1

THIRD DIVISION

ROLANDO SASAN, SR., LEONILO DAYDAY, MODESTO G.R. No. 176240

AGUIRRE, ALEJANDRO ARDIMER, ELEUTERIO SACIL,
WILFREDO JUEGOS, PETRONILO CARCEDO and CESAR Present:
PACIENCIA,
Petitioners, YNARES-SANTIAGO, J.,
Chairperson,
- versus - AUSTRIA-MARTINEZ,
AZCUNA,*
NATIONAL LABOR RELATIONS COMMISSION 4TH DIVISION, CHICO-NAZARIO, and
EQUITABLE-PCI BANK and HELPMATE, INC., NACHURA, JJ.
Respondents.

Promulgated:

October 17, 2008

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

DECISION

CHICO-NAZARIO, J.:

Assailed in this Petition for Review under Rule 45 of the Rules of Court are the Decision[1] dated 24 April 2006 of the Court of Appeals in
CA-G.R. SP No. 79912, which affirmed the Decision dated 22 January 2003 of the National Labor Relations Commission (NLRC) in NLRC
Case No. V-000241-2002 finding that Helpmate, Inc. (HI) is a legitimate independent job contractor and that the petitioners were not
illegally dismissed from work; and the Resolution[2] dated 31 October 2006 of the same court denying the Motion for Reconsideration
filed by the petitioners.

Respondent Equitable-PCI Bank (E-PCIBank),[3] a banking entity duly organized and existing under and by virtue of Philippine laws, entered
into a Contract for Services[4] with HI, a domestic corporation primarily engaged in the business of providing janitorial and messengerial
services. Pursuant to their contract, HI shall hire and assign workers to E-PCIBank to perform janitorial/messengerial and maintenance
services. The contract was impliedly renewed year after year. Petitioners Rolando Sasan, Sr.,[5] Leonilo Dayday,[6] Modesto
Aguirre,[7] Alejandro Ardimer,[8] Eleuterio Sacil,[9] Wilfredo Juegos,[10] Petronilo Carcedo,[11] and Cesar Peciencia[12] were among
those employed and assigned to E-PCIBank at its branch along Gorordo Avenue, Lahug, Cebu City, as well as to its other branches in the
Visayas.[13]

O 23 July 2001, petitioners filed with the Arbitration Branch of the NLRC in Cebu City separate complaints[14] against E-PCIBank and HI for
illegal dismissal, with claims for separation pay, service incentive leave pay, allowances, damages, attorneys fees and costs. Their
complaints were docketed as NLRC RAB-VII Case No. 07-1381-2001 and raffled to Labor Arbiter Jose G. Gutierrez (Labor Arbiter Gutierrez)
for their proper disposition.Subsequently, on 22 August 2001, the petitioners[15] amended their complaints to include a claim for
13th month-pay.

Several conciliation hearings were scheduled by Labor Arbiter Gutierrez but the parties still failed to arrive at a mutually beneficial
settlement; hence, Labor Arbiter Gutierrez ordered that they submit their respective position papers.

In their position papers, petitioners claimed that they had become regular employees of E-PCIBank with respect to the activities for which
they were employed, having continuously rendered janitorial and messengerial services to the bank for more than one year; that E-
PCIBank had direct control and supervision over the means and methods by which they were to perform their jobs; and that their
dismissal by HI was null and void because the latter had no power to do so since they had become regular employees of E-PCIBank.

For its part, E-PCIBank averred that it entered into a Contract for Services with HI, an independent job contractor which hired and assigned
petitioners to the bank to perform janitorial and messengerial services thereat. It was HI that paid petitioners wages, monitored
petitioners daily time records (DTR) and uniforms, and exercised direct control and supervision over the petitioners and that therefore HI
has every right to terminate their services legally. E-PCIBank could not be held liable for whatever misdeed HI had committed against its
employees.

HI, on the other hand, asserted that it was an independent job contractor engaged in the business of providing janitorial and related
services to business establishments, and E-PCIBank was one of its clients. Petitioners were its employees, part of its pool of
janitors/messengers assigned to E-PCIBank. The Contract for Services between HI and E-PCIBank expired on 15 July 2000. E-PCIBank no
longer renewed said contract with HI and, instead, bidded out its janitorial requirements to two other job contractors, Able Services and
Puritan. HI designated petitioners to new work assignments, but the latter refused to comply with the same. Petitioners were not
dismissed by HI, whether actually or constructively, thus, petitioners complaints before the NLRC were without basis.

Labor Arbiter Gutierrez focused on the following issues: (a) whether petitioners were regular employees of HI; (b) whether petitioners
were illegally dismissed from their employment; and (c) whether petitioners were entitled to their money claims.
2

On 7 January 2002, on the basis of the parties position papers and documentary evidence, Labor Arbiter Gutierrez rendered a Decision
finding that HI was not a legitimate job contractor on the ground that it did not possess the required substantial capital or investment to
actually perform the job, work, or service under its own account and responsibility as required under the Labor Code.[16] HI is therefore a
labor-only contractor and the real employer of petitioners is E-PCIBank which is held liable to petitioners. According to Labor Arbiter
Gutierrez:

[T]he undisputed facts show that the [herein petitioners] were made to perform not only as janitors but also as messengers, drivers and
one of them even worked as an electrician. For us, these jobs are not only directly related to the main business of the principal but are,
likewise deemed necessary in the conduct of respondent Equitable-PCI Banks principal business. Thus, based on the above, we so declare
that the [petitioners] are employees of respondent Equitable-PCI Bank. And having worked with respondent Equitable-PCI Bank for more
than one (1) year, they are deemed regular employees. They cannot, therefore, be removed from employment without cause and without
due process, which is wanting in this case. Hence, the severance of their employment in the guise of termination of contract is illegal.[17]

In the dispositive portion of his 7 January 2002 Decision, Labor Arbiter Gutierrez awarded to petitioners the following amounts:

I. CESAR PACIENCIA

a) Backwages
July 15, 2001 to January 8, 2002
= P190.00 per day
= 5 months and 6 days
= 136 days x P190.00 = P25,840.00

b) Separation Pay
June 10, 1996 to July 15, 2001
= 5 years
=P190.00 x 26 days x 5 years / 2 =P12,350.00

c) 13th Month Pay

= P190.00 x 26 days = P4,940.00
Total P43,130.00

II Dominador Suico, Jr. (did not file Amended Complaint)

a) Backwages
July 15, 2001 to January 15, 2002
same as Paciencia
= P25,840.00
b) Separation Pay
Feb. 2, 1999 to July 15, 2001
= P190.00 x 26 days x 2.5 years / 2
Total = P6,175.00
= P32,015.00

III Roland Mosquera (did not file Amended Complaint)

a) Backwages
(same as Paciencia)
= P25,840.00
b) Separation Pay
March 8, 1998 to July 15, 2001
= P190.00 x 26 days x 3 yrs. / 2
Total = P7,410.00
= P33,250.00

IV Petronillo Carcedo

a) Backwages
(same as Paciencia) = P25,840.00

b) Separation Pay
Sept. 16, 1984 to July 15, 2001
= P190.00 x 26 days x 17 yrs. / 2 = P41,990.00
c) 13th Month Pay
= P190.00 x 26 days
Total = P4,940.00
= P72,770.00

V Rolando Sasan, Sr.

3

a) Backwages
(same as Paciencia) = P25,840.00

b) Separation Pay
October 1989 to July 15, 2001
= P190.00 x 26 days x 12 yrs. / 2 = P29,640.00

c) 13th Month Pay

= P190.00 x 26 days = P4,940.00
Total = P60,420.00

VI Leonilo Dayday

a) Backwages
(same as Paciencia) = P25,840.00

b) Separation Pay
Feb. 8, 1983 to July 15, 2001
= P190.00 x 26 days x 18 yrs. / 2 = P44,460.00

c) 13th Month Pay

= P190.00 x 26 days = P4,940.00
Total = P75,240.00

VII Eleuterio Sacil

a) Backwages
(same as Paciencia) = P25,840.00

b) Separation Pay
June 2, 1992 to July 15, 2001
= P190.00 x 26 days x 9 yrs. / 2 = P22,230.00

c) 13th Month Pay

= P190.00 x 26 days = P4,940.00
Total = P53,010.00

VIII Mario Juntilla

a) Backwages
(same as Pacencia) = P25,840.00

b) Separation Pay
October 7, 1987 to July 15, 2001
= P190.00 x 26 days x 14 yrs. / 2 = P34,580.00

c) 13th Month Pay

= P190.00 x 26 days = P4,940.00
Total = P65,360.00

IX Wilfredo Juegos

a) Backwages
(same as Pacencia) = P25,840.00

b) Separation Pay
July 23, 1990 to July 15, 2001
= P190.00 x 26 days x 11 yrs. / 2 = P27,170.00

c) 13th Month Pay

= P190.00 x 26 days = P4,840.00
Total = P57,950.00

X Modesto Aguirre

a) Backwages
(same as Paciencia) = P25,840.00

b) Separation Pay
= Jan. 5, 1992 to July 15, 2001
4

= P190.00 x 26 days x 9.5 yrs. / 2 = P23,465.00

c) 13th Month Pay

= P190.00 x 26 days = P4,940.00
Total = P54,245.00

XI Alejandro Ardimer

a) Backwages
(same as Paciencia) = P25,840.00

b) Separation Pay
= Jan. 20, 1990 to July 15, 2001
= P190.00 x 26 days x 11.5 yrs. / 2 = P28,405.00

c) 13th Month Pay

= P190.00 x 26 days = P4,940.00
Total = P59,185.00

xxxx

WHEREFORE, the foregoing premises considered, judgment is hereby rendered directing the respondents Equitable PCI Bank and
Helpmate, Inc. to pay jointly and solidarily the complainants as follows:

1. Cesar Paciencia - P43,130.00

2. Dominador Suico, Jr. - 32,015.00
3. Roland Mosquera - 33,250.00
4. Petronilo Carceda - 72,770.00
5. Roland Sasan, Sr. - 60,420.00
6. Leonilo Dayday - 75,240.00
7. Eleuterio Sacil - 53,010.00
8. Mario Juntilla - 65,360.00
9. Wilfredo Juegos - 57,950.00
10. Modesto Aguirre - 54,245.00
11. Alejandro Ardimer - 59,185.00
TOTAL - P606,575.00[18]

