G.R. No.
198240 July 3, 2013 In their comment,14 respondents counter that the CA properly disqualified
LUISA NAVARRO MARCOS*, Petitioner,
vs.
THE HEIRS OFTHE LATE DR. ANDRES NAVARRO, JR., namely NONITA
NAVARRO, FRANCISCA NAVARRO MALAPITAN, SOLEDAD NAVARRO
BROCHLER, NONITA BARRUN NAVARRO, JR., IMELDA NAVARRO, ANDRES
NAVARRO III, MILAGROS NAVARRO YAP, PILAR NAVARRO, TERESA NAVARRO-
TABITA, and LOURDES BARRUN-REJUSO, Respondents.
DECISION
VILLARAMA, JR., J.:
Petitioner Luisa Navarro Marcos appeals the Decision1 dated February 28,
2011 and Resolution2 dated July 29, 2011 of the Court of Appeals (CA) in CA-
G.R. SP No. 92460.
The antecedent facts follow:
Spouses Andres Navarro, Sr. and Concepcion Medina-Navarro died in 1958
and 1993, respectively. They left behind several parcels of land including a
108.3997-hectare lot (subject lot) located in Cayabon, Milagros, Masbate.3
The spouses were survived by their daughters Luisa Navarro Marcos, herein
petitioner, and Lydia Navarro Grageda, and the heirs of their only son Andres
Navarro, Jr. The heirs of Andres, Jr. are the respondents herein.4
Petitioner and her sister Lydia discovered that respondents are claiming
exclusive ownership of the subject lot. Respondents based their claim on the
Affidavit of Transfer of Real Property dated May 19, 1954 where Andres, Sr.
donated the subject lot to Andres, Jr.5
Believing that the affidavit is a forgery, the sisters, through Assistant Fiscal
Andres Marcos, requested a handwriting examination of the affidavit. The
PNP handwriting expert PO2 Mary Grace Alvarez found that Andres, Sr.’s
signature on the affidavit and the submitted standard signatures of Andres,
Sr. were not written by one and the same person.6
Thus, the sisters sued the respondents for annulment of the deed of donation
before the Regional Trial Court (RTC) of Masbate, where the case was
docketed as Civil Case No. 5215.7
After the pre-trial, respondents moved to disqualify PO2 Alvarez as a witness.
They argued that the RTC did not authorize the handwriting examination of
the affidavit. They added that presenting PO2 Alvarez as a witness will violate
their constitutional right to due process since no notice was given to them
before the examination was conducted.8 Thus, PO2 Alvarez’s report is a
worthless piece of paper and her testimony would be useless and irrelevant.9
In itsOrder10 dated August 19, 2004, the RTC granted respondents’ motion
and disqualified PO2 Alvarez as a witness. The RTC ruled that PO2 Alvarez’s
supposed testimony would be hearsay as she has no personal knowledge of
the alleged handwriting of Andres, Sr. Also, there is no need for PO2 Alvarez
to be presented, if she is to be presented as an expert witness, because her
testimony is not yet needed.
The sisters sought reconsideration of the order but the RTC denied their
motion in an Order11 dated October 11, 2005.
Aggrieved, the sisters filed a petition for certiorari before the CA, which
however, dismissed their petition in the assailed Decision dated February 28,
2011 on the ground that the dismissal of Civil Case No. 5215 has mooted the
issue of PO2 Alvarez’s disqualification as a witness.
Later, the CA likewise denied their motion for reconsideration in its Resolution
dated July 29, 2011. The CA refused to take judicial notice of the decision of
another CA Division which reinstated Civil Case No. 5215. The CA held that a
CA Justice cannot take judicial notice of decisions or matters pending before
another Division of the appellate court where he or she is not a member. The
CA also held that the sisters were negligent for belatedly informing it that Civil
Case No. 5215 was reinstated.
Hence, this appeal.
Petitioner argues that the CA erred in refusing to reconsider the assailed
decision in light of the reinstatement of Civil Case No. 5215. Petitioner adds
that the CA erred in not ruling that the RTC committed grave abuse of
discretion in disqualifying PO2 Alvarez as a witness.12 They stress that PO2
Alvarez will be presented as an expert witness to render an opinion on
whether the disputed handwriting was indeed made by Andres, Sr. or
whether it is a forgery.13
PO2 Alvarez. They also agreed with the CA that her disqualification was
mooted by the dismissal of Civil Case No. 5215.
We find in favor of petitioner.
The CA ruling that the dismissal of Civil Case No. 5215 has mooted the issue of
PO2 Alvarez’s disqualification as a witness can no longer be justified. Hence,
we reverse the CA ruling. While we agree with the CA in considering the RTC’s
Orders15 which dismissed Civil Case No. 5215, we are unable to agree with its
refusal to take judicial notice of the Decision16 of another CA Division which
reinstated Civil Case No. 5215. Subsequent proceedings were even held in the
reinstated Civil Case No. 5215 per Orders17 issued by the RTC which were
already submitted to the CA. That Civil Case No. 5215 was reinstated is a fact
that cannot be ignored.
We also agree with petitioner that the RTC committed grave abuse of
discretion in disqualifying PO2 Alvarez as a witness. Grave abuse of discretion
defies exact definition, but it generally refers to capricious or whimsical
exercise of judgment as is equivalent to lack of jurisdiction. The abuse of
discretion must be patent and gross as to amount to an evasion of a positive
duty or a virtual refusal to perform a duty enjoined by law, or to act at all in
contemplation of law, as where the power is exercised in an arbitrary and
despotic manner by reason of passion and hostility.18 Grave abuse of
discretion arises when a lower court or tribunal violates the Constitution or
grossly disregards the law or existing jurisprudence.19
In Armed Forces of the Philippines Retirement and Separation Benefits System
v. Republic of the Philippines,20we said that a witness must only possess all
the qualifications and none of the disqualifications provided in the Rules of
Court. Section 20, Rule 130 of the Rules on Evidence provides:
SEC. 20. Witnesses; their qualifications.–Except as provided in the next
succeeding section, all persons who can perceive, and perceiving, can make
known their perception to others, may be witnesses.
Religious or political belief, interest in the outcome of the case, or conviction
of a crime unless otherwise provided by law, shall not be a ground for
disqualification.
Specific rules of witness disqualification are provided under Sections 21 to 24,
Rule 130 of the Rules on Evidence. Section 21 disqualifies a witness by reason
of mental incapacity or immaturity. Section 22 disqualifies a witness by reason
of marriage. Section 23 disqualifies a witness by reason of death or insanity of
the adverse party. Section 24 disqualifies a witness by reason of privileged
communication.
In Cavili v. Judge Florendo,21 we have held that the specific enumeration of
disqualified witnesses excludes the operation of causes of disability other
than those mentioned in the Rules. The Rules should not be interpreted to
include an exception not embodied therein. We said:
The generosity with which the Rule allows people to testify is apparent.
Interest in the outcome of a case, conviction of a crime unless otherwise
provided by law, and religious belief are not grounds for disqualification.
Sections 19 and 20 of Rule 130 provide for specific disqualifications. Section 19
disqualifies those who are mentally incapacitated and children whose tender
age or immaturity renders them incapable of being witnesses. Section 20
provides for disqualification based on conflicts of interest or on relationship.
Section 21 provides for disqualification based on privileged communications.
Section 15 of Rule 132 may not be a rule on disqualification of witnesses but it
states the grounds when a witness may be impeached by the party against
whom he was called.
There is no provision of the Rules disqualifying parties declared in default
from taking the witness stand for non-disqualified parties. The law does not
provide default as an exception. The specific enumeration of disqualified
witnesses excludes the operation of causes of disability other than those
mentioned in the Rules. It is a maxim of recognized utility and merit in the
construction of statutes that an express exception, exemption, or saving
clause excludes other exceptions. x x x As a general rule, where there are
express exceptions these comprise the only limitations on the operation of a
statute and no other exception will be implied. x x x The Rules should not be
interpreted to include an exception not embodied therein. (Emphasis
supplied; citations omitted.)
As a handwriting expert of the PNP, PO2 Alvarez can surely perceive and make
known her perception to others.1âwphi1 We have no doubt that she is
qualified as a witness. She cannot be disqualified as a witness since she
possesses none of the disqualifications specified under the Rules.
Respondents’ motion to disqualify her should have been denied by the RTC
for it was not based on any of these grounds for disqualification. The RTC
rather confused the qualification of the witness with the credibility and
weight of her testimony.

Moreover, Section 49, Rule 130 of the Rules of Evidence is clear that the
opinion of an expert witness may be received in evidence, to wit:

SEC. 49. Opinion of expert witness.–The opinion of a witness on a matter

requiring special knowledge, skill, experience or training which he is shown to
possess, may be received in evidence.

For instance, in Tamani v. Salvador,22 we were inclined to believe that

Tamani’s signature was forged after considering the testimony of the PNP
document examiner that the case involved simulated or copied forgery, such
that the similarities will be superficial. We said that the value of the opinion of
a handwriting expert depends not upon his mere statements of whether a
writing is genuine or false, but upon the assistance he may afford in pointing
out distinguishing marks, characteristics and discrepancies in and between
genuine and false specimens of writing which would ordinarily escape notice
or detection from an unpracticed observer.

Thus, we disagree with the RTC that PO2 Alvarez’s testimony would be
hearsay. Under Section 49, Rule 130 of the Rules on Evidence, PO2 Alvarez is
allowed to render an expert opinion, as the PNP document examiner was
allowed in Tamani. But the RTC already ruled at the outset that PO2 Alvarez’s
testimony is hearsay even before her testimony is offered and she is called to
the witness stand. Under the circumstances, the CA should have issued a
corrective writ of certiorari and annulled the RTC ruling.

True, the use of the word "may" in Section 49, Rule 130 of the Rules on
Evidence signifies that the use of opinion of an expert witness is permissive
and not mandatory on the part of the courts.23 Jurisprudence is also replete
with instances wherein this Court dispensed with the testimony of expert
witnesses to prove forgeries.24However, we have also recognized that
handwriting experts are often offered as expert witnesses considering the
technical nature of the procedure in examining forged documents. 25 More
important, analysis of the questioned signature in the deed of donation
executed by the late Andres Navarro, Sr. in crucial to the resolution of the
case.

In sum, the RTC should not have disqualified P02 Alvarez as a witness. She has
the qualifications of witness and possess none of the disqualifications under
the Rules. The Rules allow the opinion of an expert witness to be received as
evidence. In Tamani, we used the opinion of an expert witness. The value of
P02 Alvarez's expert opinion cannot be determined if P02 Alvarez is not even
allowed to testify on the handwriting examination she conducted.

WHEREFORE, we GRANT the petition. We SET ASIDE the (1) Decision dated
February 28, 2011 and Resolution dated July 29, 2011 of the Court of Appeals
in CA-G.R. SP No. 92460, and (2) Orders dated August 19, 2004 and October II,
2005 of the Regional Trial Court in Civil Case No. 5215. We DENY respondents'
motion to disqualify P02 Mary Grace Alvarez as a witness.

No pronouncement as to costs.

SO ORDERED.
G.R. No. 145225 April 2, 2004
PEOPLE OF THE PHILIPPINES, appellee,
vs.
SALVADOR GOLIMLIM @ "BADONG", appellants.
DECISION
CARPIO MORALES, J.:
On appeal is the Decision1 of June 9, 2000 of the Regional Trial Court of
Sorsogon, Sorsogon, Branch 65 in Criminal Case No. 241, finding appellant
Salvador Golimlim alias "Badong" guilty beyond reasonable doubt of rape,
imposing on him the penalty of reclusion perpetua, and holding him civilly
liable in the amount of ₱50,000.00 as indemnity, and ₱50,000.00 as moral
damages.
The Information dated April 16, 1997 filed against appellant reads as follows:
That sometime in the month of August, 1996, at Barangay Bical,
Municipality of Bulan, Province of Sorsogon, Philippines and within
the jurisdiction of this Honorable Court the above-named accused,
armed with a bladed weapon, by means of violence and
intimidation, did then and there, wilfully, unlawfully and
feloniously, have carnal knowledge of one Evelyn Canchela against
her will and without her consent, to her damage and prejudice.
Contrary to law.2
Upon arraignment on December 15, 1997,3 appellant, duly assisted by
counsel, pleaded not guilty to the offense charged.
The facts established by the prosecution are as follows:
Private complainant Evelyn G. Canchela (Evelyn), is a mental
retardate. When her mother, Amparo Hachero, left for Singapore
on May 2, 1996 to work as a domestic helper, she entrusted Evelyn
to the care and custody of her (Amparo’s) sister Jovita Guban and
her husband Salvador Golimlim, herein appellant, at Barangay
Bical, Bulan, Sorsogon.4
Sometime in August 1996, Jovita left the conjugal residence to meet a certain
Rosing,5 leaving Evelyn with appellant. Taking advantage of the situation,
appellant instructed private complainant to sleep,6 and soon after she had laid
down, he kissed her and took off her clothes.7 As he poked at her an object
which to Evelyn felt like a knife,8 he proceeded to insert his penis into her
vagina.9 His lust satisfied, appellant fell asleep.
When Jovita arrived, Evelyn told her about what appellant did to her. Jovita,
however, did not believe her and in fact she scolded her.10
Sometime in December of the same year, Lorna Hachero, Evelyn’s half-sister,
received a letter from their mother Amparo instructing her to fetch Evelyn
from Sorsogon and allow her to stay in Novaliches, Quezon City where she
(Lorna) resided. Dutifully, Lorna immediately repaired to appellant’s home in
Bical, and brought Evelyn with her to Manila.
A week after she brought Evelyn to stay with her, Lorna suspected that her
sister was pregnant as she noticed her growing belly. She thereupon brought
her to a doctor at the Pascual General Hospital at Baeza, Novaliches, Quezon
City for check-up and ultrasound examination.
Lorna’s suspicions were confirmed as the examinations revealed that Evelyn
was indeed pregnant.11 She thus asked her sister how she became pregnant,
to which Evelyn replied that appellant had sexual intercourse with her while
holding a knife.12
In February of 1997, the sisters left for Bulan, Sorsogon for the purpose of
filing a criminal complaint against appellant. The police in Bulan, however,
advised them to first have Evelyn examined. Obliging, the two repaired on
February 24, 1997 to the Municipal Health Office of Bulan, Sorsogon where
Evelyn was examined by Dr. Estrella Payoyo.13 The Medico-legal Report
revealed the following findings, quoted verbatim:
FINDINGS: LMP [last menstrual period]: Aug. 96 ?
Abd [abdomen]: 7 months AOG [age of gestation]
FHT [fetal heart tone]: 148/min
Presentation: Cephalic
Hymen: old laceration at 3, 5, 7, & 11 o’clock position14
On the same day, the sisters went back to the Investigation Section of the
Bulan Municipal Police Station before which they executed their sworn
statements.15
On February 27, 1997, Evelyn, assisted by Lorna, filed a criminal complaint for
rape16 against appellant before the Municipal Trial Court of Bulan, Sorsogon,
docketed as Criminal Case No. 6272.
In the meantime or on May 7, 1997, Evelyn gave birth to a girl, Joana
Canchela, at Guruyan, Juban, Sorsogon.17
Appellant, on being confronted with the accusation, simply said that it is not
true "[b]ecause her mind is not normal,"18 she having "mentioned many other
names of men who ha[d] sexual intercourse with her."19
Finding for the prosecution, the trial court, by the present appealed Decision,
convicted appellant as charged. The dispositive portion of the decision reads:
WHEREFORE, premises considered, accused Salvador Golimlim
having been found guilty of the crime of RAPE (Art. 335 R.P.C. as
amended by RA 7659) beyond reasonable doubt is hereby
sentenced to suffer the penalty of RECLUSION PERPETUA, and to
indemnify the offended party Evelyn Canchela in the amount of
P50,000.00 as indemnity and another P50,000.00 as moral
damage[s], and to pay the costs.
SO ORDERED.20
Hence, the present appeal, appellant assigning to the trial court the following
errors:
I. THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT AND
CREDENCE TO THE CONTRADICTORY AND IMPLAUSIBLE
TESTIMONY OF EVELYN CANCHELA, A MENTAL RETARDATE, [AND]
II. THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT
OF THE ACCUSED-APPELLANT FOR THE CRIME CHARGED HAS BEEN
PROVEN BEYOND REASONABLE DOUBT.21
Appellant argues that Evelyn’s testimony is not categorical and is replete with
contradictions, thus engendering grave doubts as to his criminal culpability.
In giving credence to Evelyn’s testimony and finding against appellant, the
trial court made the following observations, quoted verbatim:
1) Despite her weak and dull mental state the victim was consistent
in her claim that her Papay Badong (accused Salvador Golimlim)
had carnal knowledge of her and was the author of her pregnancy,
and nobody else (See: For comparison her Sworn Statement on p.
3/Record; her narration in the Psychiatric Report on pp. 47 &
48/Record; the TSNs of her testimony in open court);
2) She remains consistent that her Papay Badong raped her only
once;
3) That the contradictory statements she made in open court
relative to the details of how she was raped, although would seem
derogatory to her credibility and reliability as a witness under
normal conditions, were amply explained by the psychiatrist who
examined her and supported by her findings (See: Exhibits F to F-2);
4) Despite her claim that several persons laid on top of her (which
is still subject to question considering that the victim could not
elaborate on its meaning), the lucid fact remains that she never
pointed to anybody else as the author of her pregnancy, but her
Papay Badong. Which only shows that the trauma that was created
in her mind by the incident has remained printed in her memory
despite her weak mental state. Furthermore, granting for the sake
of argument that other men also laid on top of her, this does not
deviate from the fact that her Papay Badong (the accused) had
sexual intercourse with her.22
The trial judge’s assessment of the credibility of witnesses’ testimonies is, as
has repeatedly been held by this Court, accorded great respect on appeal in
the absence of grave abuse of discretion on its part, it having had the
advantage of actually examining both real and testimonial evidence including
the demeanor of the witnesses.23
In the present case, no cogent reason can be appreciated to warrant a
departure from the findings of the trial court with respect to the assessment
of Evelyn’s testimony.
That Evelyn is a mental retardate does not disqualify her as a witness nor
render her testimony bereft of truth.
Sections 20 and 21 of Rule 130 of the Revised Rules of Court provide:
SEC. 20. Witnesses; their qualifications. – Except as provided in the
next succeeding section, all persons who can perceive, and
 perceiving, can make known their perception to others, may be
witnesses.
xxx
SEC. 21. Disqualification by reason of mental incapacity or
immaturity. – The following persons cannot be witnesses:
(a) Those whose mental condition, at the time of their production
for examination, is such that they are incapable of intelligently
making known their perception to others;
(b) Children whose mental maturity is such as to render them
incapable of perceiving the facts respecting which they are
examined and of relating them truthfully.
In People v. Trelles,24 where the trial court relied heavily on the therein
mentally retarded private complainant’s testimony irregardless of her
"monosyllabic responses and vacillations between lucidity and ambiguity,"
this Court held:
A mental retardate or a feebleminded person is not, per se,
disqualified from being a witness, her mental condition not being a
vitiation of her credibility. It is now universally accepted that
intellectual weakness, no matter what form it assumes, is not a
valid objection to the competency of a witness so long as the latter
can still give a fairly intelligent and reasonable narrative of the
matter testified to.25
It can not then be gainsaid that a mental retardate can be a witness,
depending on his or her ability to relate what he or she knows.26 If his or her
testimony is coherent, the same is admissible in court.27
To be sure, modern rules on evidence have downgraded mental incapacity as
a ground to disqualify a witness. As observed by McCormick, the remedy of
excluding such a witness who may be the only person available who knows
the facts, seems inept and primitive. Our rules follow the modern trend of
evidence.28
Thus, in a long line of cases,29 this Court has upheld the conviction of the
accused based mainly on statements given in court by the victim who was a
mental retardate.
From a meticulous scrutiny of the records of this case, there is no reason to
doubt Evelyn’s credibility. To be sure, her testimony is not without
discrepancies, given of course her feeblemindedness.
By the account of Dr. Chona Cuyos-Belmonte, Medical Specialist II at the
Psychiatric Department of the Bicol Medical Center, who examined Evelyn,
although Evelyn was suffering from moderate mental retardation with an IQ
of 46,30 she is capable of perceiving and relating events which happened to
her. Thus the doctor testified:
Q: So do you try to impress that although she answers in general
terms it does not necessarily mean that she might be inventing
answers – only that she could not go to the specific details because
of dullness?
A: I don’t think she was inventing her answer because I conducted
mental status examination for three (3) times and I tried to see the
consistency in the narration but very poor (sic) in giving details.
xxx
Q: May we know what she related to you?
A: She related to me that she was raped by her uncle ‘Tatay
Badong’. What she mentioned was that, and I quote: ‘hinila ang
panty ko, pinasok ang pisot at bayag niya sa pipi ko’. She would
laugh inappropriately after telling me that particular incident. I also
tried to ask her regarding the dates, the time of the incident, but
she could not really…. I tried to elicit those important things, but
the patient had a hard time remembering those dates.
Q: But considering that you have evaluated her mentally, gave her
I.Q. test, in your honest opinion, do you believe that this narration
by the patient to you about the rape is reliable?
A: Yes, sir.
Q: Why do you consider that reliable?
A: Being a (sic) moderately retarded, I have noticed the spontaneity
of her answers during the time of the testing. She was not even
hesitating when she told me she was raped once at home by her
Tatay Badong; and she was laughing when she told me about how
it was done on (sic) her. So, although she may be inappropriate but
(sic) she was spontaneous, she was consistent.
Q: Now, I would like to relate to you an incident that happened in
this Court for you to give us your expert opinion. I tried to present
the victim in this case to testify. While she testified that she was
raped by her uncle Badong, when asked about the details, thereof,
she would not make (sic) the detail. She only answered ‘wala’ (no).
I ask this question because somehow this seems related to your
previous evaluation that while she gave an answer, she gave no
detail. Now, I was thinking because I am a man and I was the one
asking and the Judge is a man also. And while the mother would
say that she would relate to her and she related to you, can you
explain to us why when she was presented in court that
occurrence, that event happened?
A: There are a lot of possible answers to that question; one, is the
court’s atmosphere itself. This may have brought a little anxiety on
the part of the patient and this inhibits her from relating some of
the details relative to the incident-in-question. When I conducted
my interview with the patient, there were only two (2) of us in the
room. I normally do not ask this question during the first session
with the patient because these are emotionally leading questions,
and I do not expect the patient to be very trusting. So, I usually ask
this type of questions during the later part of my examination to
make her relax during my evaluation. So in this way, she will be
more cooperative with me. I don’t think that this kind of
atmosphere within the courtroom with some people around, this
could have inhibited the patient from answering questions.
xxx
Q: What if the victim is being coached or led by someone else, will
she be able to answer the questions?
A: Yes, she may be able to answer the questions, but you would
notice the inconsistency of the answers because what we normally
do is that we present the questions in different ways, and we
expect the same answer. This is how we try to evaluate the patient.
If the person, especially a retarded, is being coached by somebody,
the answers will no longer be consistent.
Q: You also mentioned a while ago that the answers given by the
patient, taken all in all, were consistent?
A: Yes, sir.31 (Underscoring supplied)
As noted in the above-quoted testimony of Dr. Belmonte, Evelyn could give
spontaneous and consistent answers to the same but differently framed
questions under conditions which do not inhibit her from answering. It could
have been in this light that Evelyn was able to relate in court, upon
examination by a female government prosecutor and the exclusion of the
public from the proceedings, on Dr. Belmonte’s suggestion,32how, as quoted
below, she was raped and that it was appellant who did it:
Q: Lorna Hachero testified before this Court that you gave birth to
a baby girl named Johanna, is this true?
A: (The witness nods, yes.)
xxx
Q: Who is the father of Johanna?
A: Papay Badong
Q: Who is this Papay Badong that you are referring to?
A: The husband of Mamay Bita.
Q: Is he here in court?
A: He is here.
Q: Please look around and point him to us.
A: (The witness pointing to the lone man sitting in the first row of
the gallery wearing a regular prison orange t-shirt who gave his
name as Salvador Golimlim when asked.)
Q: Why were you able to say that it is Papay Badong who is the
father of your child Johanna?
A: Because then I was left at Mamay Bita’s house, although I am
not there now.
Q: And that house where you were left is also the house of your
Papay Badong?
A: Yes ma’am.
Q: What did Salvador Golimlim or your Papay Badong do to you
that’s why you were able to say that he is the father of your child?
A: I was undressed by him.
xxx
Q: What did you do after you were undressed?
 A: I was scolded by the wife, Mamay Bita. It is settled that sexual intercourse with a woman who is a mental retardate
Q: I am referring to that very moment when you were undressed. constitutes statutory rape which does not require proof that the accused used
Immediately after your Papay Badong undressed you, what did you force or intimidation in having carnal knowledge of the victim for
do? conviction.35 The fact of Evelyn’s mental retardation was not, however,
xxx alleged in the Information and, therefore, cannot be the basis for conviction.
A: He laid on top of me. Such notwithstanding, that force and intimidation attended the commission
Q: What was your position when he laid on top of you? of the crime, the mode of commission alleged in the Information, was
A: I was lying down. adequately proven. It bears stating herein that the mental faculties of a
Q: Then after he went on top of you, what did he do there? retardate being different from those of a normal person, the degree of force
A: He made (sic) sexual intercourse with me. needed to overwhelm him or her is less. Hence, a quantum of force which may
Q: When you said he had a (sic) sexual intercourse with you, what not suffice when the victim is a normal person, may be more than enough
did he do exactly? when employed against an imbecile.36
A: He kissed me.
Still under the above-quoted provision of Art. 335 of the Rev ised Penal Code,
Q: Where?
when the crime of rape is committed with the use of a deadly weapon, the
A: On the cheeks (witness motioning indicating her cheeks).
penalty shall be reclusion perpetua to death. In the case at bar, however,
Q: What else did he do? Please describe before this Honorable
although there is adequate evidence showing that appellant indeed used
Court the sexual intercourse which you are referring to which the
force and intimidation, that is not the case with respect to the use of a deadly
accused did to you.
weapon.
A: ‘Initoy’ and he slept after that.
(to Court) WHEREFORE, the assailed Decision of the Regional Trial Court of Sorsogon,
Nevertheless, may we request that the local term for sexual Sorsogon, Branch 65 in Criminal Case No. 241 finding appellant, Salvador
intercourse, the word ‘Initoy’ which was used by the witness be put Golimlim alias "Badong," GUILTY beyond reasonable doubt of rape, which this
on the record, and we request judicial notice of the fact that Court finds to have been committed under paragraph 1, Article 335 of the
‘initoy’ is the local term for sexual intercourse. Revised Penal Code, and holding him civilly liable therefor, is
xxx hereby AFFIRMED.
Q: What did you feel when your Papay Badong had sexual
Costs against appellant.
intercourse with you?
A: I felt a knife; it was like a knife. SO ORDERED.
Q: Where did you feel that knife?
A: I forgot.
Q: Why did you allow your Papay Badong to have sexual
intercourse with you?
A: I will not consent to it.
xxx
Q: Did you like what he did to you?
A: I do not want it.
Q: But why did it happen?
A: I was forced to.
xxx
Q: Did you feel anything when he inserted into your vagina when
your Papay Badong laid on top of you?
A: His sexual organ/penis.
Q: How did you know that it was the penis of your Papay Badong
that was entered into your vagina?
A: It was put on top of me.
Q: Did it enter your vagina?
A: Yes, Your Honor.
xxx
Q: Madam Witness, is it true that your Papay Badong inserted his
penis into your vagina or sexual organ during that time that he was
on top of you?
A: (The witness nods, yes.)33 (Underscoring supplied)

Appellant’s bare denial is not only an inherently weak defense. It is not

supported by clear and convincing evidence. It cannot thus prevail over the
positive declaration of Evelyn who convincingly identified him as her rapist.34

In convicting appellant under Article 335 of the Revised Penal Code, as

amended by Republic Act 7659 (the law in force when the crime was
committed in 1996), the trial court did not specify under which mode the
crime was committed. Under the said article, rape is committed thus:

ART. 335. When and how rape is committed. – Rape is committed

by having carnal knowledge of a woman under any of the following
circumstances.

1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise

unconscious; and

3. When the woman is under twelve years of age or is

demented.

The crime of rape shall be punished by reclusion perpetua.

Whenever the crime of rape is committed with the use of a deadly

weapon or by two or more persons, the penalty shall be reclusion
perpetua or death.

xxx
G.R. No. 143439 October 14, 2005
MAXIMO ALVAREZ, Petitioner,
VS
SUSAN RAMIREZ, Respondent.
D E C I S I O N
Before us is a petition for review on certiorari[1] assailing the Decision[2] of the
Court of Appeals dated May 31, 2000 in CA-G.R. SP No. 56154, entitled SUSAN
RAMIREZ, petitioner, versus, HON. BENJAMIN M. AQUINO, JR., as JUDGE RTC,
MALABON, MM, BR. 72, and MAXIMO ALVAREZ, respondents.
Susan Ramirez, herein respondent, is the complaining witness in Criminal Case
No. 19933-MN for arson[3] pending before the Regional Trial Court, Branch 72,
Malabon City. The accused is Maximo Alvarez, herein petitioner. He is the
husband of Esperanza G. Alvarez, sister of respondent.
On June 21, 1999, the private prosecutor called Esperanza Alvarez to the
witness stand as the first witness against petitioner, her husband. Petitioner
and his counsel raised no objection.
Esperanza testified as follows:
ATTY. ALCANTARA:
We are calling Mrs. Esperanza Alvarez, the wife of the accused,
Your Honor.
COURT: Swear in the witness.
xxx
ATTY. MESIAH: (sic)
Your Honor, we are offering the testimony of this witness for the
purpose of proving that the accused Maximo Alvarez committed all
the elements of the crime being charged particularly that accused
Maximo Alvarez pour on May 29, 1998 gasoline in the house
located at Blk. 5, Lot 9, Phase 1-C, Dagat-dagatan, Navotas, Metro
Manila, the house owned by his sister-in-law Susan Ramirez; that
accused Maximo Alvarez after pouring the gasoline on the door of
the house of Susan Ramirez ignited and set it on fire; that the
accused at the time he successfully set the house on fire (sic) of
Susan Ramirez knew that it was occupied by Susan Ramirez, the
members of the family as well as Esperanza Alvarez, the estranged
wife of the accused; that as a consequence of the accused in
successfully setting the fire to the house of Susan Ramirez, the door
of said house was burned and together with several articles of the
house, including shoes, chairs and others.
COURT: You may proceed.x x x
DIRECT EXAMINATION
ATTY. ALCANTARA:
xxx
Q: When you were able to find the source, incidentally what was
the source of that scent?
A: When I stand by the window, sir, I saw a man pouring the
gasoline in the house of my sister (and witness pointing to the
person of the accused inside the court room).
Q: For the record, Mrs. Witness, can you state the name of that
person, if you know?
A: He is my husband, sir, Maximo Alvarez.
Q: If that Maximo Alvarez you were able to see, can you identify
him?
A: Yes, sir.
Q: If you can see him inside the Court room, can you please point
him?
A: Witness pointing to a person and when asked to stand and asked
his name, he gave his name as Maximo Alvarez.[4]
In the course of Esperanzas direct testimony against petitioner, the
latter showed uncontrolled emotions, prompting the trial judge to
suspend the proceedings.
On June 30, 1999, petitioner, through counsel, filed a motion[5] to disqualify
Esperanza from testifying against him pursuant to Rule 130 of the Revised
Rules of Court on marital disqualification.
Respondent filed an opposition[6] to the motion. Pending resolution of the
motion, the trial court directed the prosecution to proceed with the
presentation of the other witnesses.
On September 2, 1999, the trial court issued the questioned Order
disqualifying Esperanza Alvarez from further testifying and deleting her
testimony from the records.[7]The prosecution filed a motion for
reconsideration but was denied in the other assailed Order dated October 19,
1999.[8]
This prompted respondent Susan Ramirez, the complaining witness in
Criminal Case No. 19933-MN, to file with the Court of Appeals a petition
for certiorari[9] with application for preliminary injunction and temporary
restraining order.[10]
On May 31, 2000, the Appellate Court rendered a Decision nullifying and
setting aside the assailed Orders issued by the trial court.
Hence, this petition for review on certiorari.
The issue for our resolution is whether Esperanza Alvarez can testify against
her husband in Criminal Case No. 19933-MN.
Section 22, Rule 130 of the Revised Rules of Court provides:
Sec. 22. Disqualification by reason of marriage. During their
marriage, neither the husband nor the wife may testify for or
against the other without the consent of the affected spouse,
except in a civil case by one against the other, or in a criminal case
for a crime committed by one against the other or the latters direct
descendants or ascendants.
The reasons given for the rule are:
1. There is identity of interests between husband and wife;
2. If one were to testify for or against the other, there is consequent danger of
perjury;
3. The policy of the law is to guard the security and confidences of private life,
even at the risk of an occasional failure of justice, and to prevent domestic
disunion and unhappiness; and
4. Where there is want of domestic tranquility there is danger of punishing
one spouse through the hostile testimony of the other.[11]
But like all other general rules, the marital disqualification rule has its own
exceptions, both in civil actions between the spouses and in criminal cases for
offenses committed by one against the other. Like the rule itself, the
exceptions are backed by sound reasons which, in the excepted cases,
outweigh those in support of the general rule. For instance, where the marital
and domestic relations are so strained that there is no more harmony to be
preserved nor peace and tranquility which may be disturbed, the reason
based upon such harmony and tranquility fails. In such a case, identity of
interests disappears and the consequent danger of perjury based on that
identity is non-existent. Likewise, in such a situation, the security and
confidences of private life, which the law aims at protecting, will be nothing
but ideals, which through their absence, merely leave a void in the unhappy
home.[12]
In Ordoo vs. Daquigan,[13] this Court held:
We think that the correct rule, which may be adopted in this
jurisdiction, is that laid down in Cargil vs. State, 35 ALR 133, 220
Pac. 64, 25 Okl. 314, wherein the court said:
The rule that the injury must amount to a physical
wrong upon the person is too narrow; and the rule that
any offense remotely or indirectly affecting domestic
harmony comes within the exception is too broad. The
better rule is that, when an offense directly attacks, or
directly and vitally impairs, the conjugal relation, it
comes within the exception to the statute that one shall
not be a witness against the other except in a criminal
prosecution for a crime committee (by) one against the
other.
Obviously, the offense of arson attributed to petitioner, directly impairs the
conjugal relation between him and his wife Esperanza. His act, as embodied in
the Information for arson filed against him, eradicates all the major aspects of
marital life such as trust, confidence, respect and love by which virtues the
conjugal relationship survives and flourishes.

As correctly observed by the Court of Appeals:

The act of private respondent in setting fire to the house of his

sister-in-law Susan Ramirez, knowing fully well that his wife was
there, and in fact with the alleged intent of injuring the latter, is an
act totally alien to the harmony and confidences of marital relation
which the disqualification primarily seeks to protect. The criminal
act complained of had the effect of directly and vitally impairing
the conjugal relation. It underscored the fact that the marital and
domestic relations between her and the accused-husband have
become so strained that there is no more harmony, peace or
tranquility to be preserved. The Supreme Court has held that in
such a case, identity is non-existent. In such a situation, the
security and confidences of private life which the law aims to
protect are nothing but ideals which through their absence, merely
leave a void in the unhappy home. (People v. Castaeda, 271 SCRA
504). Thus, there is no longer any reason to apply the Marital
Disqualification Rule.

It should be stressed that as shown by the records, prior to the commission of

the offense, the relationship between petitioner and his wife was already
strained. In fact, they were separated de facto almost six months before the
incident. Indeed, the evidence and facts presented reveal that the
preservation of the marriage between petitioner and Esperanza is no longer
an interest the State aims to protect.

At this point, it bears emphasis that the State, being interested in laying the
truth before the courts so that the guilty may be punished and the innocent
exonerated, must have the right to offer the direct testimony of Esperanza,
even against the objection of the accused, because (as stated by this Court
in Francisco[14]), it was the latter himself who gave rise to its necessity.

WHEREFORE, the Decision of the Court of Appeals is AFFIRMED. The trial

court, RTC, Branch 72, Malabon City, is ordered to allow Esperanza Alvarez to
testify against petitioner, her husband, in Criminal Case No. 19933-MN. Costs
against petitioner.

