado's wife Rosita are sisters. Lourdes calls
him Kuya Conrad. The parents of Lourdes live in
Balayan, Batangas.
Sometime in 1995 Lourdes, then thirteen
(13) years old, was sent by her parents to
Manila to live with Conrado and Rosita Saladino

in Pasig City because her own parents could not

afford to send her to school. Rosita was a
factory worker while Conrado was a moneychanger in a bus terminal. Rosita, whom
Lourdes called Ate Rose, gave the young girl
weekly allowance; in turn, she helped out in the
household chores.
The Saladinos lived in a small two-storey
house in 126-D Pastor Compound, Rosario,
Pasig City, along with the spouses Zaldy and
Corazon Cedeo and their three (3) children,
Estrella, Elizabeth and Evelyn, together with
three (3) boarders whom Lourdes only knew
as Tita, Liza and Glenda. There were three (3)
rooms separated only by curtains. Conrado,
Rosita and Lourdes slept in a small cramped
room - the couple on a bed and Lourdes on a
mattress on the floor.
Sometime in September 1995 at about
10:00 oclock in the evening while Lourdes was
lying on her mattress resting and feeling sick,
Conrado woke her up and asked her to transfer
to the bed as she might catch cold. Rosita was
already dressed up because she was working in

496

the 10:00 oclock PM to 6:00 oclock AM

shift. Conrado conducted Rosita to the jeepney
stop and returned to their room about fifteen
(15) minutes later. He laid down beside
Lourdes. About twenty-five (25) minutes later,
he started fondling her breasts. He poked a
kitchen knife at her waist and threatened to kill
her if she shouted. He dropped the knife,
pinned down Lourdes hands to her belly, and
removed her shorts and panty with his hand
that was free. He then removed his own shorts
and underwear, went on top of Lourdes, and
inserted his penis inside her vagina.[2] Lourdes
struggled and Conrados penis slipped out
several times, but he re-inserted it everytime
and resumed his bestial movements for about
fifty (50) minutes according to Lourdes.When
she finally succeeded in pushing him away, he
warned her not to tell anyone or else he would
kill her.
Lourdes confided the sexual assault to
Rosita. But Rosita refused to believe her and
even said that her husband was not capable of
doing such a dastardly act. Lourdes also told
Corazon Cedeo who reacted by asking the

Saladinos to leave the house. It took

Saladinos almost a year to find a house.

the

Meanwhile, Lourdes slept in the room of

Corazon and Zaldy. The Saladino couple finally
transferred to 101-B Dr. Sixto Antonio Avenue,
Rosario, Pasig City, leaving behind Lourdes with
the Cedeos. But Lourdes did not tell her mother,
who was in Batangas, about the rape.
After some time, Rosita invited Lourdes to
live with them in their new house. Rosita
assured her that the incident would not happen
again
because
they
had
a
boarder. Wanting to finish her schooling and in
need of money, Lourdes relented and moved in
with the Saladinos again.
Despite Rositas assurances, things did not
turn out well for Lourdes. On 17 December
1996 at about 7:00 oclock in the morning, while
Lourdes was sleeping in the living room,
Conrado again held her at knifepoint and
threatened her into silence. He removed her
shorts and panties, then his own shorts and
underwear and had forced intercourse with

497

her. Again, she cried and struggled but her

efforts were in vain.
Lourdes told Rosita about the new incident
but Rosita, as in the past, refused to believe
her. She turned to Corazon who advised her to
wait for her mother, who was spending
Christmas in Manila, before going to the
police. When Lourdes and Rosita went to
Batangas to fetch Lourdes mother Elena Relevo,
the complaining witness could not summon
enough courage to tell her mother about the
rape. Elena stayed in Pasig City for eleven (11)
days after which, on 28 December 1996, she,
Lourdes, Rosita and Conrado went to Batangas
to celebrate New Years Eve.
On 1 January 1997 Lourdes, Conrado and
Rosita returned to Manila. The following day at
7:00 o'clock in the morning Conrado again
raped Lourdes at knifepoint. On 3 January 1997
at about the same time the day before, he
again poked a knife at her and proceeded to
remove her shorts and panties and attempted
to insert his penis into her vagina. This time,
when Lourdes saw him let go of the knife, she