Aggrieved by the decision of Labor Arbiter Gutierrez, respondents E-PCIBank and HI appealed the same to the NLRC, 4th Division,
stationed in Cebu City. Their appeals were docketed as NLRC Case No. V-000241-2002. In support of its allegation that it was a legitimate
job contractor, HI submitted before the NLRC several documents which it did not present before Labor Arbiter Gutierrez. These are:

1. Certificate of Filing of Certificate of Increase of Capital Stock, Certificate of Filing Amended Articles of Incorporation, and General
Information Sheet Stock Corporation of HI showing therein that it increased its authorized capital stock from P1,500,000.00
to P20,000,000.00 on 12 March 1999 with the Securities and Exchange Commission;

2. Audited Financial Statement of HI showing therein that it has Total Assets of P20,939,935.72 as of 31 December 2000;

3. Transfer Certificate of Title No. 110173 and Tax Declaration No. GR2K-09-063-00582 registered under the name of HI showing that it has
a parcel of land with Market Value of P1,168,860.00 located along Rizal Avenue (now Bacalso Avenue), Cebu City, and

4. Tax Declaration No. GR2K-09-063-00583 registered under the name of HI showing that it has a commercial building constructed on the
preceding lot located along Bacalso Avenue, Cebu City with market value of P2,515,170.00.[19]

The NLRC promulgated its Decision on 22 January 2003 modifying the ruling of Labor Arbiter Gutierrez. The NLRC took into consideration
the documentary evidence presented by HI for the first time on appeal and, on the basis thereof, declared HI as a highly capitalized
venture with sufficient capitalization, which cannot be considered engaged in labor-only contracting.

On the charge of illegal dismissal, the NLRC ruled that:

The charge of illegal dismissal was prematurely filed. The record shows that barely eight (8) days from 15 July 2001 when the complainants
were placed on a temporary off-detail, they filed their complaints on 23 July 2001 and amended their complaints on 22 August
2001 against the respondents on the presumption that their services were already terminated. Temporary off-detail is not equivalent to
dismissal. x x x.[20]

The NLRC deleted Labor Arbiter Gutierrezs award of backwages and separation pay, but affirmed his award for 13th month pay and
attorneys fees equivalent to ten percent (10%) of the 13th month pay, to the petitioners.[21] Thus, the NLRC decreed in its 22 January
2003 Decision, the payment of the following reduced amounts to petitioners:
5

WHEREFORE, premises considered, the decision of Labor Arbiter Jose G. Gutierrez dated 7 January 2002 is MODIFIED, to wit:

Ordering respondents Helpmate, Inc. and Equitable PCI Bank to jointly and severally[22] pay the complainants of their 13th month pay and
attorneys fees in the aggregate amount of Forty-Three Thousand Four Hundred Seventy-Two and 00/100 (P43,472.00), broken down as
follows:

1. Aguirre, Modesto - P5,434.00

2. Ardimer, Alejandro - 5,434.00
3. Carcedo, Petronilo - 5,434.00
4. Dayday, Leonilo - 5,434.00
5. Juegos, Wilfredo - 5,434.00
6. Juntilla, Mario - 5,434.00
7. Paciencia, Cesar - 5,434.00
8. Sacil, Eleuterio - 5,434.00
TOTAL P43,472.00[23]

Petitioners Motion for Reconsideration was denied by the NLRC in its Resolution dated 1 July 2003.[24]

Distressed by the decision of the NLRC, petitioners sought recourse with the Court of Appeals by filing a Petition for Certiorari[25] under
Rule 65 of the 1997 Rules of Civil Procedure docketed as CA-G.R. SP No. 79912.

In its Decision dated 24 April 2006, the Court of Appeals affirmed the findings of the NLRC that HI was a legitimate job contractor and that
it did not illegally dismiss petitioners:

As to the question of whether or not, as a legitimate independent job contractor, respondent HI illegally dismissed the petitioners. We rule
in the negative.

It is undisputed that the contract between respondent HI and its client E-PCIBank expired on July 15, 2000. The record shows that after
said expiration, respondent HI offered the petitioners new work assignments to various establishments which are HIs clients. The
petitioners, therefore, were not even placed on floating status.They simply refused, without justifiable reason, to assume their new work
assignments which refusal was tantamount to abandonment. There being no illegal dismissal, petitioners are not entitled to backwages or
separation pay.[26]

The fallo of the 24 April 2006 Decision of the appellate court reads:

WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by us DENYING the petition filed in this case and AFFIRMING
the decision of the NLRC, Fourth Division, in NLRC Case No. V-000145-2003 promulgated on June 22, 2003.[27]

Petitioners now come before us via the instant Petition raising the following issues:

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ACTED IN EXCESS OF THEIR JURISDICTION AND/OR COMMITTED GRAVE ABUSE
OF DISCRETION IN UPHOLDING THE NLRC 4TH DIVISIONS DECISION AND GRAVELY ERRED IN:

I. ACCEPTING AND APPRECIATING THE PIECES OF EVIDENCE SUBMITTED BY RESPONDENTS DURING APPEAL, ALL EXISTING DURING THE
TIME THE NLRC RAB 7S TRIAL, CONTRARY TO THIS HONORABLE COURTS PREVIOUS ESTABLISHED DECISIONS.

II. REVERSING, WITHOUT ANY LEGAL BASIS, THE FACTUAL FINDING OF NLRC RAB 7 THAT THE RESPONDENT HI WAS LABOR ONLY
CONTRACTOR.

III. RULING, WITHOUT ANY LEGAL BASIS, THAT THE ILLEGAL DISMISSAL COMPLAINTS WERE PREMATURELY FILED.[28]

Before proceeding to the substantive issues, we first address the procedural issues raised by petitioners.

Petitioners object to the acceptance and consideration by the NLRC of the evidence presented by HI for the first time on appeal. This is not
a novel procedural issue, however, and our jurisprudence is already replete with cases[29] allowing the NLRC to admit evidence, not
presented before the Labor Arbiter, and submitted to the NLRC for the first time on appeal. Technical rules of evidence are not binding in
labor cases. Labor officials should use every reasonable means to ascertain the facts in each case speedily and objectively, without regard
to technicalities of law or procedure, all in the interest of due process.[30]

The submission of additional evidence before the NLRC is not prohibited by its New Rules of Procedure. After all, rules of evidence
prevailing in courts of law or equity are not controlling in labor cases. The NLRC and labor arbiters are directed to use every and all
reasonable means to ascertain the facts in each case speedily and objectively, without regard to technicalities of law and procedure all in
the interest of substantial justice. In keeping with this directive, it has been held that the NLRC may consider evidence, such as documents
and affidavits, submitted by the parties for the first time on appeal. The submission of additional evidence on appeal does not prejudice
the other party for the latter could submit counter-evidence.[31]

In Clarion Printing House, Inc. v. National Labor Relations Commission,[32] we again emphasized that:
6

[T]he NLRC is not precluded from receiving evidence, even for the first time on appeal, because technical rules of procedure are not
binding in labor cases.

The settled rule is that the NLRC is not precluded from receiving evidence on appeal as technical rules of evidence are not binding in labor
cases. In fact, labor officials are mandated by the Labor Code to use every and all reasonable means to ascertain the facts in each case
speedily and objectively, without regard to technicalities of law or procedure, all in the interest of due process. Thus, in Lawin Security
Services v. NLRC, and Bristol Laboratories Employees Association-DFA v. NLRC, we held that even if the evidence was not submitted to the
labor arbiter, the fact that it was duly introduced on appeal to the NLRC is enough basis for the latter to be more judicious in admitting the
same, instead of falling back on the mere technicality that said evidence can no longer be considered on appeal. Certainly, the first course
of action would be more consistent with equity and the basic notions of fairness.

For the same reasons, we cannot find merit in petitioners protestations against the documentary evidence submitted by HI because they
were mere photocopies. Evidently, petitioners are invoking the best evidence rule, espoused in Section 3, Rule130 of the Rules of Court. It
provides that:

Section 3. Original document must be produced; exceptions. When the subject of inquiry is the contents of a document, no evidence shall
be admissible other than the original document itself x x x.

The above provision explicitly mandates that when the subject of inquiry is the contents of a document, no evidence shall be admissible
other than the original document itself. Notably, certified true copies of these documents, acceptable under the Rules of Court[33] were
furnished to the petitioners. Even assuming that petitioners were given mere photocopies, again, we stress that proceedings before the
NLRC are not covered by the technical rules of evidence and procedure as observed in the regular courts. Technical rules of evidence do
not apply if the decision to grant the petition proceeds from an examination of its sufficiency as well as a careful look into the arguments
contained in position papers and other documents.[34]

Petitioners had more than adequate opportunity when they filed their motion for reconsideration before the NLRC, their Petition to the
Court of Appeals and even to this Court, to refute or present their counter-evidence to the documentary evidence presented by HI. Having
failed in this respect, petitioners cannot now be heard to complain about these documentary evidences presented by HI upon which the
NLRC and the Court of Appeals based its finding that HI is a legitimate job contractor.

The essence of due process is simply an opportunity to be heard, or as applied to administrative proceedings, a fair and reasonable
opportunity to explain one's side. It is also an opportunity to seek a reconsideration of the action or ruling complained of. It is not the
denial of the right to be heard but denial of the opportunity to be heard that constitutes violation of due process of law. Petitioners herein
were afforded every opportunity to be heard and to seek reconsideration of the adverse judgment against them. They had every
opportunity to strengthen their positions by presenting their own substantial evidence to controvert those submitted by E-PCIBank and HI
before the NLRC, and even before the Court of Appeals. It cannot win its case by merely raising unsubstantiated doubt or relying on the
weakness of the adverse parties evidence.
We now proceed to the resolution of the substantive issues submitted by petitioners for our consideration, particularly, whether HI is a
labor-only contactor and E-PCIBank should be deemed petitioners principal employer; and whether petitioners were illegally dismissed
from their employment.