SO ORDERED.
G.R. No. L-46306 February 27, 1979
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. MARIANO C. CASTAÑEDA, JR., as Judge of the Court of First Instance of
Pampanga, Branch III, and BENJAMIN F. MANALOTO, respondents.
SANTOS, J.:
On the basis of the complaint 1 of his wife, Victoria M. Manaloto, herein
private respondent Benjamin Manaloto was charged before the Court of First
Instance of Pampanga, presided by respondent Judge, Hon. Mariano C.
Castaneda Jr., with the crime of Falsification of Public Document committed,
according to the Information, as follows:
That on or about the 19th day of May, 1975, in the Municipality of San
Fernando, province of Pampanga, Philippines, and within the jurisdiction of
this Honorable Court, the above-named a BENJAMIN F. MANALOTO, with
deliberate intent to commit falsification, did then and there willfully,
unlawfully and feloniously counterfeit, imitate and forge the signature of his
spouse Victoria M. Manaloto in a deed of sale executed by said accused
wherein he sold a house and lot belonging to the conjugal partnership of said
spouse in favor of Ponciano Lacsamana under Doc. No. 1957, Page No. 72,
Book No. LVII, Series of 1975, notarized by Notary Public Abraham Pa.
Gorospe, thereby making it appear that his spouse Victoria M. Manaloto gave
her marital consent to said sale when in fact and in truth she did not. 2
At the trial, the prosecution called the complaint-wife to the witness stand
but the defense moved to disqualify her as a witness, invoking Sec. 20, Rule
130 of the Revised Rules Of Court which provides:
SEC. 20. Disqualification by reason of interest or relationship — The following
persons cannot testify as to matters in which they are interested, directly or
indirectly as herein enumerated.
xxx xxx xxx
(b) A husband can not be examined for or at his wife without her consent; nor
a wife for or against her husband without his consent, except in a civil case by
one against the other or in a criminal case for a crime committed by one
against the other.
The prosecution opposed said motion to disquality on the ground that the
case falls under the exception to the rule, contending that it is a "criminal case
for a crime committed by one against the other." Notwithstanding such
opposition, respondent Judge granted the motion, disqualifying Victoria
Manaloto from testifying for or against her husband, in an order dated March
31, 1977. A motion for reconsideration petition was filed but was denied by
respondent Judge in an order dated May 19, 1977.
Hence, this petition for certiorari file by the office of the Provincial Fiscal, on
behalf of the People of the Philippines, seeking set aside the aforesaid order
of the respondent Judge and praying that a preliminary injunction or a
ternporary restraining order be issued by this Court enjoining said judge from
further proceeding with the trial of aforesaid Criminal Case No. 1011.
On June 20, 1977, this Court resolved — (a) to issue a temporary restraining
order, and (b) to require the Solicitor General to appear as counsel for the
petitioner. 3 The Office of the Solicitor General filed its Notice of Appearance
on June 27, 1977, 4 and its Memorandum in support of the Petition on August
30, 1977. 5 The respondents filed their Memorandum on September 5,
1977. 6 Whereupon, the case was considered submitted for decision. 7
From the foregoing factual and procedural antecedents emerges the sole
issues determinative of the instant petition, to wit: Whether or not the
criminal case for Falsification of Public Document filed against herein private
respondent Benjamin F. Manaloto — who allegedly forged the signature of his
wife, Victoria M. Manaloto, in a deed of sale, thereby making it appear that
the latter gave her marital consent to the sale of a house and lot belonging to
their conjugal partnership when in fact and in truth she did not — may be
considered as a criminal case for a crime committed by a husband against his
wife and, therefore, an exception to the rule on marital disqualification.
We sustain petitioner's stand that the case is an exception to the marital
disqualification rule, as a criminal case for a crime committed by the accused-
husband against the witness-wife.
1. The act complained of as constituting the crime of Falsification of Public
Document is the forgery by the accused of his wife's signature in a deed of
sale, thereby making it appear therein that said wife consented to the sale of
a house and lot belonging to their conjugal partnership when in fact and in
truth she did not. It must be noted that had the sale of the said house and lot,
and the signing of the wife's name by her husband in the deed of sale, been
made with the consent of the wife, no crime could have been charged against
said husband Clearly, therefore, it is the husband's breach of his wife's
confidence which gave rise to the offense charged. And it is this same breach
of trust which prompted the wife to make the necessary complaint with the
Office of the Provincial Fiscal which, accordingly, filed the aforesaid criminal
case with the Court of First Instance of Pampanga. To rule, therefore, that
such criminal case is not one for a crime committed by one spouse against the
other is to advance a conclusion which completely disregards the factual
antecedents of the instant case.
2. This is not the first time that the issue of whether a specific offense may be
classified as a crime committed by one spouse against the other is presented
to this Court for resolution. Thus, in the case of Ordoño v. Daquigan, 8 this
Court, through Mr. Justice Ramon C. Aquino, set up the criterion to be
followed in resolving the issue, stating that:
We think that the correct rule, which may be adopted in this jurisdiction, is
that laid down in Cargill v. State, 35 ALR, 133, 220, Pac 64,26 OkL 314, wherein
the court said:
The rule that the injury must amount to a physical
wrong upon the is too narrow; and the rule that any
offense remotely or indirectly affecting domestic within
the exception is too broad. The better rule is that, WHEN
AN OFFENSE DIRECTLY ATTACKS, OR DIRECTLY AND
VITALLY IMPAIRS, THE CONJUGAL RELATION, IT COMES
WITHIN THE EXCEPTION to the statute that one shall not
be a witness against the other except in a criminal
prosecution for a crime committed (by) one against the
other.
Applying the foregoing criterion in said case of Ordoño v. Daquigan this Court
held that the rape committed by the husband of the witness-wife against their
daughter was a crime committed by the husband against his wife. Although
the victim of the crime committed by the accused in that can was not his wife
but their daughter, this Court, nevertheless, applied the exception for the
reason that said criminal act "Positively undermine(d) the connubial
relationship. 9
With more reason must the exception apply to the instant case where the
victim of the crime and the person who stands to be directly prejudiced by the
falsification is not a third person but the wife herself. And it is undeniable that
the act comp of had the effect of directly and vitally impairing the conjugal
relation. This is apparent not only in the act Of the wife in personally lodging
her complaint with the Office of the Provincial Fiscal, but also in her insistent
efforts 10 in connection with the instant petition, which seeks to set aside the
order disqualified her from testifying against her husband. Taken collectively,
the actuations of the witness-wife underacore the fact that the martial and
domestic relations between her and the accused-husband have become so
strained that there is no more harmony to be preserved said nor peace and
tranquility which may be disturbed. In such a case, as We have occasion to
point out in previous decisions, "identity of interests disappears and the
consequent danger of perjury based on that Identity is nonexistent. Likewise,
in such a situation, the security and confidence of private life which the law
aims at protecting will be nothing but Ideals which, through their absence,
merely leave a void in the unhappy home. 11 Thus, there is no reason to apply
the martial disqualification rule.
3. Finally, overriding considerations of public policy demand that the wife
should not be disqualified from testifying against her husband in the instant
case. For, as aptly observed by the Solicitor General," (t)o espouse the
contrary view would spawn the dangerous precedent of a husband
committing as many falsifications against his wife as he could conjure, seeking
shelter in the anti-marital privilege as a license to injure and prejudice her in
secret — all with unabashed and complete impunity.
IN VIEW OF ALL THE FOREGOING, the order of the lower court dated March
31, 1977, disqualifying Victoria Manaloto from testifying for or against her
husband, Benjamin Manaloto, in Criminal Case No. 1011, as well as the order
dated May 19, 1977, denying the motion for reconsideration are hereby SET
ASIDE. The temporary restraining order issued by this Court is hereby lifted
and the respondent Judge is hereby ordered to proceed with the trial of the
case, allowing Victoria Manaloto to testify against her husband.
SO ORDERED.
G.R. No. 74306 March 16, 1992
ENRIQUE RAZON, petitioner,
vs.
INTERMEDIATE APPELLATE COURT and VICENTE B. CHUIDIAN, in his capacity
as Administrator of the Estate of the Deceased JUAN T.
CHUIDIAN, respondents.
G.R. No. 74315 March 16, 1992
VICENTE B. CHUIDIAN, petitioner,
vs.
INTERMEDIATE APPELLATE COURT, ENRIQUE RAZ0N, and E. RAZON,
INC., respondents.
GUTIERREZ, JR., J.:
The main issue in these consolidated petitions centers on the ownership of
1,500 shares of stock in E. Razon, Inc. covered by Stock Certificate No. 003
issued on April 23, 1966 and registered under the name of Juan T. Chuidian in
the books of the corporation. The then Court of First Instance of Manila, now
Regional Trial Court of Manila, declared that Enrique Razon, the petitioner in
G.R. No. 74306 is the owner of the said shares of stock. The then Intermediate
Appellate Court, now Court of Appeals, however, reversed the trial court's
decision and ruled that Juan T. Chuidian, the deceased father of petitioner
Vicente B. Chuidian in G.R. No. 74315 is the owner of the shares of stock. Both
parties filed separate motions for reconsideration. Enrique Razon wanted the
appellate court's decision reversed and the trial court's decision affirmed
while Vicente Chuidian asked that all cash and stock dividends and all the pre-
emptive rights accruing to the 1,500 shares of stock be ordered delivered to
him. The appellate court denied both motions. Hence, these petitions.
The relevant Antecedent facts are as follows:
In his complaint filed on June 29, 1971, and amended on November 16,
1971, Vicente B. Chuidian prayed that defendants Enrique B. Razon, E.
Razon, Inc., Geronimo Velasco, Francisco de Borja, Jose Francisco, Alfredo
B. de Leon, Jr., Gabriel Llamas and Luis M. de Razon be ordered to deliver
certificates of stocks representing the shareholdings of the deceased Juan
T. Chuidian in the E. Razon, Inc. with a prayer for an order to restrain the
defendants from disposing of the said shares of stock, for a writ of
preliminary attachment v. properties of defendants having possession of
shares of stock and for receivership of the properties of defendant
corporation . . .
xxx xxx xxx
In their answer filed on June 18, 1973, defendants alleged that all the
shares of stock in the name of stockholders of record of the corporation
were fully paid for by defendant, Razon; that said shares are subject to the
agreement between defendants and incorporators; that the shares of stock
were actually owned and remained in the possession of Razon. Appellees
also alleged . . . that neither the late Juan T. Chuidian nor the appellant had
paid any amount whatsoever for the 1,500 shares of stock in question . . .
xxx xxx xxx
The evidence of the plaintiff shown that he is the administrator of the
intestate estate of Juan Telesforo Chuidian in Special Proceedings No.
71054, Court of First Instance of Manila.
Sometime in 1962, Enrique Razon organized the E. Razon, Inc. for the
purpose of bidding for the arrastre services in South Harbor, Manila. The
incorporators consisted of Enrique Razon, Enrique Valles, Luisa M. de
Razon, Jose Tuason, Jr., Victor Lim, Jose F. Castro and Salvador Perez de
Tagle.
On April 23, 1966, stock certificate No. 003 for 1,500 shares of stock of
defendant corporation was issued in the name of Juan T. Chuidian.
On the basis of the 1,500 shares of stock, the late Juan T. Chuidian and after
him, the plaintiff-appellant, were elected as directors of E. Razon, Inc. Both
of them actually served and were paid compensation as directors of E.
Razon, Inc.
From the time the certificate of stock was issued on April 1966 up to April
1971, Enrique Razon had not questioned the ownership by Juan T. Chuidian
of the shares of stock in question and had not brought any action to have
the certificate of stock over the said shares cancelled.
The certificate of stock was in the possession of defendant Razon who
refused to deliver said shares to the plaintiff, until the same was
surrendered by defendant Razon and deposited in a safety box in Philippine
Bank of Commerce.
Defendants allege that after organizing the E. Razon, Inc., Enrique Razon
distributed shares of stock previously placed in the names of the
withdrawing nominal incorporators to some friends including Juan T.
Chuidian
Stock Certificate No. 003 covering 1,500 shares of stock upon instruction of
the late Chuidian on April 23, 1986 was personally delivered by Chuidian on
July 1, 1966 to the Corporate Secretary of Attorney Silverio B. de Leon who
was himself an associate of the Chuidian Law Office (Exhs. C & 11). Since
then, Enrique Razon was in possession of said stock certificate even during
the lifetime of the late Chuidian, from the time the late Chuidian delivered
the said stock certificate to defendant Razon until the time (sic) of
defendant Razon. By agreement of the parties (sic) delivered it for deposit
with the bank under the joint custody of the parties as confirmed by the
trial court in its order of August 7, 1971.
Thus, the 1,500 shares of stook under Stock Certificate No. 003 were
delivered by the late Chuidian to Enrique because it was the latter who
paid for all the subscription on the shares of stock in the defendant
corporation and the understanding was that he (defendant Razon) was the
owner of the said shares of stock and was to have possession thereof until
such time as he was paid therefor by the other nominal
incorporators/stockholders (TSN., pp. 4, 8, 10, 24-25, 25-26, 28-31, 31-32,
60, 66-68, July 22, 1980, Exhs. "C", "11", "13" "14"). (Ro11o —74306, pp.
66-68)
In G.R. No. 74306, petitioner Enrique Razon assails the appellate court's
decision on its alleged misapplication of the dead man's statute rule under
Section 20(a) Rule 130 of the Rules of Court. According to him, the "dead
man's statute" rule is not applicable to the instant case. Moreover, the private
respondent, as plaintiff in the case did not object to his oral testimony
regarding the oral agreement between him and the deceased Juan T. Chuidian
that the ownership of the shares of stock was actually vested in the petitioner
unless the deceased opted to pay the same; and that the petitioner was
subjected to a rigid cross examination regarding such testimony.
Section 20(a) Rule 130 of the Rules of Court (Section 23 of the Revised Rules
on Evidence) States:
Sec. 20. Disqualification by reason of interest or relationship — The
following persons cannot testify as to matters in which they are
interested directly or indirectly, as herein enumerated.
(a) Parties or assignors of parties to a case, or persons in whose behalf a
case is prosecuted, against an executor or administrator or other
representative of a deceased person, or against a person of unsound
mind, upon a claim or demand against the estate of such deceased
person or against such person of unsound mind, cannot testify as to any
matter of fact accruing before the death of such deceased person or
before such person became of unsound mind." (Emphasis supplied)
xxx xxx xxx
The purpose of the rule has been explained by this Court in this wise:
The reason for the rule is that if persons having a claim against the
estate of the deceased or his properties were allowed to testify as to the
supposed statements made by him (deceased person), many would be
tempted to falsely impute statements to deceased persons as the latter
can no longer deny or refute them, thus unjustly subjecting their
properties or rights to false or unscrupulous claims or demands. The
purpose of the law is to "guard against the temptation to give false
testimony in regard to the transaction in question on the part of the
surviving party." (Tongco v. Vianzon, 50 Phil. 698; Go Chi Gun, et al. v. Co
Cho, et al., 622 [1955])
The rule, however, delimits the prohibition it contemplates in that it is
applicable to a case against the administrator or its representative of an
estate upon a claim against the estate of the deceased person. (See Tongco v.
Vianzon, 50 Phil. 698 [1927])
In the instant case, the testimony excluded by the appellate court is that of
the defendant (petitioner herein) to the affect that the late Juan Chuidian,
(the father of private respondent Vicente Chuidian, the administrator of the
estate of Juan Chuidian) and the defendant agreed in the lifetime of Juan
Chuidian that the 1,500 shares of stock in E. Razon, Inc. are actually owned by
the defendant unless the deceased Juan Chuidian opted to pay the same
which never happened. The case was filed by the administrator of the estate
of the late Juan Chuidian to recover shares of stock in E. Razon, Inc. allegedly
owned by the late Juan T. Chuidian.
It is clear, therefore, that the testimony of the petitioner is not within the
prohibition of the rule. The case was not filed against the administrator of the
estate, nor was it filed upon claims against the estate.
Furthermore, the records show that the private respondent never objected to
the testimony of the petitioner as regards the true nature of his transaction
with the late elder Chuidian. The petitioner's testimony was subject to cross-
examination by the private respondent's counsel. Hence, granting that the
petitioner's testimony is within the prohibition of Section 20(a), Rule 130 of
the Rules of Court, the private respondent is deemed to have waived the rule.
We ruled in the case of Cruz v. Court of Appeals (192 SCRA 209 [1990]):
petitioner who claims ownership over the questioned shares of stock must
show that the same were transferred to him by proving that all the
requirements for the effective transfer of shares of stock in accordance with
the corporation's by laws, if any, were followed (See Nava v. Peers Marketing
Corporation, 74 SCRA 65 [1976]) or in accordance with the provisions of law.
The petitioner failed in both instances. The petitioner did not present any by-
laws which could show that the 1,500 shares of stock were effectively
transferred to him. In the absence of the corporation's by-laws or rules
governing effective transfer of shares of stock, the provisions of the
Corporation Law are made applicable to the instant case.

It is also settled that the court cannot disregard evidence which would The law is clear that in order for a transfer of stock certificate to be effective,
ordinarily be incompetent under the rules but has been rendered the certificate must be properly indorsed and that title to such certificate of
admissible by the failure of a party to object thereto. Thus: stock is vested in the transferee by the delivery of the duly indorsed certificate
of stock. (Section 35, Corporation Code) Since the certificate of stock covering
. . . The acceptance of an incompetent witness to testify in a civil suit, as
the questioned 1,500 shares of stock registered in the name of the late Juan
well as the allowance of improper questions that may be put to him
Chuidian was never indorsed to the petitioner, the inevitable conclusion is
while on the stand is a matter resting in the discretion of the litigant. He
that the questioned shares of stock belong to Chuidian. The petitioner's
may assert his right by timely objection or he may waive it, expressly or
asseveration that he did not require an indorsement of the certificate of stock
by silence. In any case the option rests with him. Once admitted, the
in view of his intimate friendship with the late Juan Chuidian can not
testimony is in the case for what it is worth and the judge has no power
overcome the failure to follow the procedure required by law or the proper
to disregard it for the sole reason that it could have been excluded, if it
conduct of business even among friends. To reiterate, indorsement of the
had been objected to, nor to strike it out on its own motion (Emphasis
certificate of stock is a mandatory requirement of law for an effective transfer
supplied). (Marella v. Reyes, 12 Phil. 1.)
of a certificate of stock.
The issue as to whether or not the petitioner's testimony is admissible having
Moreover, the preponderance of evidence supports the appellate court's
been settled, we now proceed to discuss the fundamental issue on the
factual findings that the shares of stock were given to Juan T. Chuidian for
ownership of the 1,500 shares of stock in E. Razon, Inc.
value. Juan T. Chuidian was the legal counsel who handled the legal affairs of
E. Razon, Inc. was organized in 1962 by petitioner Enrique Razon for the the corporation. We give credence to the testimony of the private respondent
purpose of participating in the bidding for the arrastre services in South that the shares of stock were given to Juan T. Chuidian in payment of his legal
Harbor, Manila. The incorporators were Enrique Razon, Enrique Valles, Luisa services to the corporation. Petitioner Razon failed to overcome this
M. de Razon, Jose Tuazon, Jr., Victor L. Lim, Jose F. Castro and Salvador Perez testimony.
de Tagle. The business, however, did not start operations until 1966.
In G.R. No. 74315, petitioner Vicente B. Chuidian insists that the appellate
According to the petitioner, some of the incorporators withdrew from the said
court's decision declaring his deceased father Juan T. Chuidian as owner of the
corporation. The petitioner then distributed the stocks previously placed in
1,500 shares of stock of E. Razon, Inc. should have included all cash and stock
the names of the withdrawing nominal incorporators to some friends, among
dividends and all the pre-emptive rights accruing to the said 1,500 shares of
them the late Juan T. Chuidian to whom he gave 1,500 shares of stock. The
stock.
shares of stock were registered in the name of Chuidian only as nominal
stockholder and with the agreement that the said shares of stock were owned The petition is impressed with merit.
and held by the petitioner but Chuidian was given the option to buy the same.
The cash and stock dividends and all the pre-emptive rights are all incidents of
In view of this arrangement, Chuidian in 1966 delivered to the petitioner the
stock ownership.
stock certificate covering the 1,500 shares of stock of E. Razon, Inc. Since then,
the Petitioner had in his possession the certificate of stock until the time, he The rights of stockholders are generally enumerated as follows:
delivered it for deposit with the Philippine Bank of Commerce under the
xxx xxx xxx
parties' joint custody pursuant to their agreement as embodied in the trial
court's order. . . . [F]irst, to have a certificate or other evidence of his
status as stockholder issued to him; second, to vote at
The petitioner maintains that his aforesaid oral testimony as regards the true
meetings of the corporation; third, to receive his
nature of his agreement with the late Juan Chuidian on the 1,500 shares of
proportionate share of the profits of the corporation;
stock of E. Razon, Inc. is sufficient to prove his ownership over the said 1,500
and lastly, to participate proportionately in the
shares of stock.
distribution of the corporate assets upon the dissolution
The petitioner's contention is not correct. or winding up. (Purdy's Beach on Private Corporations,
sec. 554) (Pascual v. Del Saz Orozco, 19 Phil. 82, 87)
In the case of Embassy Farms, Inc. v. Court of Appeals (188 SCRA 492 [1990])
we ruled: WHEREFORE, judgment is rendered as follows:

. . . For an effective, transfer of shares of stock the mode a) In G.R. No. 74306, the petition is DISMISSED. The questioned decision and
and manner of transfer as prescribed by law must be resolution of the then Intermediate Appellate Court, now the Court of
followed (Navea v. Peers Marketing Corp., 74 SCRA 65). Appeals, are AFFIRMED. Costs against the petitioner.
As provided under Section 3 of Batas Pambansa Bilang,
b) In G.R. No. 74315, the petition is GRANTED. The questioned Resolution
68 otherwise known as the Corporation Code of the
insofar as it denied the petitioner's motion to clarify the dispositive portion of
Philippines, shares of stock may be transferred by
the decision of the then Intermediate Appellate Court, now Court of Appeals
delivery to the transferee of the certificate properly
is REVERSED and SET ASIDE. The decision of the appellate court is MODIFIED
indorsed. Title may be vested in the transferee by the
in that all cash and stock dividends as, well as all pre-emptive rights that have
delivery of the duly indorsed certificate of stock (18
accrued and attached to the 1,500 shares in E. Razon, Inc., since 1966 are
C.J.S. 928, cited in Rivera v. Florendo, 144 SCRA 643).
declared to belong to the estate of Juan T. Chuidian.
However, no transfer shall be valid, except as between
the parties until the transfer is properly recorded in the SO ORDERED.
books of the corporation (Sec. 63, Corporation Code of
the Philippines; Section 35 of the Corporation Law)

In the instant case, there is no dispute that the questioned 1,500 shares of
stock of E. Razon, Inc. are in the name of the late Juan Chuidian in the books
of the corporation. Moreover, the records show that during his lifetime
Chuidian was ellected member of the Board of Directors of the corporation
which clearly shows that he was a stockholder of the corporation. (See Section
30, Corporation Code) From the point of view of the corporation, therefore,
Chuidian was the owner of the 1,500 shares of stock. In such a case, the
G.R. No. 143340 August 15, 2001
LILIBETH SUNGA-CHAN and CECILIA SUNGA, petitioners,
vs.
LAMBERTO T. CHUA, respondent.
GONZAGA-REYES, J.:
Before us is a petition for review on certiorari under Rule 45 of the Rules of
Court of the Decision1 of the Court of Appeals dated January 31, 2000 in the
case entitled "Lamberto T. Chua vs. Lilibeth Sunga Chan and Cecilia Sunga"
and of the Resolution dated May 23, 2000 denying the motion for
reconsideration of herein petitioners Lilibeth Sunga and Cecilia Sunga
(hereafter collectively referred to as petitioners).
The pertinent facts of this case are as follows:
On June 22, 1992, Lamberto T. Chua (hereafter respondent) filed a complaint
against Lilibeth Sunga Chan (hereafter petitioner Lilibeth) and Cecilia Sunga
(hereafter petitioner Cecilia), daughter and wife, respectively of the deceased
Jacinto L. Sunga (hereafter Jacinto), for "Winding Up of Partnership Affairs,
Accounting, Appraisal and Recovery of Shares and Damages with Writ of
Preliminary Attachment" with the Regional Trial Court, Branch 11, Sindangan,
Zamboanga del Norte.
Respondent alleged that in 1977, he verbally entered into a partnership with
Jacinto in the distribution of Shellane Liquefied Petroleum Gas (LPG) in
Manila. For business convenience, respondent and Jacinto allegedly agreed to
register the business name of their partnership, SHELLITE GAS APPLIANCE
CENTER (hereafter Shellite), under the name of Jacinto as a sole
proprietorship. Respondent allegedly delivered his initial capital contribution
of P100,000.00 to Jacinto while the latter in turn produced P100,000.00 as his
counterpart contribution, with the intention that the profits would be equally
divided between them. The partnership allegedly had Jacinto as manager,
assisted by Josephine Sy (hereafter Josephine), a sister of the wife
respondent, Erlinda Sy. As compensation, Jacinto would receive a manager's
fee or remuneration of 10% of the gross profit and Josephine would receive
10% of the net profits, in addition to her wages and other remuneration from
the business.
Allegedly, from the time that Shellite opened for business on July 8, 1977, its
business operation went quite and was profitable. Respondent claimed that
he could attest to success of their business because of the volume of orders
and deliveries of filled Shellane cylinder tanks supplied by Pilipinas Shell
Petroleum Corporation. While Jacinto furnished respondent with the
merchandise inventories, balance sheets and net worth of Shellite from 1977
to 1989, respondent however suspected that the amount indicated in these
documents were understated and undervalued by Jacinto and Josephine for
their own selfish reasons and for tax avoidance.
Upon Jacinto's death in the later part of 1989, his surviving wife, petitioner
Cecilia and particularly his daughter, petitioner Lilibeth, took over the
operations, control, custody, disposition and management of Shellite without
respondent's consent. Despite respondent's repeated demands upon
petitioners for accounting, inventory, appraisal, winding up and restitution of
his net shares in the partnership, petitioners failed to comply. Petitioner
Lilibeth allegedly continued the operations of Shellite, converting to her own
use and advantage its properties.
On March 31, 1991, respondent claimed that after petitioner Lilibeth ran out
the alibis and reasons to evade respondent's demands, she disbursed out of
the partnership funds the amount of P200,000.00 and partially paid the same
to respondent. Petitioner Lilibeth allegedly informed respondent that the
P200,000.00 represented partial payment of the latter's share in the
partnership, with a promise that the former would make the complete
inventory and winding up of the properties of the business establishment.
Despite such commitment, petitioners allegedly failed to comply with their
duty to account, and continued to benefit from the assets and income of
Shellite to the damage and prejudice of respondent.
On December 19, 1992, petitioners filed a Motion to Dismiss on the ground
that the Securities and Exchange Commission (SEC) in Manila, not the Regional
Trial Court in Zamboanga del Norte had jurisdiction over the action.
Respondent opposed the motion to dismiss.
On January 12, 1993, the trial court finding the complaint sufficient in from
and substance denied the motion to dismiss.
On January 30, 1993, petitioners filed their Answer with Compulsory Counter-
claims, contending that they are not liable for partnership shares, unreceived
income/profits, interests, damages and attorney's fees, that respondent does
not have a cause of action against them, and that the trial court has no
jurisdiction over the nature of the action, the SEC being the agency that has
original and exclusive jurisdiction over the case. As counterclaim, petitioner
sought attorney's fees and expenses of litigation.
On August 2, 1993, petitioner filed a second Motion to Dismiss this time on
the ground that the claim for winding up of partnership affairs, accounting
and recovery of shares in partnership affairs, accounting and recovery of
shares in partnership assets/properties should be dismissed and prosecuted
against the estate of deceased Jacinto in a probate or intestate proceeding.
On August 16, 1993, the trial denied the second motion to dismiss for lack of
merit.
On November 26, 1993, petitioners filed their Petition for Certiorari,
Prohibition and Mandamus with the Court of Appeals docketed as CA-G.R. SP
No. 32499 questioning the denial of the motion to dismiss.
On November 29, 1993, petitioners filed with the trial court a Motion to
Suspend Pre-trial Conference.
On December 13, 1993, the trial court granted the motion to suspend pre-trial
conference.
On November 15, 1994, the Court of Appeals denied the petition for lack of
merit.
On January 16, 1995, this Court denied the petition for review on certiorari
filed by petitioner, "as petitioners failed to show that a reversible error was
committed by the appellate court."2
On February 20, 1995, entry of judgment was made by the Clerk of Court and
the case was remanded to the trial court on April 26, 1995.
On September 25, 1995, the trial court terminated the pre-trial conference
and set the hearing of the case of January 17, 1996. Respondent presented his
evidence while petitioners were considered to have waived their right to
present evidence for their failure to attend the scheduled date for reception
of evidence despite notice.
On October 7, 1997, the trial court rendered its Decision ruling for respondent.
The dispositive of the Decision reads:
"WHEREFORE, judgment is hereby rendered in favor of the plaintiff and
against the defendants, as follows:
(1) DIRECTING them to render an accounting in acceptable form under
accounting procedures and standards of the properties, assets,
income and profits of the Shellite Gas Appliance Center Since the time
of death of Jacinto L. Sunga, from whom they continued the business
operations including all businesses derived from Shellite Gas
Appliance Center, submit an inventory, and appraisal of all these
properties, assets, income, profits etc. to the Court and to plaintiff for
approval or disapproval;
(2) ORDERING them to return and restitute to the partnership any and
all properties, assets, income and profits they misapplied and
converted to their own use and advantage the legally pertain to the
plaintiff and account for the properties mentioned in pars. A and B on
pages 4-5 of this petition as basis;
(3) DIRECTING them to restitute and pay to the plaintiff ½ shares and
interest of the plaintiff in the partnership of the listed properties,
assets and good will (sic) in schedules A, B and C, on pages 4-5 of the
petition;
(4) ORDERING them to pay the plaintiff earned but unreceived income
and profits from the partnership from 1988 to May 30, 1992, when
the plaintiff learned of the closure of the store the sum of P35,000.00
per month, with legal rate of interest until fully paid;
(5) ORDERING them to wind up the affairs of the partnership and
terminate its business activities pursuant to law, after delivering to
the plaintiff all the ½ interest, shares, participation and equity in the
partnership, or the value thereof in money or money's worth, if the
properties are not physically divisible;
(6) FINDING them especially Lilibeth Sunga-Chan guilty of breach of
trust and in bad faith and hold them liable to the plaintiff the sum of
P50,000.00 as moral and exemplary damages; and,
(7) DIRECTING them to reimburse and pay the sum of P25,000.00 as
attorney's (sic) and P25,000.00 as litigation expenses.
NO special pronouncements as to COSTS.
SO ORDERED."3
On October 28, 1997, petitioners filed a Notice of Appeal with the trial court,
appealing the case to the Court of Appeals.
On January 31, 2000, the Court of Appeals dismissed the appeal. The
dispositive portion of the Decision reads:
"WHEREFORE, the instant appeal is dismissed. The appealed
decision is AFFIRMED in all respects."4
On May 23, 2000, the Court of Appeals denied the motion for reconsideration
filed by petitioner.
Hence, this petition wherein petitioner relies upon following grounds:
"1. The Court of Appeals erred in making a legal conclusion that
there existed a partnership between respondent Lamberto T. Chua
and the late Jacinto L. Sunga upon the latter'' invitation and offer
and that upon his death the partnership assets and business were
taken over by petitioners.
2. The Court of Appeals erred in making the legal conclusion that
laches and/or prescription did not apply in the instant case.
3. The Court of Appeals erred in making the legal conclusion that
there was competent and credible evidence to warrant the finding
of a partnership, and assuming arguendo that indeed there was a
partnership, the finding of highly exaggerated amounts or values in
the partnership assets and profits."5
Petitioners question the correctness of the finding of the trial court and the
Court of Appeals that a partnership existed between respondent and Jacinto
from 1977 until Jacinto's death. In the absence of any written document to
show such partnership between respondent and Jacinto, petitioners argues
that these courts were proscribes from hearing the testimonies of respondent
and his witness, Josephine, to prove the alleged partnership three years after
Jacinto's death. To support this argument, petitioners invoke the "Dead Man's
Statute' or "Survivorship Rule" under Section 23, Rule 130 of the Rules of
Court that provides:
"SEC. 23. Disqualification by reason of death or insanity of adverse
party. – Parties or assignors of parties to a case, or persons in
whose behalf a case is prosecuted, against an executor or
administrator or other representative of a deceased person, or
against a person of unsound mind, upon a claim or demand against
the estate of such deceased person, or against such person of
unsound mind, cannot testify as to any matter of fact occurring
before the death of such deceased person or before such person
became of unsound mind."
Petitioners thus implore this Court to rule that the testimonies of respondent
and his alter ego, Josephine, should not have been admitted to prove certain
claims against a deceased person (Jacinto), now represented by petitioners.
We are not persuaded.
A partnership may be constituted in any form, except where immovable
property of real rights are contributed thereto, in which case a public
instrument shall necessary.6 Hence, based on the intention of the parties, as
gathered from the facts and ascertained from their language and conduct, a
verbal contract of partnership may arise.7 The essential profits that must be
proven to that a partnership was agreed upon are (1) mutual contribution to a
common stock, and (2) a joint interest in the profits.8 Understandably so, in
view of the absence of the written contract of partnership between
respondent and Jacinto, respondent resorted to the introduction of
documentary and testimonial evidence to prove said partnership. The crucial
issue to settle then is to whether or not the "Dead Man's Statute" applies to
this case so as to render inadmissible respondent's testimony and that of his
witness, Josephine.
The "Dead Man's Statute" provides that if one party to the alleged transaction
is precluded from testifying by death, insanity, or other mental disabilities,
the surviving party is not entitled to the undue advantage of giving his own
uncontradicted and unexplained account of the transaction.9 But before this
rule can be successfully invoked to bar the introduction of testimonial
evidence, it is necessary that:
"1. The witness is a party or assignor of a party to case or persons
in whose behalf a case in prosecuted.
2. The action is against an executor or administrator or other
representative of a deceased person or a person of unsound mind;
3. The subject-matter of the action is a claim or demand against the
estate of such deceased person or against person of unsound mind;
4. His testimony refers to any matter of fact of which occurred
before the death of such deceased person or before such person
became of unsound mind."10
Two reasons forestall the application of the "Dead Man's Statute" to this case.
First, petitioners filed a compulsory counterclaim11 against respondents in
their answer before the trial court, and with the filing of their counterclaim,
petitioners themselves effectively removed this case from the ambit of the
"Dead Man's Statute".12 Well entrenched is the rule that when it is the
executor or administrator or representatives of the estates that sets up the
counterclaim, the plaintiff, herein respondent, may testify to occurrences
before the death of the deceased to defeat the counterclaim.13 Moreover, as
defendant in the counterclaim, respondent is not disqualified from testifying
as to matters of facts occurring before the death of the deceased, said action
not having been brought against but by the estate or representatives of the
deceased.14
Second, the testimony of Josephine is not covered by the "Dead Man's
Statute" for the simple reason that she is not "a party or assignor of a party to
a case or persons in whose behalf a case is prosecuted." Records show that
respondent offered the testimony of Josephine to establish the existence of
the partnership between respondent and Jacinto. Petitioners' insistence that
Josephine is the alter ego of respondent does not make her an assignor
because the term "assignor" of a party means "assignor of a cause of action
which has arisen, and not the assignor of a right assigned before any cause of
action has arisen."15 Plainly then, Josephine is merely a witness of
respondent, the latter being the party plaintiff.
We are not convinced by petitioners' allegation that Josephine's testimony
lacks probative value because she was allegedly coerced coerced by
respondent, her brother-in-law, to testify in his favor, Josephine merely
declared in court that she was requested by respondent to testify and that if
she were not requested to do so she would not have testified. We fail to see
how we can conclude from this candid admission that Josephine's testimony is
involuntary when she did not in any way categorically say that she was forced
to be a witness of respondent.
Also, the fact that Josephine is the sister of the wife of respondent does not
diminish the value of her testimony since relationship per se, without more,
does not affect the credibility of witnesses.16
Petitioners' reliance alone on the "Dead Man's Statute" to defeat
respondent's claim cannot prevail over the factual findings of the trial court
and the Court of Appeals that a partnership was established between
respondent and Jacinto. Based not only on the testimonial evidence, but the
documentary evidence as well, the trial court and the Court of Appeals
considered the evidence for respondent as sufficient to prove the formation
of partnership, albeit an informal one.
Notably, petitioners did not present any evidence in their favor during trial. By
the weight of judicial precedents, a factual matter like the finding of the
existence of a partnership between respondent and Jacinto cannot be
inquired into by this Court on review.17 This Court can no longer be tasked to
go over the proofs presented by the parties and analyze, assess and weigh
them to ascertain if the trial court and the appellate court were correct in
according superior credit to this or that piece of evidence of one party or the
other.18 It must be also pointed out that petitioners failed to attend the
presentation of evidence of respondent. Petitioners cannot now turn to this
Court to question the admissibility and authenticity of the documentary
evidence of respondent when petitioners failed to object to the admissibility
of the evidence at the time that such evidence was offered.19
With regard to petitioners' insistence that laches and/or prescription should
have extinguished respondent's claim, we agree with the trial court and the
Court of Appeals that the action for accounting filed by respondents three (3)
years after Jacinto's death was well within the prescribed period. The Civil
Code provides that an action to enforce an oral contract prescribes in six (6)
years20 while the right to demand an accounting for a partner's interest as
against the person continuing the business accrues at the date of dissolution,
in the absence of any contrary agreement.21 Considering that the death of a
partner results in the dissolution of the partnership22 , in this case, it was
Jacinto's death that respondent as the surviving partner had the right to an
account of his interest as against petitioners. It bears stressing that while
Jacinto's death dissolved the partnership, the dissolution did not immediately
terminate the partnership. The Civil Code23 expressly provides that upon
dissolution, the partnership continues and its legal personality is retained
until the complete winding up of its business, culminating in its
termination.24
In a desperate bid to cast doubt on the validity of the oral partnership
between respondent and Jacinto, petitioners maintain that said partnership
that had initial capital of P200,000.00 should have been registered with the
Securities and Exchange Commission (SEC) since registration is mandated by
the Civil Code, True, Article 1772 of the Civil Code requires that partnerships
with a capital of P3,000.00 or more must register with the SEC, however, this
registration requirement is not mandatory. Article 1768 of the Civil
Code25 explicitly provides that the partnership retains its juridical personality
even if it fails to register. The failure to register the contract of partnership
does not invalidate the same as among the partners, so long as the contract
has the essential requisites, because the main purpose of registration is to
give notice to third parties, and it can be assumed that the members
themselves knew of the contents of their contract.26 In the case at bar, non-
compliance with this directory provision of the law will not invalidate the
partnership considering that the totality of the evidence proves that
respondent and Jacinto indeed forged the partnership in question.

WHEREFORE, in view of the foregoing, the petition is DENIED and the

appealed decision is AFFIRMED.