freed herself from his grasp and kicked

him. Then she ran to the bathroom and stayed
there until he left the house.
Lourdes packed her clothes and went to
Corazon Cedeos house. Finally, she gathered
enough strength to tell her mother about the
sexual abuses, which prompted Elena to fetch
her and take her home to Batangas.
Elena had Lourdes examined by a doctor,
who confirmed that Lourdes was no longer a
virgin. They then filed a case with the Pasig City
Prosecutors office. Lourdes underwent another
physical examination at the PNP Crime
Laboratory in Camp Crame.The examination by
Dr. Romeo Salen, Medico-Legal Officer, revealed
that Lourdes had deep healed lacerations at
3:00 oclock and 9:00 oclock positions. Dr. Salen
concluded that Lourdes was already in a nonvirgin state physically.[3]
Four (4) Informations for rape were filed
against Conrado Saladino for the incidents in
September 1995, on 17 December 1996, 2
January 1997 and 3 January 1997. All four (4)
Informations similarly alleged that on the dates

498

indicated accused-appellant with lewd design

and by means of force had sexual intercourse
with Lourdes Relevo y Mendoza, against her will
and consent.
Testifying in his defense, accused-appellant
Conrado Saladino claimed that on the night of
the alleged first rape, he was drunk. After
taking his wife to the jeepney stop, he went
back to his room where he saw Lourdes lying on
bed. He then laid beside her.Being in an
amorous mood, he started fondling her
breasts. According to him, he was not met with
any resistance. Emboldened, he proceeded to
kiss her lips, breasts and private parts. He then
took off both their undergarments and went on
top of her. He attempted to insert his penis into
her vagina but since he was drunk, he failed to
achieve an erection. According to him, Lourdes
was fully aware of what was happening yet did
not show any reaction.
Conrado also testified that the reason they
left the old house was because they did not
have any privacy since the rooms were
separated only by curtains that were fastened

together only by safety pins. Also, Corazon and

Rosita had a misunderstanding over Rositas
jewelry that disappeared. After some time,
Lourdes and one of the boarders in the old
house, Glenda Andrade, followed them to their
new house. He tried to avoid any intimate
contact with Lourdes but he noticed that she
was seducing him, parang tinutukso niya ako.
[4]
Unable to resist, he gave in to fondling her at
least once a week,[5] then kissed her everyday
before going to work. But he did not have sex
with her because he was afraid she would get
pregnant. He also testified that Lourdes would
get angry every time he refused to insert his
penis into her vagina.
The trial court found accused-appellant
Conrado Saladino guilty of rape in Crim. Cases
Nos. 112410-H, 112411-H and 112412H. Taking
into
account
the
qualifying
circumstance of the minority of the victim and
her relationship to accused-appellant, the lower
court meted Conrado Saladino three (3) death
penalties pursuant to RA 7659. He was also
sentenced
to
pay
the
private
complainant P150,000.000
as
indemnity,

499

and P90,000.00 as moral damages. The trial

court also found accused-appellant guilty of
attempted rape in Crim. Case No. 112413-H
and sentenced him to serve an indeterminate
penalty of eight (8) years and one (1) day
of prision mayor minimum as minimum, to
fourteen (14) years, eight (8) months and one
(1) day of reclusion temporalminimum, as
maximum,
and
to
pay
the
offended
party P50,000.00
in
civil
indemnity
and P30,000.00 for moral damages.
The complaining witness and accusedappellant
presented
conflicting
versions. Lourdes Relevo, on one hand, told a
harrowing account of a young girl's life utterly
destroyed because of the satyrical urges of a
man who was entrusted with her life and
future.Accused-appellant, on the other hand,
painted a tale of consensual sex between an
unwilling but weak male adult and a young
temptress.
Which of the two (2) conflicting narrations of
what transpired between the parties deserves
greater weight and better entitled to full