Permissible job contracting or subcontracting refers to an arrangement whereby a principal agrees to put out or farm out to a contractor
or subcontractor the performance or completion of a specific job, work or service within a definite or predetermined period, regardless of
whether such job, work or service is to be performed or completed within or outside the premises of the principal.[35] A person is
considered engaged in legitimate job contracting or subcontracting if the following conditions concur:

(a) The contractor or subcontractor carries on a distinct and independent business and undertakes to perform the job, work or service on
its own account and under its own responsibility according to its own manner and method, and free from the control and direction of the
principal in all matters connected with the performance of the work except as to the results thereof;

(b) The contractor or subcontractor has substantial capital or investment; and

(c) The agreement between the principal and contractor or subcontractor assures the contractual employees entitlement to all labor and
occupational safety and health standards, free exercise of the right to self-organization, security of tenure, and social and welfare
benefits.[36]

In contrast, labor-only contracting, a prohibited act, is an arrangement where the contractor or subcontractor merely recruits, supplies or
places workers to perform a job, work or service for a principal.[37] In labor-only contracting, the following elements are present:

(a) The contractor or subcontractor does not have substantial capital or investment to actually perform the job, work or service under its
own account and responsibility; and

(b) The employees recruited, supplied or placed by such contractor or subcontractor are performing activities which are directly related to
the main business of the principal.[38]

In distinguishing between permissible job contracting and prohibited labor-only contracting,[39] we elucidated in Vinoya v. National Labor
Relations Commission,[40] that it is not enough to show substantial capitalization or investment in the form of tools,
7

equipment, etc. Other facts that may be considered include the following: whether or not the contractor is carrying on an independent
business; the nature and extent of the work; the skill required; the term and duration of the relationship; the right to assign the
performance of specified pieces of work; the control and supervision of the work to another; the employers power with respect to the
hiring, firing and payment of the contractors workers; the control of the premises; the duty to supply premises, tools, appliances, materials
and labor; and the mode and manner or terms of payment.[41] Simply put, the totality of the facts and the surrounding circumstances of
the case are to be considered.[42] Each case must be determined by its own facts and all the features of the relationship are to be
considered.[43]

In the case at bar, we find substantial evidence to support the finding of the NLRC, affirmed by the Court of Appeals, that HI is a legitimate
job contractor.

We take note that HI has been issued by the Department of Labor and Employment (DOLE) Certificate of Registration[44] Numbered VII-
859-1297-048. The said certificate states among other things:

CERTIFICATE OF REGISTRATION
Numbered VII-859-1297-048

is issued to

HELPMATE, INCORPORATED
330 N. Bacalso Avenue, Cebu City

for having complied with the requirements as provided for under the Labor Code, as amended, and its Implementing Rules and having
paid the registration fee in the amount of ONE HUNDRED PESOS (P100.00) per Official Receipt Number 9042769, dated October 16, 1997.

In witness whereof, and by authority vested in me by the Labor Code, as amended, and its Implementing Rules specifically Department
Order No. 10 series of 1997, I have hereunto set my hand and affixed the Official on this 23rd day of December 1997.[45]

Having been issued by a public officer, this certification carries with it the presumption that it was issued in the regular performance of
official duty.[46] In the absence of proof, petitioners bare assertion cannot prevail over this presumption. Moreover, the DOLE being the
agency primarily responsible for regulating the business of independent job contractors, we can presume in the absence of evidence to
the contrary that it thoroughly evaluated the requirements submitted by HI as a precondition to the issuance of the Cerificate of
Registration.

The evidence on record also shows that HI is carrying on a distinct and independent business from E-PCIBank. The employees of HI are
assigned to clients to perform janitorial and messengerial services, clearly distinguishable from the banking services in which E-PCIBank is
engaged.

Despite the afore-mentioned compliance by HI with the requisites for permissible job contracting, Labor Arbiter Gutierrez still declared
that HI was engaged in prohibited labor-only contracting because it did not possess substantial capital or investment to actually perform
the job, work or service under its own account or responsibility. Both the NLRC and the Court of Appeals ruled to the contrary, and we
agree.
Substantial capital or investment refers to capital stocks and subscribed capitalization in the case of corporations, tools, equipments,
implements, machineries and work premises, actually and directly used by the contractor or subcontractor in the performance or
completion of the job, work or service contracted out.[47] An independent contractor must have either substantial capital or investment
in the form of tools, equipment, machineries, work premises, among others. The law does not require both substantial capital and
investment in the form of tools, equipment, machineries, etc.[48] It is enough that it has substantial capital. In the case of HI, it has proven
both.

We have expostulated that once it is established that an entity such as in this case, HI has substantial capital, it was no longer necessary to
adduce further evidence to prove that it does not fall within the purview of labor-only contracting.[49] There is even no need for HI to
refute the contention of petitioners that some of the activities they performed such as those of messengerial services are directly related
to the principal business of E- PCIBank.

In any event, we have earlier declared that while these services rendered by the petitioners as janitors, messengers and drivers
are considered directly related to the principal business of a bank, in this case E-PCIBank, nevertheless, they are not necessary in the
conduct of its (E-PCIBANKs) principal business.[50]

HI has substantial capital in the amount of P20,939,935.72. It has its own building where it holds office and it has been engaged in business
for more than a decade now.[51] As observed by the Court of Appeals, surely, such a well-established business entity cannot be
considered a labor-only contractor.

Etched in an unending stream of cases are four standards in determining the existence of an employer-employee relationship, namely: (a)
the manner of selection and engagement of the putative employee; (b) the mode of payment of wages; (c) the presence or absence of
power of dismissal; and, (d) the presence or absence of control of the putative employees conduct. Most determinative among these
factors is the so-called control test.[52]

The presence of the first requisite for the existence of an employer-employee relationship to wit, the selection and engagement of the
employee is shown by the fact that it was HI which selected and engaged the services of petitioners as its employees. This is fortified by
the provision in the contract of services between HI and E-PCIBank which states:
8

Selection, Engagement, Discharge. [HI] shall have exclusive discretion in the selection, engagement, investigation, discipline and discharge
of its employees.[53]

On the second requisite regarding the payment of wages, it was HI who paid petitioners their wages and who provided their daily time
records and uniforms and other materials necessary for the work they performed. Therefore, it is HI who is responsible for petitioners
claims for wages and other employees benefits. Precisely, the contract of services between HI and E-PCIBank reveals the following:

Indemnity for Salaries and Benefits, etc. [HI] shall be responsible for the salaries, allowances, overtime and holiday pay, and other benefits
of its personnel including withholding taxes.[54]

As to the third requisite on the power to control the employees conduct, and the fourth requisite regarding the power of dismissal, again
E-PCIBank did not have the power to control petitioners with respect to the means and methods by which their work was to be
accomplished. It likewise had no power of dismissal over the petitioners. All that E-PCIBank could do was to report to HI any untoward act,
negligence, misconduct or malfeasance of any employee assigned to the premises. The contract of services between E-PCIBank and HI is
noteworthy. It states:

[HI] shall have the entire charge, control and supervision over all its employees who may be fielded to [E-PCIBank]. For this purpose, [HI]
shall assign a regular supervisor of its employees who may be fielded to the Bank and which regular supervisor shall exclusively supervise
and control the activities and functions defined in Section 1 hereof. x x x.[55]

All these circumstances establish that HI undertook said contract on its account, under its own responsibility, according to its own manner
and method, and free from the control and direction of E-PCIBank. Where the control of the principal is limited only to the result of the
work, independent job contracting exists. The janitorial service agreement between E-PCIBank and HI is definitely a case of permissible job
contracting.

Considering the foregoing, plus taking judicial notice of the general practice in private, as well as in government institutions and industries,
of hiring an independent contractor to perform special services,[56] ranging from janitorial, security and even technical services, we can
only conclude that HI is a legitimate job contractor. As such legitimate job contractor, the law creates an employer-employee relationship
between HI and petitioners[57]which renders HI liable for the latters claims.

In view of the preceding conclusions, petitioners will never become regular employees of E-PCIBank regardless of how long they were
working for the latter.[58]

We further rule that petitioners were not illegally dismissed by HI. Upon the termination of the Contract of Service between HI and E-
PCIBank, petitioners cannot insist to continue to work for the latter. Their pull-out from E-PCIBank did not constitute illegal dismissal
since, first, petitioners were not employees of E-PCIBank; and second, they were pulled out from said assignment due to the non-renewal
of the Contract of Service between HI and E-PCIBank. At the time they filed their complaints with the Labor Arbiter, petitioners were not
even dismissed by HI; they were only off-detail pending their re-assignment by HI to another client. And when they were actually given
new assignments by HI with other clients,[59] petitioners even refused the same. As the NLRC pronounced, petitioners complaint for
illegal dismissal is apparently premature.

WHEREFORE, premises considered, the Petition is DENIED for lack of merit. The Decision dated 24 April 2006 and Resolution dated 31
October 2006of the Court of Appeals are AFFIRMED. Costs against petitioners.

SO ORDERED.