SO ORDERED
G.R. No. 112443 January 25, 2002
TERESITA P. BORDALBA, petitioner,
vs.
COURT OF APPEALS, HEIRS OF NICANOR JAYME, namely, CANDIDA FLORES,
EMANNUEL JAYME, DINA JAYME DEJORAS, EVELIA JAYME, and GESILA JAYME;
AND HEIRS OF ASUNCION JAYME-BACLAY, namely, ANGELO JAYME-BACLAY,
CARMEN JAYME-DACLAN and ELNORA JAYME BACLAY, respondents.
YNARES-SANTIAGO, J.:
This is a petition for review under Rule 45 of the Rules of Court seeking to set
aside the October 20, 1992 Decision of the Court of Appeals1 in CA-G.R. CV
No. 27419, which affirmed with modification the Decision2of the Regional
Trial Court of Mandaue, Branch 28, in Civil Case No. MAN-386.
The instant controversy stemmed from Lot No. 1242 (Lot No. 799-C) with an
area of 1,853 square meters and located at Barrio Looc, Mandaue City. The
subject lot is part of a parcel of land situated on the corner of Mabini and
Plaridel Streets in Mandaue City, and originally owned by the late spouses
Carmeno Jayme and Margarita Espina de Jayme. In 1947, an extra-judicial
partition,3 written in the Spanish language was executed, describing said
parcel of land as –
2. otra parcela de terreno urbano en el barrio de Look, Mandawe,
Cebu, que linda al N. con la Calle Mabini y propiodades de F.
Jayme; al E. linda con propiodades de Fernando Antigua; al S. linda
con propiodades de Lucas y Victoriano Jayme, y al O. linda con la
Calle Plaridel. La propiodad descrita esta avaluada, con todas sus
mejoras, en la cantidad de MIL Y CINCUENTA PESOS ---------------------
--------------------------- P1,050.00.4
and disposing, inter alia, the same parcel of land as follows:
1) 1/3 in favor of - (a) their grandchild Nicanor Jayme, the deceased
spouse of private respondent Candida Flores and the father of
private respondents Emmanuel, Dina, Evelia and Gesila, all
surnamed Jayme; and (b) their grandchild Asuncion Jayme-Baclay,
whose heirs are private respondents Agelio Baclay, Elnora Baclay
and Carmen Jayme-Daclan;
2) 1/3 to their daughter Elena Jayme Vda. de Perez, mother of
petitioner Teresita P. Bordalba; and
3) 1/3 to an unidentified party.
Built on the land adjudicated to the heirs of the spouses is Nicanor Jayme’s
house, which his family occupied since 1945.
Sometime in July 1964, Elena Jayme Vda. de Perez, petitioner’s mother, filed
with the Regional Trial Court of Cebu, Branch IV, an amended application for
the registration5 of the lot described with the following boundaries:
N - Fruelana Jayme & Road
S - Felicitas de Latonio
E - Agustin de Jayme
W - Porfirio Jayme, Lot No. 1 and Vivencio Abellana
Elena Jayme Vda. de Perez alleged that the lot sought to be registered was
originally a part of a land owned by her late parents, the spouses Carmeno
Jayme and Margarita Espina de Jayme; and that 1/3 of said land was
adjudicated to her in an extra-judicial partition. She further stated that a
portion of the lot for which title is applied for is occupied by Nicanor Jayme
with her permission.
Consequently, Nicanor Jayme and Asuncion Jayme-Baclay filed their
opposition6 contending that said application included the 1/3 portion
inherited by them in the 1947 extra-judicial partition. The case was, however,
dismissed for lack of interest of the parties.
Subsequently, petitioner filed with the Bureau of Lands of Cebu City an
application7 dated January 10, 1979, seeking the issuance of a Free Patent
over the same lot subject of the aborted application of her mother, Elena
Jayme, now known as Lot No. 1242 (799-C), described as follows:
North: Froilan Jayme and Road
East: Agustin Jayme
South: Alfredo Alivio and Spouses Hilario Gandecila
West: Hilario Gandecila Porferio Jayme and Heirs of Vevencio
Abellanosa8
On April 16, 1980, petitioner was successfully granted Free Patent No. (VII-I)
11421 and Original Certificate of Title No. 0-571 (FP) over said lot.9 Thereafter,
petitioner caused the subdivision and titling of Lot No. 1242 (799-C), into 6
lots,10 as well as the disposition of two parcels thereof, thus:
1) Lot No. 1242-A with an area of 581 square meters covered by
Transfer Certificate of Title No. 22771 (FP) in the name of spouses
Genaro U. Cabahug and Rita Capala, to whom petitioner sold said
lot;
2) Lot No. 1242-B with an area of 420 square meters covered by
TCT No. 22772 in the name of Teresita P. Bordalba, and which the
latter mortgaged with the Rural Bank of Mandaue;
3) Lot No. 1242-C with an area of 210 square meters covered by TCT
22773 in the name of Teresita P. Bordalba;
4) Lot No. 1242-D with an area of 210 square meters covered by
TCT 22774 in the name of Teresita Bordalba;
5) Lot No. 1242-E with an area of 216 square meters covered by TCT
22775 in the name of Teresita P. Bordalba;
6) Lot No. 1242-F with an area of 216 square meters and covered by
TCT No. 22776 in the name of Teresita P. Bordalba.
Upon learning of the issuance in favor of petitioner of the aforesaid Free
Patent and Original Certificate of Title over Lot No. 1242, as well as the
conveyances made by petitioner involving the lot subject of the controversy,
private respondents filed with the Regional Trial Court of Mandaue City,
Branch 28, the instant complaint against petitioner Teresita Bordalba, spouses
Genaro U. Cabahug, and Rita Capala, Rural Bank of Mandaue and the Director
of the Bureau of Lands.
In the said complaint, private respondents prayed that Free Patent No. (VII-I)
11421 and OCT No. 0-571 (FP), as well as TCT Nos. 22771-22776 be declared
void and ordered cancelled. Private respondents also prayed that they be
adjudged owners of Lot No. 1242 (799-C), and that spouses Genaro V.
Cabahug and Rita Capala as well as the Rural Bank of Mandaue be declared
buyers and mortgagee in bad faith, respectively. In addition, they asked the
court to award them actual, compensatory, and moral damages plus
attorney’s fees in the amount of P20,000.00.
Petitioner, on the other hand, averred that Lot No. 1242 (799-C) was acquired
by her through purchase from her mother,11 who was in possession of the lot
in the concept of an owner since 1947. In her answer, petitioner traced her
mother’s ownership of the lot partly from the 1947 deed of extra-judicial
partition presented by private respondents,12 and claimed that Nicanor
Jayme, and Candida Flores occupied a portion of Lot No. 1242 (799-C) by mere
tolerance of her mother. On cross-examination, petitioner admitted that the
properties of the late Carmeno Jayme and Margarita Espina de Jayme were
partitioned by their heirs in 1947, but claimed that she was not aware of the
existence of said Deed of Extra-judicial Partition. She, however, identified one
of the signatures in the said Deed to be the signature of her mother.13
On May 28, 1990, the trial court, finding that fraud was employed by
petitioner in obtaining Free Patent No. (VII-I) 11421 and OCT No. 0-571 (FP),
declared said patent and title void and ordered its cancellation. However, it
declared that spouses Genaro U. Cabahug and Rita Capala as well as the Rural
Bank of Mandaue are purchasers and mortgagee in good faith, respectively;
and consequently upheld as valid the sale of Lot No. 1242-A covered by
Transfer Certificate of Title No. 22771 (FP) to spouses Genaro U. Cabahug and
Rita Capala, and the mortgage of Lot No. 1242-B covered by TCT No. 22772 in
favor of the Rural Bank of Mandaue. The dispositive portion of the decision
reads:
WHEREFORE, foregoing premises considered, Decision is hereby
rendered in favor of the plaintiffs by:
1) declaring Free Patent No. (VII-I) 11421 as well as the Original
Certificate of Title No. 0-57 (FP) and all subsequent certificates of
title as a result of the subdivision of Lot No. 1242 except TCT NO.
22771 (FP) as null and void and ordering the Register of Deeds of
Mandaue City to cancel them;
2) declaring spouses defendants Genaro U. Cabahug and Rita
Capala as buyers in good faith and are the legal and rightful owners
of Lot No. 1242-A as described in TCT No. 22771 (FP);
3) declaring the Rural Bank of Mandaue, Inc. as mortgagee in good
faith and the mortgage lien in its favor be carried over to and be
annotated in the new certificate of title to be issued under the
names of the plaintiffs;
 4) declaring the plaintiffs as the legal and rightful owners of Lot
1242 and ordering the issuance of the certificate of title in their
names;
5) dismissing the claims of the defendant spouses Cabahug and
Capala and the defendant Rural Bank of Mandaue, Inc. for lack of
merit;
6) ordering the defendant Teresita Bordalba to pay plaintiffs the
following amounts:
(a) P5,000.00 as actual and litigation expenses;
(b) P20,000.00 as attorney’s fees, and,
7) ordering defendant Bordalba to pay the costs.
SO ORDERED.14
Both petitioner Teresita Bordalba and private respondents appealed to the
Court of Appeals, which affirmed with modification the decision of the trial
court. It ruled that since private respondents are entitled only to 1/3 portion
of Lot No. 1242 (799-C), petitioner should be ordered to reconvey 1/3 of Lot
No. 1242 (799-C) to private respondents. The decretal portion of the
respondent court's decision states:
WHEREFORE, the challenged decision is MODIFIED to order the
reconveyance of one-third of the subject land in favor of the
plaintiff-appellees in lieu of the cancellation of the Certificates of
Title issued and their declaration as the owners of Lot No. 1242 in
its entirety. The rest is AFFIRMED in toto.
SO ORDERED.15
Thus, petitioner filed the instant petition, assailing the decision of the Court of
Appeals. Petitioner contends that the testimonies given by the witnesses for
private respondents which touched on matters occurring prior to the death of
her mother should not have been admitted by the trial court, as the same
violated the dead man’s statute. Likewise, petitioner questions the right of
private respondents to inherit from the late Nicanor Jayme and Asuncion
Jayme-Baclay, as well as the identity between the disputed lot and the parcel
of land adjudicated in the Deed of Extra-judicial Partition.
The contentions are without merit. It is doctrinal that findings of facts of the
Court of Appeals upholding those of the trial court are binding upon this
Court. While there are exceptions to this rule, petitioner has not convinced us
that this case falls under one of them.16
The Court sees no reason to deviate from the findings of the trial court that
petitioner resorted to fraud and misrepresentation in obtaining a free patent
and title over the lot under scrutiny. The Court of Appeals correctly pointed
out that misrepresentation tainted petitioner’s application, insofar as her
declaration that the land applied for was not occupied or claimed by any other
person. Her declaration is belied by the extra-judicial partition which she
acknowledged, her mother’s aborted attempt to have the lot registered,
private respondents’ predecessors-in-interest’s opposition thereto, and by the
occupancy of a portion of the said lot by Nicanor Jayme and his family since
1945.
It is a settled rule that the Land Registration Act protects only holders of title
in good faith, and does not permit its provision to be used as a shield for the
commission of fraud, or as a means to enrich oneself at the expense of
others.17
As to the alleged violation of the dead man’s statute,18 suffice it to state that
said rule finds no application in the present case. The dead man’s statute does
not operate to close the mouth of a witness as to any matter of fact coming to
his knowledge in any other way than through personal dealings with the
deceased person, or communication made by the deceased to the witness.19
Since the claim of private respondents and the testimony of their witnesses in
the present case is based, inter alia, on the 1947 Deed of Extra-judicial
Partition and other documents, and not on dealings and communications with
the deceased, the questioned testimonies were properly admitted by the trial
court.
Likewise untenable is the claim of petitioner that private respondents are not
legal heirs of Nicanor Jayme and Asuncion Jayme-Baclay. Other than their
bare allegations to dispute their heirship, no hard evidence was presented by
them to substantiate their allegations. Besides, in order that an heir may
assert his right to the property of a deceased, no previous judicial declaration
of heirship is necessary.20
Anent the issue of identity, the disparity in the boundaries of Lot No. 1242
(799-C) vis-à-vis the boundaries of the lot referred to in the 1947 Deed of
Extra-judicial Partition can be explained by the fact that Lot No. 1242 (799-C)
is only a portion of the entire parcel of land described in the Deed, a 1/3 pro-
indiviso portion of which was adjudicated each to, first, petitioner’s mother,
second, to the predecessors-in-interest of private respondents, and third, to
an unidentified party. Logically therefore, their boundaries will not be similar.
At any rate, the records show that the parcel of land adjudicated to the
predecessors-in-interest of the parties herein was the lot found on the corner
of Plaridel and Mabini Streets in Looc, Mandaue City. As admitted further by
both parties, Lot No. 1242 (799-C) was part of the land allotted to their
predecessors-in-interest in the 1947 Deed of Extra-judicial Partition.
Moreover, petitioner’s mother acknowledged in her application for
registration of Lot No. 1242 that the Deed of Extra-judicial Partition was the
source of her claim over the lot sought to be registered. She further admitted
that the lot now known as Lot No. 1242 (799-C) was part of the parcel of land
inherited by her and her co-heirs, to the extent of 1/3 share each. Under
Section 31, Rule 130, of the Revised Rules on Evidence, where one derives title
to property from another, the act, declaration, or omission of the latter, while
holding the title, in relation to the property, is evidence against the former.
Considering that Lot No.1242 (799-C) is part of the parcel of land over which
private respondents’ predecessors-in-interest is entitled to 1/3 pro-indiviso
share, which was disregarded by petitioner when she secured a Free Patent
and Original Certificate of Title in her name, to the exclusion of private
respondents’ predecessors-in-interest, the trial court and the Court of
Appeals, therefore, did not err in upholding the right of private respondents
as co-owners, and ordering the petitioner to reconvey 1/3 of the lot in
question to them.
Notwithstanding the foregoing, however, the Court is unable to determine
what part of Lot No. 1242 (799-C) is within the boundaries of the parcel of
land inherited in the 1947 Deed of Extra-judicial Partition by the predecessors-
in-interest of the parties herein. This is so because private respondents did
not show the extent of the said land mentioned in the 1947 Deed of Extra-
judicial Partition in relation to Lot No. 1242 (799-C). While they presented the
boundaries of the parcel of land adjudicated in the Deed, to wit:
North: Calle Mabini y propiodades de F. Jayme
East: Propiodades de Fernando Antigua
South: Propiodades de Lucas y Victoriano Jayme
West: Calle Plaridel
they did not, however, show where these boundaries are found in relation to
the boundaries of Lot No. 1242 (799-C). Absent a fixed boundary of the parcel
of land adjudicated in the Deed, which they claim Lot No. 1242 (799-C) is a
part of, the Court cannot determine the extent to which the lot now known as
Lot No. 1242 (799-C) is included. Admittedly, the north boundary of Lot No.
1242 (799-C) (Property of Froilan Jaime and Mabini Street) is similar to the
north boundary of the land mentioned in the Deed. With only one reference
point, however, the south, east and west boundaries of Lot No. 1242 (799-C)
cannot be established with certainty to be within the parcel of land described
in the Deed of Extra-judicial Partition.
In Beo v. Court of Appeals,21 the Court held that in order that an action for
recovery of possession may prosper, it is indispensable that he who brings the
action must fully prove not only his ownership but also the identity of the
property claimed by describing the location, area and boundaries thereof. So
that when the record does not show that the land subject matter of the action
has been exactly determined, the action cannot prosper, inasmuch as the
plaintiff's ownership rights in the land claimed do not appear satisfactorily
and conclusively proven at the trial.
In the present case, while it is true that private respondents were not able to
show the extent of their 1/3 pro indiviso right over Lot No. 1242 (799-C), they
have nevertheless established their claim over the said lot. Hence, in line with
our ruling in the case of Laluan v. Malpaya,22 the prudent recourse would be
to remand the case to the lower court for a new trial.
WHEREFORE, in view of all the foregoing, the October 20, 1992 Decision of the
Court of Appeals in CA-G.R. CV No. 27419, and the May 28, 1990 Decision of
the Regional Trial Court of Mandaue City, Branch 28, in Civil Case No. MAN-
386, insofar as it relates to the recognition of the 1/3 share of private
respondents over Lot No. 1242 (799-C) is AFFIRMED. The case is remanded to
the trial court in order to determine what part of Lot No. 1242 (799-C) is
included in the parcel of land adjudicated in the 1947 Deed of Extrajudicial
Partition to the predecessors-in-interest of the parties herein.
SO ORDERED.
G.R. No. 179786 July 24, 2013
JOSIELENE LARA CHAN, Petitioner,
vs.
JOHNNY T. CHAN, Respondent.
DECISION
ABAD, J.:
This case is about the propriety of issuing a subpoena duces tecum for the
production and submission in court of the respondent husband's hospital
record in a case for declaration of nullity of marriage where one of the issues
is his mental fitness as a husband.
The Facts and the Case
On February 6, 2006 petitioner Josielene Lara Chan (Josielene) filed before the
Regional Trial Court (RTC) of Makati City, Branch 144 a petition for the
declaration of nullity of her marriage to respondent Johnny Chan (Johnny), the
dissolution of their conjugal partnership of gains, and the award of custody of
their children to her. Josielene claimed that Johnny failed to care for and
support his family and that a psychiatrist diagnosed him as mentally deficient
due to incessant drinking and excessive use of prohibited drugs. Indeed, she
had convinced him to undergo hospital confinement for detoxification and
rehabilitation.
Johnny resisted the action, claiming that it was Josielene who failed in her
wifely duties. To save their marriage, he agreed to marriage counseling but
when he and Josielene got to the hospital, two men forcibly held him by both
arms while another gave him an injection. The marriage relations got worse
when the police temporarily detained Josielene for an unrelated crime and
released her only after the case against her ended. By then, their marriage
relationship could no longer be repaired.
During the pre-trial conference, Josielene pre-marked the Philhealth Claim
Form1 that Johnny attached to his answer as proof that he was forcibly
confined at the rehabilitation unit of a hospital. The form carried a physician’s
handwritten note that Johnny suffered from "methamphetamine and alcohol
abuse." Following up on this point, on August 22, 2006 Josielene filed with the
RTC a request for the issuance of a subpoena duces tecum addressed to
Medical City, covering Johnny’s medical records when he was there confined.
The request was accompanied by a motion to "be allowed to submit in
evidence" the records sought by subpoena duces tecum.2
Johnny opposed the motion, arguing that the medical records were covered
by physician-patient privilege. On September 13, 2006 the RTC sustained the
opposition and denied Josielene’s motion. It also denied her motion for
reconsideration, prompting her to file a special civil action of certiorari before
the Court of Appeals (CA) in CA-G.R. SP 97913, imputing grave abuse of
discretion to the RTC.
On September 17, 2007 the CA3 denied Josielene’s petition. It ruled that, if
courts were to allow the production of medical records, then patients would
be left with no assurance that whatever relevant disclosures they may have
made to their physicians would be kept confidential. The prohibition covers
not only testimonies, but also affidavits, certificates, and pertinent hospital
records. The CA added that, although Johnny can waive the privilege, he did
not do so in this case. He attached the Philhealth form to his answer for the
limited purpose of showing his alleged forcible confinement.
Question Presented
The central question presented in this case is:
Whether or not the CA erred in ruling that the trial court correctly denied the
issuance of a subpoena duces tecum covering Johnny’s hospital records on the
ground that these are covered by the privileged character of the physician-
patient communication.
The Ruling of the Court
Josielene requested the issuance of a subpoena duces tecum covering the
hospital records of Johnny’s confinement, which records she wanted to
present in court as evidence in support of her action to have their marriage
declared a nullity. Respondent Johnny resisted her request for subpoena,
however, invoking the privileged character of those records. He cites Section
24(c), Rule 130 of the Rules of Evidence which reads:
SEC. 24. Disqualification by reason of privileged communication.— The
following persons cannot testify as to matters learned in confidence in the
following cases:
xxxx
(c) A person authorized to practice medicine, surgery or obstetrics cannot in a
civil case, without the consent of the patient, be examined as to any advice or
treatment given by him or any information which he may have acquired in
attending such patient in a professional capacity, which information was
necessary to enable him to act in that capacity, and which would blacken the
reputation of the patient.
The physician-patient privileged communication rule essentially means that a
physician who gets information while professionally attending a patient
cannot in a civil case be examined without the patient’s consent as to any
facts which would blacken the latter’s reputation. This rule is intended to
encourage the patient to open up to the physician, relate to him the history of
his ailment, and give him access to his body, enabling the physician to make a
correct diagnosis of that ailment and provide the appropriate cure. Any fear
that a physician could be compelled in the future to come to court and narrate
all that had transpired between him and the patient might prompt the latter
to clam up, thus putting his own health at great risk.4
1. The case presents a procedural issue, given that the time to object to the
admission of evidence, such as the hospital records, would be at the time they
are offered. The offer could be made part of the physician’s testimony or as
independent evidence that he had made entries in those records that concern
the patient’s health problems.
Section 36, Rule 132, states that objections to evidence must be made after
the offer of such evidence for admission in court. Thus:
SEC. 36. Objection.— Objection to evidence offered orally must be made
immediately after the offer is made.
Objection to a question propounded in the course of the oral examination of a
witness shall be made as soon as the grounds therefor shall become
reasonably apparent.
An offer of evidence in writing shall be objected to within three (3) days after
notice of the offer unless a different period is allowed by the court.
In any case, the grounds for the objections must be specified.
Since the offer of evidence is made at the trial, Josielene’s request for
subpoena duces tecum is premature. She will have to wait for trial to begin
before making a request for the issuance of a subpoena duces tecum covering
Johnny’s hospital records. It is when those records are produced for
examination at the trial, that Johnny may opt to object, not just to their
admission in evidence, but more so to their disclosure. Section 24(c), Rule 130
of the Rules of Evidence quoted above is about non-disclosure of privileged
matters.
2. It is of course possible to treat Josielene’s motion for the issuance of a
subpoena duces tecum covering the hospital records as a motion for
production of documents, a discovery procedure available to a litigant prior to
trial. Section 1, Rule 27 of the Rules of Civil Procedure provides:
SEC. 1. Motion for production or inspection; order.— Upon motion of any
party showing good cause therefor, the court in which an action is pending
may (a) order any party to produce and permit the inspection and copying or
photographing, by or on behalf of the moving party, of any designated
documents, papers, books, accounts, letters, photographs, objects or tangible
things, not privileged, which constitute or contain evidence material to any
matter involved in the action and which are in his possession, custody or
control; or (b) order any party to permit entry upon designated land or other
property in his possession or control for the purpose of inspecting, measuring,
surveying, or photographing the property or any designated relevant object or
operation thereon. The order shall specify the time, place and manner of
making the inspection and taking copies and photographs, and may prescribe
such terms and conditions as are just. (Emphasis supplied)
But the above right to compel the production of documents has a limitation:
the documents to be disclosed are "not privileged."
Josielene of course claims that the hospital records subject of this case are not
privileged since it is the "testimonial" evidence of the physician that may be
regarded as privileged. Section 24(c) of Rule 130 states that the physician
"cannot in a civil case, without the consent of the patient, be examined"
regarding their professional conversation. The privilege, says Josielene, does
not cover the hospital records, but only the examination of the physician at
the trial.
To allow, however, the disclosure during discovery procedure of the hospital
records—the results of tests that the physician ordered, the diagnosis of the
patient’s illness, and the advice or treatment he gave him—would be to allow
access to evidence that is inadmissible without the
patient’s consent. Physician memorializes all these information in the
patient’s records. Disclosing them would be the equivalent of compelling the
physician to testify on privileged matters he gained while dealing with the
patient, without the latter’s prior consent.

3. Josielene argues that since Johnny admitted in his answer to the petition
before the RTC that he had been confined in a hospital against his will and in
fact attached to his answer a Philhealth claim form covering that confinement,
he should be deemed to have waived the privileged character of its records.
Josielene invokes Section 17, Rule 132 of the Rules of Evidence that provides:

SEC. 17. When part of transaction, writing or record given in evidence, the
remainder admissible.— When part of an act, declaration, conversation,
writing or record is given in evidence by one party, the whole of the same
subject may be inquired into by the other, and when a detached act,
declaration, conversation, writing or record is given in evidence, any other act,
declaration, conversation, writing or record necessary to its understanding
may also be given in evidence.1âwphi1

But, trial in the case had not yet begun. Consequently, it cannot be said that
Johnny had already presented the Philhealth claim form in evidence, the act
contemplated above which would justify Josielene into requesting an inquiry
into the details of his hospital confinement. Johnny was not yet bound to
adduce evidence in the case when he filed his answer. Any request for
disclosure of his hospital records would again be premature.

For all of the above reasons, the CA and the RTC were justified in denying
Josielene her request for the production in court of Johnny’s hospital records.

ACCORDINGLY, the Court DENIES the petition and AFFIRMS the Decision of the
Court of Appeals in CA-G.R. SP 97913 dated September 17, 2007.

SO ORDERED.
 x x x The defendant filed a Motion for Reconsideration,
A.C. No. 5921 March 10, 2006 and after a very questionable SHORT period of time,
came this STUNNING and SUDDEN REVERSAL. Without
JUDGE UBALDINO A. LACUROM, Presiding Judge, Regional Trial Court,
any legal or factual basis, the Hon. Pairing Judge simply
Cabanatuan City, Branch 29 and Pairing Judge, Branch 30 and peremptorily REVERSED two (2) decisions in favor of
the plaintiff. This is highly questionable, if not
VS
suspicious, hence, this Motion for Reconsideration.
ATTY. ELLIS F. JACOBA and ATTY. OLIVIA VELASCO-JACOBA, Respondents.
xxxx
DECISION
[The Resolution] assumes FACTS that have
CARPIO, J.: not been established and presumes FACTS not part of
the records of the case, all loaded in favor of the alleged
The Case TENANT. Clearly, the RESOLUTION is an INSULT to the
This administrative case arose from a complaint filed on 22 October 2001 by Judiciary and an ANACHRONISM in the Judicial Process.
Judge Ubaldino A. Lacurom (Judge Lacurom), Pairing Need we say more?
Judge, Regional Trial Court of CabanatuanCity, Branch 30, against respondent- xxxx
spouses Atty. Ellis F. Jacoba and Atty. Olivia Velasco-Jacoba (respondents).
Complainant charged respondents with violation of Rules 11.03,[1]11.04,[2] and 4. The Honorable Pairing Court Presiding
19.01[3] of the Code of Professional Responsibility. Judge ERRED in Holding That the Defendant is Entitled to
a Homelot, and That the Residential LOT in Question is
The Facts That Homelot:
The Jacoba-Velasco-Jacoba Law Firm is counsel for plaintiff THIS ERROR IS STUPENDOUS and a real
Alejandro R. Veneracion (Veneracion) in a civil case for unlawful detainer BONER. Where did the Honorable PAIRING JUDGE base
against defendant this conclusion? x x x This HORRENDOUS MISTAKE must
Federico Barrientos (Barrientos).[4] The Municipal Trial Court of Cabanatuan Ci be corrected here and now!
ty rendered judgment in favor of Veneracion but Barrientos appealed to the
Regional Trial Court. The case was raffled to Branch 30 where xxxx
Judge Lacurom was sitting as pairing judge.
6. The Honorable Pairing Court Presiding
Judge ERRED Grievously in Holding and Declaring that
The [court] A QUO Erroneously Took Cognizance of the
On 29 June 2001, Judge Lacurom issued a Resolution (Resolution) Case and That It Had No Jurisdiction over the Subject-
reversing the earlier judgments rendered in favor Matter:
of Veneracion.[5] The dispositive portion reads:
Another HORRIBLE ERROR! Even an average
Law Student knows that JURISDICTION is determined by
WHEREFORE, this Court hereby REVERSES its the averments of the COMPLAINT and not by the
Decision dated December 22, 2000, as well as REVERSES averments in the answer! This is backed up by a Litany
the Decision of the court a quo dated July 22, 1997. of Cases!

xxxx

Furthermore, the plaintiff-appellee 7. FINALLY, the Honorable Pairing Court

Alejandro Veneracion is ordered to CEASE and DESIST
from ejecting the defendant-appellant
Federico Barrientos from the 1,000 square
meter homelot covered by TCT No. T-75274, and the
smaller area of one hundred forty-seven square meters,
within the 1,000 sq.m. covered by TCT No. T-78613, and
the house thereon standing covered by Tax Declaration
No. 02006-01137, issued by the City Assessor
of Cabanatuan City; and Barrientos is ordered to
pay Veneracion P10,000.00 for the house covered by Tax
Declaration No. 02006-01137.
SO ORDERED.[6]
Veneracions counsel filed a Motion for Reconsideration (with
Request for Inhibition)[7] dated 30 July 2001 (30 July 2001 motion), pertinent
portions of which read:
II. PREFATORY STATEMENT
This RESOLUTION of REVERSAL
an ABHORRENT NULLITY as it is entirely DEVOID of
factual and legal basis. It is a Legal MONSTROSITY in the
sense that the Honorable REGIONAL TRIAL COURT acted
as if it were the DARAB (Dept. of Agrarian Reform
ADJUDICATION BOARD)! x x x HOW HORRIBLE and
TERRIBLE! The mistakes are very patent and glaring!
xxx
xxxx
III. GROUNDS FOR RECONSIDERATION
1. The Honorable Pairing Court Presiding
Judge ERRED in Peremptorily and Suddenly Reversing
the Findings of the Lower Court Judge and the Regular
RTC Presiding Judge:
Presiding Judge Ridiculously ERRED in Ordering the
Defendant To Pay P10,000.00 to the Plaintiff As Payment
for Plaintiffs HOUSE:
THIS IS the Last STRAW, but it is also the Best
ILLUSTRATION of the Manifold GLARING ERRORS
committed by the Hon. Pairing Court Judge.
xxxx
This Order of the Court for the plaintiff to sell
his RESIDENTIAL HOUSE to the defendant for the
ridiculously LOW price of P10,000.00 best illustrates the
Long Line of Faulty reasonings and ERRONEOUS
conclusions of the Hon. Pairing Court Presiding Judge.
Like the proverbial MONSTER, the Monstrous Resolution
should be slain on sight![8]
The 30 July 2001 motion prayed that (1) Judge Lacurom inhibit
himself in order to give plaintiff a fighting chance and (2) the Resolution be
is reconsidered and set aside.[9]Atty. Olivia Velasco-Jacoba (Velasco-Jacoba)
signed the motion on behalf of the Jacoba-Velasco-Jacoba Law Firm.
On 6 August 2001, Judge Lacurom ordered Velasco-Jacoba to
appear before his sala and explain why she should not be held in contempt of
court for the very disrespectful, insulting and humiliating contents of the 30
July 2001 motion.[10] In her Explanation, Comments and Answer,[11] Velasco-
Jacoba claimed that His Honor knows beforehand who actually prepared the
subject Motion; records will show that the undersigned counsel did not
actually or actively participate in this case.[12] Velasco-Jacoba disavowed any
conscious or deliberate intent to degrade the honor and integrity of the
Honorable Court or to detract in any form from the respect that is rightfully
due all courts of justice.[13] She rationalized as follows:
x x x at first blush, [the motion] really appears to contain
some sardonic, strident and hard-striking adjectives.
 And, if we are to pick such stringent words at random
and bunch them together, side-by-side x x x then
collectively and certainly they present a cacophonic
picture of total and utter disrespect. x x x
xxxx
We most respectfully submit that plaintiff &
counsel did not just fire a staccato of incisive and hard-
hitting remarks, machine-gun style as to be called
contumacious and contemptuous. They were just
articulating their feelings of shock, bewilderment and
disbelief at the sudden reversal of their good fortune,
not driven by any desire to just cast aspersions at the
Honorable Pairing judge. They must believe that big
monumental errors deserve equally big adjectives, no
more no less. x x x The matters involved were [neither]
peripheral nor marginalized, and they had to call a spade
a spade. x x x [14]
Nevertheless, Velasco-Jacoba expressed willingness to apologize for
whatever mistake [they] may have committed in a moment of unguarded
discretion when [they] may have stepped on the line and gone out of bounds.
She also agreed to have the allegedly contemptuous phrases stricken off the
record.[15]
On 13 September 2001, Judge Lacurom found Velasco-Jacoba guilty of
contempt and penalized her with imprisonment for five days and a fine
of P1,000.[16]
Velasco-Jacoba moved for reconsideration of the 13 September 2001 order.
She recounted that on her way out of the house for an afternoon hearing,
Atty. Ellis Jacoba (Jacoba) stopped her
said O, pirmahan mo na ito kasi last day na, baka mahuli. (Sign this as it is due
today, or it might not be filed on time.) She signed the pleading handed to her
without reading it, in trusting blind faith on her husband of 35 years with
whom she entrusted her whole life and future.[17] This pleading turned out to
be the 30 July 2001 motion which Jacoba drafted but could not sign because
of his then suspension from the practice of law.[18]
Velasco-Jacoba lamented that Judge Lacurom had found her guilty
of contempt without conducting any hearing. She accused Judge Lacurom of
harboring a personal vendetta, ordering her imprisonment despite her status
as senior lady lawyer of the IBP Nueva Ecija Chapter, already a senior citizen,
and a grandmother many times over.[19] At any rate, she argued,
Judge Lacurom should have inhibited himself from the case out
of delicadeza because [Veneracion] had already filed against him criminal
cases before the Office of the City Prosecutor of Cabanatuan City and before
the Ombudsman.[20]
The records show that with the assistance of counsel Jacoba and
the Jacoba-Velasco-Jacoba Law Firm, Veneracion had executed an affidavit on
23 August 2001 accusing Judge Lacurom of knowingly rendering unjust
judgment through inexcusable negligence and ignorance[21] and violating
Section 3(e) of Republic Act No. 3019 (RA 3019).[22] The first charge became
the subject of a preliminary investigation[23] by the City Prosecutor
of Cabanatuan City. On the second charge, Veneracion set forth his allegations
in a Complaint-Affidavit[24] filed on 28 August 2001 with the Office of the
Deputy Ombudsman for Luzon.
Judge Lacurom issued another order on 21 September 2001, this
time directing Jacoba to explain why he should not be held in
contempt.[25] Jacoba complied by filing an Answer with Second Motion for
Inhibition, wherein he denied that he typed or prepared the 30 July 2001
motion. Against Velasco-Jacobas statements implicating him, Jacobainvoked
the marital privilege rule in evidence.[26] Judge Lacurom later rendered a
decision[27] finding Jacoba guilty of contempt of court and sentencing him to
pay a fine of P500.
On 22 October 2001, Judge Lacurom filed the present complaint
against respondents before the Integrated Bar of the Philippines (IBP).
Report and Recommendation of the IBP
Respondents did not file an answer and neither did they appear at the hearing
set by IBP Commissioner Atty. Lydia A. Navarro (IBP Commissioner Navarro)
despite sufficient notice.[28]
IBP Commissioner Navarro, in her Report and Recommendation of 10 October
2002, recommended the suspension of respondents from the practice of law
for six months.[29] IBP Commissioner Navarro found that respondents were
prone to us[ing] offensive and derogatory remarks and phrases which
amounted to discourtesy and disrespect for authority.[30]Although the remarks
were not directed at Judge Lacurom personally, they were aimed at his
position as a judge, which is a smack on the judiciary system as a whole.[31]
The IBP Board of Governors (IBP Board) adopted IBP Commissioner Navarros
Report and Recommendation, except for the length of suspension which the
IBP Board reduced to three months.[32] On 10 December 2002, the IBP Board
transmitted its recommendation to this Court, together with the documents
pertaining to the case.
Several days later, Velasco-Jacoba sought reconsideration of the IBP Board
decision, thus:[33]
xxxx
3. For the information of the Honorable
Commission, the present complaint of
Judge Lacurom is sub judice; the same issues involved in
this case are raised before the Honorable Court of
Appeals presently pending in CA-G.R. SP No. 66973 for
Certiorari and Mandatory Inhibition with TRO and
Preliminary Injunction x x x;
4. We filed an Administrative Case against
Judge Lacurom before the Supreme Court involving the
same issues we raised in the aforementioned Certiorari
case, which was dismissed by the Supreme Court for
being premature, in view of the pending Certiorari case
before the Court of Appeals;
5. In like manner, out of respect and
deference to the Court of Appeals, the present
complaint should likewise be dismissed and/or
and
suspended pending resolution of the certiorari case by
the Court of Appeals.[34] (Emphasis supplied)
The Courts Ruling
On a preliminary note, we reject Velasco-Jacobas contention that the present
complaint should be considered sub judice in view of the petition for certiorari
and mandatory inhibition with preliminary injunction (petition for
certiorari)[35] filed before the Court of Appeals.
The petition for certiorari, instituted by Veneracion and Velasco-Jacoba on 4
October 2001, seeks to nullify the following orders issued by Judge Lacurom in
Civil Case No. 2836: (1) the Orders dated 26 September 2001 and 9 November
2001 denying respondents respective motions for inhibition; and (2) the 13
September 2001 Order which found Velasco-Jacoba guilty of contempt. The
petitioners allege that Judge Lacurom acted with grave abuse of discretion
[amounting] to lack of jurisdiction, in violation of express provisions of the law
and applicable decisions of the Supreme Court.[36]
Plainly, the issue before us is respondents liability under the Code of
Professional Responsibility. The outcome of this case has no bearing on the
resolution of the petition for certiorari, as there is neither identity of issues
nor causes of action.
Neither should the Courts dismissal of the administrative complaint against
Judge Lacurom for being premature impel us to dismiss this complaint.
Judge Lacuroms orders in Civil Case No. 2836 could not be the subject of an
administrative complaint against him while a petition for certiorari assailing
the same orders is pending with an appellate court. Administrative remedies
are neither alternative nor cumulative to judicial review where such review is
available to the aggrieved parties and the same has not been resolved with
finality. Until there is a final declaration that the challenged order or
judgment is manifestly erroneous, there will be no basis to conclude whether
the judge is administratively liable.[37]
The respondents are situated differently within the factual setting of this case.
The corresponding implications of their actions also give rise to different
liabilities. We first examine the charge against Velasco-Jacoba.
There is no dispute that the genuine signature of Velasco-
Jacoba appears on the 30 July 2001 motion. Velasco-Jacobas responsibility as
counsel is governed by Section 3, Rule 7 of the Rules of Court:
SEC. 3. Signature and address.Every pleading must be
signed by the party or counsel representing him x x x.
The signature of counsel constitutes a
certificate by him that he has read the pleading, that to
the best of his knowledge, information, and belief there
is good ground to support it, and that it is not
interposed for delay.
 x x x Counsel who x x x signs a pleading in
violation of this Rule, or alleges scandalous or indecent
matter therein x x x shall be subject to appropriate
disciplinary action. (Emphasis supplied)
By signing the 30 July 2001 motion, Velasco-Jacoba in effect certified that she
had read it, she knew it to be meritorious, and it was not for the purpose of
delaying the case. Her signature supplied the motion with legal effect and
elevated its status from a mere scrap of paper to that of a court document.
In maintaining the respect due to the courts, a lawyer is not merely enjoined
to use dignified language but also to pursue the clients cause through fair and
honest means, thus:
Rule 19.01.A lawyer shall employ only fair and honest
means to attain the lawful objectives of his client and
shall not present, participate in presenting or threaten
to present unfounded criminal charges to obtain an
improper advantage in any case or proceeding.

Velasco-Jacoba insists, however, that she signed the 30 July 2001 motion only
because of her husbands request but she did not know its contents
beforehand. Apparently, this practice of signing each others pleadings is a
long-standing arrangement between the spouses. According to Velasco-
Jacoba, [s]o implicit is [their] trust for each other that this happens all the
time. Through the years, [she] already lost count of the number of pleadings
prepared by one that is signed by the other. [38] By Velasco-Jacobas own
admission, therefore, she violated Section 3 of Rule 7. This violation is an act
of falsehood before the courts, which in itself is a ground for subjecting her to
disciplinary action, independent of any other ground arising from the contents
of the 30 July 2001 motion.[39]
We now consider the evidence as regards Jacoba. His name does not appear in
the 30 July 2001 motion. He asserts the inadmissibility of Velasco-
Jacobas statement pointing to him as the author of the motion.
The Court cannot easily let Jacoba off the hook. Firstly, his Answer with
Second Motion for Inhibition did not contain a denial of his wifes account.
Instead, Jacoba impliedly admitted authorship of the motion by stating that
he trained his guns and fired at the errors which he perceived and believed to
be gigantic and monumental.[40]
Shortly after the filing of the 30 July 2001 motion but before its
resolution, Jacoba assisted his client in instituting two administrative cases
against Judge Lacurom. As we have earlier noted, Civil Case No. 2836 was then
pending before Judge Lacuroms sala. The Courts attention is drawn to the fact
that the timing of the filing of these administrative cases could very well raise
the suspicion that the cases were intended as leverage against Judge Lacurom.
Respondent spouses have both been the subject of administrative
cases before this Court. In Administrative Case No. 2594, we
suspended Jacoba from the practice of law for a period of six months because
of his failure to file an action for the recovery of possession of property
despite the lapse of two and a half years from receipt by him of P550 which
his client gave him as filing and sheriffs fees.[48] In Administrative Case No.
5505, Jacoba was once again found remiss in his duties when he failed to file
the appellants brief, resulting in the dismissal of his clients appeal. We
imposed the penalty of one year suspension.[49]
As for Velasco-Jacoba, only recently this Court fined her P5,000 for
appearing in barangay conciliation proceedings on behalf of a party, knowing
fully well the prohibition contained in Section 415 of the Local Government
Code.[50]

Secondly, we find Velasco-Jacobas version of the facts more
plausible, for two reasons: (1) her reaction to the events was immediate and
spontaneous, unlike Jacobas defense which was raised only after a
considerable time had elapsed from the eruption of the
controversy; and (2) Jacoba had been counsel of record for Veneracion in Civil
Case No. 2836, supporting Velasco-Jacobas assertion that she had not actually
participate[d] in the prosecution of the case.
Moreover, Jacoba filed a Manifestation in Civil Case No. 2836, praying that
Judge Lacurom await the outcome of the petition for certiorari before
deciding the contempt charge against him.[41] This petition for certiorari
anchors some of its arguments on the premise that the motion was, in
fact, Jacobas handiwork.[42]
The marital privilege rule, being a rule of evidence, may be waived by failure
of the claimant to object timely to its presentation or by any conduct that may
be construed as implied consent.[43] This waiver applies to Jacoba who
impliedly admitted authorship of the 30 July 2001 motion.
The Code of Professional Responsibility provides:
In these cases, the Court sternly warned respondents that a
repetition of similar acts would merit a stiffer penalty. Yet, here again we are
faced with the question of whether respondents have conducted themselves
with the courtesy and candor required of them as members of the bar and
officers of the court. We find respondents to have fallen short of the mark.
WHEREFORE, we SUSPEND Atty. Ellis F. Jacoba from the practice of
law for two (2) years effective upon finality of this
Decision. We also SUSPEND Atty. Olivia Velasco-Jacoba from the practice of
law for two (2) months effective upon finality of this Decision.
We STERNLY WARN respondents that a repetition of the same or similar
infraction shall merit a more severe sanction.
Let copies of this Decision be furnished the Office of the Bar
Confidant, to be appended to respondents personal records as attorneys; the
Integrated Bar of the Philippines; and all courts in the country for their
information and guidance.
SO ORDERED.

Rule 11.03.A lawyer shall abstain from scandalous,

offensive or menacing language or behavior before the
Courts.

Rule 11.04.A lawyer shall not attribute to a Judge

motives not supported by the record or have no
materiality to the case.

No doubt, the language contained in the 30 July 2001 motion

greatly exceeded the vigor required of Jacoba to defend ably his clients cause.
We recall his use of the following words and phrases: abhorrent nullity, legal
monstrosity, horrendous mistake, horrible error, boner, and an insult to the
judiciary and an anachronism in the judicial process. Even Velasco-
Jacoba acknowledged that the words created a cacophonic picture of total
and utter disrespect.[44]

Respondents nonetheless try to exculpate themselves by saying that every

remark in the 30 July 2001 motion was warranted. We disagree.