credence,
is
the
crux
of
this
controversy. Indeed, this matter involves the
assessment of credibility, a task best left to the
trial court, which had the advantage of
observing the witnesses directly, picking up on
the subtle nuances of human behavior, and the
emphasis, gesture and inflection of voice; and,
of testing their credibility by their demeanor on
the stand.[6] We have often said that we will not
interfere with the judgment of the trial court in
determining the credibility of witnesses, unless
there appears in the record some fact or
circumstance of weight and influence which has
been overlooked or the significance of which
has been misinterpreted.
In giving credence to the testimony of the
private complainant, the lower court said The testimony of the Private Complainant,
Lourdes Relevo, was candid, straightforward
and firm. She testified with spontaneity, only
interrupted when she was overcome with
emotion. She cried when asked to recall details
of the incidents when the Accused assaulted her
virtue. She remained steadfast and firm in her

500

declarations notwithstanding humiliation and

embarrassment, especially when, upon cross
examination, she was asked to narrate the lurid
details of the sexual acts committed upon
her. On the witness stand, she pointed an
accusing finger at the Accused, her uncle, and
in an avenging tone, reaffirmed her accusations
against him.[7]
In contrast, the lower court observed that
accused-appellant appeared evasive, answered
in a low voice, which was hardly audible. It also
pointed out that Conrado appeared uncertain
when he admitted that he touched the breasts,
kissed the lips and private parts of the private
complainant and laid on top of her, insinuating
that she consented to this sexual activity. This
led the trial court to conclude that accusedappellant "did not have the demeanor of a man
unjustly accused of a serious offense."[8]
Such observations do not portend well for
accused-appellant. In reviewing with utmost
scrutiny the records of this case, we fail to see
any reason to disturb the findings of the court a
quo. The
emotion
displayed
by
private

complainant thoroughly convinced the trial

court that her testimony was genuine. Even the
transcripts of her direct and cross examinations
would point to no other conclusion. In her
testimony, she revealed sordid details of the
assault with such clarity and lucidity that could
only come from the victim of the malevolent
act. When asked questions designed to elicit
conflicting answers, she stood her ground and
answered the questions in the manner of a
person with nothing to tell but the truth.
Indeed, it is highly unlikely for a young girl
like Lourdes to falsely accuse an uncle of a
heinous crime, undergo a medical examination
of her private parts, subject herself to the
humiliation of a public trial and tarnish her
family's honor and reputation, unless motivated
by a potent desire to seek justice for the wrong
committed against her.[9] In the absence of
evidence of improper motive on the part of the
victim to falsely testify against the accused, her
testimony deserves credence.[10]
On the other hand, accused-appellant's
perverted version of the "sweetheart theory" is

501

uncorroborated, self-serving and deserves scant

consideration from the Court. Save for his own
declaration, accused-appellant was unable to
present anything else to prove that carnal
knowledge between him and Lourdes was
consensual. Indeed, this Court finds it unlikely
that a young girl like Lourdes would consent to
have sexual relations with a person she
calls Kuya and more than ten (10) years her
senior, and an uncle-in-law in fact. There is no
evidence on record that she is a pervert,
nymphomaniac, temptress or in any other
condition that may justify such a theory.
Contrary to accused appellant's assertions,
the long delay in the filing of the charges is not
an indication of false accusation, since the delay
was satisfactorily explained. After the first
incident, Lourdes confided to her aunt Rosita
and to Corazon; however they refused to do
anything. Faced with two (2) prior rejections, it
is understandable for a young girl like Lourdes
to remain silent rather than endure the
humiliating experience of being rebuffed once
again by disbelieving adults.