[G.R. No. 116437. March 3, 1997]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PABLITO ANDAN y HERNANDEZ @ BOBBY,accused-appellant.
DECISION
PER CURIAM:
Accused-appellant Pablito Andan y Hernandez alias "Bobby" was accused of the crime of rape with homicide committed as follows:
"That on or about the 19th day of February 1994, in the municipality of xxx, province of xxx, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, with lewd design, by means of violence and intimidation, did then and there wilfully,
unlawfully and feloniously have carnal knowledge of one AAA against her will and without her consent; and the above-named accused in
order to suppress evidence against him and delay (sic) the identity of the victim, did then and there wilfully, unlawfully and feloniously,
with intent to kill the said AAA, attack, assault and hit said victim with concrete hollow blocks in her face and in different parts of her body,
thereby inflicting upon her mortal wounds which directly caused her death.
Contrary to Law."[1]
The prosecution established that on February 19, 1994 at about 4:00 P.M., in xxx, AAA, twenty years of age and a second-year student at
the xxx, left her home for her school dormitory in xxx. She was to prepare for her final examinations on February 21, 1994. AAA wore a
striped blouse and faded denim pants and brought with her two bags containing her school uniforms, some personal effects and more
than P2,000.00 in cash.
AAA was walking along the subdivision when appellant invited her inside his house. He used the pretext that the blood pressure of his
wife's grandmother should be taken. AAA agreed to take her blood pressure as the old woman was her distant relative. She did not know
that nobody was inside the house. Appellant then punched her in the abdomen, brought her to the kitchen and raped her. His lust sated,
appellant dragged the unconscious girl to an old toilet at the back of the house and left her there until dark. Night came and appellant
9

pulled AAA, who was still unconscious, to their backyard. The yard had a pigpen bordered on one side by a six-foot high concrete fence.
On the other side was a vacant lot. Appellant stood on a bench beside the pigpen and then lifted and draped the girl's body over the fence
to transfer it to the vacant lot. When the girl moved, he hit her head with a piece of concrete block. He heard her moan and hit her again
on the face. After silence reigned, he pulled her body to the other side of the fence, dragged it towards a shallow portion of the lot and
abandoned it.[2]
At 11:00 A.M. of the following day, February 20, 1994, the body of AAA was discovered. She was naked from the chest down with her
brassiere and T-shirt pulled toward her neck. Nearby was found a panty with a sanitary napkin.
The autopsy conducted by Dr. xxx revealed that AAA died of "traumatic injuries" sustained as follows:
"1. Abrasions:
1.1 chest and abdomen, multiple, superficial, linear, generally oblique from right to left.
2. Abrasions/contusions:
2.1 temple, right.
2.2 cheek, right.
2.3 upper and lower jaws, right.
2.4 breast, upper inner quadrant, right.
2.5 breast, upper outer quadrant, left.
2.6 abdomen, just above the umbilicus, rectangular, approximate 3 inches in width, from right MCL to left AAL.
2.7. elbow joint, posterior, bilateral.
3. Hematoma:
3.1 upper and lower eyelids, bilateral.
3.2 temple, lateral to the outer edge of eyebrow, right.
3.3 upper and lower jaws, right.
4. Lacerated wounds:
4.1 eyebrow, lateral border, right, 1/2 inch.
4.2 face, from right cheek below the zygoma to midline lower jaw, 4 inches.
5. Fractures:
5.1 maxillary bone, right.
5.2 mandible, multiple, complete, right, with avulsion of 1st and 2nd incisors.
6. Cerebral contusions, inferior surface, temporal and frontal lobes, right.
7. External genitalia
7.1 minimal blood present.
7.2 no signs of recent physical injuries noted on both labia, introitus and exposed vaginal wall.
8. Laboratory examination of smear samples from the vaginal cavity showed negative for spermatozoa (Bulacan Provincial Hospital,
February 22, 1994, by Dr. Wilfredo S. de Vera).
CAUSE OF DEATH: Cardiorespiratory Arrest due to Cerebral Contusions due to Traumatic Injuries, Face."[3]
AAA's gruesome death drew public attention and prompted Mayor xxx of xxx to form a crack team of police officers to look for the
criminal. Searching the place where AAA's body was found, the policemen recovered a broken piece of concrete block stained with what
appeared to be blood. They also found a pair of denim pants and a pair of shoes which were identified as AAA's.[4]
Appellant's nearby house was also searched by the police who found bloodstains on the wall of the pigpen in the backyard. They
interviewed the occupants of the house and learned from Romano Calma, the stepbrother of appellant's wife, that accused-appellant also
lived there but that he, his wife and son left without a word. Calma surrendered to the police several articles consisting of pornographic
pictures, a pair of wet short pants with some reddish brown stain, a towel also with the stain, and a wet T-shirt. The clothes were found in
the laundry hamper inside the house and allegedly belonged to appellant.[5]
The police tried to locate appellant and learned that his parents live in xxx. On February 24 at 11:00 P.M., a police team led by Mayor xxx
traced appellant in his parents' house. They took him aboard the patrol jeep and brought him to the police headquarters where he was
interrogated. Initially, appellant denied any knowledge of AAA's death. However, when the police confronted him with the concrete block,
the victim's clothes and the bloodstains found in the pigpen, appellant relented and said that his neighbors, Gilbert Larin and Reynaldo
Dizon, killed AAA and that he was merely a lookout. He also said that he knew where Larin and Dizon hid the two bags of
AAA.[6] Immediately, the police took appellant to his house. Larin and Dizon, who were rounded up earlier, were likewise brought there
by the police. Appellant went to an old toilet at the back of the house, leaned over a flower pot and retrieved from a canal under the pot,
two bags which were later identified as belonging to AAA. Thereafter, photographs were taken of appellant and the two other suspects
holding the bags.[7]
Appellant and the two suspects were brought back to the police headquarters. The following day, February 25, a physical examination was
conducted on the suspects by the Municipal Health Officer, Dr. xxx.[8] Appellant was found to sustain:
"HEENT: with multiple scratches on the neck Rt side. Chest and back: with abrasions (scratches at the back). Extremities: freshly-healed
wound along index finger 1.5 cm. in size Lt."[9]
By this time, people and media representatives were already gathered at the police headquarters awaiting the results of the investigation.
Mayor xxx arrived and proceeded to the investigation room. Upon seeing the mayor, appellant approached him and whispered a request
that they talk privately. The mayor led appellant to the office of the Chief of Police and there, appellant broke down and said "Mayor,
patawarin mo ako! I will tell you the truth. I am the one who killed AAA." The mayor opened the door of the room to let the public and
media representatives witness the confession. The mayor first asked for a lawyer to assist appellant but since no lawyer was available he
ordered the proceedings photographed and videotaped.[10] In the presence of the mayor, the police, representatives of the media and
appellant's own wife and son, appellant confessed his guilt. He disclosed how he killed AAA and volunteered to show them the place
where he hid her bags. He asked for forgiveness from Larin and Dizon whom he falsely implicated saying he did it because of ill-feelings
against them.[11] He also said that the devil entered his mind because of the pornographic magazines and tabloid he read almost
everyday.[12] After his confession, appellant hugged his wife and son and asked the mayor to help him.[13] His confession was captured
on videotape and covered by the media nationwide.[14]
Appellant was detained at the police headquarters. The next two days, February 26 and 27, more newspaper, radio and television
reporters came. Appellant was again interviewed and he affirmed his confession to the mayor and reenacted the crime.[15]
On arraignment, however, appellant entered a plea of "not guilty." He testified that in the afternoon of February 19, 1994 he was at his
parent's house in xxx attending the birthday party of his nephew. He, his wife and son went home after 5:00 P.M. His wife cooked dinner
10

while he watched their one-year old son. They all slept at 8:00 P.M. and woke up the next day at 6:00 in the morning. His wife went to
Manila to collect some debts while he and his son went to his parents' house where he helped his father cement the floor of the house.
His wife joined them in the afternoon and they stayed there until February 24, 1994 when he was picked up by the police.[16]
Appellant was brought by the police to a hotel at xxx. In one of the rooms, the policemen covered his face with a bedsheet and kicked him
repeatedly. They coerced him to confess that he raped and killed AAA. When he refused, they pushed his head into a toilet bowl and
injected something into his buttocks. Weakened, appellant confessed to the crime. Thereafter, appellant was taken to his house where he
saw two of his neighbors, Larin and Dizon. He was ordered by the police to go to the old toilet at the back of the house and get two bags
from under the flower pot. Fearing for his life, appellant did as he was told.[17]
In a decision dated August 4, 1994, the trial court convicted appellant and sentenced him to death pursuant to Republic Act No. 7659. The
trial court also ordered appellant to pay the victim's heirs P50,000.00 as death indemnity, P71,000.00 as actual burial expenses and
P100,000.00 as moral damages, thus:
"WHEREFORE, in view of the foregoing, Pablito Andan y Hernandez alias "Bobby" is found guilty by proof beyond a scintilla of doubt of the
crime charged in the Information (Rape with Homicide) and penalized in accordance with R.A. No. 7659 (Death Penalty Law) Sec. 11, Par.
8, classifying this offense as one of the heinous crimes and hereby sentences him to suffer the penalty of DEATH; to indemnify the family
of AAA the amount of P50,000.00 for the death of AAA and P71,000.00 as actual burial and incidental expenses and P100,000.00 as moral
damages. After automatic review of this case and the decision becomes final and executory, the sentence be carried out.
SO ORDERED."[18]
This case is before us on automatic review in accordance with Section 22 of Republic Act No. 7659 amending Article 47 of the Revised
Penal Code.
Appellant contends that:
"I THE LOWER COURT ERRED IN ADMITTING AND USING AS BASIS OF JUDGMENT OF CONVICTION THE TESTIMONIES OF THE POLICE
INVESTIGATORS, REPORTERS AND THE MAYOR ON THE ALLEGED ADMISSION OF THE ACCUSED DURING THE CUSTODIAL INVESTIGATION,
THE ACCUSED NOT BEING ASSISTED BY COUNSEL IN VIOLATION OF THE CONSTITUTION;
II THE LOWER COURT ERRED IN FINDING THAT THERE WAS RAPE WHEN THERE IS NO EVIDENCE OF ANY KIND TO SUPPORT IT;
III THE LOWER COURT ERRED IN MAKING A FINDING OF CONVICTION WHEN THE EVIDENCE IN ITS TOTALITY SHOWS THAT THE
PROSECUTION FAILED TO PROVE BEYOND REASONABLE DOUBT THE GUILT OF THE ACCUSED."[19]
The trial court based its decision convicting appellant on the testimonies of the three policemen of the investigating team, the mayor of
xxx and four news reporters to whom appellant gave his extrajudicial oral confessions. It was also based on photographs and video
footages of appellant's confessions and reenactments of the commission of the crime.
Accused-appellant assails the admission of the testimonies of the policemen, the mayor and the news reporters because they were made
during custodial investigation without the assistance of counsel. Section 12, paragraphs (1) and (3) of Article III of the Constitution
provides:
"SECTION 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) x x x
(3)Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.
(4) x x x"
Plainly, any person under investigation for the commission of an offense shall have the right (1) to remain silent; (2) to have competent
and independent counsel preferably of his own choice; and (3) to be informed of such rights. These rights cannot be waived except in
writing and in the presence of counsel.[20] Any confession or admission obtained in violation of this provision is inadmissible in evidence
against him.[21] The exclusionary rule is premised on the presumption that the defendant is thrust into an unfamiliar atmosphere and
runs through menacing police interrogation procedures where the potentiality for compulsion, physical and psychological, is forcefully
apparent.[22] The incommunicadocharacter of custodial interrogation or investigation also obscures a later judicial determination of what
really transpired.[23]
It should be stressed that the rights under Section 12 are accorded to "[a]ny person under investigation for the commission of an offense."
An investigation begins when it is no longer a general inquiry into an unsolved crime but starts to focus on a particular person as a suspect,
i.e., when the police investigator starts interrogating or exacting a confession from the suspect in connection with an alleged
offense.[24] As intended by the 1971 Constitutional Convention, this covers "investigation conducted by police authorities which will
include investigations conducted by the municipal police, the PC and the NBI and such other police agencies in our government."[25]
When the police arrested appellant, they were no longer engaged in a general inquiry about the death of AAA. Indeed, appellant was
already a prime suspect even before the police found him at his parents' house. This is clear from the testimony of SPO4 xxx, the police
chief investigator of the crime, viz:
"COURT How did you come about in concluding that it was accused who did this act?
WITNESS First, the place where AAA was last found is at the backyard of the house of the accused. Second, there were blood stains
at the pigpen, and third, when we asked Romano Calma who were his other companions in the house, he said that, it was Pablito Andan
who cannot be found at that time and whose whereabouts were unknown, sir.
Q So you had a possible suspect?
A Yes, sir.
Q You went looking for Pablito Andan?
A Yes, sir.
Q And then, what else did you do?
A We tried to find out where we can find him and from information we learned that his parents live in xxx. We went there,
found him there and investigated him and in fact during the investigation he admitted that he was the culprit."[26]
Appellant was already under custodial investigation when he confessed to the police. It is admitted that the police failed to inform
appellant of his constitutional rights when he was investigated and interrogated.[27] His confession is therefore inadmissible in evidence.
So too were the two bags recovered from appellant's house. SPO2 xxx, a member of the investigating team testified:
"Atty. Valmores: You told the court that you were able to recover these bags marked as Exhs. B and B-1 because accused pointed to them,
where did he point these bags?
A At the police station, sir, he told us that he hid the two (2) bags beneath the canal of the toilet.
Q In other words, you were given information where these two (2) bags were located?
11