Well-recognized is the right of a lawyer, both as an officer of the court and as

a citizen, to criticize in properly respectful terms and through legitimate
channels the acts of courts and judges.[45] However, even the most hardened
judge would be scarred by the scurrilous attack made by the 30 July 2001
motion on Judge Lacuroms Resolution. On its face, the Resolution presented
the facts correctly and decided the case according to supporting law and
jurisprudence. Though a lawyers language may be forceful and emphatic, it
should always be dignified and respectful, befitting the dignity of the legal
profession.[46] The use of unnecessary language is proscribed if we are to
promote high esteem in the courts and trust in judicial administration.[47]
ADM. CASE NO. 5439
CLARITA J. SAMALA, Complainant,
VS.
ATTY. LUCIANO D. VALENCIA, Respondent.
RESOLUTION
AUSTRIA-MARTINEZ, J.
Before us is a complaint[1] dated May 2, 2001 filed by Clarita
J. Samala (complainant) against Atty. Luciano D. Valencia (respondent) for
Disbarment on the following grounds: (a) serving on two separate occasions
as counsel for contending parties; (b) knowingly misleading the court by
submitting false documentary evidence; (c) initiating numerous cases in
exchange for nonpayment of rental fees; and (d) having a reputation of being
immoral by siring illegitimate children.
After respondent filed his Comment, the Court, in its Resolution of October
24, 2001, referred the case to the Integrated Bar of the Philippines (IBP) for
investigation, report and recommendation.[2]
The investigation was conducted by Commissioner Demaree Jesus
B. Raval. After a series of hearings, the parties filed their respective
memoranda[3] and the case was deemed submitted for resolution.
Commissioner Wilfredo E.J.E. Reyes prepared the Report and
Recommendation[4] dated January 12, 2006. He found respondent guilty of
violating Canons 15 and 21 of the Code of Professional Responsibility and
recommended the penalty of suspension for six months.
In a minute Resolution[5] passed on May 26, 2006, the IBP Board of Governors
adopted and approved the report and recommendation of Commissioner
Reyes but increased the penalty of suspension from six months to one year.
We adopt the report of the IBP Board of Governors except as to the issue on
immorality and as to the recommended penalty.
On serving as counsel for contending parties.
Records show that in Civil Case No. 95-105-MK, filed in the Regional Trial
Court (RTC), Branch 272, Marikina City, entitled Leonora
M. Aville v. Editha Valdez for nonpayment of rentals, herein respondent,
while being the counsel for defendant Valdez, also acted as counsel for the
tenants Lagmay, Valencia, Bustamante and Bayuga[6] by filing an Explanation
and Compliance before the RTC.[7]
In Civil Case No. 98-6804 filed in the Metropolitan Trial Court (MTC), Branch
75, Marikina City, entitled Editha S. Valdez and Joseph J. Alba, Jr. v.
Salve Bustamante and her husband for ejectment, respondent represented
Valdez against Bustamante one of the tenants in the property subject of the
controversy. Defendants appealed to the RTC, Branch
272, Marikina City docketed as SCA Case No. 99-341-MK. In his
decision dated May 2, 2000,[8] Presiding Judge Reuben P. dela Cruz[9] warned
respondent to refrain from repeating the act of being counsel of record of
both parties in Civil Case No. 95-105-MK.
But in Civil Case No. 2000-657-MK, filed in the RTC, Branch 273, Marikina City,
entitled Editha S. Valdez v. Joseph J. Alba, Jr. and Register of Deeds
of Marikina City,respondent, as counsel for Valdez, filed a Complaint for
Rescission of Contract with Damages and Cancellation of Transfer Certificate
of Title No. 275500 against Alba, respondent's former client in Civil Case No.
98-6804 and SCA Case No. 99-341-MK.
Records further reveal that at the hearing of November 14, 2003, respondent
admitted that in Civil Case No. 95-105-MK, he was the lawyer for Lagmay (one
of the tenants) but not for Bustamante and Bayuga[10] albeit he filed the
Explanation and Compliance for and in behalf of the tenants.[11] Respondent
also admitted that he represented Valdez in Civil Case No. 98-6804 and SCA
Case No. 99-341-MK against Bustamante and her husband but denied being
the counsel for Alba although the case is entitled Valdez and
Alba v. Bustamante and her husband, because Valdez told him to include Alba
as the two were the owners of the property[12] and it was only Valdez who
signed the complaint for ejectment.[13] But, while claiming that respondent did
not represent Alba, respondent, however, avers that he already severed his
representation for Alba when the latter charged
respondent with estafa.[14] Thus, the filing of Civil Case No. 2000-657-MK
against Alba.
Rule 15.03, Canon 15 of the Code of Professional Responsibility provides that
a lawyer shall not represent conflicting interests except by written consent of
all concerned given after a full disclosure of the facts.
A lawyer may not, without being guilty of professional misconduct, act as
counsel for a person whose interest conflicts with that of his present or
former client.[15] He may not also undertake to discharge conflicting duties any
more than he may represent antagonistic interests. This stern rule is founded
on the principles of public policy and good taste.[16] It springs from the relation
of attorney and client which is one of trust and confidence. Lawyers are
expected not only to keep inviolate the clients confidence, but also to avoid
the appearance of treachery and double-dealing for only then can litigants be
encouraged to entrust their secrets to their lawyers, which is of paramount
importance in the administration of justice.[17]
One of the tests of inconsistency of interests is whether the acceptance of a
new relation would prevent the full discharge of the lawyers duty of
undivided fidelity and loyalty to the client or invite suspicion of unfaithfulness
or double-dealing in the performance of that duty.[18]
The stern rule against representation of conflicting interests is founded on
principles of public policy and good taste. It springs from the attorneys duty to
represent his client with undivided fidelity and to maintain inviolate the
clients confidence as well as from the injunction forbidding the examination
of an attorney as to any of the privileged communications of his client.[19]
An attorney owes loyalty to his client not only in the case in which he has
represented him but also after the relation of attorney and client has
terminated.[20] The bare attorney-client relationship with a client precludes an
attorney from accepting professional employment from the clients adversary
either in the same case[21] or in a different but related action.[22] A lawyer is
forbidden from representing a subsequent client against a former client when
the subject matter of the present controversy is related, directly or indirectly,
to the subject matter of the previous litigation in which he appeared for the
former client.[23]
We held in Nombrado v. Hernandez[24] that the termination of the relation of
attorney and client provides no justification for a lawyer to represent an
interest adverse to or in conflict with that of the former client. The reason for
the rule is that the clients confidence once reposed cannot be divested by the
expiration of the professional employment.[25]Consequently, a lawyer should
not, even after the severance of the relation with his client, do anything which
will injuriously affect his former client in any matter in which he previously
represented him nor should he disclose or use any of the clients confidences
acquired in the previous relation.[26]
In this case, respondents averment that his relationship with Alba has long
been severed by the act of the latter of not turning over the proceeds
collected in Civil Case No. 98-6804,in connivance with the complainant, is
unavailing. Termination of the attorney-client relationship precludes an
attorney from representing a new client whose interest is adverse to his
former client. Alba may not be his original client but the fact that he filed a
case entitled Valdez and Alba v. Bustamante and her husband, is a clear
indication that respondent is protecting the interests of both Valdez and Alba
in the said case. Respondent cannot just claim that the lawyer-client
relationship between him and Alba has long been severed without observing
Section 26, Rule 138 of the Rules of Court wherein the written consent of his
client is required.
In Gonzales v. Cabucana, Jr.,[27] citing the case of Quiambao v. Bamba,[28] we
held that:
The proscription against representation of conflicting
interests applies to a situation where the opposing
parties are present clients in the same action or in an
unrelated action. It is of no moment that the lawyer
would not be called upon to contend for one client that
which the lawyer has to oppose for the other client, or
that there would be no occasion to use the confidential
information acquired from one to the disadvantage of
the other as the two actions are wholly unrelated. It is
enough that the opposing parties in one case, one of
whom would lose the suit, are present clients and the
nature or conditions of the lawyers respective retainers
with each of them would affect the performance of the
duty of undivided fidelity to both clients.[29]
Respondent is bound to comply with Canon 21 of the Code of Professional
Responsibility which states that a lawyer shall preserve the confidences and
secrets of his client even after the attorney-client relation is terminated.
The reason for the prohibition is found in the relation of attorney and client,
which is one of trust and confidence of the highest degree. A lawyer becomes
familiar with all the facts connected with his clients case. He learns from his
client the weak points of the action as well as the strong ones. Such
knowledge must be considered sacred and guarded with care.[30]
From the foregoing, it is evident that respondents representation
of Valdez and Alba against Bustamante and her husband, in one case,
and Valdez against Alba, in another case, is a clear case of conflict of interests
which merits a corresponding sanction from this Court. Respondent may have
withdrawn his representation in Civil Case No. 95-105-MK upon being warned
by the court,[31] but the same will not exculpate him from the charge of
representing conflicting interests in his representation in Civil Case No. 2000-
657-MK.
Respondent is reminded to be more cautious in accepting professional
employments, to refrain from all appearances and acts of impropriety
including circumstances indicating conflict of interests, and to behave at all
times with circumspection and dedication befitting a member of the Bar,
especially observing candor, fairness and loyalty in all transactions with his
clients.[32]
On knowingly misleading the court by submitting false documentary evidence.
Complainant alleges that in Civil Case No. 00-7137 filed before MTC, Branch 75
for ejectment, respondent submitted TCT No. 273020 as evidence of Valdez's
ownership despite the fact that a new TCT No. 275500 was already issued in
the name of Alba on February 2, 1995.
Records reveal that respondent filed Civil Case No. 00-7137 on November 27,
2000 and presented TCT No. 273020 as evidence of Valdez's ownership of the
subject property.[33]During the hearing before Commissioner Raval,
respondent avers that when the Answer was filed in the said case, that was
the time that he came to know that the title was already in the name of Alba;
so that when the court dismissed the complaint, he did not do anything
anymore.[34] Respondent further avers that Valdez did not tell him the truth
and things were revealed to him only when the case for rescission was filed in
2002.
Upon examination of the record, it was noted that Civil Case No. 2000-657-
MK for rescission of contract and cancellation of TCT No. 275500 was also filed
on November 27, 2000,[35] before RTC, Branch 273, Marikina City, thus belying
the averment of respondent that he came to know of Alba's title only in 2002
when the case for rescission was filed.It was revealed during the hearing
before Commissioner Raval that Civil Case Nos. 00-7137 and 2000-657-
MK were filed on the same date, although in different courts and at different
times.
Hence, respondent cannot feign ignorance of the fact that the title he
submitted was already cancelled in lieu of a new title issued in the name of
Alba in 1995 yet, as proof of the latter's ownership.
Respondent failed to comply with Canon 10 of the Code of Professional
Responsibility which provides that a lawyer shall not do any falsehood, nor
consent to the doing of any in court; nor shall he mislead, or allow the Court
to be mislead by any artifice. It matters not that the trial court was not misled
by respondent's submission of TCT No. 273020 in the name of Valdez, as
shown by its decision dated January 8, 2002[36] dismissing the complaint
for ejectment. What is decisive in this case is respondent's intent in trying to
mislead the court by presenting TCT No. 273020 despite the fact that said title
was already cancelled and a new one, TCT No. 275500, was already issued in
the name of Alba.
In Young v. Batuegas,[37] we held that a lawyer must be a disciple of truth. He
swore upon his admission to the Bar that he will do no falsehood nor consent
to the doing of any in court and he shall conduct himself as a lawyer according
to the best of his knowledge and discretion with all good fidelity as well to the
courts as to his clients.[38] He should bear in mind that as an officer of the
court his high vocation is to correctly inform the court upon the law and the
facts of the case and to aid it in doing justice and arriving at correct
conclusion.[39] The courts, on the other hand, are entitled to expect only
complete honesty from lawyers appearing and pleading before them. While a
lawyer has the solemn duty to defend his clients rights and is expected to
display the utmost zeal in defense of his clients cause, his conduct must never
be at the expense of truth.
A lawyer is the servant of the law and belongs to a profession to which society
has entrusted the administration of law and the dispensation of justice.[40] As
such, he should make himself more an exemplar for others to emulate.[41]
On initiating numerous cases in exchange for nonpayment of rental fees.
Complainant alleges that respondent filed the following cases: (a) Civil Case
No. 2000-657-MK at the RTC, Branch 272; (b) Civil Case No. 00-7137 at the
MTC, Branch 75; and(c) I.S. Nos. 00-4439 and 01-036162 both
entitled Valencia v. Samala for estafa and grave coercion, respectively, before
the Marikina City Prosecutor. Complainant claims that the two criminal cases
were filed in retaliation for the cases she filed against Lagmay docketed as I.S.
No. 00-4306 for estafa and I.S. No. 00-4318 against Alvin Valencia (son of
respondent) for trespass to dwelling.
As culled from the records, Valdez entered into a retainer agreement with
respondent. As payment for his services, he was allowed to occupy the
property for free and utilize the same as his office pursuant to their retainer
agreement.[42]
Respondent filed I.S. Nos. 00-4439[43] and 01-036162[44] both
entitled Valencia v. Samala for estafa and grave coercion, respectively, to
protect his client's rights against complainant who filed I.S. No. 00-
4306[45] for estafa against Lagmay, and I.S. No. 00-4318[46] against Alvin
Valencia[47] for trespass to dwelling.
We find the charge to be without sufficient basis. The act of respondent of
filing the aforecited cases to protect the interest of his client, on one hand,
and his own interest, on the other, cannot be made the basis of an
administrative charge unless it can be clearly shown that the same was being
done to abuse judicial processes to commit injustice.
The filing of an administrative case against respondent for protecting the
interest of his client and his own right would be putting a burden on a
practicing lawyer who is obligated to defend and prosecute the right of his
client.
On having a reputation for being immoral by siring illegitimate children.
We find respondent liable for being immoral by siring illegitimate children.
During the hearing, respondent admitted that he sired three children
by Teresita Lagmay who are all over 20 years of age,[48] while his first wife was
still alive. He also admitted that he has eight children by his first wife, the
youngest of whom is over 20 years of age, and after his wife died in 1997, he
married Lagmay in 1998.[49] Respondent further admitted that Lagmay was
staying in one of the apartments being claimed by complainant. However, he
does not consider his affair with Lagmay as a relationship[50] and does not
consider the latter as his second family.[51] He reasoned that he was not
staying with Lagmay because he has two houses, one in Muntinlupa and
another in Marikina.[52]
In this case, the admissions made by respondent are more than enough to
hold him liable on the charge of immorality. During the hearing, respondent
did not show any remorse. He even justified his transgression by saying that
he does not have any relationship with Lagmay and despite the fact that he
sired three children by the latter, he does not consider them as his second
family. It is noted that during the hearing, respondent boasts in telling the
commissioner that he has two houses - in Muntinlupa, where his first wife
lived, and in Marikina, where Lagmay lives.[53] It is of no moment that
respondent eventually married Lagmay after the death of his first wife. The
fact still remains that respondent did not live up to the exacting standard of
morality and decorum required of the legal profession.
Under Canon 1, Rule 1.01 of the Code of Professional Responsibility, a lawyer
shall not engage in unlawful, dishonest, immoral or deceitful conduct. It may
be difficult to specify the degree of moral delinquency that may qualify an act
as immoral, yet, for purposes of disciplining a lawyer, immoral conduct has
been defined as that conduct which is willful, flagrant, or shameless, and
which shows a moral indifference to the opinion of respectable members of
the community.[54] Thus, in several cases, the Court did not hesitate to
discipline a lawyer for keeping a mistress in defiance of the mores and sense
of morality of the community.[55] That respondent subsequently
married Lagmay in 1998 after the death of his wife and that this is his first
infraction as regards immorality serve to mitigate his liability.
ACCORDINGLY, the Court finds respondent Atty. Luciano D. Valencia GUILTY of
misconduct and violation of Canons 21, 10 and 1 of the Code of Professional
Responsibility. He is SUSPENDED from the practice of law for three (3) years,
effective immediately upon receipt of herein Resolution.
Let copies of this Resolution be furnished all courts of the land, the Integrated
Bar of the Philippines as well as the Office of the Bar Confidant for their
information and guidance, and let it be entered in respondents personal
records.
SO ORDERED.
G.R. No. 95367 May 23, 1995
COMMISSIONER JOSE T. ALMONTE, VILLAMOR C. PEREZ, NERIO ROGADO, and
ELISA RIVERA, petitioners,
vs.
HONORABLE CONRADO M. VASQUEZ and CONCERNED CITIZENS, respondents.
MENDOZA, J.:
This is a petition for certiorari, prohibition, and mandamus to annul the
subpoena duces tecum and orders issued by respondent Ombudsman,
requiring petitioners Nerio Rogado and Elisa Rivera, as chief accountant and
record custodian, respectively, of the Economic Intelligence and Investigation
Bureau (EIIB) to produce "all documents relating to Personal Services Funds
for the year 1988 and all evidence, such as vouchers (salary) for the whole
plantilla of EIIB for 1988" and to enjoin him from enforcing his orders.
Petitioner Jose T. Almonte was formerly Commissioner of the EIIB, while
Villamor C. Perez is Chief of the EIIB's Budget and Fiscal Management Division.
The subpoena duces tecum was issued by the Ombudsman in connection with
his investigation of an anonymous letter alleging that funds representing
savings from unfilled positions in the EIIB had been illegally disbursed. The
letter, purporting to have been written by an employee of the EIIB and a
concerned citizen, was addressed to the Secretary of Finance, with copies
furnished several government offices, including the Office of the Ombudsman.
The letter reads in pertinent parts:
1 These are the things that I have been observing. During the
implementation of E.O. 127 on May 1, 1988, one hundred ninety (190)
personnel were dismissed. Before that implementation, we had a
monthly savings of P500,000.00 from unfilled plantilla position plus the
implementation of RA 6683 wherein seventy (70) regular employees
availed a total amount of P1,400,000.00 was saved from the government
monthly. The question is, how do they used or disbursed this savings?
The EIIB has a syndicate headed by the Chief of Budget Division who is
manipulating funds and also the brain of the so called "ghost agents" or
the "Emergency Intelligence Agents" (EIA). The Commissioner of EIIB has
a biggest share on this. Among his activities are:
a) Supporting RAM wherein he is involved. He gives big amount
especially during the Dec. Failed coup.
b) Payment for thirty five (30) mini UZI's.
c) Payment for the purchased of Maxima '87 for personal used of
the Commissioner.
d) Another observation was the agents under the Director of NCR
EIIB is the sole operating unit within Metro Manila which was
approved by no less than the Commissioner due to anomalous
activities of almost all agents assigned at the central office directly
under the Commissioner. Retired Brig. Gen. Almonte as one of the
Anti-Graft board member of the Department of Finance should not
tolerate this. However, the Commissioner did not investigate his
own men instead, he placed them under the 15-30 payroll.
e) Many more which are personal.
2. Sir, my question is this. Can your good office investigate EII
intelligence funds particularly Personal Services (01) Funds? I wonder
why the Dep't of Budget & Mgmt. cannot compel EIIB to submit an
actual filled up position because almost half of it are vacant and still they
are releasing it. Are EIIB plantilla position classified? It is included in the
Personal Services Itemization (PSI) and I believe it is not classified and a
ruling from Civil Service Commission that EIIB is not exempted from Civil
Service. Another info, when we had salary differential last Oct '88 all
money for the whole plantilla were released and from that alone,
Millions were saved and converted to ghost agents of EIA.
3. Another thing that I have observed was the Chief Budget Division
possesses high caliber firearms such as a mini UZI, Armalite rifle and
two (2) 45 cal. pistol issued to him by the Assistant Commissioner
wherein he is not an agent of EIIB and authorized as such according to
memorandum order number 283 signed by the President of the
Republic of the Philippines effective 9 Jan. 1990.
Another observation was when EIIB agents apprehended a certain
civilian who possesses numerous assorted high powered firearms.
Agents plus one personnel from the legal proclaimed only five (5)
firearms and the remaining was pilfered by them.
Another observation is almost all EIIB agents collects payroll from the
big time smuggler syndicate monthly and brokers every week for them
not to be apprehended.
Another observation is the commissioner allocates funds coming from
the intelligence funds to the media to sustain their good image of the
bureau.
In his comment 1 on the letter-complaint, petitioner Almonte denied that as a
result of the separation of personnel, the EIIB had made some savings. He
averred that the only funds released to his agency by the Department of
Budget and Management (DBM) were those corresponding to 947 plantilla
positions which were filled. He also denied that there were "ghost agents" in
the EIIB and claimed that disbursements for "open" (i.e., "overt" personnel)
and "closed" (i.e., "covert" personnel) plantillas of the agency had been
cleared by the Commission on Audit (COA); that the case of the 30 Uzis had
already been investigated by Congress, where it was shown that it was not the
EIIB but an agent who had spent for the firearms and they were only loaned
to the EIIB pending appropriation by Congress; that, contrary to the charge
that a Maxima car had been purchased for his use, he was using a government
issued car from the NICA; that it was his prerogative as Commissioner to
"ground" agents in the EIIB main office so that they could be given
reorientation and retraining; that the allegation that the EIIB operatives
pilfered smuggled firearms was without factual basis because the firearms
were the subject of seizure proceedings before the Collector of Customs, Port
of Manila; that the EIIB had been uncompromising toward employees found
involved in anomalous activities; and that intelligence funds had not been
used for media propaganda and if media people went to the EIIB it was
because of newsworthy stories. Petitioner asked that the complaint be
dismissed and the case considered closed.
Similarly petitioner Perez, budget chief of the EIIB, denied in his
comment 2 dated April 3, 1990 that savings had been realized from the
implementation of E.O. No. 127, since the DBM provided allocations for only
the remaining 947 personnel. He said that the disbursement of funds for the
plantilla positions for "overt" and "covert" personnel had been cleared by the
COA and that the high-powered firearms had been issued for the protection of
EIIB personnel attending court hearings and the Finance Officer in
withdrawing funds from the banks.
The Graft Investigation Officer of the Ombudsman's office, Jose F. Saño, found
the comments unsatisfactory, being "unverified and plying only on
generalizations without meeting specifically the points raised by complainant
as constitutive of the alleged anomalies." 3 He, therefore, asked for authority
to conduct a preliminary investigation. Anticipating the grant of his request,
he issued a subpoena 4 to petitioners Almonte and Perez, requiring them to
submit their counter-affidavits and the affidavits of their witnesses, as well as
a subpoena duces tecum 5 to the Chief of the EIIB's Accounting Division
ordering him to bring "all documents relating to Personal Services Funds for
the year 1988 and all evidence, such as vouchers (salary) for the whole
plantilla of EIIB for 1988."
Petitioners Almonte and Perez moved to quash the subpoena and the
subpoena duces tecum. In his Order dated June 15, 1990, 6 respondent
Ombudsman granted the motion to quash the subpoena in view of the fact
that there were no affidavits filed against petitioners. But he denied their
motion to quash the subpoena duces tecum. He ruled that petitioners were
not being forced to produce evidence against themselves, since the
subpoena duces tecum was directed to the Chief Accountant, petitioner Nerio
Rogado. In addition the Ombudsman ordered the Chief of the Records a
Section of the EIIB, petitioner Elisa Rivera, to produce before the investigator
"all documents relating to Personnel Service Funds, for the year 1988, and all
documents, salary vouchers for the whole plantilla of the EIIB for 1988, within
ten (10) days from receipt hereof."
Petitioners Almonte and Perez moved for a reconsideration, arguing that
Rogado and Rivera were EIIB employees under their supervision and that the
Ombudsman was doing indirectly what he could not do directly, i.e.,
compelling them (petitioners Almonte and Perez) to produce evidence against
themselves.
Petitioners' motion was denied in respondent Ombudsman's order dated
August 6, 1990. Hence, this petition which questions the orders of June 15,
1990 and August 6, 1990 of respondent Ombudsman.
To put this case in perspective it should be stated at the outset that it does
not concern a demand by a citizen for information under the freedom of
information guarantee of the Constitution. 7 Rather it concerns the power of
the Office of the Ombudsman to obtain evidence in connection with an
investigation conducted by it vis-a-vis the claim of privilege of an agency of
the Government. Thus petitioners raise the following issues: 8
I. Whether or not a case brought about by an unsigned and unverified
letter complaint is an "appropriate case" within the concept of the
constitution in which public respondent can oblige petitioners by virtue
of his subpoena duces tecum to produce to him "all documents relating
to personal services funds for the year 1988 and all evidences, such as
vouchers (salary) for the whole plantilla of eiib for 1988."
II. Whether or not "all documents relating to personal services funds for
the year 1988 and all evidences, such as vouchers (salary) for the whole
plantilla of eiib for 1988" are classified and, therefore, beyond the reach
of public respondent's subpoena duces tecum.
I. There are several subsidiary issues raised by petitioners, but the principal
ones revolve on the question whether petitioners can be ordered to produce
documents relating to personal services and salary vouchers of EIIB employees
on the plea that such documents are classified. Disclosure of the documents in
question is resisted on the ground that "knowledge of EIIB's documents
relative to its Personal Services Funds and its plantilla . . . will necessarily [lead
to] knowledge of its operations, movements, targets, strategies, and tactics
and the whole of its being" and this could "destroy the EIIB." 9
Petitioners do not question the power of the Ombudsman to issue a
subpoena duces tecum nor the relevancy or materiality of the documents
required to be produced, to the pending investigation in the Ombudsman's
office. Accordingly, the focus of discussion should be on the Government's
claim of privilege.
A. At common law a governmental privilege against disclosure is recognized
with respect to state secrets bearing on military, diplomatic and similar
matters. This privilege is based upon public interest of such paramount
importance as in and of itself transcending the individual interests of a private
citizen, even though, as a consequence thereof, the plaintiff cannot enforce
his legal rights. 10
In addition, in the litigation over the Watergate tape subpoena in 1973, the
U.S. Supreme Court recognized the right of the President to the confidentiality
of his conversations and correspondence, which it likened to "the claim of
confidentiality of judicial deliberations." Said the Court in United States v.
Nixon: 11
The expectation of a President to the confidentiality of his conversations
and correspondence, like the claim of confidentiality of judicial
deliberations, for example, has all the values to which we accord
deference for the privacy of all citizens and, added to those values, is the
necessity for protection of the public interest in candid, objective, and
even blunt or harsh opinions in Presidential decision-making. A President
and those who assist him must be free to explore alternatives in the
process of shaping policies and making decisions and to do so in a way
many would be unwilling to express except privately. These are the
considerations justifying a presumptive privilege for Presidential
communications. The privilege is fundamental to the operation of the
government and inextricably rooted in the separation of powers under
the Constitution. . . .
Thus, the Court for the first time gave executive privilege a constitutional
status and a new name, although not necessarily a new birth. 12
"The confidentiality of judicial deliberations" mentioned in the opinion of the
Court referred to the fact that Justices of the U.S. Supreme Court and judges
of lower federal courts have traditionally treated their working papers and
judicial notes as private property. A 1977 proposal in the U.S. Congress that
Justices and judges of lower federal courts "should be encouraged to make
such arrangements as will assure the preservation and eventual availability of
their personal papers, especially the deposit of their papers in the same
depository they select for [their] Public Papers" 13 was rebuffed by the
Justices who, in a letter to the Chairman of the Subcommittee on Regulation
and Government Information of the U.S. Senate, referred to "difficult
concerns respecting the appropriate separation that must be maintained
between the legislative branch and this Court." 14
There are, in addition to such privileges, statutorily-created ones such as the
Government's privilege to withhold the identity of persons who furnish
information of violations of laws. 15
With respect to the privilege based on state secret, the rule was stated by the
U.S. Supreme Court as follows:
Judicial control over the evidence in a case cannot be abdicated to the
caprice of executive officers. Yet we will not go so far as to say that the
court may automatically require a complete disclosure to the judge
before the claim of privilege will be accepted in any case. It may be
possible to satisfy the court, from all the circumstances of the case, that
there is a reasonable danger that compulsion of the evidence will expose
military matters which, in the interest of national security, should not be
divulged. When this is the case, the occasion for the privilege is
appropriate, and the court should not jeopardize the security which the
privilege is meant to protect by insisting upon an examination of the
evidence, even by the judge alone, in chambers. . . . In each case, the
showing of necessity which is made will determine how far the court
should probe in satisfying itself that the occasion for invoking the
privilege is appropriate. Where there is a strong showing of necessity,
the claim of privilege should not be lightly accepted, but even the most
compelling necessity cannot overcome the claim of privilege if the court
is ultimately satisfied that military secrets are at stake. A fortiori, where
necessity is dubious, a formal claim of privilege, made under the
circumstances of this case, will have to prevail. 16
On the other hand, where the claim of confidentiality does not rest on the
need to protect military, diplomatic or other national security secrets but on a
general public interest in the confidentiality of his conversations, courts have
declined to find in the Constitution an absolute privilege of the President
against a subpoena considered essential to the enforcement of criminal
laws. 17
B. In the case at bar, there is no claim that military or diplomatic secrets will
be disclosed by the production of records pertaining to the personnel of the
EIIB. Indeed, EIIB's function is the gathering and evaluation of intelligence
reports and information regarding "illegal activities affecting the national
economy, such as, but not limited to, economic sabotage, smuggling, tax
evasion, dollar salting." 18 Consequently, while in cases which involve state
secrets it may be sufficient to determine from the circumstances of the case
that there is reasonable danger that compulsion of the evidence will expose
military matters without compelling production, 19no similar excuse can be
made for a privilege resting on other considerations.
Nor has our attention been called to any law or regulation which considers
personnel records of the EIIB as classified information. To the contrary, COA
Circular No. 88-293, which petitioners invoke to support their contention that
there is adequate safeguard against misuse of public funds, provides that the
"only item of expenditure which should be treated strictly confidential" is that
which refers to the "purchase of information and payment of rewards." Thus,
part V, No. 7 of the Circular reads:
The only item of expenditure which should be treated as
strictly confidential because it falls under the category of
classified information is that relating to purchase of
information and payment of rewards. However,
reasonable records should be maintained and kept for
inspection of the Chairman, Commission on Audit or his
duly authorized representative. All other expenditures
are to be considered unclassified supported by invoices,
receipts and other documents, and, therefore, subject to
reasonable inquiry by the Chairman or his duly
authorized representative. 20
It should be noted that the regulation requires that "reasonable
records" be kept justifying the confidential or privileged character
of the information relating to informers. There are no such
reasonable records in this case to substitute for the records
claimed to be confidential.
The other statutes and regulations 21 invoked by petitioners in support of
their contention that the documents sought in the subpoena duces tecum of
the Ombudsman are classified merely indicate the confidential nature of the
EIIB's functions, but they do not exempt the EIIB from the duty to account for
its funds to the proper authorities. Indeed by denying that there were savings
made from certain items in the agency and alleging that the DBM had
released to the EIIB only the allocations needed for the 947 personnel
retained after its reorganization, petitioners in effect invited inquiry into the
veracity of their claim. If, as petitioners claim, the subpoenaed records have
been examined by the COA and found by it to be regular in all respects, there
is no reason why they cannot be shown to another agency of the government
which by constitutional mandate is required to look into any complaint
concerning public office.
On the other hand, the Ombudsman is investigating a complaint that several
items in the EIIB were filled by fictitious persons and that the allotments for
these items in 1988 were used for illegal purposes. The plantilla and other
personnel records are relevant to his investigation. He and his Deputies are
designated by the Constitution "protectors of the people" and as such they
are required by it "to act promptly on complaints in any form or
manner against public officials or employees of the Government, or any
subdivision, agency or instrumentality thereof, including government-owned
or controlled corporation." 22
His need for the documents thus outweighs the claim of confidentiality of
petitioners. What is more, while there might have been compelling reasons
for the claim of privilege in 1988 when it was asserted by petitioners, now,
seven years later, these reasons may have been attenuated, if they have not
in fact ceased. The agents whose identities could not then be revealed may
have ceased from the service of the EIIB, while the covert missions to which
they might have been deployed might either have been accomplished or
abandoned. On the other hand, the Ombudsman's duty to investigate the
complaint that there were in 1988 unfilled positions in the EIIB for which
continued funding was received by its officials and put to illegal use, remains.
Above all, even if the subpoenaed documents are treated as presumptively
privileged, this decision would only justify ordering their inspection in
camera but not their nonproduction. However, as concession to the nature of
the functions of the EIIB and just to be sure no information of a confidential
character is disclosed, the examination of records in this case should be made
in strict confidence by the Ombudsman himself. Reference may be made to
the documents in any decision or order which the Ombudsman may render or
issue but only to the extent that it will not reveal covert activities of the
agency. Above all, there must be a scrupulous protection of the documents
delivered.
With these safeguards outlined, it is believed that a satisfactory resolution of
the conflicting claims of the parties is achieved. It is not amiss to state that
even matters of national security have been inquired into in appropriate in
camera proceedings by the courts. In Lansang v. Garcia 23 this Court held
closed door sessions, with only the immediate parties and their counsel
present, to determine claims that because of subversion there was imminent
danger to public safety warranting the suspension of the writ of habeas
corpus in 1971. Again in Marcos v. Manglapus 24 the Court met behind closed
doors to receive military briefings on the threat posed to national security by
the return to the country of the former President and his family. In the United
States, a similar inquiry into the danger to national security as a result of the
publication of classified documents on the Vietnam war was upheld by the
U.S. Supreme Court. 25 We see no reason why similar safeguards cannot be
made to enable an agency of the Government, like the Office of the
Ombudsman, to carry out its constitutional duty to protect public
interests 26 while insuring the confidentiality of classified documents.
C.
Petitioners contend that under Art. XI, § 13(4) the Ombudsman can act only
"in any appropriate case, and subject to such limitations as may be provided
by law" and that because the complaint in this case is unsigned and
unverified, the case is not an appropriate one. This contention lacks merit. As
already stated, the Constitution expressly enjoins the Ombudsman to act on
any complaint filed "in any form or manner" concerning official acts or
omissions. Thus, Art. XI, § 12 provides:
The Ombudsman and his Deputies, as protectors of the
people, shall act promptly on complaints filed in any
form or manner against public officials or employees of
the Government, or any subdivision, agency, or
instrumentality thereof, including government-owned or
controlled corporations and shall in appropriate cases,
notify the complainants of the action taken and the
result thereof. (Emphasis added)
Similarly, the Ombudsman Act of 1989 (Rep. Act No. 6770) provides
in § 26(2):
The Office of the Ombudsman shall receive
complaints from any source in whatever
form concerning an official act or omission. It shall act
on the complaint immediately and if it finds the same
entirely baseless, it shall dismiss the same and inform
the complainant of such dismissal citing the reasons
therefor. If it finds a reasonable ground to investigate
further, it shall first furnish the respondent public officer
or employee with a summary of the complaint and
require him to submit a written answer within seventy-
two hours from receipt thereof. If the answer is found
satisfactory, it shall dismiss the case. (Emphasis added)
Accordingly, in Diaz v. Sandiganbayan 27 the Court held that testimony given
at a fact-finding investigation and charges made in a pleading in a case in
court constituted a sufficient basis for the Ombudsman to commence
investigation, because a formal complaint was really not necessary.
Rather than referring to the form of complaints, therefore, the phrase "in an
appropriate case" in Art. XI, § 12 means any case concerning official act or
omission which is alleged to be "illegal, unjust, improper, or
inefficient." 28 The phrase "subject to such limitations as may be provided by
law" refers to such limitations as may be provided by Congress or, in the
absence thereof, to such limitations as may be imposed by the courts. Such
limitations may well include a requirement that the investigation be
concluded in camera, with the public excluded, as exception to the general
nature of the proceedings in the Office of the Ombudsman. 29 A reconciliation
is thereby made between the demands of national security and the
requirement of accountability enshrined in the Constitution. 30
What has been said above disposes of petitioners' contention that the
anonymous letter-complaint against them is nothing but a vexatious
prosecution. It only remains to say that the general investigation in the
Ombudsman' s office is precisely for the purpose of protecting those against
whom a complaint is filed against hasty, malicious, and oppressive
prosecution as much as securing the State from useless and expensive trials.
There may also be benefit resulting from such limited in camera inspection in
terms of increased public confidence that the privilege is not being abused
and increased likelihood that no abuse is in fact occurring.
II. Nor is there violation of petitioner's right to the equal protection of the
laws. Petitioners complain that "in all forum and tribunals . . . the aggrieved
parties . . . can only hale respondents via their verified complaints or sworn
statements with their identities fully disclosed," while in proceedings before
the Office of the Ombudsman anonymous letters suffice to start an
investigation. In the first place, there can be no objection to this procedure
because it is provided in the Constitution itself. In the second place, it is
apparent that in permitting the filing of complaints "in any form and in a
manner," the framers of the Constitution took into account the well-known
reticence of the people which keep them from complaining against official
wrongdoings. As this Court had occasion to point out, the Office of the
Ombudsman is different from the other investigatory and prosecutory
agencies of the government because those subject to its jurisdiction are public
officials who, through official pressure and influence, can quash, delay or
dismiss investigations held against them. 31 On the other hand complainants
are more often than not poor and simple folk who cannot afford to hire
lawyers. 32
III. Finally, it is contended that the issuance of the subpoena duces
tecum would violate petitioners' right against self-incrimination. It is enough
to state that the documents required to be produced in this case are public
records and those to whom the subpoena duces tecum is directed are
government officials in whose possession or custody the documents are.
Moreover, if, as petitioners claim the disbursement by the EIIB of funds for
personal service has already been cleared by the COA, there is no reason why
they should object to the examination of the documents by respondent
Ombudsman.
WHEREFORE, the petition is DISMISSED, but it is directed that the inspection
of subpoenaed documents be made personally in camera by the Ombudsman,
and with all the safeguards outlined in this decision.
SO ORDERED.
G.R. No. 169777* April 20, 2006
SENATE OF THE PHILIPPINES, represented by FRANKLIN M. DRILON, in his
capacity as Senate President, JUAN M. FLAVIER, in his capacity as Senate
President Pro Tempore, FRANCIS N. PANGILINAN, in his capacity as Majority
Leader, AQUILINO Q. PIMENTEL, JR., in his capacity as Minority Leader,
SENATORS RODOLFO G. BIAZON, "COMPANERA" PIA S. CAYETANO, JINGGOY
EJERCITO ESTRADA, LUISA "LOI" EJERCITO ESTRADA, JUAN PONCE ENRILE,
RICHARD J. GORDON, PANFILO M. LACSON, ALFREDO S.LIM, M. A. MADRIGAL,
SERGIO OSMENA III, RALPH G. RECTO, and MAR ROXAS, Petitioners,
vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary and alter-ego of
President Gloria Macapagal-Arroyo, and anyone acting in his stead and in
behalf of the President of the Philippines, Respondents.
HON. EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.
DECISION
CARPIO MORALES, J.:
A transparent government is one of the hallmarks of a truly republican state.
Even in the early history of republican thought, however, it has been
recognized that the head of government may keep certain information
confidential in pursuit of the public interest. Explaining the reason for vesting
executive power in only one magistrate, a distinguished delegate to the U.S.
Constitutional Convention said: "Decision, activity, secrecy, and dispatch will
generally characterize the proceedings of one man, in a much more eminent
degree than the proceedings of any greater number; and in proportion as the
number is increased, these qualities will be diminished."1
History has been witness, however, to the fact that the power to withhold
information lends itself to abuse, hence, the necessity to guard it zealously.
The present consolidated petitions for certiorari and prohibition proffer that
the President has abused such power by issuing Executive Order No. 464 (E.O.
464) last September 28, 2005. They thus pray for its declaration as null and
void for being unconstitutional.
In resolving the controversy, this Court shall proceed with the recognition that
the issuance under review has come from a co-equal branch of government,
which thus entitles it to a strong presumption of constitutionality. Once the
challenged order is found to be indeed violative of the Constitution, it is duty-
bound to declare it so. For the Constitution, being the highest expression of
the sovereign will of the Filipino people, must prevail over any issuance of the
government that contravenes its mandates.
In the exercise of its legislative power, the Senate of the Philippines, through
its various Senate Committees, conducts inquiries or investigations in aid of
legislation which call for, inter alia, the attendance of officials and employees
of the executive department, bureaus, and offices including those employed
in Government Owned and Controlled Corporations, the Armed Forces of the
Philippines (AFP), and the Philippine National Police (PNP).
On September 21 to 23, 2005, the Committee of the Senate as a whole issued
invitations to various officials of the Executive Department for them to appear
on September 29, 2005 as resource speakers in a public hearing on the railway
project of the North Luzon Railways Corporation with the China National
Machinery and Equipment Group (hereinafter North Rail Project). The public
hearing was sparked by a privilege speech of Senator Juan Ponce Enrile urging
the Senate to investigate the alleged overpricing and other unlawful
provisions of the contract covering the North Rail Project.
The Senate Committee on National Defense and Security likewise issued
invitations2 dated September 22, 2005 to the following officials of the AFP: the
Commanding General of the Philippine Army, Lt. Gen. Hermogenes C.
Esperon; Inspector General of the AFP Vice Admiral Mateo M. Mayuga;
Deputy Chief of Staff for Intelligence of the AFP Rear Admiral Tirso R. Danga;
Chief of the Intelligence Service of the AFP Brig. Gen. Marlu Q. Quevedo;
Assistant Superintendent of the Philippine Military Academy (PMA) Brig. Gen.
Francisco V. Gudani; and Assistant Commandant, Corps of Cadets of the PMA,
Col. Alexander F. Balutan, for them to attend as resource persons in a public
hearing scheduled on September 28, 2005 on the following: (1) Privilege
Speech of Senator Aquilino Q. Pimentel Jr., delivered on June 6, 2005 entitled
"Bunye has Provided Smoking Gun or has Opened a Can of Worms that Show
Massive Electoral Fraud in the Presidential Election of May 2005"; (2) Privilege
Speech of Senator Jinggoy E. Estrada delivered on July 26, 2005 entitled "The
Philippines as the Wire-Tapping Capital of the World"; (3) Privilege Speech of
Senator Rodolfo Biazon delivered on August 1, 2005 entitled "Clear and
Present Danger"; (4) Senate Resolution No. 285 filed by Senator Maria Ana
Consuelo Madrigal – Resolution Directing the Committee on National Defense
and Security to Conduct an Inquiry, in Aid of Legislation, and in the National
Interest, on the Role of the Military in the So-called "Gloriagate Scandal"; and
(5) Senate Resolution No. 295 filed by Senator Biazon – Resolution Directing
the Committee on National Defense and Security to Conduct an Inquiry, in Aid
of Legislation, on the Wire-Tapping of the President of the Philippines.
Also invited to the above-said hearing scheduled on September 28 2005 was
the AFP Chief of Staff, General Generoso S. Senga who, by letter3 dated
September 27, 2005, requested for its postponement "due to a pressing
operational situation that demands [his utmost personal attention" while
"some of the invited AFP officers are currently attending to other urgent
operational matters."
On September 28, 2005, Senate President Franklin M. Drilon received from
Executive Secretary Eduardo R. Ermita a letter 4 dated September 27, 2005
"respectfully request[ing] for the postponement of the hearing [regarding the
NorthRail project] to which various officials of the Executive Department have
been invited" in order to "afford said officials ample time and opportunity to
study and prepare for the various issues so that they may better enlighten the
Senate Committee on its investigation."
Senate President Drilon, however, wrote5 Executive Secretary Ermita that the
Senators "are unable to accede to [his request]" as it "was sent belatedly" and
"[a]ll preparations and arrangements as well as notices to all resource persons
were completed [the previous] week."
Senate President Drilon likewise received on September 28, 2005 a
letter6 from the President of the North Luzon Railways Corporation Jose L.
Cortes, Jr. requesting that the hearing on the NorthRail project be postponed
or cancelled until a copy of the report of the UP Law Center on the contract
agreements relative to the project had been secured.
On September 28, 2005, the President issued E.O. 464, "Ensuring Observance
of the Principle of Separation of Powers, Adherence to the Rule on Executive
Privilege and Respect for the Rights of Public Officials Appearing in Legislative
Inquiries in Aid of Legislation Under the Constitution, and For Other
Purposes,"7 which, pursuant to Section 6 thereof, took effect immediately.
The salient provisions of the Order are as follows:
SECTION 1. Appearance by Heads of Departments Before Congress. – In
accordance with Article VI, Section 22 of the Constitution and to implement
the Constitutional provisions on the separation of powers between co-equal
branches of the government, all heads of departments of the Executive
Branch of the government shall secure the consent of the President prior to
appearing before either House of Congress.
When the security of the State or the public interest so requires and the
President so states in writing, the appearance shall only be conducted in
executive session.
SECTION. 2. Nature, Scope and Coverage of Executive Privilege. –
(a) Nature and Scope. - The rule of confidentiality based on executive privilege
is fundamental to the operation of government and rooted in the separation
of powers under the Constitution (Almonte vs. Vasquez, G.R. No. 95367, 23
May 1995). Further, Republic Act No. 6713 or the Code of Conduct and Ethical
Standards for Public Officials and Employees provides that Public Officials and
Employees shall not use or divulge confidential or classified information
officially known to them by reason of their office and not made available to
the public to prejudice the public interest.
Executive privilege covers all confidential or classified information between
the President and the public officers covered by this executive order,
including:
Conversations and correspondence between the President and the public
official covered by this executive order (Almonte vs. Vasquez G.R. No. 95367,
23 May 1995; Chavez v. Public Estates Authority, G.R. No. 133250, 9 July
2002);
Military, diplomatic and other national security matters which in the interest
of national security should not be divulged (Almonte vs. Vasquez, G.R. No.
95367, 23 May 1995; Chavez v. Presidential Commission on Good
Government, G.R. No. 130716, 9 December 1998).
Information between inter-government agencies prior to the conclusion of
treaties and executive agreements (Chavez v. Presidential Commission on
Good Government, G.R. No. 130716, 9 December 1998);
Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission
on Good Government, G.R. No. 130716, 9 December 1998);
Matters affecting national security and public order (Chavez v. Public Estates
Authority, G.R. No. 133250, 9 July 2002).
(b) Who are covered. – The following are covered by this executive order:
Senior officials of executive departments who in the judgment of the
department heads are covered by the executive privilege;
Generals and flag officers of the Armed Forces of the Philippines and such
other officers who in the judgment of the Chief of Staff are covered by the
executive privilege;
Philippine National Police (PNP) officers with rank of chief superintendent or
higher and such other officers who in the judgment of the Chief of the PNP are
covered by the executive privilege;
Senior national security officials who in the judgment of the National Security
Adviser are covered by the executive privilege; and
Such other officers as may be determined by the President.
SECTION 3. Appearance of Other Public Officials Before Congress. – All public
officials enumerated in Section 2 (b) hereof shall secure prior consent of the
President prior to appearing before either House of Congress to ensure the
observance of the principle of separation of powers, adherence to the rule on
executive privilege and respect for the rights of public officials appearing in
inquiries in aid of legislation. (Emphasis and underscoring supplied)
Also on September 28, 2005, Senate President Drilon received from Executive
Secretary Ermita a copy of E.O. 464, and another letter 8 informing him "that
officials of the Executive Department invited to appear at the meeting
[regarding the NorthRail project] will not be able to attend the same without
the consent of the President, pursuant to [E.O. 464]" and that "said officials
have not secured the required consent from the President." On even date
which was also the scheduled date of the hearing on the alleged wiretapping,
Gen. Senga sent a letter9 to Senator Biazon, Chairperson of the Committee on
National Defense and Security, informing him "that per instruction of
[President Arroyo], thru the Secretary of National Defense, no officer of the
[AFP] is authorized to appear before any Senate or Congressional hearings
without seeking a written approval from the President" and "that no approval
has been granted by the President to any AFP officer to appear before the
public hearing of the Senate Committee on National Defense and Security
scheduled [on] 28 September 2005."
Despite the communications received from Executive Secretary Ermita and
Gen. Senga, the investigation scheduled by the Committee on National
Defense and Security pushed through, with only Col. Balutan and Brig. Gen.
Gudani among all the AFP officials invited attending.
For defying President Arroyo’s order barring military personnel from testifying
before legislative inquiries without her approval, Brig. Gen. Gudani and Col.
Balutan were relieved from their military posts and were made to face court
martial proceedings.
As to the NorthRail project hearing scheduled on September 29, 2005,
Executive Secretary Ermita, citing E.O. 464, sent letter of regrets, in response
to the invitations sent to the following government officials: Light Railway
Transit Authority Administrator Melquiades Robles, Metro Rail Transit
Authority Administrator Roberto Lastimoso, Department of Justice (DOJ) Chief
State Counsel Ricardo V. Perez, then Presidential Legal Counsel Merceditas
Gutierrez, Department of Transportation and Communication (DOTC)
Undersecretary Guiling Mamonding, DOTC Secretary Leandro Mendoza,
Philippine National Railways General Manager Jose Serase II, Monetary Board
Member Juanita Amatong, Bases Conversion Development Authority
Chairperson Gen. Narciso Abaya and Secretary Romulo L. Neri. 10 NorthRail
President Cortes sent personal regrets likewise citing E.O. 464.11
On October 3, 2005, three petitions, docketed as G.R. Nos. 169659, 169660,
and 169667, for certiorari and prohibition, were filed before this Court
challenging the constitutionality of E.O. 464.
In G.R. No. 169659, petitioners party-list Bayan Muna, House of
Representatives Members Satur Ocampo, Crispin Beltran, Rafael Mariano, Liza
Maza, Joel Virador and Teodoro Casino, Courage, an organization of
government employees, and Counsels for the Defense of Liberties (CODAL), a
group of lawyers dedicated to the promotion of justice, democracy and peace,
all claiming to have standing to file the suit because of the transcendental
importance of the issues they posed, pray, in their petition that E.O. 464 be
declared null and void for being unconstitutional; that respondent Executive
Secretary Ermita, in his capacity as Executive Secretary and alter-ego of
President Arroyo, be prohibited from imposing, and threatening to impose
sanctions on officials who appear before Congress due to congressional
summons. Additionally, petitioners claim that E.O. 464 infringes on their rights
and impedes them from fulfilling their respective obligations. Thus, Bayan
Muna alleges that E.O. 464 infringes on its right as a political party entitled to
participate in governance; Satur Ocampo, et al. allege that E.O. 464 infringes
on their rights and duties as members of Congress to conduct investigation in
aid of legislation and conduct oversight functions in the implementation of
laws; Courage alleges that the tenure of its members in public office is
predicated on, and threatened by, their submission to the requirements of
E.O. 464 should they be summoned by Congress; and CODAL alleges that its
members have a sworn duty to uphold the rule of law, and their rights to
information and to transparent governance are threatened by the imposition
of E.O. 464.
In G.R. No. 169660, petitioner Francisco I. Chavez, claiming that his
constitutional rights as a citizen, taxpayer and law practitioner, are affected
by the enforcement of E.O. 464, prays in his petition that E.O. 464 be declared
null and void for being unconstitutional.
In G.R. No. 169667, petitioner Alternative Law Groups, Inc.12 (ALG), alleging
that as a coalition of 17 legal resource non-governmental organizations
engaged in developmental lawyering and work with the poor and
marginalized sectors in different parts of the country, and as an organization
of citizens of the Philippines and a part of the general public, it has legal
standing to institute the petition to enforce its constitutional right to
information on matters of public concern, a right which was denied to the
public by E.O. 464,13 prays, that said order be declared null and void for being
unconstitutional and that respondent Executive Secretary Ermita be ordered
to cease from implementing it.
On October 11, 2005, Petitioner Senate of the Philippines, alleging that it has a
vital interest in the resolution of the issue of the validity of E.O. 464 for it
stands to suffer imminent and material injury, as it has already sustained the
same with its continued enforcement since it directly interferes with and
impedes the valid exercise of the Senate’s powers and functions and conceals
information of great public interest and concern, filed its petition for certiorari
and prohibition, docketed as G.R. No. 169777 and prays that E.O. 464 be
declared unconstitutional.
On October 14, 2005, PDP-Laban, a registered political party with members
duly elected into the Philippine Senate and House of Representatives, filed a
similar petition for certiorari and prohibition, docketed as G.R. No. 169834,
alleging that it is affected by the challenged E.O. 464 because it hampers its
legislative agenda to be implemented through its members in Congress,
particularly in the conduct of inquiries in aid of legislation and transcendental
issues need to be resolved to avert a constitutional crisis between the
executive and legislative branches of the government.
Meanwhile, by letter14 dated February 6, 2006, Senator Biazon reiterated his
invitation to Gen. Senga for him and other military officers to attend the
hearing on the alleged wiretapping scheduled on February 10, 2005. Gen.
Senga replied, however, by letter15 dated February 8, 2006, that "[p]ursuant
to Executive Order No. 464, th[e] Headquarters requested for a clearance
from the President to allow [them] to appear before the public hearing" and
that "they will attend once [their] request is approved by the President." As
none of those invited appeared, the hearing on February 10, 2006 was
cancelled.16
In another investigation conducted jointly by the Senate Committee on
Agriculture and Food and the Blue Ribbon Committee on the alleged
mismanagement and use of the fertilizer fund under the Ginintuang
Masaganang Ani program of the Department of Agriculture (DA), several
Cabinet officials were invited to the hearings scheduled on October 5 and 26,
November 24 and December 12, 2005 but most of them failed to attend, DA
Undersecretary Belinda Gonzales, DA Assistant Secretary Felix Jose Montes,
Fertilizer and Pesticide Authority Executive Director Norlito R. Gicana,17 and
those from the Department of Budget and Management18 having invoked E.O.
464.
In the budget hearings set by the Senate on February 8 and 13, 2006, Press
Secretary and Presidential Spokesperson Ignacio R. Bunye,19 DOJ Secretary
Raul M. Gonzalez20 and Department of Interior and Local Government
Undersecretary Marius P. Corpus21 communicated their inability to attend due
to lack of appropriate clearance from the President pursuant to E.O. 464.
During the February 13, 2005 budget hearing, however, Secretary Bunye was
allowed to attend by Executive Secretary Ermita.
On February 13, 2006, Jose Anselmo I. Cadiz and the incumbent members of
the Board of Governors of the Integrated Bar of the Philippines, as taxpayers,
and the Integrated Bar of the Philippines as the official organization of all
Philippine lawyers, all invoking their constitutional right to be informed on
matters of public interest, filed their petition for certiorari and prohibition,
docketed as G.R. No. 171246, and pray that E.O. 464 be declared null and void.
All the petitions pray for the issuance of a Temporary Restraining Order
enjoining respondents from implementing, enforcing, and observing E.O. 464.
In the oral arguments on the petitions conducted on February 21, 2006, the
following substantive issues were ventilated: (1) whether respondents
committed grave abuse of discretion in implementing E.O. 464 prior to its
publication in the Official Gazette or in a newspaper of general circulation;
and (2) whether E.O. 464 violates the following provisions of the Constitution:
Art. II, Sec. 28, Art. III, Sec. 4, Art. III, Sec. 7, Art. IV. Sec. 1, Art. VI, Sec. 21, Art.
VI, Sec. 22, Art. XI, Sec. 1, and Art. XIII, Sec. 16. The procedural issue of
whether there is an actual case or controversy that calls for judicial review
was not taken up; instead, the parties were instructed to discuss it in their
respective memoranda.
After the conclusion of the oral arguments, the parties were directed to
submit their respective memoranda, paying particular attention to the
following propositions: (1) that E.O. 464 is, on its face, unconstitutional; and
(2) assuming that it is not, it is unconstitutional as applied in four instances,
namely: (a) the so called Fertilizer scam; (b) the NorthRail investigation (c) the
Wiretapping activity of the ISAFP; and (d) the investigation on the Venable
contract.22
Petitioners in G.R. No. 16966023 and G.R. No. 16977724 filed their memoranda