It has also been held that there is no

standard form of behavior when people,
particularly young girls, are confronted by
shocking and frightful incidents such as rape.
[11]
A thirteen (13)-year old girl who kept silent
about being raped and becoming pregnant as a
result thereof, is not necessarily lying. It would
not have been easy to speak of such a
humiliating occurrence. Besides, Lourdes also
feared for her life and that of her family. Her
assessment of the threatened risk caused by
accused-appellant
might
have
been
overestimated, but considering her youth and
inexperience, this fact alone does not render
her testimony unreliable.
One cannot expect a thirteen (13)-year old
girl to act like an adult or a mature and
experienced woman who would have the
courage and intelligence to disregard a threat to
her life and complain immediately that she had
been forcibly sexually assaulted.[12]
Accused-appellant assails the lower court in
concluding
that
he
used
force
and
intimidation. He insists that "the resistance of a

502

woman in rape must be tenacious and

manifest. A
mere
verbal
objection
unaccompanied by physical resistance may
amount to consent."[13] He asserts that since
there was no showing that he ever covered the
mouth of the victim during the alleged rape, her
failure to shout for help to the other house
occupants
was
an
indication
that
the
intercourse was consensual. He also posits that
if indeed Lourdes was raped, she would not
have agreed to transfer to the house of the
person who abused her.
We do not agree. According to Lourdes,
accused-appellant poked a knife at her waist
while threatening to kill her and her aunt if she
resisted. That act of accused-appellant was
more than sufficient to subdue the victim and
cow her into silence, because of the imminent
danger not only to her life but to her aunt as
well. Under the circumstances, her failure to
shout or offer tenacious resistance did not make
voluntary her submission to the criminal acts of
the accused-appellant.[14] Also, we have held in
People v. Grefiel[15] that "(i)ntimidation must be
viewed in the light of the victim's perception

and judgment at the time of the commission of

the crime and not by any hard and fast rule; it
is therefore enough that it produces fear -- fear
that if the victim does not yield to the bestial
demands of the accused something would
happen to her at that moment or even
thereafter as when she is threatened with death
if she reports the incident."
It might be that to the depraved mind of
accused-appellant, the lack of resistance or
shouting on the part of his poor victim was a
sign of consent, nay, even enjoyment. But in
the crime of rape, what is given paramount
consideration is the state of mind of the victim
and not that of the perpetrator. From the point
of view of the victim, the knife aimed at her
waist was a real threat to her life. Her failure to
shout or offer resistance was not because she
consented
to
the
deed
but
because she honestly believed she would be
killed if she shouted or resisted. Such threat is
sufficient intimidation as contemplated by our
jurisprudence on rape. And be that as it may, if
resistance would nevertheless be futile because
of a continuing intimidation, then offering none

503

at all would not mean consent to the assault as

to make the victim's participation in the sexual
act voluntary.[16]
Lourdes' transferring to the new residence of
accused-appellant despite the rape does not
affect her credibility. It was established that she
depended on accused-appellant and his wife
Rosita for support. Her return to the house of
Conrado after she was raped was out of
necessity. If she did not do so, she would not
have been able to continue her schooling in
Manila. Besides, she was assured by accusedappellant's wife, her very own aunt, that the
incident would not happen again.
In an attempt to discredit the private
complainant, accused-appellant pointed out
supposed "inconsistencies" in her testimony, to
wit: (a) Every time Lourdes testified she always
brought with her a copy of her complaintaffidavit; (b) Her claim in her complaintaffidavit that accused-appellant removed her
panties is inconsistent with her claim at the
witness stand, where she said that accusedappellant removed her shorts; (c) Her claim

that accused-appellant held her two (2) nipples

while he was holding a knife is a physical
impossibility; (d) Her testimony that accusedappellant told her to be quiet or he would kill
her and Rosita is contrary to what she alleged in
her complaint-affidavit that he would kill her
Ate Rosita only; (e) Her statement that
accused-appellant held her two (2) hands with
one hand while his other hand was removing
her shorts and panties is a physical
impossibility; (f) Her claim that when she was
first raped the private parts of accusedappellant pumped her for more than fifty (50)
minutes is physically impossible; and, (g) Her
testimony that in the first rape accusedappellant attempted to kiss her on the lips and
her cheeks but he failed is another impossibility
considering that he was on top of her and could
have easily kissed her on the lips and cheeks.[17]
The crux of Lourdes' testimony was that
accused-appellant had copulated with her, and
the
act
was
accomplished
through
intimidation. The
alleged
"inconsistencies"
raised by accused-appellant are of minor
significance and do not impinge upon her