A Yes, sir.
Q And upon being informed where the two (2) bags could be located what did you do?
A We proceeded to the place together with the accused so that we would know where the two (2) bags were hidden, sir.
Q And did you see actually those two (2) bags before the accused pointed to the place where the bags were located?
A After he removed the broken pots with which he covered the canal, he really showed where the bags were hidden underneath the
canal, sir."[28]
The victim's bags were the fruits of appellant's uncounselled confession to the police. They are tainted evidence, hence also
inadmissible.[29]
The police detained appellant after his initial confession. The following day, Mayor xxx visited the appellant. Appellant approached the
mayor and requested for a private talk. They went inside a room and appellant confessed that he alone committed the crime. He pleaded
for forgiveness. Mayor xxx testified, viz:
"Mayor xxx: x x x. During the investigation when there were already many people from the media, Andan whispered something to me and
requested that he be able to talk to me alone, so what I did was that, I brought him inside the office of the chief of police.
Private Prosecutor Principe: And so what happened inside the office of the Chief of Police, mayor?
A While inside the office of the headquarters he told me "Mayor patawarin mo ako,! I will tell you the truth. I am the one who killed
AAA." So when he was telling this to me, I told him to wait a while, then I opened the door to allow the media to hear what he was going
to say and I asked him again whether he was the one who did it, he admitted it, sir. This was even covered by a television camera."[30]
xxx xxx xxx
Q During that time that Pablito Andan whispered to you that he will tell you something and then you responded by bringing him inside
the office of the Chief of Police and you stated that he admitted that he killed AAA . . .
Court: He said to you the following words . . .
Atty. Principe: He said to you the following words "Mayor, patawarin mo ako! Ako ang pumatay kay AAA," was that the only admission
that he told you?
A The admission was made twice. The first one was, when we were alone and the second one was before the media people, sir.
Q What else did he tell you when you were inside the room of the Chief of Police?
A These were the only things that he told me, sir. I stopped him from making further admissions because I wanted the media people to
hear what he was going to say, sir."[31]
Under these circumstances, it cannot be successfully claimed that appellant's confession before the mayor is inadmissible. It is true that a
municipal mayor has "operational supervision and control" over the local police[32] and may arguably be deemed a law enforcement
officer for purposes of applying Section 12 (1) and (3) of Article III of the Constitution. However, appellant's confession to the mayor was
not made in response to any interrogation by the latter.[33] In fact, the mayor did not question appellant at all. No police authority
ordered appellant to talk to the mayor. It was appellant himself who spontaneously, freely and voluntarily sought the mayor for a private
meeting. The mayor did not know that appellant was going to confess his guilt to him. When appellant talked with the mayor as a
confidant and not as a law enforcement officer, his uncounselled confession to him did not violate his constitutional rights.[34] Thus, it has
been held that the constitutional procedures on custodial investigation do not apply to a spontaneous statement, not elicited through
questioning by the authorities, but given in an ordinary manner whereby appellant orally admitted having committed the crime.[35] What
the Constitution bars is the compulsory disclosure of incriminating facts or confessions. The rights under Section 12 are guaranteed to
preclude the slightest use of coercion by the state as would lead the accused to admit something false, not to prevent him from freely and
voluntarily telling the truth.[36] Hence we hold that appellant's confession to the mayor was correctly admitted by the trial court.
Appellant's confessions to the media were likewise properly admitted. The confessions were made in response to questions by news
reporters, not by the police or any other investigating officer. We have held that statements spontaneously made by a suspect to news
reporters on a televised interview are deemed voluntary and are admissible in evidence.[37]
The records show that Alex Marcelino, a television reporter for "Eye to Eye" on Channel 7, interviewed appellant on February 27, 1994.
The interview was recorded on video and showed that appellant made his confession willingly, openly and publicly in the presence of his
wife, child and other relatives.[38] Orlan Mauricio, a reporter for "Tell the People" on Channel 9 also interviewed appellant on February
25, 1994. He testified that:
"Atty. Principe: You mentioned awhile ago that you were able to reach the place where the body of AAA was found, where did you start
your interview, in what particular place?
Mr. Mauricio: Actually, I started my newsgathering and interview inside the police station of xxx and I identified myself to the accused as I
have mentioned earlier, sir. At first, I asked him whether he was the one who raped and killed the victim and I also learned from him that
the victim was his cousin.
Q And what was the response of Pablito Andan?
A His response was he is a cousin of the victim and that he was responsible for raping and killing the victim, sir. And then I asked him
whether his admission was voluntary or that there was a threat, intimidation or violence that was committed on his person because I
knew that there were five other suspects in this case and he said that he was admitting it voluntarily to the policemen. I asked him
whether he was under the influence of drugs but he said no, and "nakainom lang," sir.
Q You mentioned earlier that the uncle of the accused was present, was the uncle beside him at the time that you asked the question?
A The uncle was there including the barangay captain whose name I cannot recall anymore. A barangay captain of the place, I don't
know if it is the place of the crime scene or in the place where AAA resides but . . . All throughout the scene inside the office of the Station
Commander, there was no air of any force or any threatening nature of investigation that was being done on the suspect, that is why, I
was able to talk to him freely and in a voluntary manner he admitted to me that he was the one who raped and killed, so we went to the
next stage of accompanying me to the scene of the crime where the reenactment and everything that transpired during the killing of AAA.
Q Before you started that interview, did you inform or ask permission from the accused Pablito Andan that you were going to interview
him?
A Yes, sir.
xxx
Q You mentioned that after interviewing the accused at the office of the xxx PNP, you also went to the scene of the crime?
A Yes, sir.
Q Who accompanied you?
A I was accompanied by some xxx policemen including Mayor xxx and some of the relatives of the accused.
Q At this time, did you see the wife of the accused, Pablito Andan?
12

A Yes, sir, I saw her at the place where the body of AAA was recovered.
Q How many relatives of accused Pablito Andan were present, more or less?
A There were many, sir, because there were many wailing, weeping and crying at that time when he was already taken in the patrol jeep
of the xxx police, sir.
Q Now, Mr. Mauricio, upon reaching the scene of the crime in xxx, what transpired?
A I started my work as a reporter by trying to dig deeper on how the crime was committed by the accused, so we started inside the
pigpen of that old house where I tried to accompany the accused and asked him to narrate to me and show me how he carried out the
rape and killing of AAA, sir.
Q Did he voluntarily comply?
A Yes, sir, in fact, I have it on my videotape.
Q It is clear, Mr. Mauricio, that from the start of your interview at the PNP xxx up to the scene of the crime, all the stages were
videotaped by you?
A Yes, sir.[39]
Journalist Berteni Causing of "People's Journal Tonite" likewise covered the proceedings for three successive days.[40] His testimony is as
follows:
"Atty. Principe: You mentioned that you had your own inquiries?
A We asked first permission from the mayor to interrupt their own investigation so that we can have a direct interview with the suspect.
Q Were there people?
A The people present before the crowd that included the mayor, the deputy chief of police, several of the policemen, the group of Inday
Badiday and several other persons. I asked the suspect after the mayor presented the suspect to us and after the suspect admitted that he
was the one who killed AAA. I reiterated the question to the suspect. Are you aware that this offense which is murder with . . . rape with
murder is a capital offense? And you could be sentenced to death of this? And he said, Yes. So do you really admit that you were the one
who did it and he repeated it, I mean, say the affirmative answer.
Q And that was in the presence of the crowd that you mentioned a while ago?
A Yes, yes, sir. And if I remember it right, as I took my camera to take some pictures of the suspect, the mayor, the policemen and
several others, I heard the group of Inday Badiday asking the same questions from the suspect and the suspect answered the same.
Q Also in the presence of so many people that you mentioned?
A The same group of people who were there, sir.
Q You mentioned that the answer was just the same as the accused answered you affirmatively, what was the answer, please be
definite?
Court: Use the vernacular.
A I asked him the question, after asking him the question," Ikaw ba talaga and gumawa ng pagpatay at pag-rape sa kay AAA? Ang sagot
nya, "Oo." "Alam mo ba itong kasalanang ito, kamatayan ang hatol, inaamin mo pa ba na ikaw ang gumawa sa pagpatay at pag-rape kay
AAA?" Sagot pa rin siya ng "Oo."
xxx
Q Did you ask him, why did you kill AAA?
A I asked him, your Honor and the reason he told me was because a devil gripped his mind and because of that according to him, your
Honor, were the pornographic magazines, pornographic tabloids which he, according to him, reads almost everyday before the crime.
Atty. Principe: At the time of your interview, Mr. Reporter, will you tell the court and the public what was the physical condition of
accused Pablito Andan?
A As I observed him that time there was no sign on his body that he was really down physically and I think he was in good condition.
Court: So he was not happy about the incident?
A He even admitted it, your Honor.
Court: He was happy?
A He admitted it. He was not happy after doing it.
Court: Was he crying?
A As I observed, your Honor, the tears were only apparent but there was no tear that fell on his face.
Court: Was he feeling remorseful?
A As I observed it, it was only slightly, your Honor.
x x x"[41]
Another journalist, Rey Domingo, of "Bandera" interviewed appellant on February 26, 1994.[42] He also testified that:
"Atty. Principe: Now, Mr. Witness, did the accused Pablito Andan give you the permission that you asked from him?
A Yes, sir.
Q And when he allowed you to interview him, who were present?
A The first person that I saw there was Mayor xxx, policemen from xxx, the chief investigator, SPO4 xxx, and since xxx, the chief of police
was suspended, it was the deputy who was there, sir.
Q Were they the only persons who were present when you interviewed the accused?
A There were many people there, sir. The place was crowded with people. There were people from the PNP and people from xxx, sir.
Q How about the other representatives from the media?
A Roy Reyes, Orlan Mauricio arrived but he arrived late and there were people from the radio and from TV Channel 9.
Q How about Channel 7?
A They came late. I was the one who got the scoop first, sir.
Q You stated that the accused allowed you to interview him, was his wife also present?
A Yes, sir, and even the son was there but I am not very sure if she was really the wife but they were hugging each other and she was
crying and from the questions that I asked from the people there they told me that she is the wife, sir.
Q How about the other members of the family of the accused, were they around?
A I do not know the others, sir, but there were many people there, sir.
Q Now, according to you, you made a news item about the interview. May we know what question did you ask and the answer.
A My first question was, is he Pablito Andan and his answer was "Yes."
Q What was the next question?
13