on March 7, 2006, while those in G.R. No. 16966725 and G.R. No. 16983426 filed
theirs the next day or on March 8, 2006. Petitioners in G.R. No. 171246 did not
file any memorandum.
Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion for
extension to file memorandum27 was granted, subsequently filed a
manifestation28 dated March 14, 2006 that it would no longer file its
memorandum in the interest of having the issues resolved soonest, prompting
this Court to issue a Resolution reprimanding them.29
Petitioners submit that E.O. 464 violates the following constitutional
provisions:
Art. VI, Sec. 2130
Art. VI, Sec. 2231
Art. VI, Sec. 132
Art. XI, Sec. 133
Art. III, Sec. 734
Art. III, Sec. 435
Art. XIII, Sec. 16 36
Art. II, Sec. 2837
Respondents Executive Secretary Ermita et al., on the other hand, pray in their
consolidated memorandum38 on March 13, 2006 for the dismissal of the
petitions for lack of merit.
The Court synthesizes the issues to be resolved as follows:
1. Whether E.O. 464 contravenes the power of inquiry vested in
Congress;
2. Whether E.O. 464 violates the right of the people to information
on matters of public concern; and
3. Whether respondents have committed grave abuse of discretion
when they implemented E.O. 464 prior to its publication in a
newspaper of general circulation.
Essential requisites for judicial review
Before proceeding to resolve the issue of the constitutionality of E.O. 464,
ascertainment of whether the requisites for a valid exercise of the Court’s
power of judicial review are present is in order.
Like almost all powers conferred by the Constitution, the power of judicial
review is subject to limitations, to wit: (1) there must be an actual case or
controversy calling for the exercise of judicial power; (2) the person
challenging the act must have standing to challenge the validity of the subject
act or issuance; otherwise stated, he must have a personal and substantial
interest in the case such that he has sustained, or will sustain, direct injury as
a result of its enforcement; (3) the question of constitutionality must be raised
at the earliest opportunity; and (4) the issue of constitutionality must be the
very lis mota of the case.39
Except with respect to the requisites of standing and existence of an actual
case or controversy where the disagreement between the parties lies,
discussion of the rest of the requisites shall be omitted.
Standing
Respondents, through the Solicitor General, assert that the allegations in G.R.
Nos. 169659, 169660 and 169667 make it clear that they, adverting to the
non-appearance of several officials of the executive department in the
investigations called by the different committees of the Senate, were brought
to vindicate the constitutional duty of the Senate or its different committees
to conduct inquiry in aid of legislation or in the exercise of its oversight
functions. They maintain that Representatives Ocampo et al. have not shown
any specific prerogative, power, and privilege of the House of Representatives
which had been effectively impaired by E.O. 464, there being no mention of
any investigation called by the House of Representatives or any of its
committees which was aborted due to the implementation of E.O. 464.
As for Bayan Muna’s alleged interest as a party-list representing the
marginalized and underrepresented, and that of the other petitioner groups
and individuals who profess to have standing as advocates and defenders of
the Constitution, respondents contend that such interest falls short of that
required to confer standing on them as parties "injured-in-fact."40
Respecting petitioner Chavez, respondents contend that Chavez may not claim
an interest as a taxpayer for the implementation of E.O. 464 does not involve
the exercise of taxing or spending power.41
With regard to the petition filed by the Senate, respondents argue that in the
absence of a personal or direct injury by reason of the issuance of E.O. 464,
the Senate and its individual members are not the proper parties to assail the
constitutionality of E.O. 464.
Invoking this Court’s ruling in National Economic Protectionism Association v.
Ongpin42 and Valmonte v. Philippine Charity Sweepstakes
Office,43 respondents assert that to be considered a proper party, one must
have a personal and substantial interest in the case, such that he has
sustained or will sustain direct injury due to the enforcement of E.O. 464.44
That the Senate of the Philippines has a fundamental right essential not only
for intelligent public decision-making in a democratic system, but more
especially for sound legislation45 is not disputed. E.O. 464, however, allegedly
stifles the ability of the members of Congress to access information that is
crucial to law-making.46Verily, the Senate, including its individual members,
has a substantial and direct interest over the outcome of the controversy and
is the proper party to assail the constitutionality of E.O. 464. Indeed,
legislators have standing to maintain inviolate the prerogative, powers and
privileges vested by the Constitution in their office and are allowed to sue to
question the validity of any official action which they claim infringes their
prerogatives as legislators.47
In the same vein, party-list representatives Satur Ocampo (Bayan Muna),
Teodoro Casino (Bayan Muna), Joel Virador (Bayan Muna), Crispin Beltran
(Anakpawis), Rafael Mariano (Anakpawis), and Liza Maza (Gabriela) are
allowed to sue to question the constitutionality of E.O. 464, the absence of
any claim that an investigation called by the House of Representatives or any
of its committees was aborted due to the implementation of E.O. 464
notwithstanding, it being sufficient that a claim is made that E.O. 464 infringes
on their constitutional rights and duties as members of Congress to conduct
investigation in aid of legislation and conduct oversight functions in the
implementation of laws.
The national political party, Bayan Muna, likewise meets the standing
requirement as it obtained three seats in the House of Representatives in the
2004 elections and is, therefore, entitled to participate in the legislative
process consonant with the declared policy underlying the party list system of
affording citizens belonging to marginalized and underrepresented sectors,
organizations and parties who lack well-defined political constituencies to
contribute to the formulation and enactment of legislation that will benefit
the nation.48
As Bayan Muna and Representatives Ocampo et al. have the standing to file
their petitions, passing on the standing of their co-petitioners Courage and
Codal is rendered unnecessary.49
In filing their respective petitions, Chavez, the ALG which claims to be an
organization of citizens, and the incumbent members of the IBP Board of
Governors and the IBP in behalf of its lawyer members,50 invoke their
constitutional right to information on matters of public concern, asserting that
the right to information, curtailed and violated by E.O. 464, is essential to the
effective exercise of other constitutional rights51 and to the maintenance of
the balance of power among the three branches of the government through
the principle of checks and balances.52
It is well-settled that when suing as a citizen, the interest of the petitioner in
assailing the constitutionality of laws, presidential decrees, orders, and other
regulations, must be direct and personal. In Franciso v. House of
Representatives,53 this Court held that when the proceeding involves the
assertion of a public right, the mere fact that he is a citizen satisfies the
requirement of personal interest.
As for petitioner PDP-Laban, it asseverates that it is clothed with legal
standing in view of the transcendental issues raised in its petition which this
Court needs to resolve in order to avert a constitutional crisis. For it to be
accorded standing on the ground of transcendental importance, however, it
must establish (1) the character of the funds (that it is public) or other assets
involved in the case, (2) the presence of a clear case of disregard of a
constitutional or statutory prohibition by the public respondent agency or
instrumentality of the government, and (3) the lack of any party with a more
direct and specific interest in raising the questions being raised. 54 The first and
last determinants not being present as no public funds or assets are involved
and petitioners in G.R. Nos. 169777 and 169659 have direct and specific
interests in the resolution of the controversy, petitioner PDP-Laban is bereft
of standing to file its petition. Its allegation that E.O. 464 hampers its
legislative agenda is vague and uncertain, and at best is only a "generalized
interest" which it shares with the rest of the political parties. Concrete injury,
whether actual or threatened, is that indispensable element of a dispute
which serves in part to cast it in a form traditionally capable of judicial
resolution.55 In fine, PDP-Laban’s alleged interest as a political party does not
suffice to clothe it with legal standing.
Actual Case or Controversy
Petitioners assert that an actual case exists, they citing the absence of the
executive officials invited by the Senate to its hearings after the issuance of
E.O. 464, particularly those on the NorthRail project and the wiretapping
controversy.
Respondents counter that there is no case or controversy, there being no
showing that President Arroyo has actually withheld her consent or prohibited
the appearance of the invited officials.56 These officials, they claim, merely
communicated to the Senate that they have not yet secured the consent of
the President, not that the President prohibited their
attendance.57 Specifically with regard to the AFP officers who did not attend
the hearing on September 28, 2005, respondents claim that the instruction
not to attend without the President’s consent was based on its role as
Commander-in-Chief of the Armed Forces, not on E.O. 464.
Respondents thus conclude that the petitions merely rest on an unfounded
apprehension that the President will abuse its power of preventing the
appearance of officials before Congress, and that such apprehension is not
sufficient for challenging the validity of E.O. 464.
The Court finds respondents’ assertion that the President has not withheld
her consent or prohibited the appearance of the officials concerned
immaterial in determining the existence of an actual case or controversy
insofar as E.O. 464 is concerned. For E.O. 464 does not require either a
deliberate withholding of consent or an express prohibition issuing from the
President in order to bar officials from appearing before Congress.
As the implementation of the challenged order has already resulted in the
absence of officials invited to the hearings of petitioner Senate of the
Philippines, it would make no sense to wait for any further event before
considering the present case ripe for adjudication. Indeed, it would be sheer
abandonment of duty if this Court would now refrain from passing on the
constitutionality of E.O. 464.
Constitutionality of E.O. 464
E.O. 464, to the extent that it bars the appearance of executive officials before
Congress, deprives Congress of the information in the possession of these
officials. To resolve the question of whether such withholding of information
violates the Constitution, consideration of the general power of Congress to
obtain information, otherwise known as the power of inquiry, is in order.
The power of inquiry
The Congress power of inquiry is expressly recognized in Section 21 of Article
VI of the Constitution which reads:
SECTION 21. The Senate or the House of Representatives or any of its
respective committees may conduct inquiries in aid of legislation in
accordance with its duly published rules of procedure. The rights of persons
appearing in or affected by such inquiries shall be respected. (Underscoring
supplied)
This provision is worded exactly as Section 8 of Article VIII of the 1973
Constitution except that, in the latter, it vests the power of inquiry in the
unicameral legislature established therein – the Batasang Pambansa – and its
committees.
The 1935 Constitution did not contain a similar provision. Nonetheless, in
Arnault v. Nazareno,58 a case decided in 1950 under that Constitution, the
Court already recognized that the power of inquiry is inherent in the power to
legislate.
Arnault involved a Senate investigation of the reportedly anomalous purchase
of the Buenavista and Tambobong Estates by the Rural Progress
Administration. Arnault, who was considered a leading witness in the
controversy, was called to testify thereon by the Senate. On account of his
refusal to answer the questions of the senators on an important point, he
was, by resolution of the Senate, detained for contempt. Upholding the
Senate’s power to punish Arnault for contempt, this Court held:
Although there is no provision in the Constitution expressly investing either
House of Congress with power to make investigations and exact testimony to
the end that it may exercise its legislative functions advisedly and effectively,
such power is so far incidental to the legislative function as to be implied. In
other words, the power of inquiry – with process to enforce it – is an essential
and appropriate auxiliary to the legislative function. A legislative body cannot
legislate wisely or effectively in the absence of information respecting the
conditions which the legislation is intended to affect or change; and where the
legislative body does not itself possess the requisite information – which is
not infrequently true – recourse must be had to others who do possess it.
Experience has shown that mere requests for such information are often
unavailing, and also that information which is volunteered is not always
accurate or complete; so some means of compulsion is essential to obtain
what is needed.59 . . . (Emphasis and underscoring supplied)
That this power of inquiry is broad enough to cover officials of the executive
branch may be deduced from the same case. The power of inquiry, the Court
therein ruled, is co-extensive with the power to legislate.60 The matters which
may be a proper subject of legislation and those which may be a proper
subject of investigation are one. It follows that the operation of government,
being a legitimate subject for legislation, is a proper subject for investigation.
Thus, the Court found that the Senate investigation of the government
transaction involved in Arnault was a proper exercise of the power of inquiry.
Besides being related to the expenditure of public funds of which Congress is
the guardian, the transaction, the Court held, "also involved government
agencies created by Congress and officers whose positions it is within the
power of Congress to regulate or even abolish."
Since Congress has authority to inquire into the operations of the executive
branch, it would be incongruous to hold that the power of inquiry does not
extend to executive officials who are the most familiar with and informed on
executive operations.
As discussed in Arnault, the power of inquiry, "with process to enforce it," is
grounded on the necessity of information in the legislative process. If the
information possessed by executive officials on the operation of their offices
is necessary for wise legislation on that subject, by parity of reasoning,
Congress has the right to that information and the power to compel the
disclosure thereof.
As evidenced by the American experience during the so-called "McCarthy
era," however, the right of Congress to conduct inquiries in aid of legislation
is, in theory, no less susceptible to abuse than executive or judicial power. It
may thus be subjected to judicial review pursuant to the Court’s certiorari
powers under Section 1, Article VIII of the Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon Committee,61 the inquiry
itself might not properly be in aid of legislation, and thus beyond the
constitutional power of Congress. Such inquiry could not usurp judicial
functions. Parenthetically, one possible way for Congress to avoid such a
result as occurred in Bengzon is to indicate in its invitations to the public
officials concerned, or to any person for that matter, the possible needed
statute which prompted the need for the inquiry. Given such statement in its
invitations, along with the usual indication of the subject of inquiry and the
questions relative to and in furtherance thereof, there would be less room for
speculation on the part of the person invited on whether the inquiry is in aid
of legislation.
Section 21, Article VI likewise establishes crucial safeguards that proscribe the
legislative power of inquiry. The provision requires that the inquiry be done in
accordance with the Senate or House’s duly published rules of procedure,
necessarily implying the constitutional infirmity of an inquiry conducted
without duly published rules of procedure. Section 21 also mandates that the
rights of persons appearing in or affected by such inquiries be respected, an
imposition that obligates Congress to adhere to the guarantees in the Bill of
Rights.
These abuses are, of course, remediable before the courts, upon the proper
suit filed by the persons affected, even if they belong to the executive branch.
Nonetheless, there may be exceptional circumstances, none appearing to
obtain at present, wherein a clear pattern of abuse of the legislative power of
inquiry might be established, resulting in palpable violations of the rights
guaranteed to members of the executive department under the Bill of Rights.
In such instances, depending on the particulars of each case, attempts by the
Executive Branch to forestall these abuses may be accorded judicial sanction.
Even where the inquiry is in aid of legislation, there are still recognized
exemptions to the power of inquiry, which exemptions fall under the rubric of
"executive privilege." Since this term figures prominently in the challenged
order, it being mentioned in its provisions, its preambular clauses,62 and in its
very title, a discussion of executive privilege is crucial for determining the
constitutionality of E.O. 464.
Executive privilege
The phrase "executive privilege" is not new in this jurisdiction. It has been
used even prior to the promulgation of the 1986 Constitution.63 Being of
American origin, it is best understood in light of how it has been defined and
used in the legal literature of the United States.
Schwartz defines executive privilege as "the power of the Government to
withhold information from the public, the courts, and the
Congress."64 Similarly, Rozell defines it as "the right of the President and high-
level executive branch officers to withhold information from Congress, the
courts, and ultimately the public."65
Executive privilege is, nonetheless, not a clear or unitary concept. 66 It has
encompassed claims of varying kinds.67 Tribe, in fact, comments that while it
is customary to employ the phrase "executive privilege," it may be more
accurate to speak of executive privileges "since presidential refusals to furnish
information may be actuated by any of at least three distinct kinds of
considerations, and may be asserted, with differing degrees of success, in the
context of either judicial or legislative investigations."
One variety of the privilege, Tribe explains, is the state secrets privilege
invoked by U.S. Presidents, beginning with Washington, on the ground that
the information is of such nature that its disclosure would subvert crucial
military or diplomatic objectives. Another variety is the informer’s privilege,
or the privilege of the Government not to disclose the identity of persons who
furnish information of violations of law to officers charged with the
enforcement of that law. Finally, a generic privilege for internal deliberations
has been said to attach to intragovernmental documents reflecting advisory
opinions, recommendations and deliberations comprising part of a process by
which governmental decisions and policies are formulated. 68
Tribe’s comment is supported by the ruling in In re Sealed Case, thus:
Since the beginnings of our nation, executive officials have claimed a variety
of privileges to resist disclosure of information the confidentiality of which
they felt was crucial to fulfillment of the unique role and responsibilities of
the executive branch of our government. Courts ruled early that the executive
had a right to withhold documents that might reveal military or state secrets.
The courts have also granted the executive a right to withhold the identity of
government informers in some circumstances and a qualified right to withhold
information related to pending investigations. x x x"69 (Emphasis and
underscoring supplied)
The entry in Black’s Law Dictionary on "executive privilege" is similarly
instructive regarding the scope of the doctrine.
This privilege, based on the constitutional doctrine of separation of powers,
exempts the executive from disclosure requirements applicable to the
ordinary citizen or organization where such exemption is necessary to the
discharge of highly important executive responsibilities involved in
maintaining governmental operations, and extends not only to military and
diplomatic secrets but also to documents integral to an appropriate exercise
of the executive’ domestic decisional and policy making functions, that is,
those documents reflecting the frank expression necessary in intra-
governmental advisory and deliberative communications.70 (Emphasis and
underscoring supplied)
That a type of information is recognized as privileged does not, however,
necessarily mean that it would be considered privileged in all instances. For in
determining the validity of a claim of privilege, the question that must be
asked is not only whether the requested information falls within one of the
traditional privileges, but also whether that privilege should be honored in a
given procedural setting.71
The leading case on executive privilege in the United States is U.S. v.
Nixon, 72 decided in 1974. In issue in that case was the validity of President
Nixon’s claim of executive privilege against a subpoena issued by a district
court requiring the production of certain tapes and documents relating to the
Watergate investigations. The claim of privilege was based on the President’s
general interest in the confidentiality of his conversations and
correspondence. The U.S. Court held that while there is no explicit reference
to a privilege of confidentiality in the U.S. Constitution, it is constitutionally
based to the extent that it relates to the effective discharge of a President’s
powers. The Court, nonetheless, rejected the President’s claim of privilege,
ruling that the privilege must be balanced against the public interest in the
fair administration of criminal justice. Notably, the Court was careful to clarify
that it was not there addressing the issue of claims of privilege in a civil
litigation or against congressional demands for information.
Cases in the U.S. which involve claims of executive privilege against Congress
are rare.73 Despite frequent assertion of the privilege to deny information to
Congress, beginning with President Washington’s refusal to turn over treaty
negotiation records to the House of Representatives, the U.S. Supreme Court
has never adjudicated the issue.74 However, the U.S. Court of Appeals for the
District of Columbia Circuit, in a case decided earlier in the same year as
Nixon, recognized the President’s privilege over his conversations against a
congressional subpoena.75 Anticipating the balancing approach adopted by
the U.S. Supreme Court in Nixon, the Court of Appeals weighed the public
interest protected by the claim of privilege against the interest that would be
served by disclosure to the Committee. Ruling that the balance favored the
President, the Court declined to enforce the subpoena. 76
In this jurisdiction, the doctrine of executive privilege was recognized by this
Court in Almonte v. Vasquez.77Almonte used the term in reference to the
same privilege subject of Nixon. It quoted the following portion of the Nixon
decision which explains the basis for the privilege:
"The expectation of a President to the confidentiality of his conversations and
correspondences, like the claim of confidentiality of judicial deliberations, for
example, has all the values to which we accord deference for the privacy of all
citizens and, added to those values, is the necessity for protection of the
public interest in candid, objective, and even blunt or harsh opinions in
Presidential decision-making. A President and those who assist him must be
free to explore alternatives in the process of shaping policies and making
decisions and to do so in a way many would be unwilling to express except
privately. These are the considerations justifying a presumptive privilege for
Presidential communications. The privilege is fundamental to the operation of
government and inextricably rooted in the separation of powers under the
Constitution x x x " (Emphasis and underscoring supplied)
Almonte involved a subpoena duces tecum issued by the Ombudsman against
the therein petitioners. It did not involve, as expressly stated in the decision,
the right of the people to information.78 Nonetheless, the Court recognized
that there are certain types of information which the government may
withhold from the public, thus acknowledging, in substance if not in name,
that executive privilege may be claimed against citizens’ demands for
information.
In Chavez v. PCGG,79 the Court held that this jurisdiction recognizes the
common law holding that there is a "governmental privilege against public
disclosure with respect to state secrets regarding military, diplomatic and
other national security matters."80 The same case held that closed-door
Cabinet meetings are also a recognized limitation on the right to information.
Similarly, in Chavez v. Public Estates Authority,81 the Court ruled that the right
to information does not extend to matters recognized as "privileged
information under the separation of powers,"82 by which the Court meant
Presidential conversations, correspondences, and discussions in closed-door
Cabinet meetings. It also held that information on military and diplomatic
secrets and those affecting national security, and information on
investigations of crimes by law enforcement agencies before the prosecution
of the accused were exempted from the right to information.
From the above discussion on the meaning and scope of executive privilege,
both in the United States and in this jurisdiction, a clear principle emerges.
Executive privilege, whether asserted against Congress, the courts, or the
public, is recognized only in relation to certain types of information of a
sensitive character. While executive privilege is a constitutional concept, a
claim thereof may be valid or not depending on the ground invoked to justify
it and the context in which it is made. Noticeably absent is any recognition
that executive officials are exempt from the duty to disclose information by
the mere fact of being executive officials. Indeed, the extraordinary character
of the exemptions indicates that the presumption inclines heavily against
executive secrecy and in favor of disclosure.
Validity of Section 1
Section 1 is similar to Section 3 in that both require the officials covered by
them to secure the consent of the President prior to appearing before
Congress. There are significant differences between the two provisions,
however, which constrain this Court to discuss the validity of these provisions
separately.
Section 1 specifically applies to department heads. It does not, unlike Section
3, require a prior determination by any official whether they are covered by
E.O. 464. The President herself has, through the challenged order, made the
determination that they are. Further, unlike also Section 3, the coverage of
department heads under Section 1 is not made to depend on the department
heads’ possession of any information which might be covered by executive
privilege. In fact, in marked contrast to Section 3 vis-à-vis Section 2, there is
no reference to executive privilege at all. Rather, the required prior consent
under Section 1 is grounded on Article VI, Section 22 of the Constitution on
what has been referred to as the question hour.
SECTION 22. The heads of departments may upon their own initiative, with
the consent of the President, or upon the request of either House, as the rules
of each House shall provide, appear before and be heard by such House on
any matter pertaining to their departments. Written questions shall be
submitted to the President of the Senate or the Speaker of the House of
Representatives at least three days before their scheduled appearance.
Interpellations shall not be limited to written questions, but may cover
matters related thereto. When the security of the State or the public interest
so requires and the President so states in writing, the appearance shall be
conducted in executive session.
Determining the validity of Section 1 thus requires an examination of the
meaning of Section 22 of Article VI. Section 22 which provides for the question
hour must be interpreted vis-à-vis Section 21 which provides for the power of
either House of Congress to "conduct inquiries in aid of legislation." As the
following excerpt of the deliberations of the Constitutional Commission
shows, the framers were aware that these two provisions involved distinct
functions of Congress.
MR. MAAMBONG. x x x When we amended Section 20 [now Section 22 on the
Question Hour] yesterday, I noticed that members of the Cabinet cannot be
compelled anymore to appear before the House of Representatives or before
the Senate. I have a particular problem in this regard, Madam President,
because in our experience in the Regular Batasang Pambansa – as the
Gentleman himself has experienced in the interim Batasang Pambansa – one
of the most competent inputs that we can put in our committee deliberations,
either in aid of legislation or in congressional investigations, is the testimonies
of Cabinet ministers. We usually invite them, but if they do not come and it is
a congressional investigation, we usually issue subpoenas.
I want to be clarified on a statement made by Commissioner Suarez when he
said that the fact that the Cabinet ministers may refuse to come to the House
of Representatives or the Senate [when requested under Section 22] does not
mean that they need not come when they are invited or subpoenaed by the
committee of either House when it comes to inquiries in aid of legislation or
congressional investigation. According to Commissioner Suarez, that is
allowed and their presence can be had under Section 21. Does the gentleman
confirm this, Madam President?
MR. DAVIDE. We confirm that, Madam President, because Section 20 refers
only to what was originally the Question Hour, whereas, Section 21 would
refer specifically to inquiries in aid of legislation, under which anybody for
that matter, may be summoned and if he refuses, he can be held in contempt
of the House.83(Emphasis and underscoring supplied)
A distinction was thus made between inquiries in aid of legislation and the
question hour. While attendance was meant to be discretionary in the
question hour, it was compulsory in inquiries in aid of legislation. The
reference to Commissioner Suarez bears noting, he being one of the
proponents of the amendment to make the appearance of department heads
discretionary in the question hour.
So clearly was this distinction conveyed to the members of the Commission
that the Committee on Style, precisely in recognition of this distinction, later
moved the provision on question hour from its original position as Section 20
in the original draft down to Section 31, far from the provision on inquiries in
aid of legislation. This gave rise to the following exchange during the
deliberations:
MR. GUINGONA. [speaking in his capacity as Chairman of the Committee on
Style] We now go, Mr. Presiding Officer, to the Article on Legislative and may I
request the chairperson of the Legislative Department, Commissioner Davide,
to give his reaction.
THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide is
recognized.|avvphi|.net
MR. DAVIDE. Thank you, Mr. Presiding Officer. I have only one reaction to the
Question Hour. I propose that instead of putting it as Section 31, it should
follow Legislative Inquiries.
THE PRESIDING OFFICER. What does the committee say?
MR. GUINGONA. I ask Commissioner Maambong to reply, Mr. Presiding
Officer.
MR. MAAMBONG. Actually, we considered that previously when we
sequenced this but we reasoned that in Section 21, which is Legislative
Inquiry, it is actually a power of Congress in terms of its own lawmaking;
whereas, a Question Hour is not actually a power in terms of its own
lawmaking power because in Legislative Inquiry, it is in aid of legislation. And
so we put Question Hour as Section 31. I hope Commissioner Davide will
consider this.
MR. DAVIDE. The Question Hour is closely related with the legislative power,
and it is precisely as a complement to or a supplement of the Legislative
Inquiry. The appearance of the members of Cabinet would be very, very
essential not only in the application of check and balance but also, in effect, in
aid of legislation.
MR. MAAMBONG. After conferring with the committee, we find merit in the
suggestion of Commissioner Davide. In other words, we are accepting that
and so this Section 31 would now become Section 22. Would it be,
Commissioner Davide?
MR. DAVIDE. Yes.84 (Emphasis and underscoring supplied)
Consistent with their statements earlier in the deliberations, Commissioners
Davide and Maambong proceeded from the same assumption that these
provisions pertained to two different functions of the legislature. Both
Commissioners understood that the power to conduct inquiries in aid of
legislation is different from the power to conduct inquiries during the
question hour. Commissioner Davide’s only concern was that the two
provisions on these distinct powers be placed closely together, they being
complementary to each other. Neither Commissioner considered them as
identical functions of Congress.
The foregoing opinion was not the two Commissioners’ alone. From the
above-quoted exchange, Commissioner Maambong’s committee – the
Committee on Style – shared the view that the two provisions reflected
distinct functions of Congress. Commissioner Davide, on the other hand, was
speaking in his capacity as Chairman of the Committee on the Legislative
Department. His views may thus be presumed as representing that of his
Committee.
In the context of a parliamentary system of government, the "question hour"
has a definite meaning. It is a period of confrontation initiated by Parliament
to hold the Prime Minister and the other ministers accountable for their acts
and the operation of the government,85 corresponding to what is known in
Britain as the question period. There was a specific provision for a question
hour in the 1973 Constitution86 which made the appearance of ministers
mandatory. The same perfectly conformed to the parliamentary system
established by that Constitution, where the ministers are also members of the
legislature and are directly accountable to it.
An essential feature of the parliamentary system of government is the
immediate accountability of the Prime Minister and the Cabinet to the
National Assembly. They shall be responsible to the National Assembly for the
program of government and shall determine the guidelines of national policy.
Unlike in the presidential system where the tenure of office of all elected
officials cannot be terminated before their term expired, the Prime Minister
and the Cabinet remain in office only as long as they enjoy the confidence of
the National Assembly. The moment this confidence is lost the Prime Minister
and the Cabinet may be changed.87
The framers of the 1987 Constitution removed the mandatory nature of such
appearance during the question hour in the present Constitution so as to
conform more fully to a system of separation of powers.88 To that extent, the
question hour, as it is presently understood in this jurisdiction, departs from
the question period of the parliamentary system. That department heads may
not be required to appear in a question hour does not, however, mean that
the legislature is rendered powerless to elicit information from them in all
circumstances. In fact, in light of the absence of a mandatory question period,
the need to enforce Congress’ right to executive information in the
performance of its legislative function becomes more imperative. As Schwartz
observes:
Indeed, if the separation of powers has anything to tell us on the subject
under discussion, it is that the Congress has the right to obtain information
from any source – even from officials of departments and agencies in the
executive branch. In the United States there is, unlike the situation which
prevails in a parliamentary system such as that in Britain, a clear separation
between the legislative and executive branches. It is this very separation that
makes the congressional right to obtain information from the executive so
essential, if the functions of the Congress as the elected representatives of the
people are adequately to be carried out. The absence of close rapport
between the legislative and executive branches in this country, comparable to
those which exist under a parliamentary system, and the nonexistence in the
Congress of an institution such as the British question period have perforce
made reliance by the Congress upon its right to obtain information from the
executive essential, if it is intelligently to perform its legislative tasks. Unless
the Congress possesses the right to obtain executive information, its power of
oversight of administration in a system such as ours becomes a power devoid
of most of its practical content, since it depends for its effectiveness solely
upon information parceled out ex gratia by the executive.89 (Emphasis and
underscoring supplied)
Sections 21 and 22, therefore, while closely related and complementary to
each other, should not be considered as pertaining to the same power of
Congress. One specifically relates to the power to conduct inquiries in aid of
legislation, the aim of which is to elicit information that may be used for
legislation, while the other pertains to the power to conduct a question hour,
the objective of which is to obtain information in pursuit of Congress’
oversight function.
When Congress merely seeks to be informed on how department heads are
implementing the statutes which it has issued, its right to such information is
not as imperative as that of the President to whom, as Chief Executive, such
department heads must give a report of their performance as a matter of
duty. In such instances, Section 22, in keeping with the separation of powers,
states that Congress may only request their appearance. Nonetheless, when
the inquiry in which Congress requires their appearance is "in aid of
legislation" under Section 21, the appearance is mandatory for the same
reasons stated in Arnault.90
In fine, the oversight function of Congress may be facilitated by compulsory
process only to the extent that it is performed in pursuit of legislation. This is
consistent with the intent discerned from the deliberations of the
Constitutional Commission.
Ultimately, the power of Congress to compel the appearance of executive
officials under Section 21 and the lack of it under Section 22 find their basis in
the principle of separation of powers. While the executive branch is a co-
equal branch of the legislature, it cannot frustrate the power of Congress to
legislate by refusing to comply with its demands for information.
When Congress exercises its power of inquiry, the only way for department
heads to exempt themselves therefrom is by a valid claim of privilege. They
are not exempt by the mere fact that they are department heads. Only one
executive official may be exempted from this power — the President on
whom executive power is vested, hence, beyond the reach of Congress except
through the power of impeachment. It is based on her being the highest
official of the executive branch, and the due respect accorded to a co-equal
branch of government which is sanctioned by a long-standing custom.
By the same token, members of the Supreme Court are also exempt from this
power of inquiry. Unlike the Presidency, judicial power is vested in a collegial
body; hence, each member thereof is exempt on the basis not only of
separation of powers but also on the fiscal autonomy and the constitutional
independence of the judiciary. This point is not in dispute, as even counsel for
the Senate, Sen. Joker Arroyo, admitted it during the oral argument upon
interpellation of the Chief Justice.
Having established the proper interpretation of Section 22, Article VI of the
Constitution, the Court now proceeds to pass on the constitutionality of
Section 1 of E.O. 464.
Section 1, in view of its specific reference to Section 22 of Article VI of the
Constitution and the absence of any reference to inquiries in aid of legislation,
must be construed as limited in its application to appearances of department
heads in the question hour contemplated in the provision of said Section 22 of
Article VI. The reading is dictated by the basic rule of construction that
issuances must be interpreted, as much as possible, in a way that will render it
constitutional.
The requirement then to secure presidential consent under Section 1, limited
as it is only to appearances in the question hour, is valid on its face. For under
Section 22, Article VI of the Constitution, the appearance of department heads
in the question hour is discretionary on their part.
Section 1 cannot, however, be applied to appearances of department heads in
inquiries in aid of legislation. Congress is not bound in such instances to
respect the refusal of the department head to appear in such inquiry, unless a
valid claim of privilege is subsequently made, either by the President herself
or by the Executive Secretary.
Validity of Sections 2 and 3
Section 3 of E.O. 464 requires all the public officials enumerated in Section
2(b) to secure the consent of the President prior to appearing before either
house of Congress. The enumeration is broad. It covers all senior officials of
executive departments, all officers of the AFP and the PNP, and all senior
national security officials who, in the judgment of the heads of offices
designated in the same section (i.e. department heads, Chief of Staff of the
AFP, Chief of the PNP, and the National Security Adviser), are "covered by the
executive privilege."
The enumeration also includes such other officers as may be determined by
the President. Given the title of Section 2 — "Nature, Scope and Coverage of
Executive Privilege" —, it is evident that under the rule of ejusdem generis,
the determination by the President under this provision is intended to be
based on a similar finding of coverage under executive privilege.
En passant, the Court notes that Section 2(b) of E.O. 464 virtually states that
executive privilege actually covers persons. Such is a misuse of the doctrine.
Executive privilege, as discussed above, is properly invoked in relation to
specific categories of information and not to categories of persons.
In light, however, of Sec 2(a) of E.O. 464 which deals with the nature, scope
and coverage of executive privilege, the reference to persons being "covered
by the executive privilege" may be read as an abbreviated way of saying that
the person is in possession of information which is, in the judgment of the
head of office concerned, privileged as defined in Section 2(a). The Court shall
thus proceed on the assumption that this is the intention of the challenged
order.
Upon a determination by the designated head of office or by the President
that an official is "covered by the executive privilege," such official is
subjected to the requirement that he first secure the consent of the President
prior to appearing before Congress. This requirement effectively bars the
appearance of the official concerned unless the same is permitted by the
President. The proviso allowing the President to give its consent means
nothing more than that the President may reverse a prohibition which already
exists by virtue of E.O. 464.
Thus, underlying this requirement of prior consent is the determination by a
head of office, authorized by the President under E.O. 464, or by the President
herself, that such official is in possession of information that is covered by
executive privilege. This determination then becomes the basis for the
official’s not showing up in the legislative investigation.
In view thereof, whenever an official invokes E.O. 464 to justify his failure to
be present, such invocation must be construed as a declaration to Congress
that the President, or a head of office authorized by the President, has
determined that the requested information is privileged, and that the
President has not reversed such determination. Such declaration, however,
even without mentioning the term "executive privilege," amounts to an
implied claim that the information is being withheld by the executive branch,
by authority of the President, on the basis of executive privilege. Verily, there
is an implied claim of privilege.
The letter dated September 28, 2005 of respondent Executive Secretary
Ermita to Senate President Drilon illustrates the implied nature of the claim of
privilege authorized by E.O. 464. It reads:
In connection with the inquiry to be conducted by the Committee of the
Whole regarding the Northrail Project of the North Luzon Railways
Corporation on 29 September 2005 at 10:00 a.m., please be informed that
officials of the Executive Department invited to appear at the meeting will not
be able to attend the same without the consent of the President, pursuant to
Executive Order No. 464 (s. 2005), entitled "Ensuring Observance Of The
Principle Of Separation Of Powers, Adherence To The Rule On Executive
Privilege And Respect For The Rights Of Public Officials Appearing In
Legislative Inquiries In Aid Of Legislation Under The Constitution, And For
Other Purposes". Said officials have not secured the required consent from
the President. (Underscoring supplied)
The letter does not explicitly invoke executive privilege or that the matter on
which these officials are being requested to be resource persons falls under
the recognized grounds of the privilege to justify their absence. Nor does it
expressly state that in view of the lack of consent from the President under
E.O. 464, they cannot attend the hearing.
Significant premises in this letter, however, are left unstated, deliberately or
not. The letter assumes that the invited officials are covered by E.O. 464. As
explained earlier, however, to be covered by the order means that a
determination has been made, by the designated head of office or the
President, that the invited official possesses information that is covered by
executive privilege. Thus, although it is not stated in the letter that such
determination has been made, the same must be deemed implied. Respecting
the statement that the invited officials have not secured the consent of the
President, it only means that the President has not reversed the standing
prohibition against their appearance before Congress.
Inevitably, Executive Secretary Ermita’s letter leads to the conclusion that the
executive branch, either through the President or the heads of offices
authorized under E.O. 464, has made a determination that the information
required by the Senate is privileged, and that, at the time of writing, there has
been no contrary pronouncement from the President. In fine, an implied claim
of privilege has been made by the executive.
While there is no Philippine case that directly addresses the issue of whether
executive privilege may be invoked against Congress, it is gathered from
Chavez v. PEA that certain information in the possession of the executive may
validly be claimed as privileged even against Congress. Thus, the case holds:
There is no claim by PEA that the information demanded by petitioner is
privileged information rooted in the separation of powers. The information
does not cover Presidential conversations, correspondences, or discussions
during closed-door Cabinet meetings which, like internal-deliberations of the
Supreme Court and other collegiate courts, or executive sessions of either
house of Congress, are recognized as confidential. This kind of information
cannot be pried open by a co-equal branch of government. A frank exchange
of exploratory ideas and assessments, free from the glare of publicity and
pressure by interested parties, is essential to protect the independence of
decision-making of those tasked to exercise Presidential, Legislative and
Judicial power. This is not the situation in the instant case.91 (Emphasis and
underscoring supplied)
Section 3 of E.O. 464, therefore, cannot be dismissed outright as invalid by the
mere fact that it sanctions claims of executive privilege. This Court must look
further and assess the claim of privilege authorized by the Order to determine
whether it is valid.
While the validity of claims of privilege must be assessed on a case to case
basis, examining the ground invoked therefor and the particular
circumstances surrounding it, there is, in an implied claim of privilege, a defect
that renders it invalid per se. By its very nature, and as demonstrated by the
letter of respondent Executive Secretary quoted above, the implied claim
authorized by Section 3 of E.O. 464 is not accompanied by any specific
allegation of the basis thereof (e.g., whether the information demanded
involves military or diplomatic secrets, closed-door Cabinet meetings, etc.).
While Section 2(a) enumerates the types of information that are covered by
the privilege under the challenged order, Congress is left to speculate as to
which among them is being referred to by the executive. The enumeration is
not even intended to be comprehensive, but a mere statement of what is
included in the phrase "confidential or classified information between the
President and the public officers covered by this executive order."
Certainly, Congress has the right to know why the executive considers the
requested information privileged. It does not suffice to merely declare that
the President, or an authorized head of office, has determined that it is so,
and that the President has not overturned that determination. Such
declaration leaves Congress in the dark on how the requested information
could be classified as privileged. That the message is couched in terms that, on
first impression, do not seem like a claim of privilege only makes it more
pernicious. It threatens to make Congress doubly blind to the question of why
the executive branch is not providing it with the information that it has
requested.
A claim of privilege, being a claim of exemption from an obligation to disclose
information, must, therefore, be clearly asserted. As U.S. v. Reynolds teaches:
The privilege belongs to the government and must be asserted by it; it can
neither be claimed nor waived by a private party. It is not to be lightly
invoked. There must be a formal claim of privilege, lodged by the head of the
department which has control over the matter, after actual personal
consideration by that officer. The court itself must determine whether the
circumstances are appropriate for the claim of privilege, and yet do so without
forcing a disclosure of the very thing the privilege is designed to
protect.92 (Underscoring supplied)
Absent then a statement of the specific basis of a claim of executive privilege,
there is no way of determining whether it falls under one of the traditional
privileges, or whether, given the circumstances in which it is made, it should
be respected.93 These, in substance, were the same criteria in assessing the
claim of privilege asserted against the Ombudsman in Almonte v.
Vasquez94 and, more in point, against a committee of the Senate in Senate
Select Committee on Presidential Campaign Activities v. Nixon.95
A.O. Smith v. Federal Trade Commission is enlightening:
[T]he lack of specificity renders an assessment of the potential harm resulting
from disclosure impossible, thereby preventing the Court from balancing such
harm against plaintiffs’ needs to determine whether to override any claims of
privilege.96 (Underscoring supplied)
And so is U.S. v. Article of Drug:97
On the present state of the record, this Court is not called upon to perform
this balancing operation. In stating its objection to claimant’s interrogatories,
government asserts, and nothing more, that the disclosures sought by
claimant would inhibit the free expression of opinion that non-disclosure is
designed to protect. The government has not shown – nor even alleged – that
those who evaluated claimant’s product were involved in internal
policymaking, generally, or in this particular instance. Privilege cannot be set
up by an unsupported claim. The facts upon which the privilege is based must
be established. To find these interrogatories objectionable, this Court would
have to assume that the evaluation and classification of claimant’s products
was a matter of internal policy formulation, an assumption in which this Court
is unwilling to indulge sua sponte.98 (Emphasis and underscoring supplied)
Mobil Oil Corp. v. Department of Energy99 similarly emphasizes that "an
agency must provide ‘precise and certain’ reasons for preserving the
confidentiality of requested information."
Black v. Sheraton Corp. of America100 amplifies, thus:
A formal and proper claim of executive privilege requires a specific
designation and description of the documents within its scope as well as
precise and certain reasons for preserving their confidentiality. Without this
specificity, it is impossible for a court to analyze the claim short of disclosure
of the very thing sought to be protected. As the affidavit now stands, the
Court has little more than its sua sponte speculation with which to weigh the
applicability of the claim. An improperly asserted claim of privilege is no claim
of privilege. Therefore, despite the fact that a claim was made by the proper
executive as Reynolds requires, the Court can not recognize the claim in the
instant case because it is legally insufficient to allow the Court to make a just
and reasonable determination as to its applicability. To recognize such a broad
claim in which the Defendant has given no precise or compelling reasons to
shield these documents from outside scrutiny, would make a farce of the
whole procedure.101 (Emphasis and underscoring supplied)
Due respect for a co-equal branch of government, moreover, demands no less
than a claim of privilege clearly stating the grounds therefor. Apropos is the
following ruling in McPhaul v. U.S:102
We think the Court’s decision in United States v. Bryan, 339 U.S. 323, 70 S. Ct.
724, is highly relevant to these questions. For it is as true here as it was there,
that ‘if (petitioner) had legitimate reasons for failing to produce the records of
the association, a decent respect for the House of Representatives, by whose
authority the subpoenas issued, would have required that (he) state (his)
reasons for noncompliance upon the return of the writ. Such a statement
would have given the Subcommittee an opportunity to avoid the blocking of
its inquiry by taking other appropriate steps to obtain the records. ‘To deny
the Committee the opportunity to consider the objection or remedy is in itself
a contempt of its authority and an obstruction of its processes. His failure to
make any such statement was "a patent evasion of the duty of one
summoned to produce papers before a congressional committee[, and]
cannot be condoned." (Emphasis and underscoring supplied; citations
omitted)
Upon the other hand, Congress must not require the executive to state the
reasons for the claim with such particularity as to compel disclosure of the
information which the privilege is meant to protect.103 A useful analogy in
determining the requisite degree of particularity would be the privilege
against self-incrimination. Thus, Hoffman v. U.S.104 declares:
The witness is not exonerated from answering merely because he declares
that in so doing he would incriminate himself – his say-so does not of itself
establish the hazard of incrimination. It is for the court to say whether his
silence is justified, and to require him to answer if ‘it clearly appears to the
court that he is mistaken.’ However, if the witness, upon interposing his claim,
were required to prove the hazard in the sense in which a claim is usually
required to be established in court, he would be compelled to surrender the
very protection which the privilege is designed to guarantee. To sustain the
privilege, it need only be evident from the implications of the question, in the
setting in which it is asked, that a responsive answer to the question or an
explanation of why it cannot be answered might be dangerous because
injurious disclosure could result." x x x (Emphasis and underscoring supplied)
The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is
thus invalid per se. It is not asserted. It is merely implied. Instead of providing
precise and certain reasons for the claim, it merely invokes E.O. 464, coupled
with an announcement that the President has not given her consent. It is
woefully insufficient for Congress to determine whether the withholding of
information is justified under the circumstances of each case. It severely
frustrates the power of inquiry of Congress.
In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.
No infirmity, however, can be imputed to Section 2(a) as it merely provides
guidelines, binding only on the heads of office mentioned in Section 2(b), on
what is covered by executive privilege. It does not purport to be conclusive on
the other branches of government. It may thus be construed as a mere
expression of opinion by the President regarding the nature and scope of
executive privilege.
Petitioners, however, assert as another ground for invalidating the challenged
order the alleged unlawful delegation of authority to the heads of offices in
Section 2(b). Petitioner Senate of the Philippines, in particular, cites the case
of the United States where, so it claims, only the President can assert
executive privilege to withhold information from Congress.
Section 2(b) in relation to Section 3 virtually provides that, once the head of
office determines that a certain information is privileged, such determination
is presumed to bear the President’s authority and has the effect of prohibiting
the official from appearing before Congress, subject only to the express
pronouncement of the President that it is allowing the appearance of such
official. These provisions thus allow the President to authorize claims of
privilege by mere silence.
Such presumptive authorization, however, is contrary to the exceptional
nature of the privilege. Executive privilege, as already discussed, is recognized
with respect to information the confidential nature of which is crucial to the
fulfillment of the unique role and responsibilities of the executive
branch,105 or in those instances where exemption from disclosure is necessary
to the discharge of highly important executive responsibilities.106The doctrine
of executive privilege is thus premised on the fact that certain informations
must, as a matter of necessity, be kept confidential in pursuit of the public
interest. The privilege being, by definition, an exemption from the obligation
to disclose information, in this case to Congress, the necessity must be of such
high degree as to outweigh the public interest in enforcing that obligation in a
particular case.
In light of this highly exceptional nature of the privilege, the Court finds it
essential to limit to the President the power to invoke the privilege. She may
of course authorize the Executive Secretary to invoke the privilege on her
behalf, in which case the Executive Secretary must state that the authority is
"By order of the President," which means that he personally consulted with
her. The privilege being an extraordinary power, it must be wielded only by
the highest official in the executive hierarchy. In other words, the President
may not authorize her subordinates to exercise such power. There is even less
reason to uphold such authorization in the instant case where the
authorization is not explicit but by mere silence. Section 3, in relation to
Section 2(b), is further invalid on this score.
It follows, therefore, that when an official is being summoned by Congress on
a matter which, in his own judgment, might be covered by executive privilege,
he must be afforded reasonable time to inform the President or the Executive
Secretary of the possible need for invoking the privilege. This is necessary in
order to provide the President or the Executive Secretary with fair
opportunity to consider whether the matter indeed calls for a claim of
executive privilege. If, after the lapse of that reasonable time, neither the
President nor the Executive Secretary invokes the privilege, Congress is no
longer bound to respect the failure of the official to appear before Congress
and may then opt to avail of the necessary legal means to compel his
appearance.
The Court notes that one of the expressed purposes for requiring officials to
secure the consent of the President under Section 3 of E.O. 464 is to ensure
"respect for the rights of public officials appearing in inquiries in aid of
legislation." That such rights must indeed be respected by Congress is an echo
from Article VI Section 21 of the Constitution mandating that "[t]he rights of
persons appearing in or affected by such inquiries shall be respected."
In light of the above discussion of Section 3, it is clear that it is essentially an
authorization for implied claims of executive privilege, for which reason it
must be invalidated. That such authorization is partly motivated by the need
to ensure respect for such officials does not change the infirm nature of the
authorization itself.
Right to Information
E.O 464 is concerned only with the demands of Congress for the appearance
of executive officials in the hearings conducted by it, and not with the
demands of citizens for information pursuant to their right to information on
matters of public concern. Petitioners are not amiss in claiming, however, that
what is involved in the present controversy is not merely the legislative power
of inquiry, but the right of the people to information.
There are, it bears noting, clear distinctions between the right of Congress to
information which underlies the power of inquiry and the right of the people
to information on matters of public concern. For one, the demand of a citizen
for the production of documents pursuant to his right to information does not
have the same obligatory force as a subpoena duces tecum issued by
Congress. Neither does the right to information grant a citizen the power to
exact testimony from government officials. These powers belong only to
Congress and not to an individual citizen.
Thus, while Congress is composed of representatives elected by the people, it
does not follow, except in a highly qualified sense, that in every exercise of its
power of inquiry, the people are exercising their right to information.
To the extent that investigations in aid of legislation are generally conducted
in public, however, any executive issuance tending to unduly limit disclosures
of information in such investigations necessarily deprives the people of
information which, being presumed to be in aid of legislation, is presumed to
be a matter of public concern. The citizens are thereby denied access to
information which they can use in formulating their own opinions on the
matter before Congress — opinions which they can then communicate to their
representatives and other government officials through the various legal
means allowed by their freedom of expression. Thus holds Valmonte v.
Belmonte:
It is in the interest of the State that the channels for free political discussion
be maintained to the end that the government may perceive and be
responsive to the people’s will. Yet, this open dialogue can be effective only to
the extent that the citizenry is informed and thus able to formulate its will
intelligently. Only when the participants in the discussion are aware of the
issues and have access to information relating thereto can such bear
fruit.107 (Emphasis and underscoring supplied)
The impairment of the right of the people to information as a consequence of
E.O. 464 is, therefore, in the sense explained above, just as direct as its
violation of the legislature’s power of inquiry.
Implementation of E.O. 464 prior to its publication
While E.O. 464 applies only to officials of the executive branch, it does not
follow that the same is exempt from the need for publication. On the need for
publishing even those statutes that do not directly apply to people in general,
Tañada v. Tuvera states:
The term "laws" should refer to all laws and not only to those of general
application, for strictly speaking all laws relate to the people in general albeit
there are some that do not apply to them directly. An example is a law
granting citizenship to a particular individual, like a relative of President
Marcos who was decreed instant naturalization. It surely cannot be said that
such a law does not affect the public although it unquestionably does not
apply directly to all the people. The subject of such law is a matter of public
interest which any member of the body politic may question in the political
forums or, if he is a proper party, even in courts of justice. 108(Emphasis and
underscoring supplied)
Although the above statement was made in reference to statutes, logic
dictates that the challenged order must be covered by the publication
requirement. As explained above, E.O. 464 has a direct effect on the right of
the people to information on matters of public concern. It is, therefore, a
matter of public interest which members of the body politic may question
before this Court. Due process thus requires that the people should have been
apprised of this issuance before it was implemented.
Conclusion
Congress undoubtedly has a right to information from the executive branch
whenever it is sought in aid of legislation. If the executive branch withholds
such information on the ground that it is privileged, it must so assert it and
state the reason therefor and why it must be respected.