504

assertion
that
she
was
raped. Errorless
testimonies cannot be expected especially when
a witness is recounting details of a harrowing
experience.[18] A witness who is telling the truth
is not always expected to give a perfectly
concise testimony, considering the lapse of time
and the treachery of human memory. Thus, we
have followed the rule in accord with human
nature
and
experience
that
honest
inconsistencies on minor and trivial matters
serve to strengthen, rather than destroy, the
credibility of a witness, especially of witnesses
to crimes shocking to the conscience and
numbing to the senses.[19]
However, the lower court erred in imposing
the death penalty. In People v. Ramos[20] the
concurrence of the minority of the victim and
her relationship to the offender, being special
qualifying circumstances should be alleged in
the information, otherwise, the death penalty
cannot be imposed. In the case at bar, although
the prosecution did prove complainants minority
and relationship to accused-appellant, it failed
to implead both minority and relationship in the
four (4) Informations filed against accused-

appellant. It is not enough that the relationship

was subsequently proved during the trial. Both
relationship and minority must be alleged in the
Information to qualify the crime as punishable
by death. To hold otherwise would deny
accused-appellants constitutional right to be
informed of the nature and the cause of the
accusation against him.[21] Thus, he can only be
convicted
of
simple
rape,
punishable
by reclusion perpetua.
The imposition of an indeterminate penalty
of eight (8) years and one (1) day of prision
mayor minimum as minimum, to fourteen (14)
years, eight (8) months and one (1) day
of reclusion temporal minimum as maximum, in
attempted rape is also erroneous. The proper
penalty for rape in the attempted stage should
be two (2) degrees lower than the penalty for
consummated
rape,[22] or prision
mayor. Applying the Indeterminate Sentence
Law, the maximum imposable penalty should be
taken fromprision mayor in its medium period
and the minimum from prision correccional.

505

In the three (3) cases of simple rape, the

award of P50,000.00 as civil indemnity for each
count is upheld, consistent with current
jurisprudence.[23] The award of P30,000.00 as
moral damages for each count of rape is
increased to P50,000.00 also consistent with
jurisprudence.[24] In
addition,
an
award
of P30,000.00 in exemplary damages is also
imposed, the relationship between the sex
offender and his victim being aggravating. [25] In
the case of attempted rape the P30,000.00
award
as
moral
damages
is
reduced
to P15,000.00.[26] The award of P50,000.00 as
civil indemnity is removed, there being no legal
basis therefor.
WHEREFORE, the Decision of the trial court
is MODIFIED as follows:
1. In Crim. Cases Nos. 112410-H (G.R. No.
137481), 112411-H (G.R. No. 137482) and
112412-H (G.R. No. 137483) accused-appellant

Conrado Saladino y Dingle is found guilty of

three (3) counts of Simple Rape and sentenced
to suffer the penalty of reclusion perpetua for
each count. He is also ordered to pay private
complainant Lourdes Relevo P50,000.00 for civil
indemnity,
another P50,000.00
for
moral
damages
and P30,000.00
for
exemplary
damages, for each count of rape.
2. In Crim. Case No. 112413-H (G.R. No.
138455), accused-appellant Conrado Saladino y
Dingle is found guilty of Attempted Rape and is
sentenced to ten (10) months and twenty (20)
days
of prision
correccional minimum
as
minimum, to eight (8) years, four (4) months
and ten (10) days of prision mayor medium as
maximum. The accused-appellant is further
ordered to pay private complainant Lourdes
Relevo moral damages of P15,000.00.
SO ORDERED.