A I asked him how he did the crime and he said that, he saw the victim aboard a tricycle. He called her up. She entered the house and he
boxed her on the stomach.
Q What was the next question that you asked him?
A He also said that he raped her and he said that the reason why he killed the victim was because he was afraid that the incident might
be discovered, sir.
Q Now, after the interview, are we correct to say that you made a news item on that?
A Yes, sir, based on what he told me. That's what I did.
Q Were there other questions propounded by you?
A Yes, sir.
Q "Ano iyon?"
A He said that he threw the cadaver to the other side of the fence, sir.
Q Did he mention how he threw the cadaver of AAA to the other side of the fence?
A I cannot remember the others, sir.
Q But can you produce the news item based on that interview?
A I have a xerox copy here, sir.
x x x"[43]
Clearly, appellant's confessions to the news reporters were given free from any undue influence from the police authorities. The news
reporters acted as news reporters when they interviewed appellant.[44] They were not acting under the direction and control of the
police. They were there to check appellant's confession to the mayor. They did not force appellant to grant them an interview and reenact
the commission of the crime.[45] In fact, they asked his permission before interviewing him. They interviewed him on separate days not
once did appellant protest his innocence. Instead, he repeatedly confessed his guilt to them. He even supplied all the details in the
commission of the crime, and consented to its reenactment. All his confessions to the news reporters were witnessed by his family and
other relatives. There was no coercive atmosphere in the interview of appellant by the news reporters.
We rule that appellant's verbal confessions to the newsmen are not covered by Section 12 (1) and (3) of Article III of the Constitution. The
Bill of Rights does not concern itself with the relation between a private individual and another individual.[46] It governs the relationship
between the individual and the State. The prohibitions therein are primarily addressed to the State and its agents. They confirm that
certain rights of the individual exist without need of any governmental grant, rights that may not be taken away by government, rights
that government has the duty to protect.[47] Governmental power is not unlimited and the Bill of Rights lays down these limitations to
protect the individual against aggression and unwarranted interference by any department of government and its agencies.[48]
In his second assigned error, appellant questions the sufficiency of the medical evidence against him. Dr. xxx, a Medical Specialist with the
Provincial Health Office, conducted the first autopsy and found no spermatozoa and no recent physical injuries in the
hymen.[49] Allegedly, the minimal blood found in her vagina could have been caused by her menstruation.[50]
We are unpersuaded. A second autopsy was conducted on March 1, 1994 by Dr. xxx, a medico-legal officer of the National Bureau of
Investigation. His findings affirmed the absence of spermatozoa but revealed that the victim's hymen had lacerations, thus:
"Hymen -- contracted, tall, thin with fresh lacerations with clotted blood at 6 and 3 o'clock positions corresponding to the walls of the
clock."[51]
Dr. xxx testified that the lacerations were fresh and that they may have been caused by an object forcibly inserted into the vagina when
the victim was still alive, indicating the possibility of penetration.[52] His testimony is as follows:
"Witness: When I exposed the hymen, I found lacerations in this 3 o'clock and 6 o'clock position corresponding to the walls of the clock. x x
x.
Court: Include the descriptive word, fresh.
Witness: I put it in writing that this is fresh because within the edges of the lacerations, I found blood clot, that is why I put it into writing
as fresh.
Atty. Valmonte: Now, Doctor, you told the Court that what you did on the cadaver was merely a re-autopsy, that means, doctor the body
was autopsied first before you did you re-autopsy?
A Yes, sir.
Q Could it not be, doctor, that these injuries you found in the vagina could have been sustained on account of the dilation of the
previous autopsy?
A Well, we presumed that if the first doctor conducted the autopsy on the victim which was already dead, no amount of injury or no
amount of lacerated wounds could produce blood because there is no more circulation, the circulation had already stopped. So, I
presumed that when the doctor examined the victim with the use of forceps or retractor, vaginal retractor, then I assumed that the victim
was already dead. So it is impossible that the lacerated wounds on the hymen were caused by those instruments because the victim was
already dead and usually in a dead person we do not produce any bleeding.
Q What you would like to tell the Court is this: that the lacerations with clotted blood at 6 and 3 o'clock positions corresponding to the
walls of the clock could have been inflicted or could have been sustained while the victim was alive?
A Yes, sir.
Q This clotted blood, according to you, found at the edges of the lacerated wounds, now will you kindly go over the sketch you have just
drawn and indicate the edges of the lacerated wounds where you found the clotted blood?
A This is the lacerated wound at 3 o'clock and this is the lacerated wound at 6 o'clock. I found the blood clot at this stage. The clotted
blood are found on the edges of the lacerated wounds, sir.
Q What could have caused those lacerations?
A Well, it could have been caused by an object that is forcibly inserted into that small opening of the hymen causing lacerations on the
edges of the hymen, sir.
Q If the victim had sexual intercourse, could she sustain those lacerations?
A It is possible, sir.[53]
We have also ruled in the past that the absence of spermatozoa in the vagina does not negate the commission rape[54] nor does the lack
of complete penetration or rupture of the hymen.[55] What is essential is that there be penetration of the female organ no matter how
slight.[56] Dr. xxx testified that the fact of penetration is proved by the lacerations found in the victim's vagina. The lacerations were fresh
and could not have been caused by any injury in the first autopsy.
Dr. xxx's finding and the allegation that the victim was raped by appellant are supported by other evidence, real and testimonial, obtained
from an investigation of the witnesses and the crime scene, viz:
14

(1) The victim, AAA, was last seen walking along the subdivision road near appellant's house;[57]
(2) At that time, appellant's wife and her step brother and grandmother were not in their house;[58]
(3) A bloodstained concrete block was found over the fence of appellant's house, a meter away from the wall. Bloodstains were also found
on the grass nearby and at the pigpen at the back of appellant's house;[59]
(4) The victim sustained bruises and scars indicating that her body had been dragged over a flat rough surface.[60] This supports the thesis
that she was thrown over the fence and dragged to where her body was found;
(5) Appellant's bloodstained clothes and towel were found in the laundry hamper in his house;
(6) The reddish brown stains in the towel and T-shirt of appellant were found positive for the presence of blood type "B," the probable
blood type of the victim.[61] AAA's exact blood type was not determined but her parents had type "A" and type "AB."[62] The victim's
pants had bloodstains which were found to be type "O," appellant's blood type;[63]
(7) Appellant had scratch marks and bruises in his body which he failed to explain;[64]
(8) For no reason, appellant and his wife left their residence after the incident and were later found at his parents' house in xxx;[65]
In fine, appellant's extrajudicial confessions together with the other circumstantial evidence justify the conviction of appellant.
Appellant's defense of alibi cannot overcome the prosecution evidence. His alibi cannot even stand the test of physical improbability at the
time of the commission of the crime. Xxx is only a few kilometers away from xxx and can be traversed in less than half an hour.[66]
IN VIEW WHEREOF, the decision of the Regional Trial Court, Branch 15, Malolos, Bulacan in Criminal Case No. 1109-M-94 is affirmed and
accused-appellant Pablito Andan y Hernandez is found guilty of the special complex crime of rape with homicide under Section 11 of
Republic Act No. 7659 amending Article 335 of the Revised Penal Code and is sentenced to the penalty of death, with two (2) members of
the Court, however, voting to impose reclusion perpetua. Accused-appellant is also ordered to indemnify the heirs of the victim, AAA, the
sum of P50,000.00 as civil indemnity for her death and P71,000.00 as actual damages.
In accordance with Section 25 of Republic Act No. 7659 amending Article 83 of the Revised Penal Code, upon finality of this decision, let
the records of this case be forthwith forwarded to the Office of the President for possible exercise of the pardoning power.
SO ORDERED.
505 Phil. 71

CHICO-NAZARIO, J.:
This is a petition for review on certiorari of the Decision[1] promulgated on 22 May 2002 of the Court of Appeals in CA-G.R. CR No. 24818
which affirmed, with modification, the trial court's[2] decision finding petitioner Cirse Francisco "Choy" Torralba guilty of the crime of libel
in Criminal Case No. 9107.