The infirm provisions of E.O. 464, however, allow the executive branch to
evade congressional requests for information without need of clearly
asserting a right to do so and/or proffering its reasons therefor. By the mere
expedient of invoking said provisions, the power of Congress to conduct
inquiries in aid of legislation is frustrated. That is impermissible. For

[w]hat republican theory did accomplish…was to reverse the old presumption

in favor of secrecy, based on the divine right of kings and nobles, and replace
it with a presumption in favor of publicity, based on the doctrine of popular
sovereignty. (Underscoring supplied)109

Resort to any means then by which officials of the executive branch could
refuse to divulge information cannot be presumed valid. Otherwise, we shall
not have merely nullified the power of our legislature to inquire into the
operations of government, but we shall have given up something of much
greater value – our right as a people to take part in government.

WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and 3 of

Executive Order No. 464 (series of 2005), "Ensuring Observance of the
Principle of Separation of Powers, Adherence to the Rule on Executive

Privilege and Respect for the Rights of Public Officials Appearing in Legislative
Inquiries in Aid of Legislation Under the Constitution, and For Other
Purposes," are declared VOID. Sections 1 and 2(a) are, however, VALID.

SO ORDERED.
G.R. No. 180643 September 4, 2008
ROMULO L. NERI, petitioner,
vs.
SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND
INVESTIGATIONS, SENATE COMMITTEE ON TRADE AND COMMERCE, AND
SENATE COMMITTEE ON NATIONAL DEFENSE AND SECURITY, respondents.
RESOLUTION
LEONARDO-DE CASTRO, J.:
Executive privilege is not a personal privilege, but one that adheres to the
Office of the President. It exists to protect public interest, not to benefit a
particular public official. Its purpose, among others, is to assure that the
nation will receive the benefit of candid, objective and untrammeled
communication and exchange of information between the President and
his/her advisers in the process of shaping or forming policies and arriving at
decisions in the exercise of the functions of the Presidency under the
Constitution. The confidentiality of the President’s conversations and
correspondence is not unique. It is akin to the confidentiality of judicial
deliberations. It possesses the same value as the right to privacy of all citizens
and more, because it is dictated by public interest and the constitutionally
ordained separation of governmental powers.
In these proceedings, this Court has been called upon to exercise its power of
review and arbitrate a hotly, even acrimoniously, debated dispute between
the Court’s co-equal branches of government. In this task, this Court should
neither curb the legitimate powers of any of the co-equal and coordinate
branches of government nor allow any of them to overstep the boundaries set
for it by our Constitution. The competing interests in the case at bar are the
claim of executive privilege by the President, on the one hand, and the
respondent Senate Committees’ assertion of their power to conduct
legislative inquiries, on the other. The particular facts and circumstances of
the present case, stripped of the politically and emotionally charged rhetoric
from both sides and viewed in the light of settled constitutional and legal
doctrines, plainly lead to the conclusion that the claim of executive privilege
must be upheld.
Assailed in this motion for reconsideration is our Decision dated March 25,
2008 (the "Decision"), granting the petition for certiorari filed by petitioner
Romulo L. Neri against the respondent Senate Committees on Accountability
of Public Officers and Investigations,1 Trade and Commerce,2 and National
Defense and Security (collectively the "respondent Committees"). 3
A brief review of the facts is imperative.
On September 26, 2007, petitioner appeared before respondent Committees
and testified for about eleven (11) hours on matters concerning the National
Broadband Project (the "NBN Project"), a project awarded by the Department
of Transportation and Communications ("DOTC") to Zhong Xing
Telecommunications Equipment ("ZTE"). Petitioner disclosed that then
Commission on Elections ("COMELEC") Chairman Benjamin Abalos offered
him P200 Million in exchange for his approval of the NBN Project. He further
narrated that he informed President Gloria Macapagal Arroyo ("President
Arroyo") of the bribery attempt and that she instructed him not to accept the
bribe. However, when probed further on President Arroyo and petitioner’s
discussions relating to the NBN Project, petitioner refused to answer, invoking
"executive privilege." To be specific, petitioner refused to answer questions
on: (a) whether or not President Arroyo followed up the NBN Project,4 (b)
whether or not she directed him to prioritize it,5 and (c) whether or not she
directed him to approve it.6
Respondent Committees persisted in knowing petitioner’s answers to these
three questions by requiring him to appear and testify once more on
November 20, 2007. On November 15, 2007, Executive Secretary Eduardo R.
Ermita wrote to respondent Committees and requested them to dispense with
petitioner’s testimony on the ground of executive privilege. 7 The letter of
Executive Secretary Ermita pertinently stated:
Following the ruling in Senate v. Ermita, the foregoing questions
fall under conversations and correspondence between the
President and public officials which are considered executive
privilege (Almonte v. Vasquez, G.R. 95637, 23 May 1995; Chavez v.
PEA, G.R. 133250, July 9, 2002). Maintaining the confidentiality of
conversations of the President is necessary in the exercise of her
executive and policy decision making process. The expectation of a
President to the confidentiality of her conversations and
correspondences, like the value which we accord deference for the
privacy of all citizens, is the necessity for protection of the public
interest in candid, objective, and even blunt or harsh opinions in
Presidential decision-making. Disclosure of conversations of the
President will have a chilling effect on the President, and will
hamper her in the effective discharge of her duties and
responsibilities, if she is not protected by the confidentiality of her
conversations.
The context in which executive privilege is being invoked is that the
information sought to be disclosed might impair our diplomatic as
well as economic relations with the People’s Republic of China.
Given the confidential nature in which these information were
conveyed to the President, he cannot provide the Committee any
further details of these conversations, without disclosing the very
thing the privilege is designed to protect.
In light of the above considerations, this Office is constrained to
invoke the settled doctrine of executive privilege as refined
in Senate v. Ermita, and has advised Secretary Neri accordingly.
Considering that Sec. Neri has been lengthily interrogated on the
subject in an unprecedented 11-hour hearing, wherein he has
answered all questions propounded to him except the foregoing
questions involving executive privilege, we therefore request that
his testimony on 20 November 2007 on the ZTE / NBN project be
dispensed with.
On November 20, 2007, petitioner did not appear before respondent
Committees upon orders of the President invoking executive privilege. On
November 22, 2007, the respondent Committees issued the show-cause letter
requiring him to explain why he should not be cited in contempt. On
November 29, 2007, in petitioner’s reply to respondent Committees, he
manifested that it was not his intention to ignore the Senate hearing and that
he thought the only remaining questions were those he claimed to be covered
by executive privilege. He also manifested his willingness to appear and testify
should there be new matters to be taken up. He just requested that he be
furnished "in advance as to what else" he "needs to clarify."
Respondent Committees found petitioner’s explanations unsatisfactory.
Without responding to his request for advance notice of the matters that he
should still clarify, they issued the Order dated January 30, 2008; In Re: P.S.
Res. Nos. 127,129,136 & 144; and privilege speeches of Senator Lacson and
Santiago (all on the ZTE-NBN Project), citing petitioner in contempt of
respondent Committees and ordering his arrest and detention at the Office of
the Senate Sergeant-at-Arms until such time that he would appear and give
his testimony.
On the same date, petitioner moved for the reconsideration of the above
Order.8 He insisted that he had not shown "any contemptible conduct worthy
of contempt and arrest." He emphasized his willingness to testify on new
matters, but respondent Committees did not respond to his request for
advance notice of questions. He also mentioned the petition for certiorari he
previously filed with this Court on December 7, 2007. According to him, this
should restrain respondent Committees from enforcing the order dated
January 30, 2008 which declared him in contempt and directed his arrest and
detention.
Petitioner then filed his Supplemental Petition for Certiorari (with Urgent
Application for TRO/Preliminary Injunction) on February 1, 2008. In the
Court’s Resolution dated February 4, 2008, the parties were required to
observe the status quo prevailing prior to the Order dated January 30, 2008.
On March 25, 2008, the Court granted his petition for certiorari on two
grounds: first, the communications elicited by the three (3) questions were
covered by executive privilege; and second, respondent Committees
committed grave abuse of discretion in issuing the contempt order. Anent the
first ground, we considered the subject communications as falling under
the presidential communications privilege because (a) they related to a
quintessential and non-delegable power of the President, (b) they were
received by a close advisor of the President, and (c) respondent Committees
failed to adequately show a compelling need that would justify the limitation
of the privilege and the unavailability of the information elsewhere by an
appropriate investigating authority. As to the second ground, we found that
respondent Committees committed grave abuse of discretion in issuing the
contempt order because (a) there was a valid claim of executive privilege, (b)
their invitations to petitioner did not contain the questions relevant to the
inquiry, (c) there was a cloud of doubt as to the regularity of the proceeding
that led to their issuance of the contempt order, (d) they violated Section 21,
Article VI of the Constitution because their inquiry was not in accordance with
the "duly published rules of procedure," and (e) they issued the contempt
order arbitrarily and precipitately.
On April 8, 2008, respondent Committees filed the present motion for
reconsideration, anchored on the following grounds:
I Contrary to this honorable court’s decision, there is no doubt that the
assailed orders were issued by respondent committees pursuant to the
exercise of their legislative power, and not merely their oversight functions.
Ii Contrary to this honorable court’s decision, there can be no presumption
that the information withheld in the instant case is privileged.
Iii Contrary to this honorable court’s decision, there is no factual or legal
basis to hold that the communications elicited by the subject three (3)
questions are covered by executive privilege, considering that:
A. There is no showing that the matters for which executive privilege is
claimed constitute state secrets.
B. Even if the tests adopted by this honorable court in the decision is
applied, there is no showing that the elements of presidential
communications privilege are present.
C. On the contrary, there is adequate showing of a compelling need to
justify the disclosure of the information sought.
D. To uphold the claim of executive privilege in the instant case would
seriously impair the respondents’ performance of their primary function to
enact laws.
E. Finally, the constitutional right of the people to information, and the
constitutional policies on public accountability and transparency outweigh
the claim of executive privilege.
Iv Contrary to this honorable court’s decision, respondents did not commit
grave abuse of discretion in issuing the assailed contempt order,
considering that:
A. There is no legitimate claim of executive privilege in the instant case.
B. Respondents did not violate the supposed requirements laid down
in senate v. Ermita.
C. Respondents duly issued the contempt order in accordance with their
internal rules.
D. Respondents did not violate the requirements under article vi, section 21
of the constitution requiring that its rules of procedure be duly published,
and were denied due process when the court considered the osg’s
intervention on this issue without giving respondents the opportunity to
comment.
E. Respondents’ issuance of the contempt order is not arbitrary or
precipitate.
In his Comment, petitioner charges respondent Committees with exaggerating
and distorting the Decision of this Court. He avers that there is nothing in it
that prohibits respondent Committees from investigating the NBN Project or
asking him additional questions. According to petitioner, the Court merely
applied the rule on executive privilege to the facts of the case. He further
submits the following contentions: first, the assailed Decision did not reverse
the presumption against executive secrecy laid down in Senate v.
Ermita; second, respondent Committees failed to overcome the presumption
of executive privilege because it appears that they could legislate even
without the communications elicited by the three (3) questions, and they
admitted that they could dispense with petitioner’s testimony if certain NEDA
documents would be given to them; third, the requirement of specificity
applies only to the privilege for State, military and diplomatic secrets, not to
the necessarily broad and all-encompassing presidential communications
privilege; fourth, there is no right to pry into the President’s thought
processes or exploratory exchanges; fifth, petitioner is not covering up or
hiding anything illegal; sixth, the Court has the power and duty to annul the
Senate Rules; seventh, the Senate is not a continuing body, thus the failure of
the present Senate to publish its Rules of Procedure Governing Inquiries in Aid
of Legislation (Rules) has a vitiating effect on them; eighth, the requirement
for a witness to be furnished advance copy of questions comports with due
process and the constitutional mandate that the rights of witnesses be
respected; and ninth, neither petitioner nor respondent has the final say on
the matter of executive privilege, only the Court.
For its part, the Office of the Solicitor General maintains that: (1) there is no
categorical pronouncement from the Court that the assailed Orders were
issued by respondent Committees pursuant to their oversight function; hence,
there is no reason for them "to make much" of the distinction between
Sections 21 and 22, Article VI of the Constitution; (2) presidential
communications enjoy a presumptive privilege against disclosure as earlier
held in Almonte v. Vasquez9 and Chavez v. Public Estates Authority (PEA)10; (3)
the communications elicited by the three (3) questions are covered by
executive privilege, because all the elements of the presidential
communications privilege are present; (4) the subpoena ad
testificandum issued by respondent Committees to petitioner is fatally
defective under existing law and jurisprudence; (5) the failure of the present
Senate to publish its Rules renders the same void; and (6) respondent
Committees arbitrarily issued the contempt order.
Incidentally, respondent Committees’ objection to the Resolution dated
March 18, 2008 (granting the Office of the Solicitor General’s Motion for Leave
to Intervene and to Admit Attached Memorandum) only after the
promulgation of the Decision in this case is foreclosed by its untimeliness.
The core issues that arise from the foregoing respective contentions of the
opposing parties are as follows:
(1) whether or not there is a recognized presumptive presidential
communications privilege in our legal system;
(2) whether or not there is factual or legal basis to hold that the
communications elicited by the three (3) questions are covered by
executive privilege;
(3) whether or not respondent Committees have shown that the
communications elicited by the three (3) questions are critical to
the exercise of their functions; and
(4) whether or not respondent Committees committed grave abuse
of discretion in issuing the contempt order.
We shall discuss these issues seriatim.
I There Is a Recognized Presumptive Presidential Communications Privilege
Respondent Committees ardently argue that the Court’s declaration that
presidential communications are presumptively privileged reverses the
"presumption" laid down in Senate v. Ermita11 that "inclines heavily against
executive secrecy and in favor of disclosure." Respondent Committees then
claim that the Court erred in relying on the doctrine in Nixon.
Respondent Committees argue as if this were the first time the presumption
in favor of the presidential communications privilege is mentioned and
adopted in our legal system. That is far from the truth. The Court, in the
earlier case of Almonte v. Vasquez,12 affirmed that the presidential
communications privilege is fundamental to the operation of government and
inextricably rooted in the separation of powers under the Constitution.
Even Senate v. Ermita,13 the case relied upon by respondent Committees,
reiterated this concept. There, the Court enumerated the cases in which the
claim of executive privilege was recognized, among them Almonte v.
Chavez, Chavez v. Presidential Commission on Good Government
(PCGG),14 and Chavez v. PEA.15The Court articulated in these cases that "there
are certain types of information which the government may withhold from
the public,16" that there is a "governmental privilege against public disclosure
with respect to state secrets regarding military, diplomatic and other national
security matters";17 and that "the right to information does not extend to
matters recognized as ‘privileged information’ under the separation of
powers, by which the Court meant Presidential conversations,
correspondences, and discussions in closed-door Cabinet meetings."18
Respondent Committees’ observation that this Court’s Decision reversed the
"presumption that inclines heavily against executive secrecy and in favor of
disclosure" arises from a piecemeal interpretation of the said Decision. The
Court has repeatedly held that in order to arrive at the true intent and
meaning of a decision, no specific portion thereof should be isolated and
resorted to, but the decision must be considered in its entirety. 19
Note that the aforesaid presumption is made in the context of the
circumstances obtaining in Senate v. Ermita, which declared void Sections 2(b)
and 3 of Executive Order (E.O.) No. 464, Series of 2005. The pertinent portion
of the decision in the said case reads:
From the above discussion on the meaning and scope of executive
privilege, both in the United States and in this jurisprudence, a
clear principle emerges. Executive privilege, whether asserted
against Congress, the courts, or the public, is recognized only in
relation to certain types of information of a sensitive character.
While executive privilege is a constitutional concept,
a claim thereof may be valid or not depending on the ground
invoked to justify it and the context in which it is made. Noticeably
absent is any recognition that executive officials are exempt from
the duty to disclose information by the mere fact of being
executive officials. Indeed, the extraordinary character of
 the exemptions indicates that the presumption inclines
heavily against executive secrecy and in favor of disclosure.
(Emphasis and underscoring supplied)
Obviously, the last sentence of the above-quoted paragraph in Senate v.
Ermita refers to the "exemption" being claimed by the executive officials
mentioned in Section 2(b) of E.O. No. 464, solely by virtue of their positions in
the Executive Branch. This means that when an executive official, who is one
of those mentioned in the said Sec. 2(b) of E.O. No. 464, claims to be exempt
from disclosure, there can be no presumption of authorization to invoke
executive privilege given by the President to said executive official, such that
the presumption in this situation inclines heavily against executive secrecy
and in favor of disclosure.
Senate v. Ermita 20 expounds on the premise of the foregoing ruling in this
wise:
Section 2(b) in relation to Section 3 virtually provides that, once the
head of office determines that a certain information is privileged,
such determination is presumed to bear the President’s authority
and has the effect of prohibiting the official from appearing before
Congress, subject only to the express pronouncement of the
President that it is allowing the appearance of such official. These
provisions thus allow the President to authorize claims of privilege
by mere silence.
Such presumptive authorization, however, is contrary to the
exceptional nature of the privilege. Executive privilege, as already
discussed, is recognized with respect to information the
confidential nature of which is crucial to the fulfillment of the
unique role and responsibilities of the executive branch, or in those
instances where exemption from disclosure is necessary to the
discharge of highly important executive responsibilities. The
doctrine of executive privilege is thus premised on the fact that
certain information must, as a matter of necessity, be kept
confidential in pursuit of the public interest. The privilege being, by
definition, an exemption from the obligation to disclose
information, in this case to Congress, the necessity must be of such
high degree as to outweigh the public interest in enforcing that
obligation in a particular case.
In light of this highly exceptional nature of the privilege, the Court
finds it essential to limit to the President the power to invoke the
privilege. She may of course authorize the Executive Secretary to
invoke the privilege on her behalf, in which case the Executive
Secretary must state that the authority is "By order of the
President", which means that he personally consulted with her.
The privilege being an extraordinary power, it must be wielded
only by the highest official in the executive hierarchy. In other
words, the President may not authorize her subordinates to
exercise such power. There is even less reason to uphold such
authorization in the instant case where the authorization is not
explicit but by mere silence. Section 3, in relation to Section 2(b), is
further invalid on this score.
The constitutional infirmity found in the blanket authorization to invoke
executive privilege granted by the President to executive officials in Sec. 2(b)
of E.O. No. 464 does not obtain in this case.
In this case, it was the President herself, through Executive Secretary Ermita,
who invoked executive privilege on a specific matter involving an executive
agreement between the Philippines and China, which was the subject of the
three (3) questions propounded to petitioner Neri in the course of the Senate
Committees’ investigation. Thus, the factual setting of this case markedly
differs from that passed upon in Senate v. Ermita.
Moreover, contrary to the claim of respondents, the Decision in this present
case hews closely to the ruling in Senate v. Ermita,21 to wit:
Executive privilege
The phrase "executive privilege" is not new in this jurisdiction. It
has been used even prior to the promulgation of the 1986
Constitution. Being of American origin, it is best understood in light
of how it has been defined and used in the legal literature of the
United States.
Schwart defines executive privilege as "the power of the
Government to withhold information from the public, the courts,
and the Congress. Similarly, Rozell defines it as "the right of the
President and high-level executive branch officers to withhold
information from Congress, the courts, and ultimately the public."
x x x In this jurisdiction, the doctrine of executive privilege was
recognized by this Court in Almonte v. Vasquez. Almonte used the
term in reference to the same privilege subject of Nixon. It quoted
the following portion of the Nixon decision which explains the basis
for the privilege:
"The expectation of a President to the confidentiality of his
conversations and correspondences, like the claim of confidentiality
of judicial deliberations, for example, he has all the values to which
we accord deference for the privacy of all citizens and, added to
those values, is the necessity for protection of the public interest in
candid, objective, and even blunt or harsh opinions in Presidential
decision-making. A President and those who assist him must be free
to explore alternatives in the process of shaping policies and
making decisions and to do so in a way many would be unwilling to
express except privately. These are the considerations justifying a
presumptive privilege for Presidential communications. The
privilege is fundamental to the operation of government and
inextricably rooted in the separation of powers under the
Constitution x x x " (Emphasis and italics supplied)
Clearly, therefore, even Senate v. Ermita adverts to "a presumptive privilege
for Presidential communication," which was recognized early on in Almonte v.
Vasquez. To construe the passage in Senate v. Ermita adverted to in the
Motion for Reconsideration of respondent Committees, referring to the non-
existence of a "presumptive authorization" of an executive official, to mean
that the "presumption" in favor of executive privilege "inclines heavily against
executive secrecy and in favor of disclosure" is to distort the ruling in
the Senate v. Ermita and make the same engage in self-contradiction.
Senate v. Ermita22 expounds on the constitutional underpinning of the
relationship between the Executive Department and the Legislative
Department to explain why there should be no implied authorization or
presumptive authorization to invoke executive privilege by the President’s
subordinate officials, as follows:
When Congress exercises its power of inquiry, the only way for
department heads to exempt themselves therefrom is by a valid
claim of privilege. They are not exempt by the mere fact that they
are department heads. Only one executive official may be
exempted from this power - the President on whom executive
power is vested, hence, beyond the reach of Congress except
through the power of impeachment. It is based on he being the
highest official of the executive branch, and the due respect
accorded to a co-equal branch of governments which is sanctioned
by a long-standing custom. (Underscoring supplied)
Thus, if what is involved is the presumptive privilege of presidential
communications when invoked by the President on a matter clearly within the
domain of the Executive, the said presumption dictates that the same be
recognized and be given preference or priority, in the absence of proof of a
compelling or critical need for disclosure by the one assailing such
presumption. Any construction to the contrary will render meaningless the
presumption accorded by settled jurisprudence in favor of executive privilege.
In fact, Senate v. Ermitareiterates jurisprudence citing "the considerations
justifying a presumptive privilege for Presidential communications."23
II There Are Factual and Legal Bases to Hold that the Communications Elicited
by the
Three (3) Questions Are Covered by Executive Privilege
Respondent Committees claim that the communications elicited by the three
(3) questions are not covered by executive privilege because the elements of
the presidential communications privilege are not present.
A. The power to enter into an executive agreement is a "quintessential and
non-delegable presidential power."
First, respondent Committees contend that the power to secure a foreign loan
does not relate to a "quintessential and non-delegable presidential power,"
because the Constitution does not vest it in the President alone, but also in
the Monetary Board which is required to give its prior concurrence and to
report to Congress.
This argument is unpersuasive.
The fact that a power is subject to the concurrence of another entity does not
make such power less executive. "Quintessential" is defined as the most
perfect embodiment of something, the concentrated essence of
substance.24 On the other hand, "non-delegable" means that a power or duty
cannot be delegated to another or, even if delegated, the responsibility
remains with the obligor.25 The power to enter into an executive agreement is
in essence an executive power. This authority of the President to enter into
executive agreements without the concurrence of the Legislature has
traditionally been recognized in Philippine jurisprudence.26 Now, the fact that
the President has to secure the prior concurrence of the Monetary Board,
which shall submit to Congress a complete report of its decision before
contracting or guaranteeing foreign loans, does not diminish the executive
nature of the power.
The inviolate doctrine of separation of powers among the legislative,
executive and judicial branches of government by no means prescribes
absolute autonomy in the discharge by each branch of that part of the
governmental power assigned to it by the sovereign people. There is the
corollary doctrine of checks and balances, which has been carefully calibrated
by the Constitution to temper the official acts of each of these three branches.
Thus, by analogy, the fact that certain legislative acts require action from the
President for their validity does not render such acts less legislative in nature.
A good example is the power to pass a law. Article VI, Section 27 of the
Constitution mandates that every bill passed by Congress shall, before it
becomes a law, be presented to the President who shall approve or veto the
same. The fact that the approval or vetoing of the bill is lodged with the
President does not render the power to pass law executive in nature. This is
because the power to pass law is generally a quintessential and non-delegable
power of the Legislature. In the same vein, the executive power to enter or
not to enter into a contract to secure foreign loans does not become less
executive in nature because of conditions laid down in the Constitution. The
final decision in the exercise of the said executive power is still lodged in the
Office of the President.
B. The "doctrine of operational proximity" was laid down precisely to limit the
scope of the presidential communications privilege but, in any case, it is not
conclusive.
Second, respondent Committees also seek reconsideration of the application
of the "doctrine of operational proximity" for the reason that "it maybe
misconstrued to expand the scope of the presidential communications
privilege to communications between those who are ‘operationally
proximate’ to the President but who may have "no direct communications
with her."
It must be stressed that the doctrine of "operational proximity" was laid down
in In re: Sealed Case27precisely to limit the scope of the presidential
communications privilege. The U.S. court was aware of the dangers that a
limitless extension of the privilege risks and, therefore, carefully cabined its
reach by explicitly confining it to White House staff, and not to staffs of the
agencies, and then only to White House staff that has "operational proximity"
to direct presidential decision-making, thus:
We are aware that such an extension, unless carefully
circumscribed to accomplish the purposes of the privilege, could
pose a significant risk of expanding to a large swath of the
executive branch a privilege that is bottomed on a recognition of
the unique role of the President. In order to limit this risk, the
presidential communications privilege should be construed as
narrowly as is consistent with ensuring that the confidentiality of
the President’s decision-making process is adequately
protected. Not every person who plays a role in the development
of presidential advice, no matter how remote and removed from
the President, can qualify for the privilege. In particular, the
privilege should not extend to staff outside the White House in
executive branch agencies. Instead, the privilege should apply only
to communications authored or solicited and received by those
members of an immediate White House advisor’s staff who have
broad and significant responsibility for investigation and
formulating the advice to be given the President on the particular
matter to which the communications relate. Only communications
at that level are close enough to the President to be revelatory of
his deliberations or to pose a risk to the candor of his
advisers. See AAPS, 997 F.2d at 910 (it is "operational proximity" to
the President that matters in determining whether "[t]he
President’s confidentiality interests" is implicated). (Emphasis
supplied)
In the case at bar, the danger of expanding the privilege "to a large swath of
the executive branch" (a fear apparently entertained by respondents) is
absent because the official involved here is a member of the Cabinet, thus,
properly within the term "advisor" of the President; in fact, her alter ego and
a member of her official family. Nevertheless, in circumstances in which the
official involved is far too remote, this Court also mentioned in the Decision
the organizational test laid down in Judicial Watch, Inc. v. Department of
Justice.28This goes to show that the operational proximity test used in the
Decision is not considered conclusive in every case. In determining which test
to use, the main consideration is to limit the availability of executive privilege
only to officials who stand proximate to the President, not only by reason of
their function, but also by reason of their positions in the Executive’s
organizational structure. Thus, respondent Committees’ fear that the scope of
the privilege would be unnecessarily expanded with the use of the operational
proximity test is unfounded.
C. The President’s claim of executive privilege is not merely based on a
generalized interest; and in balancing respondent Committees’ and the
President’s clashing interests, the Court did not disregard the 1987
Constitutional provisions on government transparency, accountability and
disclosure of information.
Third, respondent Committees claim that the Court erred in upholding the
President’s invocation, through the Executive Secretary, of executive privilege
because (a) between respondent Committees’ specific and demonstrated
need and the President’s generalized interest in confidentiality, there is a
need to strike the balance in favor of the former; and (b) in the balancing of
interest, the Court disregarded the provisions of the 1987 Philippine
Constitution on government transparency, accountability and disclosure of
information, specifically, Article III, Section 7;29 Article II, Sections 2430 and
28;31 Article XI, Section 1;32 Article XVI, Section 10;33Article VII, Section
20;34 and Article XII, Sections 9,35 21,36 and 22.37
It must be stressed that the President’s claim of executive privilege is not
merely founded on her generalized interest in confidentiality. The Letter
dated November 15, 2007 of Executive Secretary Ermita specified presidential
communications privilege in relation to diplomatic and economic relations
with another sovereign nation as the bases for the claim. Thus, the Letter
stated:
The context in which executive privilege is being invoked is that the
information sought to be disclosed might impair our diplomatic as
well as economic relations with the People’s Republic of China.
Given the confidential nature in which this information were
conveyed to the President, he cannot provide the Committee any
further details of these conversations, without disclosing the very
thing the privilege is designed to protect. (emphasis supplied)
Even in Senate v. Ermita, it was held that Congress must not require the
Executive to state the reasons for the claim with such particularity as to
compel disclosure of the information which the privilege is meant to protect.
This is a matter of respect for a coordinate and co-equal department.
It is easy to discern the danger that goes with the disclosure of the President’s
communication with her advisor. The NBN Project involves a foreign country
as a party to the agreement. It was actually a product of the meeting of minds
between officials of the Philippines and China. Whatever the President says
about the agreement - particularly while official negotiations are ongoing - are
matters which China will surely view with particular interest. There is danger
in such kind of exposure. It could adversely affect our diplomatic as well as
economic relations with the People’s Republic of China. We reiterate the
importance of secrecy in matters involving foreign negotiations as stated
in United States v. Curtiss-Wright Export Corp., 38 thus:
The nature of foreign negotiations requires caution, and their
success must often depend on secrecy, and even when brought to a
conclusion, a full disclosure of all the measures, demands, or
eventual concessions which may have been proposed or
contemplated would be extremely impolitic, for this might have a
pernicious influence on future negotiations or produce immediate
inconveniences, perhaps danger and mischief, in relation to other
powers. The necessity of such caution and secrecy was one cogent
reason for vesting the power of making treaties in the President,
with the advice and consent of the Senate, the principle on which
the body was formed confining it to a small number of members.
To admit, then, a right in the House of Representatives to demand
and to have as a matter of course all the papers respecting a
negotiation with a foreign power would be to establish a
dangerous precedent.
US jurisprudence clearly guards against the dangers of allowing Congress
access to all papers relating to a negotiation with a foreign power. In this
jurisdiction, the recent case of Akbayan Citizens Action Party, et al. v. Thomas
G. Aquino, et al.39 upheld the privileged character of diplomatic negotiations.
In Akbayan, the Court stated:
Privileged character of diplomatic negotiations
The privileged character of diplomatic negotiations has been
recognized in this jurisdiction. In discussing valid limitations on the
right to information, the Court in Chavez v. PCGG held that
"information on inter-government exchanges prior to the
conclusion of treaties and executive agreements may be subject to
reasonable safeguards for the sake of national interest." Even
earlier, the same privilege was upheld in People’s Movement for
Press Freedom (PMPF) v. Manglapus wherein the Court discussed
the reasons for the privilege in more precise terms.
In PMPF v. Manglapus, the therein petitioners were seeking
information from the President’s representatives on the state of
the then on-going negotiations of the RP-US Military Bases
Agreement. The Court denied the petition, stressing that "secrecy
of negotiations with foreign countries is not violative of the
constitutional provisions of freedom of speech or of the press
nor of the freedom of access to information." The Resolution went
on to state, thus:
The nature of diplomacy requires centralization of
authority and expedition of decision which are inherent
in executive action. Another essential characteristic of
diplomacy is its confidential nature. Although much has
been said about "open" and "secret" diplomacy, with
disparagement of the latter, Secretaries of State Hughes
and Stimson have clearly analyzed and justified the
practice. In the words of Mr. Stimson:
"A complicated negotiation …cannot be
carried through without many, many private
talks and discussion, man to man; many
tentative suggestions and
proposals. Delegates from other countries
come and tell you in confidence of their
troubles at home and of their differences
with other countries and with other
delegates; they tell you of what they would
do under certain circumstances and would
not do under other circumstances… If these
reports… should become public… who would
ever trust American Delegations in another
conference? (United States Department of
State, Press Releases, June 7, 1930, pp. 282-
284)
xxxx
There is frequent criticism of the secrecy in which
negotiation with foreign powers on nearly all subjects is
concerned. This, it is claimed, is incompatible with the
substance of democracy. As expressed by one writer, "It
can be said that there is no more rigid system of silence
anywhere in the world." (E.J. Young, Looking Behind the
Censorship, J. B. Lipincott Co., 1938) President Wilson in
starting his efforts for the conclusion of the World War
declared that we must have "open covenants, openly
arrived at." He quickly abandoned his thought.
No one who has studied the question believes that such
a method of publicity is possible. In the moment that
negotiations are started, pressure groups attempt to
"muscle in." An ill-timed speech by one of the parties or
a frank declaration of the concession which are
exacted or offered on both sides would quickly lead to a
widespread propaganda to block the negotiations. After
a treaty has been drafted and its terms are fully
published, there is ample opportunity for discussion
before it is approved. (The New American Government
and Its Works, James T. Young, 4th Edition, p. 194)
(Emphasis and underscoring supplied)
Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S.
v. Curtiss-Wright Export Corp. that the President is the sole
organ of the nation in its negotiations with foreign countries,viz:
"x x x In this vast external realm, with its important,
complicated, delicate and manifold problems, the
President alone has the power to speak or listen as a
representative of the nation. He makestreaties with the
advice and consent of the Senate; but he alone
negotiates. Into the field of negotiation the Senate
cannot intrude; and Congress itself is powerless to
invade it. As Marshall said in his great arguments of
March 7, 1800, in the House of Representatives, "The
President is the sole organ of the nation in its external
relations, and its sole representative with foreign
nations." Annals, 6th Cong., col. 613… (Emphasis
supplied; underscoring in the original)
Considering that the information sought through the three (3) questions
subject of this Petition involves the President’s dealings with a foreign nation,
with more reason, this Court is wary of approving the view that Congress may
peremptorily inquire into not only official, documented acts of the President
but even her confidential and informal discussions with her close advisors on
the pretext that said questions serve some vague legislative need. Regardless
of who is in office, this Court can easily foresee unwanted consequences of
subjecting a Chief Executive to unrestricted congressional inquiries done with
increased frequency and great publicity. No Executive can effectively
discharge constitutional functions in the face of intense and unchecked
legislative incursion into the core of the President’s decision-making process,
which inevitably would involve her conversations with a member of her
Cabinet.
With respect to respondent Committees’ invocation of constitutional
prescriptions regarding the right of the people to information and public
accountability and transparency, the Court finds nothing in these arguments
to support respondent Committees’ case.
There is no debate as to the importance of the constitutional right of the
people to information and the constitutional policies on public accountability
and transparency. These are the twin postulates vital to the effective
functioning of a democratic government. The citizenry can become prey to the
whims and caprices of those to whom the power has been delegated if they
are denied access to information. And the policies on public accountability
and democratic government would certainly be mere empty words if access to
such information of public concern is denied.
In the case at bar, this Court, in upholding executive privilege with respect to
three (3) specific questions, did not in any way curb the public’s right to
information or diminish the importance of public accountability and
transparency.
This Court did not rule that the Senate has no power to investigate the NBN
Project in aid of legislation. There is nothing in the assailed Decision that
prohibits respondent Committees from inquiring into the NBN Project. They
could continue the investigation and even call petitioner Neri to testify again.
He himself has repeatedly expressed his willingness to do so. Our Decision
merely excludes from the scope of respondents’ investigation the three (3)
questions that elicit answers covered by executive privilege and rules that
petitioner cannot be compelled to appear before respondents to answer the
said questions. We have discussed the reasons why these answers are
covered by executive privilege. That there is a recognized public interest in the
confidentiality of such information is a recognized principle in other
democratic States. To put it simply, the right to information is not an absolute
right.
Indeed, the constitutional provisions cited by respondent Committees do not
espouse an absolute right to information. By their wording, the intention of
the Framers to subject such right to the regulation of the law is unmistakable.
The highlighted portions of the following provisions show the obvious
limitations on the right to information, thus:
Article III, Sec. 7. The right of the people to information on matters
of public concern shall be recognized. Access to official records, and
to documents, and papers pertaining to official records, and to
documents, and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for
policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law.
Article II, Sec. 28. Subject to reasonable conditions prescribed by
law, the State adopts and implements a policy of full public
disclosure of all its transactions involving public interest. (Emphasis
supplied)
In Chavez v. Presidential Commission on Good Government,40 it was stated
that there are no specific laws prescribing the exact limitations within which
the right may be exercised or the correlative state duty may be obliged.
Nonetheless, it enumerated the recognized restrictions to such rights, among
them: (1) national security matters, (2) trade secrets and banking
transactions, (3) criminal matters, and (4) other confidential information.
National security matters include state secrets regarding military and
diplomatic matters, as well as information on inter-government exchanges
prior to the conclusion of treaties and executive agreements. It was further
held that even where there is no need to protect such state secrets, they must
be "examined in strict confidence and given scrupulous protection."
Incidentally, the right primarily involved here is the right of respondent
Committees to obtain information allegedly in aid of legislation, not the
people’s right to public information. This is the reason why we stressed in the
assailed Decision the distinction between these two rights. As laid down
in Senate v. Ermita, "the demand of a citizen for the production of documents
pursuant to his right to information does not have the same obligatory force
as a subpoena duces tecum issued by Congress" and "neither does the right to
information grant a citizen the power to exact testimony from government
officials." As pointed out, these rights belong to Congress, not to the
individual citizen. It is worth mentioning at this juncture that the parties here
are respondent Committees and petitioner Neri and that there was no prior
request for information on the part of any individual citizen. This Court will
not be swayed by attempts to blur the distinctions between the Legislature's
right to information in a legitimate legislative inquiry and the public's right to
information.
For clarity, it must be emphasized that the assailed Decision did not enjoin
respondent Committees from inquiring into the NBN Project. All that is
expected from them is to respect matters that are covered by executive
privilege.
III. Respondent Committees Failed to Show That the Communications Elicited
by the Three Questions Are Critical to the Exercise of their Functions
In their Motion for Reconsideration, respondent Committees devote an
unusually lengthy discussion on the purported legislative nature of their entire
inquiry, as opposed to an oversight inquiry.
At the outset, it must be clarified that the Decision did not pass upon the
nature of respondent Committees’ inquiry into the NBN Project. To reiterate,
this Court recognizes respondent Committees’ power to investigate the NBN
Project in aid of legislation. However, this Court cannot uphold the view that
when a constitutionally guaranteed privilege or right is validly invoked by a
witness in the course of a legislative investigation, the legislative purpose of
respondent Committees’ questions can be sufficiently supported by the
expedient of mentioning statutes and/or pending bills to which their inquiry
as a whole may have relevance. The jurisprudential test laid down by this
Court in past decisions on executive privilege is that the presumption of
privilege can only be overturned by a showing of compelling need for
disclosure of the information covered by executive privilege.
In the Decision, the majority held that "there is no adequate showing of a
compelling need that would justify the limitation of the privilege and of the
unavailability of the information elsewhere by an appropriate investigating
authority." In the Motion for Reconsideration, respondent Committees argue
that the information elicited by the three (3) questions are necessary in the
discharge of their legislative functions, among them, (a) to consider the three
(3) pending Senate Bills, and (b) to curb graft and corruption.
We remain unpersuaded by respondents’ assertions.
In U.S. v. Nixon, the U.S. Court held that executive privilege is subject to
balancing against other interests and it is necessary to resolve the competing
interests in a manner that would preserve the essential functions of each
branch. There, the Court weighed between presidential privilege and the
legitimate claims of the judicial process. In giving more weight to the latter,
the Court ruled that the President's generalized assertion of privilege must
yield to the demonstrated, specific need for evidence in a pending criminal
trial.
The Nixon Court ruled that an absolute and unqualified privilege would stand
in the way of the primary constitutional duty of the Judicial Branch to do
justice in criminal prosecutions. The said Court further ratiocinated, through
its ruling extensively quoted in the Honorable Chief Justice Puno's dissenting
opinion, as follows:
"... this presumptive privilege must be considered in light of our
historic commitment to the rule of law. This is nowhere more
profoundly manifest than in our view that 'the twofold aim (of
criminal justice) is that guild shall not escape or innocence suffer.'
Berger v. United States, 295 U.S., at 88, 55 S.Ct., at 633. We have
elected to employ an adversary system of criminal justice in which
the parties contest all issues before a court of law. The need to
develop all relevant facts in the adversary system is both
fundamental and comprehensive. The ends of criminal justice
would be defeated if judgments were to be founded on a partial or
speculative presentation of the facts. The very integrity of the
judicial system and public confidence in the system depend on full
disclosure of all the facts, within the framework of the rules of
evidence. To ensure that justice is done, it is imperative to the
function of courts that compulsory process be available for the
production of evidence needed either by the prosecution or by the
defense.
xxx xxx xxx
The right to the production of all evidence at a criminal trial
similarly has constitutional dimensions. The Sixth Amendment
explicitly confers upon every defendant in a criminal trial the right
'to be confronted with the witness against him' and 'to have
compulsory process for obtaining witnesses in his favor.' Moreover,
the Fifth Amendment also guarantees that no person shall be
deprived of liberty without due process of law. It is the manifest
duty of the courts to vindicate those guarantees, and to accomplish
that it is essential that all relevant and admissible evidence be
produced.
In this case we must weigh the importance of the general privilege
of confidentiality of Presidential communications in performance
of the President's responsibilities against the inroads of such a
privilege on the fair administration of criminal justice. (emphasis
supplied)
xxx xxx xxx
...the allowance of the privilege to withhold evidence that
is demonstrably relevant in a criminal trial would cut deeply into
the guarantee of due process of law and gravely impair the basic
function of the courts. A President's acknowledged need for
confidentiality in the communications of his office is general in
nature, whereas the constitutional need for production of relevant
evidence in a criminal proceeding is specific and central to the fair
adjudication of a particular criminal case in the administration of
justice. Without access to specific facts a criminal prosecution may
be totally frustrated. The President's broad interest in
confidentiality of communication will not be vitiated by disclosure
of a limited number of conversations preliminarily shown to have
some bearing on the pending criminal cases.
We conclude that when the ground for asserting privilege as to
subpoenaed materials sought for use in a criminal trial is based
only on the generalized interest in confidentiality, it cannot prevail
over the fundamental demands of due process of law in the fair
administration of criminal justice. The generalized assertion of
privilege must yield to the demonstrated, specific need for
evidence in a pending criminal trial. (emphasis supplied)
In the case at bar, we are not confronted with a court’s need for facts in order
to adjudge liability in a criminal case but rather with the Senate’s need for
information in relation to its legislative functions. This leads us to consider
once again just how critical is the subject information in the discharge of
respondent Committees’ functions. The burden to show this is on the
respondent Committees, since they seek to intrude into the sphere of
competence of the President in order to gather information which, according
to said respondents, would "aid" them in crafting legislation.
Senate Select Committee on Presidential Campaign Activities v.
Nixon41 expounded on the nature of a legislative inquiry in aid of legislation in
this wise:
The sufficiency of the Committee's showing of need has come to
depend, therefore, entirely on whether the subpoenaed materials
are critical to the performance of its legislative functions. There is a
clear difference between Congress' legislative tasks and the
responsibility of a grand jury, or any institution engaged in like
functions. While fact-finding by a legislative committee is
undeniably a part of its task, legislative judgments normally
depend more on the predicted consequences of proposed
legislative actions and their political acceptability, than on precise
reconstruction of past events; Congress frequently legislates on the
basis of conflicting information provided in its hearings. In contrast,
the responsibility of the grand jury turns entirely on its ability to
determine whether there is probable cause to believe that certain
named individuals did or did not commit specific crimes. If, for
example, as in Nixon v. Sirica, one of those crimes is perjury
concerning the content of certain conversations, the grand jury's
 need for the most precise evidence, the exact text of oral
statements recorded in their original form, is undeniable. We see
no comparable need in the legislative process, at least not in the
circumstances of this case. Indeed, whatever force there might
once have been in the Committee's argument that the subpoenaed
materials are necessary to its legislative judgments has been
substantially undermined by subsequent events. (Emphasis
supplied)
Clearly, the need for hard facts in crafting legislation cannot be equated with
the compelling or demonstratively critical and specific need for facts which is
so essential to the judicial power to adjudicate actual controversies. Also, the
bare standard of "pertinency" set in Arnault cannot be lightly applied to the
instant case, which unlike Arnault involves a conflict between two (2)
separate, co-equal and coordinate Branches of the Government.
Whatever test we may apply, the starting point in resolving the conflicting
claims between the Executive and the Legislative Branches is the recognized
existence of the presumptive presidential communications privilege. This is
conceded even in the Dissenting Opinion of the Honorable Chief Justice Puno,
which states:
A hard look at Senate v. Ermita ought to yield the conclusion that it
bestowed a qualified presumption in favor of the Presidential
communications privilege. As shown in the previous
discussion, U.S. v. Nixon, as well as the other related Nixon
cases Sirica and Senate Select Committee on Presidential Campaign
Activities, et al., v. Nixon in the D.C. Court of Appeals, as well as
subsequent cases all recognize that there is a presumptive privilege
in favor of Presidential communications. The Almonte
case quoted U.S. v. Nixon and recognized a presumption in favor of
confidentiality of Presidential communications.
The presumption in favor of Presidential communications puts the burden on
the respondent Senate Committees to overturn the presumption by
demonstrating their specific need for the information to be elicited by the
answers to the three (3) questions subject of this case, to enable them to craft
legislation. Here, there is simply a generalized assertion that the information
is pertinent to the exercise of the power to legislate and a broad and non-
specific reference to pending Senate bills. It is not clear what matters relating
to these bills could not be determined without the said information sought by
the three (3) questions. As correctly pointed out by the Honorable Justice
Dante O. Tinga in his Separate Concurring Opinion:
…If respondents are operating under the premise that the
president and/or her executive officials have committed
wrongdoings that need to be corrected or prevented from recurring
by remedial legislation, the answer to those three questions will
not necessarily bolster or inhibit respondents from proceeding with
such legislation. They could easily presume the worst of the
president in enacting such legislation.
For sure, a factual basis for situations covered by bills is not critically needed
before legislatives bodies can come up with relevant legislation unlike in the
adjudication of cases by courts of law. Interestingly, during the Oral Argument
before this Court, the counsel for respondent Committees impliedly admitted
that the Senate could still come up with legislations even without petitioner
answering the three (3) questions. In other words, the information being
elicited is not so critical after all. Thus:
CHIEF JUSTICE PUNO
So can you tell the Court how critical are these questions to the
lawmaking function of the Senate. For instance, question Number 1
whether the President followed up the NBN project. According to
the other counsel this question has already been asked, is that
correct?
ATTY. AGABIN
Well, the question has been asked but it was not answered, Your
Honor.
CHIEF JUSTICE PUNO
Yes. But my question is how critical is this to the lawmaking
function of the Senate?
ATTY. AGABIN
I believe it is critical, Your Honor.
CHIEF JUSTICE PUNO
Why?
ATTY. AGABIN
For instance, with respect to the proposed Bill of Senator Miriam
Santiago, she would like to indorse a Bill to include Executive
Agreements had been used as a device to the circumventing the
Procurement Law.
CHIEF JUSTICE PUNO
But the question is just following it up.
ATTY. AGABIN
I believe that may be the initial question, Your Honor, because if
we look at this problem in its factual setting as counsel for
petitioner has observed, there are intimations of a bribery scandal
involving high government officials.
CHIEF JUSTICE PUNO
Again, about the second question, were you dictated to prioritize
this ZTE, is that critical to the lawmaking function of the Senate?
Will it result to the failure of the Senate to cobble a Bill without
this question?
ATTY. AGABIN
I think it is critical to lay the factual foundations for a proposed
amendment to the Procurement Law, Your Honor, because the
petitioner had already testified that he was offered a P200 Million
bribe, so if he was offered a P200 Million bribe it is possible that
other government officials who had something to do with the
approval of the contract would be offered the same amount of
bribes.
CHIEF JUSTICE PUNO
Again, that is speculative.
ATTY. AGABIN
That is why they want to continue with the investigation, Your
Honor.
CHIEF JUSTICE PUNO
How about the third question, whether the President said to go
ahead and approve the project after being told about the alleged
bribe. How critical is that to the lawmaking function of the Senate?
And the question is may they craft a Bill a remedial law without
forcing petitioner Neri to answer this question?
ATTY. AGABIN
Well, they can craft it, Your Honor, based on mere speculation. And
sound legislation requires that a proposed Bill should have some
basis in fact.42
The failure of the counsel for respondent Committees to pinpoint the specific
need for the information sought or how the withholding of the information
sought will hinder the accomplishment of their legislative purpose is very
evident in the above oral exchanges. Due to the failure of the respondent
Committees to successfully discharge this burden, the presumption in favor of
confidentiality of presidential communication stands. The implication of the
said presumption, like any other, is to dispense with the burden of proof as to
whether the disclosure will significantly impair the President’s performance of
her function. Needless to state this is assumed, by virtue of the presumption.
Anent respondent Committees’ bewailing that they would have to "speculate"
regarding the questions covered by the privilege, this does not evince a
compelling need for the information sought. Indeed, Senate Select Committee
on Presidential Campaign Activities v. Nixon43 held that while fact-finding by a
legislative committee is undeniably a part of its task, legislative judgments
normally depend more on the predicted consequences of proposed legislative
actions and their political acceptability than on a precise reconstruction of
past events. It added that, normally, Congress legislates on the basis of
conflicting information provided in its hearings. We cannot subscribe to the
respondent Committees’ self-defeating proposition that without the answers
to the three (3) questions objected to as privileged, the distinguished
members of the respondent Committees cannot intelligently craft legislation.
Anent the function to curb graft and corruption, it must be stressed that
respondent Committees’ need for information in the exercise of this function
is not as compelling as in instances when the purpose of the inquiry is
legislative in nature. This is because curbing graft and corruption is merely an
oversight function of Congress.44 And if this is the primary objective of
respondent Committees in asking the three (3) questions covered by privilege,
it may even contradict their claim that their purpose is legislative in nature
and not oversight. In any event, whether or not investigating graft and
corruption is a legislative or oversight function of Congress, respondent
Committees’ investigation cannot transgress bounds set by the Constitution.
In Bengzon, Jr. v. Senate Blue Ribbon Committee,45 this Court ruled:
The "allocation of constitutional boundaries" is a task that this
Court must perform under the Constitution. Moreover, as held in a
recent case, "the political question doctrine neither interposes an
obstacle to judicial determination of the rival claims. The
jurisdiction to delimit constitutional boundaries has been given to
 this Court. It cannot abdicate that obligation mandated by the 1987
Constitution, although said provision by no means does away with
the applicability of the principle in appropriate cases.46 (Emphasis
supplied)
There, the Court further ratiocinated that "the contemplated inquiry by
respondent Committee is not really ‘in aid of legislation’ because it is not
related to a purpose within the jurisdiction of Congress, since the aim of the
investigation is to find out whether or not the relatives of the President or Mr.
Ricardo Lopa had violated Section 5 of R.A. No. 3019, the Anti-Graft and
Corrupt Practices Act, a matter that appears more within the province of the
courts rather than of the Legislature."47 (Emphasis and underscoring supplied)
The general thrust and the tenor of the three (3) questions is to trace the
alleged bribery to the Office of the President.48 While it may be a worthy
endeavor to investigate the potential culpability of high government officials,
including the President, in a given government transaction, it is simply not a
task for the Senate to perform. The role of the Legislature is to make laws, not
to determine anyone’s guilt of a crime or wrongdoing. Our Constitution has
not bestowed upon the Legislature the latter role. Just as the Judiciary cannot
legislate, neither can the Legislature adjudicate or prosecute.
Respondent Committees claim that they are conducting an inquiry in aid of
legislation and a "search for truth," which in respondent Committees’ view
appears to be equated with the search for persons responsible for
"anomalies" in government contracts.
No matter how noble the intentions of respondent Committees are, they
cannot assume the power reposed upon our prosecutorial bodies and courts.
The determination of who is/are liable for a crime or illegal activity, the
investigation of the role played by each official, the determination of who
should be haled to court for prosecution and the task of coming up with
conclusions and finding of facts regarding anomalies, especially the
determination of criminal guilt, are not functions of the Senate. Congress is
neither a law enforcement nor a trial agency. Moreover, it bears stressing that
no inquiry is an end in itself; it must be related to, and in furtherance of, a
legitimate task of the Congress, i.e. legislation. Investigations conducted solely
to gather incriminatory evidence and "punish" those investigated are
indefensible. There is no Congressional power to expose for the sake of
exposure.49 In this regard, the pronouncement in Barenblatt v. United
States50 is instructive, thus:
Broad as it is, the power is not, however, without limitations. Since
Congress may only investigate into the areas in which it may
potentially legislate or appropriate, it cannot inquire into matters
which are within the exclusive province of one of the other
branches of the government. Lacking the judicial power given to
the Judiciary, it cannot inquire into matters that are exclusively the
concern of the Judiciary. Neither can it supplant the Executive in
what exclusively belongs to the Executive. (Emphasis supplied.)
At this juncture, it is important to stress that complaints relating to the NBN
Project have already been filed against President Arroyo and other
personalities before the Office of the Ombudsman. Under our Constitution, it
is the Ombudsman who has the duty "to investigate any act or omission of
any public official, employee, office or agency when such act or omission
appears to be illegal, unjust, improper, or inefficient."51 The Office of the
Ombudsman is the body properly equipped by the Constitution and our laws
to preliminarily determine whether or not the allegations of anomaly are true
and who are liable therefor. The same holds true for our courts upon which
the Constitution reposes the duty to determine criminal guilt with finality.
Indeed, the rules of procedure in the Office of the Ombudsman and the courts
are well-defined and ensure that the constitutionally guaranteed rights of all
persons, parties and witnesses alike, are protected and safeguarded.
Should respondent Committees uncover information related to a possible
crime in the course of their investigation, they have the constitutional duty to
refer the matter to the appropriate agency or branch of government. Thus,
the Legislature’s need for information in an investigation of graft and
corruption cannot be deemed compelling enough to pierce the confidentiality
of information validly covered by executive privilege. As discussed above, the
Legislature can still legislate on graft and corruption even without the
information covered by the three (3) questions subject of the petition.
Corollarily, respondent Committees justify their rejection of petitioner’s claim
of executive privilege on the ground that there is no privilege when the
information sought might involve a crime or illegal activity, despite the
absence of an administrative or judicial determination to that effect.
Significantly, however, in Nixon v. Sirica,52 the showing required to overcome
the presumption favoring confidentiality turned, not on the nature of the
presidential conduct that the subpoenaed material might reveal, but, instead,
on the nature and appropriateness of the function in the performance of
which the material was sought, and the degree to which the material was
necessary to its fulfillment.
Respondent Committees assert that Senate Select Committee on Presidential
Campaign Activities v. Nixon does not apply to the case at bar because, unlike
in the said case, no impeachment proceeding has been initiated at present.
The Court is not persuaded. While it is true that no impeachment proceeding
has been initiated, however, complaints relating to the NBN Project have
already been filed against President Arroyo and other personalities before the
Office of the Ombudsman. As the Court has said earlier, the prosecutorial and
judicial arms of government are the bodies equipped and mandated by the
Constitution and our laws to determine whether or not the allegations of
anomaly in the NBN Project are true and, if so, who should be prosecuted and
penalized for criminal conduct.
Legislative inquiries, unlike court proceedings, are not subject to the exacting
standards of evidence essential to arrive at accurate factual findings to which
to apply the law. Hence, Section 10 of the Senate Rules of Procedure
Governing Inquiries in Aid of Legislation provides that "technical rules of
evidence applicable to judicial proceedings which do not affect substantive
rights need not be observed by the Committee." Court rules which prohibit
leading, hypothetical, or repetitive questions or questions calling for a hearsay
answer, to name a few, do not apply to a legislative inquiry. Every person,
from the highest public official to the most ordinary citizen, has the right to be
presumed innocent until proven guilty in proper proceedings by a competent
court or body.
IV Respondent Committees Committed Grave Abuse of Discretion in Issuing
the Contempt Order
Respondent Committees insist that they did not commit grave abuse of
discretion in issuing the contempt order because (1) there is no legitimate
claim of executive privilege; (2) they did not violate the requirements laid
down in Senate v. Ermita; (3) they issued the contempt order in accordance
with their internal Rules; (4) they did not violate the requirement under
Article VI, Section 21 of the Constitution requiring the publication of
their Rules; and (5) their issuance of the contempt order is not arbitrary or
precipitate.
We reaffirm our earlier ruling.
The legitimacy of the claim of executive privilege having been fully discussed
in the preceding pages, we see no reason to discuss it once again.
Respondent Committees’ second argument rests on the view that the ruling
in Senate v. Ermita, requiring invitations or subpoenas to contain the
"possible needed statute which prompted the need for the inquiry" along
with the "usual indication of the subject of inquiry and the questions relative
to and in furtherance thereof" is not provided for by the Constitution and is
merely an obiter dictum.
On the contrary, the Court sees the rationale and necessity of compliance with
these requirements.
An unconstrained congressional investigative power, like an unchecked
Executive, generates its own abuses. Consequently, claims that the
investigative power of Congress has been abused (or has the potential for
abuse) have been raised many times.53 Constant exposure to congressional
subpoena takes its toll on the ability of the Executive to function effectively.
The requirements set forth in Senate v. Ermita are modest mechanisms that
would not unduly limit Congress’ power. The legislative inquiry must be
confined to permissible areas and thus, prevent the "roving commissions"
referred to in the U.S. case, Kilbourn v. Thompson.54 Likewise, witnesses have
their constitutional right to due process. They should be adequately informed
what matters are to be covered by the inquiry. It will also allow them to
prepare the pertinent information and documents. To our mind, these
requirements concede too little political costs or burdens on the part of
Congress when viewed vis-à-vis the immensity of its power of inquiry. The
logic of these requirements is well articulated in the study conducted by
William P. Marshall,55 to wit:
A second concern that might be addressed is that the current system
allows committees to continually investigate the Executive without
constraint. One process solution addressing this concern is to require
each investigation be tied to a clearly stated purpose. At present, the
charters of some congressional committees are so broad that virtually
any matter involving the Executive can be construed to fall within their
province. Accordingly, investigations can proceed without articulation
of specific need or purpose. A requirement for a more precise charge in
 order to begin an inquiry should immediately work to limit the initial
scope of the investigation and should also serve to contain the
investigation once it is instituted. Additionally, to the extent clear
statements of rules cause legislatures to pause and seriously consider
the constitutional implications of proposed courses of action in other
areas, they would serve that goal in the context of congressional
investigations as well.
The key to this reform is in its details. A system that allows a standing
committee to simply articulate its reasons to investigate pro forma
does no more than imposes minimal drafting burdens. Rather, the
system must be designed in a manner that imposes actual burdens on
the committee to articulate its need for investigation and allows for
meaningful debate about the merits of proceeding with the
investigation. (Emphasis supplied)
Clearly, petitioner’s request to be furnished an advance copy of questions is a
reasonable demand that should have been granted by respondent
Committees.
Unfortunately, the Subpoena Ad Testificandum dated November 13, 2007
made no specific reference to any pending Senate bill. It did not also inform
petitioner of the questions to be asked. As it were, the subpoena merely
commanded him to "testify on what he knows relative to the subject matter
under inquiry."
Anent the third argument, respondent Committees contend that their Rules of
Procedure Governing Inquiries in Aid of Legislation (the "Rules") are beyond
the reach of this Court. While it is true that this Court must refrain from
reviewing the internal processes of Congress, as a co-equal branch of
government, however, when a constitutional requirement exists, the Court
has the duty to look into Congress’ compliance therewith. We cannot turn a
blind eye to possible violations of the Constitution simply out of courtesy. In
this regard, the pronouncement in Arroyo v. De Venecia56 is enlightening,
thus:
"Cases both here and abroad, in varying forms of expression, all
deny to the courts the power to inquire into allegations that, in
enacting a law, a House of Congress failed to comply with its own
rules, in the absence of showing that there was a violation of a
constitutional provision or the rights of private individuals.
United States v. Ballin, Joseph & Co., the rule was stated thus: ‘The
Constitution empowers each House to determine its rules of
proceedings. It may not by its rules ignore constitutional restraints
or violate fundamental rights, and there should be a reasonable
relation between the mode or method of proceeding established
by the rule and the result which is sought to be attained."
In the present case, the Court’s exercise of its power of judicial review is
warranted because there appears to be a clear abuse of the power of
contempt on the part of respondent Committees. Section 18 of the Rules
provides that:
"The Committee, by a vote of majority of all its members, may
punish for contempt any witness before it who disobey any order
of the Committee or refuses to be sworn or to testify or to answer
proper questions by the Committee or any of its
members." (Emphasis supplied)
In the assailed Decision, we said that there is a cloud of doubt as to the
validity of the contempt order because during the deliberation of the three (3)
respondent Committees, only seven (7) Senators were present. This number
could hardly fulfill the majority requirement needed by
respondent Committee on Accountability of Public Officers and
Investigations which has a membership of seventeen (17) Senators and
respondent Committee on National Defense and Security which has a
membership of eighteen (18) Senators. With respect to
respondent Committee on Trade and Commerce which has a membership of
nine (9) Senators, only three (3) members were present.57 These facts
prompted us to quote in the Decision the exchanges between Senators Alan
Peter Cayetano and Aquilino Pimentel, Jr. whereby the former raised the issue
of lack of the required majority to deliberate and vote on the contempt order.
When asked about such voting during the March 4, 2008 hearing before this
Court, Senator Francis Pangilinan stated that any defect in the committee
voting had been cured because two-thirds of the Senators effectively signed
for the Senate in plenary session.58
Obviously the deliberation of the respondent Committees that led to the
issuance of the contempt order is flawed. Instead of being submitted to a full
debate by all the members of the respondent Committees, the contempt
order was prepared and thereafter presented to the other members for
signing. As a result, the contempt order which was issued on January 30, 2008
was not a faithful representation of the proceedings that took place on said
date. Records clearly show that not all of those who signed the contempt
order were present during the January 30, 2008 deliberation when the matter
was taken up.
Section 21, Article VI of the Constitution states that:
The Senate or the House of Representatives or any of its respective
committees may conduct inquiries in aid of legislation in
accordance with its duly published rules of procedure. The rights of
person appearing in or affected by such inquiries shall be
respected. (Emphasis supplied)
All the limitations embodied in the foregoing provision form part of the
witness’ settled expectation. If the limitations are not observed, the witness’
settled expectation is shattered. Here, how could there be a majority vote
when the members in attendance are not enough to arrive at such majority?
Petitioner has the right to expect that he can be cited in contempt only
through a majority vote in a proceeding in which the matter has been fully
deliberated upon. There is a greater measure of protection for the witness
when the concerns and objections of the members are fully articulated in such
proceeding. We do not believe that respondent Committees have the
discretion to set aside their rules anytime they wish. This is especially true
here where what is involved is the contempt power. It must be stressed that
the Rules are not promulgated for their benefit. More than anybody else, it is
the witness who has the highest stake in the proper observance of the Rules.
Having touched the subject of the Rules, we now proceed to respondent
Committees’ fourth argument. Respondent Committees argue that the Senate
does not have to publish its Rules because the same was published in 1995
and in 2006. Further, they claim that the Senate is a continuing body; thus, it
is not required to republish the Rules, unless the same is repealed or
amended.
On the nature of the Senate as a "continuing body," this Court sees fit to issue
a clarification. Certainly, there is no debate that the Senate as an institution is
"continuing", as it is not dissolved as an entity with each national election or
change in the composition of its members. However, in the conduct of its day-
to-day business the Senate of each Congress acts separately and
independently of the Senate of the Congress before it. The Rules of the Senate
itself confirms this when it states:
RULE XLIV UNFINISHED BUSINESS
SEC. 123. Unfinished business at the end of the session shall be
taken up at the next session in the same status.
All pending matters and proceedings shall terminate upon the
expiration of one (1) Congress, but may be taken by the succeeding
Congress as if present for the first time. (emphasis supplied)
Undeniably from the foregoing, all pending matters and proceedings, i.e.
unpassed bills and even legislative investigations, of the Senate of a particular
Congress are considered terminated upon the expiration of that Congress and
it is merely optional on the Senate of the succeeding Congress to take up such
unfinished matters, not in the same status, but as if presented for the first
time. The logic and practicality of such a rule is readily apparent considering
that the Senate of the succeeding Congress (which will typically have a
different composition as that of the previous Congress) should not be bound
by the acts and deliberations of the Senate of which they had no part. If the
Senate is a continuing body even with respect to the conduct of its business,
then pending matters will not be deemed terminated with the expiration of
one Congress but will, as a matter of course, continue into the next Congress
with the same status.
This dichotomy of the continuity of the Senate as an institution and of the
opposite nature of the conduct of its business is reflected in its Rules. The
Rules of the Senate (i.e. the Senate’s main rules of procedure) states:
RULE LI AMENDMENTS TO, OR REVISIONS OF, THE RULES
SEC. 136. At the start of each session in which the Senators elected in the
preceding elections shall begin their term of office, the President may
endorse the Rules to the appropriate committee for amendment or
revision.
The Rules may also be amended by means of a motion which should be
presented at least one day before its consideration, and the vote of the
majority of the Senators present in the session shall be required for its
approval. (emphasis supplied)
 RULE LII DATE OF TAKING EFFECT
SEC. 137. These Rules shall take effect on the date of their adoption and
shall remain in force until they are amended or repealed. (emphasis
supplied)
Section 136 of the Senate Rules quoted above takes into account the new
composition of the Senate after an election and the possibility of the
amendment or revision of the Rules at the start of each session in which the
newly elected Senators shall begin their term.
However, it is evident that the Senate has determined that its main rules are
intended to be valid from the date of their adoption until they are amended
or repealed. Such language is conspicuously absent from the Rules.
The Rules simply state "(t)hese Rules shall take effect seven (7) days after
publication in two (2) newspapers of general circulation."59 The latter does
not explicitly provide for the continued effectivity of such rules until they are
amended or repealed. In view of the difference in the language of the two sets
of Senate rules, it cannot be presumed that the Rules (on legislative inquiries)
would continue into the next Congress. The Senate of the next Congress may
easily adopt different rules for its legislative inquiries which come within the
rule on unfinished business.
The language of Section 21, Article VI of the Constitution requiring that the
inquiry be conducted in accordance with the duly published rules of
procedure is categorical. It is incumbent upon the Senate to publish the rules
for its legislative inquiries in each Congress or otherwise make the published
rules clearly state that the same shall be effective in subsequent Congresses
or until they are amended or repealed to sufficiently put public on notice.
If it was the intention of the Senate for its present rules on legislative inquiries
to be effective even in the next Congress, it could have easily adopted the
same language it had used in its main rules regarding effectivity.
In the present case, it is respondent Committees’ contention that their
determination on the validity of executive privilege should be binding on the
Executive and the Courts. It is their assertion that their internal procedures
and deliberations cannot be inquired into by this Court supposedly in
accordance with the principle of respect between co-equal branches of
government. Interestingly, it is a courtesy that they appear to be unwilling to
extend to the Executive (on the matter of executive privilege) or this Court (on
the matter of judicial review). It moves this Court to wonder: In respondent
Committees’ paradigm of checks and balances, what are the checks to the
Legislature’s all-encompassing, awesome power of investigation? It is a
power, like any other, that is susceptible to grave abuse.
While this Court finds laudable the respondent Committees’ well-intentioned
efforts to ferret out corruption, even in the highest echelons of government,
such lofty intentions do not validate or accord to Congress powers denied to it
by the Constitution and granted instead to the other branches of government.
There is no question that any story of government malfeasance deserves an
inquiry into its veracity. As respondent Committees contend, this is founded
on the constitutional command of transparency and public accountability. The
recent clamor for a "search for truth" by the general public, the religious
community and the academe is an indication of a concerned citizenry, a
nation that demands an accounting of an entrusted power. However, the best
venue for this noble undertaking is not in the political branches of
government. The customary partisanship and the absence of generally
accepted rules on evidence are too great an obstacle in arriving at the truth or
achieving justice that meets the test of the constitutional guarantee of due
process of law. We believe the people deserve a more exacting "search for
truth" than the process here in question, if that is its objective.
WHEREFORE, respondent Committees’ Motion for Reconsideration dated
April 8, 2008 is hereby DENIED.

Lest the Court be misconstrued, it should likewise be stressed that not all SO ORDERED.
orders issued or proceedings conducted pursuant to the subject Rules are null
and void. Only those that result in violation of the rights of witnesses should
be considered null and void, considering that the rationale for the publication
is to protect the rights of witnesses as expressed in Section 21, Article VI of
the Constitution. Sans such violation, orders and proceedings are considered
valid and effective.

Respondent Committees’ last argument is that their issuance of the contempt

order is not precipitate or arbitrary. Taking into account the totality of
circumstances, we find no merit in their argument.

As we have stressed before, petitioner is not an unwilling witness, and

contrary to the assertion of respondent Committees, petitioner did not
assume that they no longer had any other questions for him. He repeatedly
manifested his willingness to attend subsequent hearings and respond to new
matters. His only request was that he be furnished a copy of the new
questions in advance to enable him to adequately prepare as a resource
person. He did not attend the November 20, 2007 hearing because Executive
Secretary Ermita requested respondent Committees to dispense with his
testimony on the ground of executive privilege. Note that petitioner is an
executive official under the direct control and supervision of the Chief
Executive. Why punish petitioner for contempt when he was merely directed
by his superior? Besides, save for the three (3) questions, he was very
cooperative during the September 26, 2007 hearing.

On the part of respondent Committees, this Court observes their haste and
impatience. Instead of ruling on Executive Secretary Ermita’s claim of
executive privilege, they curtly dismissed it as unsatisfactory and ordered the
arrest of petitioner. They could have informed petitioner of their ruling and
given him time to decide whether to accede or file a motion for
reconsideration. After all, he is not just an ordinary witness; he is a high-
ranking official in a co-equal branch of government. He is an alter ego of the
President. The same haste and impatience marked the issuance of the
contempt order, despite the absence of the majority of the members of the
respondent Committees, and their subsequent disregard of petitioner’s
motion for reconsideration alleging the pendency of his petition
for certiorari before this Court.