Culled from the records are the following facts:

Petitioner Torralba was the host of a radio program called "Tug-Ani ang Lungsod" which was aired over the radio station DYFX in Cebu City.
On 12 September 1994, an information for libel was filed before the Regional Trial Court (RTC) of Tagbilaran City against petitioner
Torralba. The information states:

The undersigned, City Prosecutor II, City of Tagbilaran, Philippines, hereby accuses CIRSE FRANCISCO "CHOY" TORRALBA for the crime of
Libel, committed as follows:

That, on or about the 11th day of April, 1994, in the City of Tagbilaran, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, did then and there willfully, unlawfully and feloniously, with deliberate and malicious intent of maligning,
impeaching and discrediting the honesty, integrity, reputation, prestige and honor of late CFI Judge Agapito Y. Hontanosas, who was
during his [lifetime] a CFI Judge of Cebu and a man of good reputation and social standing in the community and for the purpose of
exposing him to public hatred, contempt, disrespect and ridicule, in his radio program "TUG-ANI AND LUNGSOD" (TELL THE PEOPLE) over
radio station DYFX, openly, publicly and repeatedly announce[d] the following: "KINING MGA HONTANOSAS, AGAPITO HONTANOSAS UG
CASTOR HONTANOSAS, MGA COLLABORATOR SA PANAHON SA GUERRA. SA ATO PA, TRAYDOR SA YUTANG NATAWHAN." X X X. "DUNAY
DUGO NGA PAGKATRAYDOR ANG AMAHAN NI MANOLING HONTANOSAS," which in English means: "THESE HONTANOSAS, AGAPITO
HONTANOSAS AND CASTOR HONTANOSAS, ARE COLLABORATORS DURING THE WAR. IN OTHER WORDS, THEY ARE TRAITORS TO THE
LAND OF THEIR BIRTH." X X X. "THE FATHER OF MANOLING HONTANOSAS HAD TREACHEROUS BLOOD," and other words of similar import,
thereby maliciously exposing the family of the late Judge Agapito Hontanosas including Atty. Manuel L. Hontanosas,[3] one of the
legitimate children of [the] late CFI Judge Agapito Y. Hontanosas to public hatred, dishonor, discredit, contempt and ridicule causing the
latter to suffer social humiliation, embarrassment, wounded feelings and mental anguish, to the damage and prejudice of said Atty.
Manuel L. Hontanosas in the amount to be proved during the trial of the case.

Acts committed contrary to the provisions of Article 353 of the Revised Penal Code in relation to Article 355 of the same Code.

City of Tagbilaran, Philippines, September 8, 1994.

(SGD.) ADRIANO P. MONTES

City Prosecutor II
APPROVED:
(SGD) MARIANO CAPAYAS
City Prosecutor[4]
Upon arraignment on 12 March 1996, petitioner Torralba pleaded not guilty to the crime he was charged with.[5]

On 14 May 1998, petitioner Torralba filed before the RTC, Branch 1, Tagbilaran City, where Crim. Case No. 9107 was raffled off, a motion
for consolidation[6] alleging therein that private complainant Atty. Manuel Hontanosas (Atty. Hontanosas) filed a total of four (4) criminal
cases for libel against petitioner Torralba, three of which - Crim. Cases No. 8956, No. 8957, and No. 8958 - were then pending with the
RTC, Branch III, Tagbilaran City. As the evidence for the prosecution as well as the defense were substantially the same, petitioner Torralba
moved that Crim. Case No. 9107 be consolidated with the three other cases so as to save time, effort, and to facilitate the early disposition
15

of these cases.

In its order dated 25 May 1998,[7] the motion for consolidation filed by petitioner Torralba was granted by the RTC, Branch 1, Tagbilaran
City.

During the trial on the merits of the consolidated cases, the prosecution presented as witnesses Segundo Lim, private complainant Atty.
Hontanosas, and Gabriel Sarmiento.

Lim testified that he was one of the incorporators of the Tagbilaran Maritime Services, Inc. (TMSI) and was at that time the assigned
manager of the port in Tagbilaran City. According to him, sometime during the Marcos administration, petitioner Torralba sought TMSI's
sponsorship of his radio program. This request was approved by private complainant Atty. Hontanosas who was then the president of
TMSI. During the existence of said sponsorship agreement, the management of TMSI noticed that petitioner Torralba was persistently
attacking former Bureau of Internal Revenue Deputy Director Tomas Toledo and his brother Boy Toledo who was a customs collector.
Fearing that the Toledos would think that TMSI was behind the incessant criticisms hurled at them, the management of TMSI decided to
cease sponsoring petitioner Torralba's radio show. In effect, the TMSI sponsored "Tug-Ani ang Lungsod" for only a month at the cost of
P500.00.

Soon thereafter, petitioner Torralba took on the management of TMSI. Lim testified that petitioner Torralba accused TMSI of not
observing the minimum wage law and that said corporation was charging higher handling rates than what it was supposed to collect.

On 17 December 1993, private complainant Atty. Hontanosas went on-air in petitioner Torralba's radio program to explain the side of
TMSI. The day after said incident, however, petitioner Torralba resumed his assault on TMSI and its management. It was petitioner
Torralba's relentless badgering of TMSI which allegedly prompted Lim to tape record petitioner Torralba's radio broadcasts. Three of the
tape recordings were introduced in evidence by the prosecution, to wit:

Exhibit B - tape recording of 19 January 1994[8]

Exhibit C - tape recording of 25 January 1994[9]
Exhibit D - tape recording of 11 April 1994[10]

During his testimony, Lim admitted that he did not know how to operate a tape recorder and that he asked either his adopted daughter,
Shirly Lim, or his housemaid to record petitioner Torralba's radio program. He maintained, however, that he was near the radio whenever
the recording took place and had actually heard petitioner Torralba's radio program while it was being taped. This prompted petitioner
Torralba to pose a continuing objection to the admission of the said tape recordings for lack of proper authentication by the person who
actually made the recordings. In the case of the subject tape recordings, Lim admitted that they were recorded by Shirly Lim. The trial
court provisionally admitted the tape recordings subject to the presentation by the prosecution of Shirly Lim for the proper authentication
of said pieces of evidence. Despite petitioner Torralba's objection to the formal offer of these pieces of evidence, the court a quo
eventually admitted the three tape recordings into evidence.[11]

It was revealed during Lim's cross-examination[12] that petitioner Torralba previously instituted a criminal action for libel[13] against the
former arising from an article published in the Sunday Post, a newspaper of general circulation in the provinces of Cebu and Bohol. In said
case, Lim was found guilty as charged by the trial court[14]and this decision was subsequently affirmed, with modification, by the Court of
Appeals in its decision promulgated on 29 July 1996 in CA-G.R. CR No. 16413 entitled, "People of the Philippines v. Segundo Lim and Boy
Guingguing."[15] In our resolution of 04 December 1996, we denied Lim's petition for review on certiorari.[16]

For his part, private complainant Atty. Hontanosas testified that he was at that time the chairman and manager of TMSI; that on 20
January 1994, Lim presented to him a tape recording of petitioner Torralba's radio program aired on 18 January 1994 during which
petitioner Torralba allegedly criticized him and stated that he was a person who could not be trusted; that in his radio show on 25 January
1994, petitioner Torralba mentioned that "he was now [wary] to interview any one because he had a sad experience with someone who
betrayed him and this "someone" was like his father who was a collaborator"; that on 12 April 1994, Lim brought to his office a tape
recording of petitioner Torralba's radio program of 11 April 1994 during which petitioner Torralba averred that the Hontanosas were
traitors to the land of their birth; that Judge Agapito Hontanosas and Castor Hontanosas were collaborators during the Japanese
occupation; and that after he informed his siblings regarding this, they asked him to institute a case against petitioner Torralba.[17]

When he was cross-examined by petitioner Torralba's counsel, private complainant Atty. Hontanosas disclosed that he did not actually
hear petitioner Torralba's radio broadcasts and he merely relied on the tape recordings presented to him by Lim as he believed them to be
genuine.[18]

Sarmiento testified that he was the former court stenographer and interpreter of RTC, Branch 3, Tagbilaran City, and that he translated
the contents of the tape recordings in 1994 upon the request of private complainant Atty. Hontanosas.

The defense presented, as its sole witness, petitioner Torralba himself. Petitioner Torralba maintained that he was a member of
the Kapisanan ng mga Brodkaster ng Pilipinas and other civic organizations in Cebu. In the course of his profession as a radio broadcaster,
he allegedly received complaints regarding the services of TMSI particularly with respect to the laborers' low pay and exhorbitant rates
being charged for the arrastre services. As he was in favor of balanced programming, petitioner Torralba requested TMSI to send a
representative to his radio show in order to give the corporation an opportunity to address the issues leveled against it; thus, the radio
interview of private complainant Atty. Hontanosas on 17 December 1993.

When petitioner Torralba was cross-examined by private complainant Atty. Hontanosas,[19] he denied having called former CFI Judge
Hontanosas a traitor during his 11 April 1994 radio broadcast. Petitioner Torralba admitted, though, that during the 17 December 1993
appearance of private complainant Atty. Hontanosas in his radio program, he did ask the latter if he was in any way related to the late CFI
Judge Hontanosas. Petitioner Torralba averred that he posed said question as mere backgrounder on his interviewee.
16

On 24 August 2000, the trial court rendered an omnibus decision[20] acquitting petitioner Torralba in Crim. Cases No. 8956, No. 8957, and
No. 8958 but holding him guilty of the crime of libel in Crim. Case No. 9107. The dispositive portion of the trial court's decision reads:

WHEREFORE, in view of all the foregoing, the Court hereby ACQUITS from criminal liability herein accused Cirse Francisco Choy Torralba of
the charges alluded in Criminal Cases Nos. 8956, 8957, and 8958 being an exercise of legitimate self-defense, as afore-discussed.
Consequently, the corresponding cash bonds of the accused in said cases as shown by OR No. 5301156, No. 5301157, and No. 5301158, all
dated February 23, 2000, issued by the Clerk of Court of Multiple Salas in the amount of P4,200.00 each representing cash deposits
therefore are hereby cancelled and released.

However, the Court finds the same accused GUILTY beyond reasonable doubt in Crim. Case No. 9107 for his unwarranted blackening of the
memory of the late Hon. CFI Judge Agapito Y. Hontanosas through the air lanes in his radio program resulting to the dishonor and
wounded feelings of his children, grandchildren, relatives, friends, and close associates. For this, the Court hereby sentences the accused
to imprisonment for an indeterminate period of FOUR MONTHS of Arresto Mayor to THREE YEARS of Prision Correccional medium period
pursuant to Art. 353 in relation to Art. 354 and Art. 355 of the Revised Penal Code under which the instant case falls. Furthermore, he is
ordered to indemnify the heirs of the late Judge Agapito Y. Hontanosas for moral damages suffered in the amount of ONE MILLION PESOS
(P1,000,000.00), as prayed for, considering their good reputation and high social standing in the community and the gravity of the
dishonor and public humiliation caused.[21]
Petitioner Torralba seasonably filed an appeal before the Court of Appeals which, in the challenged decision before us, affirmed, with
modification, the findings of the court a quo, thus:

WHEREFORE, the appealed Decision of the court a quo is AFFIRMED with the modification that accused-appellant is hereby sentenced to
suffer imprisonment of four (4) months of arresto mayor to two (2) years, eleven (11) months and ten (10) days of prision correccional and
to pay moral damages in the amount of P100,000.00.[22]
Hence, the present recourse where petitioner Torralba raises the following issues:

THE HONORABLE COURT OF APPEALS SPEAKING THROUGH ITS SPECIAL FIFTEENTH DIVISION GRAVELY ERRED IN AFFIRMING THE DECISION
OF THE LOWER COURT A QUO (WITH MODIFICATION), CONVICTING PETITIONER-APPELLANT [TORRALBA] FOR THE CRIME OF LIBEL AS
DEFINED AND PENALIZED UNDER ARTICLES 353 AND 355 OF THE REVISED PENAL CODE BASED SOLELY ON THE ALLEGED TESTIMONY OF
SEGUNDO LIM . . . AS BORNE OUT BY THE STENOGRAPHIC NOTES WOULD NOT SUPPORT THE FINDING THAT HE TESTIFIED ON THE
MALICIOUS IMPUTATIONS PURPORTEDLY MADE BY PETITIONER-APPELLANT [TORRALBA] IN CRIMINAL CASE NO. 9107.

II

THE HONORABLE COURT OF APPEALS SERIOUSLY COMMITTED AN ERROR IN ADMITTING IN EVIDENCE AN UNAUTHENTICATED AND
SPURIOUS TAPE RECORD OF A RADIO BROADCAST (EXHIBIT "D") ALLEGEDLY BY HEREIN PETITIONER-APPELLANT [TORRALBA] ON THE BASIS
OF WHICH THE LATTER WAS CONVICTED FOR THE CRIME OF LIBEL.

III

ASSUMING WITHOUT ADMITTING THAT PETITIONER-APPELLANT [TORRALBA] MADE UTTERANCES CONTAINED IN THE TAPE RECORD
MARKED AS EXHIBIT "D," THE HONORABLE COURT SERIOUSLY ERRED IN NOT CONSIDERING THE PRIVILEGE[D] NATURE OF HIS ALLEGED
STATEMENTS IN FEALTY ADHERRENCE TO THE LANDMARK DECISION OF THE HONORABLE SUPREME COURT IN BORJAL VS. CA, 301 SCRA
01 (JAN. 14, 1999).

IV

THE HONORABLE COURT OF APPEALS COMMITTED AN ERROR IN AWARDING DAMAGES AGAINST THE PETITIONER ABSENT ANY SHOWING
OF EVIDENT BAD FAITH ON THE PART OF THE PETITIONER-APPELLANT [TORRALBA] WHO ACTED WITH UBERIMA FIDES (OVERWHELMING
GOOD FAITH) IN EXERCISING THE CONSTITUTIONALLY ENSHRINED FREEDOM OF THE PRESS (ARTICLE 2220, NEW CIVIL CODE).[23]
This Court deems it proper to first resolve the issue of the propriety of the lower court's admission in evidence of the 11 April 1994 tape
recording. Oddly, this matter was not addressed head-on by the Office of the Solicitor General in its comment.

Petitioner Torralba vigorously argues that the court a quo should not have given considerable weight on the tape recording in question as
it was not duly authenticated by Lim's adopted daughter, Shirly Lim. Without said authentication, petitioner Torralba continues, the tape
recording is incompetent and inadmissible evidence. We agree.

It is generally held that sound recording is not inadmissible because of its form[24] where a proper foundation has been laid to guarantee
the genuineness of the recording.[25] In our jurisdiction, it is a rudimentary rule of evidence that before a tape recording is admissible in
evidence and given probative value, the following requisites must first be established, to wit:

(1) a showing that the recording device was capable of taking testimony;
(2) a showing that the operator of the device was competent;
(3) establishment of the authenticity and correctness of the recording;
(4) a showing that changes, additions, or deletions have not been made;
(5) a showing of the manner of the preservation of the recording;
17

(6) identification of the speakers; and

(7) a showing that the testimony elicited was voluntarily made without any kind of inducement.[26]

In one case, it was held that the testimony of the operator of the recording device as regards its operation, his method of operating it, the
accuracy of the recordings, and the identities of the persons speaking laid a sufficient foundation for the admission of the
recordings.[27] Likewise, a witness' declaration that the sound recording represents a true portrayal of the voices contained therein
satisfies the requirement of authentication.[28] The party seeking the introduction in evidence of a tape recording bears the burden of
going forth with sufficient evidence to show that the recording is an accurate reproduction of the conversation recorded.[29]

These requisites were laid down precisely to address the criticism of susceptibility to tampering of tape recordings. Thus, it was held that
the establishment of a proper foundation for the admission of a recording provided adequate assurance that proper safeguards were
observed for the preservation of the recording and for its protection against tampering.[30]

In the case at bar, one can easily discern that the proper foundation for the admissibility of the tape recording was not adhered to. It bears
stressing that Lim categorically admitted in the witness stand that he was not familiar at all with the process of tape recording[31] and that
he had to instruct his adopted daughter to record petitioner Torralba's radio broadcasts, thus:

ATTY. HONTANOSAS:
q Was this radio program of the accused recorded on April 11, 1994?
a Yes, sir.
q Who recorded the same radio program of April 11, 1994?
a It was my adopted daughter whom I ordered to tape recorded the radio program of Choy Torralba.[32]

Clearly, Shirly Lim, the person who actually recorded petitioner Torralba's radio show on 11 April 1994, should have been presented by the
prosecution in order to lay the proper foundation for the admission of the purported tape recording for said date. Without the requisite
authentication, there was no basis for the trial court to admit the tape recording - Exhibit "D" - in evidence.

In view of our disallowance of the 11 April 1994 tape recording, we are constrained to examine the records of this case in order to
determine the sufficiency of evidence stacked against petitioner Torralba, bearing in mind that in criminal cases, the guilt of the accused
can only be sustained upon proof beyond reasonable doubt.

In his comprehensive book on evidence, our former colleague, Justice Ricardo Francisco, wrote that "[e]vidence of a message or a speech
by means of radio broadcast is admissible as evidence when the identity of the speaker is established either by the testimony of a witness
who saw him broadcast his message or speech, or by the witness' recognition of the voice of the speaker."[33]

The records of this case are bereft of any proof that a witness saw petitioner Torralba broadcast the alleged libelous remarks on 11 April
1994. Lim, however, stated that while petitioner Torralba's radio program on that date was being tape recorded by his adopted daughter,
he was so near the radio that he could even touch the same.[34] In effect, Lim was implying that he was listening to "Tug-Ani ang Lungsod"
at that time. In our view, such bare assertion on the part of Lim, uncorroborated as it was by any other evidence, fails to meet the
standard that a witness must be able to "recognize the voice of the speaker." Being near the radio is one thing; actually listening to the
radio broadcast and recognizing the voice of the speaker is another. Indeed, a person may be in close proximity to said device without
necessarily listening to the contents of a radio broadcast or to what a radio commentator is saying over the airwaves.

What further undermines the credibility of Lim's testimony is the fact that he had an ax to grind against petitioner Torralba as he was
previously accused by the latter with the crime of libel and for which he was found guilty as charged by the court. Surely then, Lim could
not present himself as an "uninterested witness" whose testimony merits significance from this Court.

Nor is this Court inclined to confer probative value on the testimony of private complainant Atty. Hontanosas particularly in the light of his
declaration that he did not listen to petitioner Torralba's radio show subject of this petition. He simply relied on the tape recording handed
over to him by Lim.

Time and again, this Court has faithfully observed and given effect to the constitutional presumption of innocence which can only be
overcome by contrary proof beyond reasonable doubt -- one which requires moral certainty, a certainty that convinces and satisfies the
reason and conscience of those who are to act upon it.[35] As we have so stated in the past -

... Accusation is not, according to the fundamental law, synonymous with guilt, the prosecution must overthrow the presumption of
innocence with proof of guilt beyond reasonable doubt. To meet this standard, there is need for the most careful scrutiny of the testimony
of the State, both oral and documentary, independently of whatever defense is offered by the accused. Only if the judge below and the
appellate tribunal could arrive at a conclusion that the crime had been committed precisely by the person on trial under such an exacting
test should the sentence be one of conviction. It is thus required that every circumstance favoring innocence be duly taken into account.
The proof against him must survive the test of reason; the strongest suspicion must not be permitted to sway judgment.[36]
Confronted with what the State was able to present as evidence against petitioner Torralba, this Court is compelled to overturn the
decision of the Court of Appeals due to insufficiency of evidence meriting a finding of guilt beyond reasonable doubt.

WHEREFORE, the petition is GRANTED. The Decision promulgated on 22 May 2002 of the Court of Appeals, affirming the omnibus decision
dated 24 August 2000 of the Regional Trial Court, Branch 3, Tagbilaran City, is hereby REVERSED and SET ASIDE. Instead, a new one is
entered ACQUITTING petitioner Cirse Francisco "Choy" Torralba of the crime of libel. The cash bond posted by said petitioner is ordered
released to him subject to the usual auditing and accounting procedures. No costs.

SO ORDERED.
18

Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.