On a concluding note, we are not unmindful of the fact that the Executive and
the Legislature are political branches of government. In a free and democratic
society, the interests of these branches inevitably clash, but each must treat
the other with official courtesy and respect. This Court wholeheartedly
concurs with the proposition that it is imperative for the continued health of
our democratic institutions that we preserve the constitutionally mandated
checks and balances among the different branches of government.
G.R. No. 181508 October 2, 2013
OSCAR CONSTANTINO, MAXIMA CONSTANTINO and CASIMIRA
MATURINGAN, Petitioners,
vs.
HEIRS OF PEDRO CONSTANTINO, JR., represented by ASUNCION
LAQUINDANUM, Respondents.
DECISION
PEREZ, J.:
Before the Court is a Petition for Review on Certiorari under Rule 45 of the
Rules of Court assailing the 31 May 2007 Decision1 of the Court of Appeals in
CA-G.R. CV No. 81329, which reversed the 27 October 2003 Decision2 of the
Regional Trial Court (RTC), Branch 18 of Malolos City, Bulacan, in a complaint
for Declaration of Nullity of "Pagmamana sa Labas ng Hukuman," Tax
Declaration Nos. 96-10022-02653 & 1002655, With Prayer for a Writ of
Preliminary Injunction & Damages docketed as Civil Case No. 630-M-99.
The facts
This involves a controversy over a parcel of land claimed to be part of an
estate which needed to be proportionally subdivided among heirs.
Pedro Constantino, Sr., (Pedro Sr.) ancestors of the petitioners and
respondents, owned several parcels of land, one of which is an unregistered
parcel of land declared for taxation purposes under Tax Declaration
208143consisting of 240 square meters situated at Sta. Monica, Hagonoy,
Bulacan. Pedro, Sr., upon his death, was survived by his six (6) children,
namely: 1) PEDRO CONSTANTINO, JR. (Pedro Jr.), the grandfather of the
respondents; 2) ANTONIA CONSTANTINO, who later died without issue; 3)
CLARA CONSTANTINO, who also later died without issue; 4)
BRUNOCONSTANTINO, who was survived by his 6 children including petitioner
Casimira Constantino-Maturingan; 5) EDUARDO CONSTANTINO, who is
survived by his daughter Maura; and 6) SANTIAGO CONSTANTINO, who was
survived by his five (5) children which includes petitioner Oscar Constantino.4
On 17 June 1999, respondents Asuncion Laquindanum (Asuncion)and Josefina
Cailipan (Josefina), great grandchildren of Pedro Sr., in representation of
Pedro, Jr. filed a complaint5
against petitioners Oscar Constantino, Maxima Constantino and Casimira
Maturingan, grandchildren of Pedro Sr., for the nullification of a document
denominated as "Pagmamana sa Labas ng Hukuman" dated 10 August
1992,6 Tax Declaration Nos. 96-10022 (02653)7 and 96-10022 (02655)8 and
reinstatement of Tax Declaration No. 208149 in the name of Pedro Sr.
In the said complaint, respondents alleged that sometime in October 1998,
petitioners asserted their claim of ownership over the whole parcel of land
(240 sq m) owned by the late Pedro Sr., to the exclusion of respondents who
are occupying a portion thereof. Upon verification, respondents learned that a
Tax Declaration No. 02010-2170-33235 in the name of petitioner Oscar
Constantino and his cousin Maxima Constantino was unlawfully issued, which
in effect canceled Tax Declaration No. 20814 in the name of their ancestor
Pedro Sr. The issuance of the new tax declaration was allegedly due to the
execution of a simulated, fabricated and fictitious document denominated as
"Pagmamana sa Labas ng Hukuman," wherein the petitioners misrepresented
themselves as the sole and only heirs of Pedro Sr. It was further alleged that
subsequently, the subject land was divided equally between petitioners Oscar
and Maxima resulting in the issuance of Tax Declaration No. 96-10022-
0265310 in the name of Oscar, with an area of 120sq m and the other half in
the name of Maxima covered by Tax Declaration No. 96-10022-02652.11 The
share of Maxima was eventually conveyed to her sister, petitioner Casimira in
whose name a new Tax Declaration No. 96-10022-0265512 was issued.
Thus, respondents sought to annul the "Pagmamana sa Labas ngHukuman" as
well as the Tax Declarations that were issued on the basis of such document.
The petitioners, on the other hand, averred in their Answer With
Counterclaim13 that Pedro Sr., upon his death, left several parcels of land,
namely: 1) a lot with an area of 240 sq m covered by Tax Declaration
No.20814; 2) a lot with an area of 192 sq m also situated at Sta.
Monica,Hagonoy, Bulacan, previously covered by Tax Declaration No. 9534;
and 3)an agricultural land with an area of Four (4) hectares, more or less. The
petitioners claimed that the document "Pagmamana sa Labas ng Hukuman"
pertaining to the 240 sq m lot was perfectly valid and legal, as it was a product
of mutual and voluntary agreement between and among the descendants of
the deceased Pedro Sr.
Further, petitioners alleged that the respondents have no cause of action
against them considering that the respondents’ lawful share over the estate of
Pedro Sr., had already been transferred to them as evidenced by the Deed of
Extrajudicial Settlement with Waiver14 dated 5 December 1968,executed by
Angelo Constantino, Maria Constantino (mother of respondent Asuncion),
Arcadio Constantino and Mercedes Constantino, all heirs of Pedro Jr. In the
said deed, respondents adjudicated unto themselves to the exclusion of other
heirs, the parcel of land with an area of 192 sq m by misrepresenting that they
were "the only legitimate heirs of Pedro Sr. Thus, petitioners claimed that in
the manner similar to the assailed "Pagmamana sa Labas ng Hukuman," they
asserted their rights and ownership over the subject 240 sq m lot without
damage to the respondents.
In essence, petitioners position was that the Deed of Extrajudicial Settlement
with Waiver which led to the issuance of Tax Declaration No.9534 was
acquiesced in by the other heirs of Pedro Sr., including the petitioners, on the
understanding that the respondent heirs of Pedro Jr. would no longer share
and participate in the settlement and partition of the remaining lot covered
by the "
Pagmamana sa Labas ng Hukuman."
On 15 August 2000, pre-trial conference15 was conducted wherein the parties
entered into stipulations and admissions as well as identification of the issues
to be litigated. Thereupon, trial on the merits ensued.
On 27 October 2003, the RTC rendered a Decision16 in favor of the
respondents finding that:
As a result of execution of "Extrajudicial Settlement with Waiver" dated
December 5, 1968 (Exh. "2") executed by the heirs of Pedro Constantino, Jr., a
son of Pedro Constantino, Sr. and the subsequent execution of another deed
denominated as "Pagmamana sa Labas ng Hukuman" dated August 10, 1992
(Exh. "E") executed by the heirs of Santiago and Bruno Constantino, also other
sons of Pedro Constantino, Sr., to the exclusion of the other heirs, namely,
those of ANTONIA, CLARA, and EDUARDO CONSTANTINO, both plaintiffs and
defendants acted equally at fault. They are in pari delicto, whereby the law
leaves them as they are and denies recovery by either one of them. (See:Yu
Bun Guan v. Ong, 367 SCRA 559). Parties who are equally guilty cannot
complain against each other. (Sarmiento v. Salud, 45 SCRA 213.)
Supplementing the law on the matter, that is, the provision of Article 19 of the
New Civil Code whereby every person must, in the exercise of his rights and in
the performance of his duties, act with justice, give everyone his due, and
observe honesty and good faith, is the legal maxim that "he who comes to
court to demand equity must come with clean hands." (LBC Express, Inc. v.
Court of Appeals, 236 SCRA 602).
Although, plaintiffs-heirs of Pedro Constantino, Jr., including Asuncion
Laquindanum and Josefina Cailipan, are not parties or signatories to the
"Extrajudicial Settlement with Waiver" dated December 5, 1968, they are
successors-in-interest of Pedro Constantino, Jr. They areconsidered "privies"
to said deed, and are bound by said extrajudicial settlement. (See: Cabresos v.
Tiro, 166 SCRA 400). In other words, they are "PRIVIES IN ESTATE". (Correa v.
Pascual, 99 Phil. 696, 703).
Consequently, plaintiffs are now estopped from claiming otherwise. (See: PNB
v. CA, 94 SCRA 357). They are estopped to share in the real property subject
matter of this case. In fine, they are not entitled to the reliefs prayed
for.1âwphi1 (Communication Materials & Design, Inc. v. CA, 260 SCRA 673).
With respect to alleged damages claimed by plaintiffs against defendants in
their Complaint and counterclaim for damages by defendants against
plaintiffs in their Answer, both claims are hereby dismissed for lack of valid
factual and legal foundations.
Disposition
WHEREFORE, in view of the foregoing premises and disquisition, the deed
denominated as "Pagmamana sa Labas ng Hukuman" of August10, 1992 and
Tax Declaration No. 96-10022-02653 in the name of Oscar Constantino and
Tax Declaration No. 96-10022-02655 in the name of Casimira C. Maturingan
(from Maxima Constantino to Casimira C. Maturingan) stand. Plaintiffs’
Complaint for nullification thereof with damages is hereby DISMISSED.17
Not convinced, the respondents appealed the afore quoted decision to the
Court of Appeals (CA) raising, among others, the erroneous application by the
trial court of the doctrine of "in pari delicto" in declaring the validity of the
document "Pagmamana sa Labas ng Hukuman."
In its 31 May 2007 Decision,18 the CA ruled in favor of the respondents heirs of
Pedro, Jr., declaring that the "Extrajudicial Settlement with Waiver" dated 5
December 1968 they executed covering the 192 sq mlot actually belongs to
Pedro Jr., hence, not part of the estate of Pedro Sr. The CA rationated in this
wise:
The 192 square meters lot which was adjudicated in the "Extrajudicial
Settlement with Waiver" dated 5 December 1968 among the heirs of Pedro Jr.
namely Angelo, Maria, Arcadio and Mercedes is a property belonging to Pedro
Jr. although there is a typographical error in that the name of Pedro Jr. was
inadvertently typed only as Pedro Constantino. It is clear from the reading of
the document that a typographical error was committed because the four (4)
children of PedroJr. by Felipa dela Cruz were specifically identified. Further,
during the presentation of evidence of the plaintiffs-appellants, it was
rebutted that Pedro Sr. had six (6) legitimate children namely: Pedro Jr.,
Antonia, Clara, Santiago, Bruno and Eduardo19 and Pedro Jr. had four (4).20
Thus, the CA went on to state that the respondents, heirs of Pedro Jr., did not
adjudicate the 192 sq m lot unto themselves to the exclusion of all the other
heirs of Pedro Sr. Rather, the adjudication in the document entitled
"Extrajudicial Settlement with Waiver dated 5 December 1968 pertains to a
different property and is valid absent any evidence to the contrary. Hence, it
is erroneous for the trial court to declare the parties in pari delicto.
The Issue
The petitioners now question the said ruling assigning as error, among others,
the failure of the CA to appreciate the existence of misrepresentation in both
documents, thereby ignoring the propriety of the application of the in pari
delicto doctrine. Likewise assailed is the erroneous disregard by the CA of
stipulations and admissions during the pre-trial conference on which the
application of the doctrine of in pari delicto was based.
Our Ruling
Latin for "in equal fault," in pari delicto connotes that two or more people are
at fault or are guilty of a crime. Neither courts of law nor equity will interpose
to grant relief to the parties, when an illegal agreement has been made, and
both parties stand in pari delicto.21 Under the pari delicto doctrine, the parties
to a controversy are equally culpable or guilty, they shall have no action
against each other, and it shall leave the parties where it finds them. This
doctrine finds expression in the maxims "ex dolo malo nonoritur actio" and
"in pari delicto potior est conditio defendentis."22
When circumstances are presented for the application of such doctrine, courts
will take a hands off stance in interpreting the contract for or against any of
the parties. This is illustrated in the case of Packaging Products Corporation v.
NLRC,23 where this Court pronounced that:
This Court cannot give positive relief to either petitioner or respondent
because we are asked to interpret and enforce an illegal and immoral
arrangement. (See Articles 1409, 1411, and 1412 of the Civil Code). Kickback
arrangements in the purchase of raw materials, equipment, supplies and
other needs of offices, manufacturers, and industrialists are so widespread
and pervasive that nobody seems to know how to eliminate them. x x x.
Both the petitioners and the private respondent are in pari delicto. Neither
one may expect positive relief from courts of justice in the interpretation of
their contract. The courts will leave them as they were at the time the case
was filed.24
As a doctrine in civil law, the rule on pari delicto is principally governed by
Articles 1411 and 1412 of the Civil Code, which state that:
Article 1411. When the nullity proceeds from the illegality of the cause or
object of the contract, and the act constitutes a criminal offense, both parties
being in pari delicto, they shall have no action against each other, and both
shall be prosecuted.
xxx xxx
Article 1412. If the act in which the unlawful or forbidden cause consists does
not constitute a criminal offense, the following rules shall be observed:
xxx xxx
1. When the fault is on the part of both contracting parties, neither may
recover what he has given by virtue of the contract, or demand the
performance of the other’s undertaking;
xxx xxx.
The petition at bench does not speak of an illegal cause of contract
constituting a criminal offense under Article 1411. Neither can it be said that
Article 1412 finds application although such provision which is part of Title II,
Book IV of the Civil Code speaks of contracts in general, as well as contracts
which are null and void ab initio pursuant to Article 1409 of the Civil Code –
such as the subject contracts, which as claimed, are violative of the mandatory
provision of the law on legitimes.
We do not dispute that herein parties, through the Deeds they separately
executed deprived each other of rightful shares in the two lots subject of the
separate contracts – that is, if the two (2) parcels of land subject matter
thereof, form part of the estate of the late Pedro Sr.
It is asserted by the petitioners that their execution in 1992 of the contract
denominated as "Pagmamana sa Labas ng Hukuman" which excluded other
heirs of Pedro Sr., was with an underlying agreement with the other heirs
including Maria Constantino, daughter of Pedro Jr. and grandmother of
respondents.25 The agreement was for the other heirs to recognize the 192
square meters lot subject matter of the "Extrajudicial Settlement with
Waiver" executed in 1968 as the share of the heirs of Pedro Sr. in the estate of
Pedro Sr., Petitioners respected such agreement, as in fact, Maria
Laquindanum and that of her heirs, herein respondents, were not disturbed in
their possession or ownership over the said parcel of land; thus, the heirs of
Pedro Jr. were said to have acquiesced26 to the "Pagmamana sa Labas ng
Hukuman" and the underlying agreement and therefore they have no
recourse or reason to question it taking cue from the doctrine of in
paridelicto. This was the basis of the trial court’s findings that respondents are
now estopped from claiming otherwise.27
We find that the trial court erroneously applied the doctrine.
This is not to say, however, that the CA was correct in upholding the validity
of the contract denominated as "Pagmamana sa Labas ng Hukuman." The CA
decision being, likewise, based on pari delicto, is also incorrect.
Finding the inapplicability of the in pari delicto doctrine, We find occasion to
stress that Article 1412 of the Civil Code that breathes life to the doctrine
speaks of the rights and obligations of the parties to the contract with an
illegal cause or object which does not constitute a criminal offense. It applies
to contracts which are void for illegality of subject matter and not to contracts
rendered void for being simulated,28 or those in which the parties do not
really intend to be bound thereby. Specifically, in pari delicto situations
involve the parties in one contract who are both at fault, such that neither can
recover nor have any action against each other.
In this case, there are two Deeds of extrajudicial assignments unto the
signatories of the portions of the estate of an ancestor common to them and
another set of signatories likewise assigning unto themselves portions of the
same estate. The separate Deeds came into being out of an identical intention
of the signatories in both to exclude their co-heirs of their rightful share in the
entire estate of Pedro Sr. It was, in reality, an assignment of specific portions
of the estate of Pedro Sr., without resorting to a lawful partition of estate as
both sets of heirs intended to exclude the other heirs.
Clearly, the principle of in pari delicto cannot be applied. The inapplicability is
dictated not only by the fact that two deeds, not one contract, are involved,
but because of the more important reason that such an application would
result in the validation of both deeds instead of their nullification as
necessitated by their illegality. It must be emphasized that the underlying
agreement resulting in the execution of the deeds is nothing but a void
agreement. Article 1409 of the Civil Code provides that:
ART. 1409. The following contracts are in existent and void from the
beginning:
(1) Those whose cause, object or purpose is contrary to law; morals, good
customs, public order or public policy;
xxx xxx xxx
Corollarily, given the character and nature of the deeds as being void and in
existent, it has, as a consequence, of no force and effect from the beginning,
as if it had never been entered into and which cannot be validated either by
time or ratification.29
That said, we cannot give credence to the contention of respondents that no
fault can be attributed to them or that they are free from the effects of
violation of any laws arising from the supposed unlawful agreement entered
into between Maria Laquindanum, their predecessor-in-interest, and the
other heirs, including petitioners herein, based on the fact that they are not
signatories to said agreement, thus, the lack of any binding effect to them.
Respondents argued and set forth as an issue during the trial that they were
not signatories to any of the contract or privies to such an arrangement. It is
not disputed, however, that respondents are successors-in-interest of Maria
Laquindanum, one of the signatories in the Extrajudicial Settlement with
Waiver who was also allegedly in agreement with the petitioners.
On this note, We agree with the trial court that respondents are "privies" to
Maria Laquindanum. By the term "privies" is meant those between whom an
action is deemed binding although they are not literally parties to the said
action.30 This Court, in Correa v. Pascual,31 had occasion to explain that
"privity in estate denotes the privity between assignor and assignee, donor
and donee, grantor and grantee, joint tenant for life and remainderman or
reversioner and their respective assignees, vendor by deed of warranty and a
remote vendee or assignee. A privy in estate is one, it has been said, who
derives his title to the property in question by purchase; one who takes by
conveyance." In fine, respondents, as successors-in-interest, derive their right
from and are in the same position as their predecessor in whose shoes they
now stand. As such successors, respondents’ situation is analogous to that of a
transferee pendente lite illustrated in Santiago Land Development
Corporation v. Court of Appeals,32 reiterating Fetalino v. Sanz33 where this
Court held:
As such, he stands exactly in the shoes of his predecessor in interest, the
original defendant, and is bound by the proceedings had in the case before
the property was transferred to him. He is a proper, but not an indispensable,
party as he would, in any event, have been bound by the judgment against his
predecessor.34
Thus, any condition attached to the property or any agreement precipitating
the execution of the Deed of Extrajudicial Settlement with Waiver which was
binding upon Maria Laquindanum is applicable to respondents who merely
succeeded Maria.
This notwithstanding, it must however be shown that the Deed of
Extrajudicial Settlement with Waiver, referred to a property owned by Pedro
Sr. There is such basis from the facts of this case.
The records show that apart from respondent Asuncion Laquindanums’s
statement that the parcel of land subject matter of the Deed of Extrajudicial
Settlement with Waiver is not part of the estate of Pedro Sr., their common
ancestor, no other evidence was offered to support it. The CA in giving
credence to the respondents’ claim, merely relied on the alleged
typographical error in the Deed. The basis for the CA’s conclusion was the
inclusion of the wife of Pedro Jr. and that of their children, which the CA
considered as proof that the property was owned by Pedro Jr. and not part of
the estate of Pedro Sr. As pointed out by the petitioners, the mention of the
names of the children of Pedro Jr. in the Extrajudicial Settlement is not proof
that the subject of the deed is the property of Pedro Jr. Meant to exclude all
the other heirs of Pedro Sr., only the children of Pedro Jr. appeared in the
Extrajudicial Settlement as heirs.
Weak as the reasoning is, the CA actually contradicted the admissions made
no less by the respondents during the pre-trial conference where they
stipulated that the land covered by Tax Declaration No. 9534 consisting of 192
sq. m belongs to Pedro Sr.35
A portion of the admission and stipulations made by both parties during the
pre-trial is hereunder quoted, thus:
Respondents’ admissions:
"1. That the land covered by Tax Declaration No. 9534 previously owned by
Pedro Constantino, Sr. was transferred to Maria Constantino under Tax
Declaration No. 9535; (highlighting ours)
1. The existence of Extrajudicial Settlement with Waiver per Doc. No.319,
Page No. 44, Book No. 11, Series of 1968 by Notary Public Romerico Flores,
Jr."
Clearly, the above stipulation is an admission against respondents’ interest of
the fact of ownership by Pedro Sr. of the 192 sq m lot covered by Tax
Declaration No. 9534, which was transferred to respondents’ mother, the
daughter of Pedro Jr. Such that, in one of the issues submitted to be resolved
by the trial court, this was included: "Whether or not the "Deed of
Extrajudicial Settlement with Waiver" is enforceable against the plaintiffs,
thus curing the legal infirmities, if any, of the "Pagmamana sa Labas ng
Hukuman"36 – an issue earlier mentioned.
Judicial admissions are legally binding on the party making the admissions.
Pre-trial admission in civil cases is one of the instances of judicial admissions
explicitly provided for under Section 7, Rule 18 of the Rules of Court, which
mandates that the contents of the pre-trial order shall control the subsequent
course of the action, thereby, defining and limiting the issues to be tried. In
Bayas, et. al. v. Sandiganbayan, et. al.,37 this Court emphasized that:
Once the stipulations are reduced into writing and signed by the parties and
their counsels, they become binding on the parties who made them. They
become judicial admissions of the fact or facts stipulated.38 Even if placed at a
disadvantageous position, a party may not be allowed to rescind them
unilaterally, it must assume the consequences of the
disadvantage.39 (Highlighting ours)
Moreover, in Alfelor v. Halasan,40 this Court declared that:
A party who judicially admits a fact cannot later challenge the fact as judicial
admissions are a waiver of proof; production of evidence is dispensed with. A
judicial admission also removes an admitted fact from the field of
controversy. Consequently, an admission made in the pleadings cannot be
controverted by the party making such admission and are conclusive as to
such party, and all proofs to the contrary or inconsistent therewith should be
ignored, whether objection is interposed by the party or not. The allegations,
statements or admissions contained in a pleading are conclusive as against the
pleader. A party cannot subsequently take a position contrary of or
inconsistent with what was pleaded.41 (Citations omitted)
We are aware that the last paragraph of Section 7, Rule 18 of the Rules of
Court serves as a caveat for the rule of conclusiveness of judicial admissions –
for, in the interest of justice, issues that may arise in the course of the
proceedings but which may not have been taken up in the pre-trial can still be
taken up.
Section 7, Rule 18 of the Rules of Court reads:
Section 7. Record of pre-trial. – The proceedings in the pre-trial shall be
recorded.1awp++i1 Upon the termination thereof, the court shall issue an
order which shall recite in detail the matters taken up in the conference, the
action taken thereon, the amendments allowed to the pleadings, and the
agreements or admissions made by the parties as to any of the matters
considered. Should the action proceed to trial, the order shall, explicitly define
and limit the issues to be tried. The contents of the order shall control the
subsequent course of the action, unless modified before trial to prevent
injustice.
In addition, Section 4 of Rule 129 of the Rules of Court, provides that:
An admission, verbal or written, made by a party in the course of the
proceedings in the same case, does not require proof. The admission may be
contradicted only by showing that it was made through palpable mistake or
that no such admission was made.
As contemplated in the aforementioned provision of the Rules of Court, the
general rule regarding conclusiveness of judicial admission upon the party
making it and the dispensation of proof admits of two exceptions: 1) when it
is shown that the admission was made through palpable mistake, and 2) when
it is shown that no such admission was in fact made. The latter exception
allows one to contradict an admission by denying that he made such an
admission.42
However, respondents failed to refute the earlier admission/stipulation
before and during the trial. While denying ownership by Pedro Sr. of the 192
sq m lot, respondent Asuncion Laquindanum, when placed on the stand,
offered a vague explanation as to how such parcel of land was acquired by
Pedro Jr. A portion of her testimony43 is hereto reproduced as follows:
"ATTY. DOMINGO:
Q: Do you know if as part of the estate of the late Pedro Constantino, Sr. is
another parcel of land also situated at Sta. Maria, Hagonoy, Bulacan with an
area of 192 square meters?
A: It is not owned by Pedro Constantino, Sr., sir. It is our property owned by
Pedro Constantino, Jr. that was inherited by my mother Maria Constantino.
Q: And do you know how Pedro Constantino, Jr. acquired that parcel of land,
the one that you mentioned a while ago?
A: Kinagisnan ko na po yong lupang yon pagkabata pa na yon e amin."
(Highlighting ours)
The above assertion of denial is simply a self-serving declarationunsupported
by evidence. This renders conclusive the stipulations made during the pre-trial
conference. Consequently, respondents are bound by the infirmities of the
contract on which they based their right over the property subject matter
thereof. Considering that the infirmities in the two deeds relate to exclusion
of heirs, a circumvention of an heir’s right to his or her legitime, it is apt to
reiterate our ruling in Neri v. Heirs of Hadji Yusop Uy,44 disposing that:
Hence, in the execution of the Extra-Judicial Settlement of the Estate with
Absolute Deed of Sale in favour of spouses Uy, all the heirs of Annunciation
should have participated. Considering that Eutropia and Victoria were
admittedly excluded and that then minors Rosa and Douglas were not
properly represented therein, the settlement was not valid and binding upon
them and consequently, a total nullity. (Highlighting ours)
Further highlighting the effect of excluding the heirs in the settlement of
estate, the case of Segura v. Segura,45elucidated thus:
It is clear that Section 1 of Rule 74 does not apply to the partition in question
which was null and void as far as the plaintiffs were concerned. The rule
covers only partition. The partition in the present case was invalid because it
excluded six of the nine heirs who were entitled to equal shares in the
partitioned property. Under the rule "no extrajudicial settlement shall be
binding upon any person who has not participated therein or had no notice
thereof." As the partition was a total nullity and did not affect the excluded
heirs, it was not correct for the trial court to hold that their right to challenge
the partition had prescribed after two years from its execution x x x.

In light of the foregoing, while both parties acted in violation of the law on
legitimes, the pari delicto rule, expressed in the maxims "Ex dolo malo non
oritur action" and "in pari delicto potior est condition defendentis," which
refuses remedy to either party to an illegal agreement and leaves them where
they are, does not apply in this case. (Underline supplied)46 As held in De Leon
v. CA:47

In the ultimate analysis, therefore, both acted in violation of laws. However,

the pari delicto rule expressed in the maxims "Ex dolo malo non oritur action"
and "In pari delicto potior est condition defendentis," which refuses remedy
to either party to an illegal agreement and leaves them where they are does
not apply in this case.

xxx xxx xxx

Since the Letter-Agreement was repudiated before the purpose has been
accomplished and to adhere to the pari delicto rule in this case is to put a
premium to the circumvention or the laws, positive relief should be granted to
Macaria. Justice would be served by allowing her to be placed in the position
in which she was before the transaction was entered into.

Accordingly, in order not to put a premium to the circumvention or the laws

as contemplated by the parties in the instant case, we must declare both
contracts as void. Indeed, any circumvention of the law cannot
be48countenanced.

WHEREFORE, the 31 May 2007 Decision of the Court of Appeals in CA-G.R. CV

No. 81329 is hereby REVERSED. The Pagmamana sa Lahas ng Hukuman and
Extrajudicial Settlement with Waiver are hereby declared void without
prejudice to the partition of the estate of Pedro Constantino Sr. with the full
participation of all the latter's heirs.

SO ORDERED.
G.R. No. 146111 February 23, 2004
PEOPLE OF THE PHILIPPINES, appellee
vs.
ROLENDO GAUDIA @ "LENDOY" or "DODO", appellant.
DECISION
PUNO, J.:
There can be no greater violation of a person’s right to feel safe and secure
than the crime of rape. When one commits such a horrible act on another, he
degrades not only that person’s body; more importantly, he defiles that
person’s mind. When the victim is a little child, the act and the perpetrator
himself assume a bestiality beyond the comprehension of normal human
beings. Yet, the law must apply equally upon saints and sinners alike, even to
the most salacious ruffian.
Before us is the Decision1 dated 10 July 2000 of Branch 19 of the Regional Trial
Court of Digos, Davao del Sur, finding appellant Rolendo Gaudia2 guilty of the
crime of rape, meting upon him the penalty of death, and ordering him to pay
to private complainant Remelyn Loyola the amounts of fifty thousand pesos
(₱50,000.00) as moral damages, thirty thousand pesos (₱30,000.00) as
exemplary damages, and costs of suit.
The Information filed against the accused-appellant reads as follows:
That on or about March 24, 1997 at about 6:30 o’clock in the evening, in the
Municipality of Hagonoy, Province of Davao del Sur, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, by means
of force and intimidation, did, then and there willfully, unlawfully and
feloniously have carnal knowledge with Remelyn Loyola, a minor, against her
will to her damage and prejudice.
The prosecution presented Remelyn’s mother, Amalia Loyola, as its primary
witness. Amalia testified that on 24 March 1997, she left her two children
Remelyn (3 1/2 years old)3and Kimberly (1 year old)4 at their house in Clib,
Hagonoy, Davao del Sur to gather pigs’ food at Bulatukan. At the time, her
husband was working in Tulunan, South Cotabato. At about 4:00 in the
afternoon, Amalia returned home and could not find Remelyn. She went to
fetch water and proceeded to a neighbor to ask about the whereabouts of
Remelyn. Nobody could provide her any information. On her way home, she
shouted and called out Remelyn’s name. At about 6:00 p.m., Amalia heard
Remelyn calling out to her, "Ma, I am here," from a grove of ipil-
ipil trees.5 Amalia rushed toward the place, but was met by Remelyn at the
mango trees, some thirty (30) meters from their house. 6 She found Remelyn
crying, naked, nagbakaang (walking with her legs spread apart) and with fresh
and dried blood on her body. Ipil-ipil leaves clung to her forehead. Blood was
oozing from her private organ. Amalia brought Remelyn home and washed
her. Upon closer inspection, she found a whitish mucus-like substance coming
from Remelyn’s private organ.7
The following day, 2 March 1997, Amalia brought Remelyn to the house of a
certain Tiya Coring, a quack doctor, for treatment. Among the people present
in the premises were the relatives and parents of the appellant.8The quack
doctor found both dried blood and fresh blood oozing in Remelyn’s vagina,
and told Amalia, "Hoy!Amalia, your daughter was being (sic) raped."9 At about
10:00 a.m., Tulon Mik, a neighbor, came and informed Amalia that he had
seen the appellant pass by her house and take Remelyn. 10 At this point, the
parents of appellant told Amalia, "Mal, let us talk about this matter, we will
just settle this, we are willing to pay the amount of ₱15,000.00, for the crime
that my son committed."11 Police officers came and brought Amalia, Remelyn
and two barangay officials (kagawads) to the police precinct of Hagonoy for
investigation. Amalia’s statement was taken.12
On 25 March 1997, Amalia brought Remelyn to the Hagonoy Health Center in
Davao del Sur. Dr. Patricio Hernane, the municipal health officer,13 conducted
a genital examination of Remelyn, and made the following findings:
GENITAL EXAMINATION:
Absence of Pubic Hair (Tanner Stage I). No contusions are noted on the
external genitalia. Dried blood are (sic) noted on the labia minora. Fresh
hymenal lacerations are noted at 12, 3, 6, 10 o’clock (sic) are noted with fresh
vaginal laceration noted at the posterior commissure but not extending to the
perineum. No lacerations were noted at the anal opening.
Speculum examination is not done because even exposure of the labia minora
make the child cry. (sic)
CONCLUSION: Physical virginity lost.14
The doctor opined that the lacerations could have been caused by the
insertion of a foreign object, such as the penis of a man.15
On 26 March 1997, Amalia executed her affidavit complaint.16 Amalia stated
therein that Remelyn had told her "Buang Lendoy iya kong lugos."17 (Meaning
"crazy lendoy he forced me" in the Visayan dialect.) Amalia confirmed in her
testimony that two weeks after the incident, Remelyn told her, "Ma, Lendoy is
crazy, she (sic)brought me to the ipil-ipil trees."18
The prosecution also presented Tulon Mik, Remelyn’s neighbor and a
barangay kagawad in their area. Mik testified that on 24 March 1997, at about
4:00 p.m., he and his wife were on their way home after registering at the
COMELEC office. They were in a hurry as their child was running a fever. Mik
saw appellant carrying a small girl in his arms.19 He identified the little girl as
Remelyn Loyola, daughter of Amalia Loyola. Appellant and Remelyn were on
their way toward the ipil-ipil trees.20
The next morning, 25 March 1997, at about 7:00 a.m., a neighbor informed
Mik that Remelyn had been raped. He proceeded to the house of the quack
doctor where Amalia brought Remelyn for examination. Amalia confirmed to
Mik that Remelyn had been raped. Mik told Amalia that appellant committed
the crime. Mik then informed Barangay Official Rodrigo Malud 21 and the
other tanods of the incident. They were instructed to locate the appellant.
They passed to the police the information that appellant was in Barangay
Mahayahay. The policemen came and took appellant for investigation. 22
The appellant, ROLENDO GAUDIA, interposed the defense of alibi. He averred
that on 24 March 1997, at about 4:00 p.m., he went to the Barangay Center to
register at the COMELEC for the National Elections. With him was Totong
Loyola, the brother-in-law of Amalia Loyola. They finished at 5:00 p.m., left
and repaired to the house of Catalina Cabano, appellant’s aunt, to ask for
vinegar for their kinilaw (a dish composed of raw fish steeped in vinegar).
They found Daylen Cabano, the small grandchild of Catalina, alone at her
house. Daylen was crying, hence, they brought her with them as they
proceeded to the place where Catalina was collecting tuba (fermented
coconut wine). It was appellant who carried Daylen.23 They reached Catalina’s
place after 5:00 p.m. Thereafter, they went to the house of appellant. Dodo
Malon and appellant’s parents were in the house. At around 9:00 p.m., Totong
and Dodo Malon left, after partaking of the kinilaw. Appellant stayed home.
The following morning (25 March 1997), appellant and Dodo Malon went to
the river to fish. At about 12:00 noon, appellant repaired to the house of his
aunt, Victoria Gayod, in Mahayahay to drink tuba. He was located by the
police and investigated.24 He claimed that it was Daylen and not the victim
Remelyn whom he was carrying.
As corroborative witness, appellant presented Alex "Totong" Loyola. Totong
testified that on 24 March 1997, at about 4:00 p.m., they registered as voters
in the barangay. After registering, they went home to appellant’s house, but
again left to get vinegar from his aunt Catalina Cabano, for their kinilaw. In
Catalina’s house, they found her drunk husband, her 10-year old daughter,
and her 3-year old grandchild Daylen.25 Catalina’s daughter directed them to
the place where she was gathering tuba. As Daylen was crying, appellant
carried her on their way to Catalina. It was then about 4:00 p.m. After Catalina
finished gathering tuba, the four of them – appellant, Totong, Catalina and
Daylen, left together and repaired to Catalina’s house for the vinegar.
Appellant and Totong returned to appellant’s house where they spent the
night.26 Totong woke up at 6:00 a.m. the following day, and left appellant’s
house. Totong came to know of appellant’s arrest the following day.27
Catalina Cabano also corroborated appellant’s story. She relates that on 24
March 1997, she was gathering tuba, at a place around 2 kilometers from her
house. She left Maritess, her youngest child and Daylen, her grandchild, at her
house.28 At about 5:30 p.m., appellant and Totong arrived. Appellant was
carrying Daylen. They waited for Catalina to finish gathering tuba until 6:00
p.m. Appellant and Totong went to the former’s house, had a drinking spree,
and then parted ways at about 6:30 p.m. That night, according to Catalina, she
talked to Tulon Mik at the premises near the house. Mik was looking for
Remelyn. At that time, appellant was already at the house of Catalina’s
younger sister, which is located across the river, about 4 kilometers away. 29
After trial, the trial court found that there was sufficient circumstantial
evidence to convict appellant for the crime of rape with the qualifying
circumstance that the victim was below seven years of age. Appellant was
sentenced to death and ordered to indemnify the victim the sums of fifty
thousand pesos (₱50,000.00) as moral damages, thirty thousand pesos
(₱30,000.00) as exemplary damages, and to pay the costs of suit.
In his Brief30 to the Court, appellant assigned the following errors in the
judgment of the trial court:
I. The trial court erred in convicting the accused-appellant, rolando (sic) gaudia
despite the fact that his guilt was not proven beyond reasonable doubt.
II. Even granting without admitting that accused-appellant is guilty of the
crime charged, the trial court still erred in imposing the supreme penalty of
death despite the failure of the prosecution to state with certainty the
qualifying circumstance of age in the information.
We convict appellant for simple rape, and not for qualified rape.
Under Rule 133, Section 4 of the Revised Rules of Court, conviction may be
based on circumstantial evidence provided three requisites concur: (a) there is
more than one circumstance; (b) the facts from which the inferences are
derived are proven; and (c) the combination of all the circumstances is such as
to produce a conviction beyond reasonable doubt. The ruling case law is that
for circumstantial evidence to be sufficient to support a conviction, all
circumstances must be consistent with each other, consistent with the
hypothesis that the accused is guilty, and at the same time inconsistent with
the hypothesis that he is innocent and with every other rational hypothesis
except that of guilt.31
The first circumstantial evidence against the appellant is the testimony of
prosecution witness Tulon Mik that at 4:00 p.m. on 24 March 1997, he saw
him carrying Remelyn toward the direction of the ipil-ipil grove, some 130
meters from her house.32 As a neighbor and relative of Remelyn’s stepfather,
Mik had sufficient familiarity with the child Remelyn. The possibility that he
could have been mistaken in identifying the victim is nil.
The second circumstantial evidence against the appellant is Amalia’s
testimony that Remelyn emerged naked from the same ipil-ipil grove, with
ipil-ipil leaves clinging to her forehead. Remelyn was crying and walking with
her legs spread far apart. Remelyn’s private organ was bleeding and excreting
a white mucus-like substance.33
The third circumstantial evidence against appellant is Remelyn’s statement to
her mother that it was appellant who had brought her to the ipil-
ipil grove34 and forced her to do something against her will.35
There is no question that Remelyn was violated. After examining Remelyn, Dr.
Patricio Hernane, the Municipal Health Officer of Hagonoy, found her to have
a broken hymen, as well as fresh vaginal lacerations.
From these, the culpability of the appellant can be inferred with moral
certainty. All the aforementioned circumstances have been indubitably
proven, both by the testimonial and documentary evidence presented by the
prosecution, and by the inability of the appellant to discredit their veracity.
The attempt of appellant to discredit the circumstantial evidence against him
is futile. Appellant contends, first, that Tulon Mik’s testimony is weak, on the
ground that Mik is a relative of the husband of Amalia.36 He also questions the
credibility of Mik because of his failure to confront appellant when he saw
him carrying Remelyn. Neither did Mik inform Amalia about what he saw
when Amalia was looking for Remelyn. Appellant insists that it was Daylen
whom he carried and not Remelyn. Second, he stresses the fact that Remelyn
did not make any categorical statement that he sexually molested her. Third,
he maintains that the accusation of flight against him is false. Fourth, he avers
that the offer of compromise by his parents as tendered to Amalia Loyola
should not be taken against him,37 while the offer of compromise he allegedly
made to Amalia’s husband, as relayed by Amalia in her testimony, should be
excluded as evidence for being hearsay.38 Finally, he submits that
inconsistencies in the testimony of Alex Loyola and Cabano should not be
counted against him on the ground that any finding of guilt must rest on the
strength of the prosecution’s evidence.
We reject appellant’s arguments.
First, appellant’s attempt to discredit the testimony of Mik cannot succeed. It
is true that Mik is a relative by affinity of Amalia Loyola. It is hoary
jurisprudence, however, that mere relationship to one of the parties, without
a showing of any other improper motive, is not sufficient basis to impair the
credibility of the witness.39In the case at bar, appellant cannot impute any ill
motive for Mik to testify adversely against him.
Appellant questions the failure of Mik to challenge him why he was carrying
Remelyn. Also, he assails Mik for failing to inform Amalia Loyola of such a
sight. Mik had an explanation for the inadvertence. He said his own child was
down with a fever, and he and his wife were hurrying home.40 For this same
reason, he revealed the fact that he saw appellant carrying Remelyn toward
the ipil-ipil grove only when he learned of Remelyn’s fate. But thereafter, he
lost no time in reporting the matter to the barangay chairman. 41 As a
barangay kagawad, he also assisted in the pursuit and arrest of appellant at
Barangay Mahayahay.42 These subsequent actions strengthen Mik’s
credibility.
The trial court accorded more credence to Mik’s narration of the events over
the testimonies of Cabano and Loyola. It is a cornerstone of our jurisprudence
that the trial judge's evaluation of the testimony of a witness and its factual
findings are accorded not only the highest respect, but also finality, unless
some weighty circumstance has been ignored or misunderstood which could
alter the result of the judgment rendered. In the case at bar, there is no
irregularity in the assessment of evidence by the lower court. It granted
utmost credibility to Mik’s testimony. Given the direct opportunity to observe
the witness on the stand, the trial judge was in a vantage position to assess
his demeanor and determine if he was telling the truth or not.43 The trial court
found Mik’s testimony more worthy of credence over those of Catalina and
Loyola. We have no reason to reverse its findings.
Next, appellant tried to capitalize on the fact that Remelyn never made any
statement that he sexually molested her. This is a specious argument.
Remelyn had told her mother, "Crazy Lendoy forced me."44 Remelyn was 3 1/2
years old at the time. At such an infantile age, she could not be expected to
have a comprehension of the concept of rape. Studies show that children,
particularly very young children, make the "perfect victims". They naturally
follow the authority of adults as the socialization process teaches children
that adults are to be respected. The child’s age and developmental level will
govern how much she comprehends about the abuse and therefore how much
it affects her. If the child is too young to understand what has happened to
her, the effects will be minimized because she has no comprehension of the
consequences. Certainly, children have more problems in providing accounts
of events because they do not understand everything they experience. They
do not have enough life experiences from which to draw upon in making
sense of what they see, hear, taste, smell and feel. Moreover, they have a
limited vocabulary.45 The fact that Remelyn called appellant "Buang" or crazy
shows that he did something which she knew was not right or proper. By
saying "iya kong lugos," Remelyn clearly conveyed that he forced her to do
something bad. With her limited comprehension, the child could not have a
perfect way of relating that she had been sexually abused. Finally, it must also
be considered that there is no actual counterpart for the word "rape" in
Visayan parlance.
Appellant’s charge that the trial court erred when it ruled that he fled arrest,
even if correct, is not pivotal to his guilt. There are enough pieces of
circumstantial evidence to convict him. Neither will it affect the penalty or the
award of damages rendered against him.
Similarly, appellant’s charge that the offers of compromise allegedly made by
the parents of the appellant to Amalia, and by the appellant himself to
Amalia’s husband should not have been taken against him by the trial court,
even if sustained, will not exculpate him. To be sure, the offer of compromise
allegedly made by appellant to Amalia Loyola’s husband is hearsay evidence,
and of no probative value. It was only Amalia who testified as to the alleged
offer,46 and she was not a party to the conversation which allegedly transpired
at the Hagonoy Municipal Jail. A witness can only testify on facts which are
based on his personal knowledge or perception.47 The offer of compromise
allegedly made by the appellant’s parents to Amalia may have been the
subject of testimony48 of Amalia. However, following the principle of res inter
alios acta alteri nocere non debet,49 the actions of his parents cannot
prejudice the appellant, since he was not a party to the said conversation, nor
was it shown that he was privy to the offer of compromise made by them to
the mother of the victim. They cannot be considered as evidence against
appellant but we reiterate that these errors are not enough to reverse the
conviction of the appellant.
Appellant’s defense hardly impresses. It is interesting to note that appellant
and his witnesses claim that it was at around 5:00 p.m. when appellant carried
the child Daylen toward her grandmother Catalina at the place where she was
gathering tuba. Mik testified that it was around 4:00 p.m. when he saw
appellant carrying Remelyn toward the ipil-ipil grove. Given the 130-meter
distance between the ipil-ipil grove and the houses of appellant and of Amalia
Loyola, appellant could have easily taken Remelyn from her house, raped her
at the ipil-ipil grove, and left her there, all in a matter of a few minutes.
Sometime past 4:00 p.m., he could then have returned to his house, and
together with Alex Loyola, proceeded to the COMELEC office to register, and
did all the subsequent acts he claims to have done.
The Court also notes the inconsistencies in the testimonies of Catalina and
Loyola. The discrepancies in the witnesses’ narration as to the time of arrival
of appellant at the place where Catalina was gathering tuba, his time of arrival
at his own house, and the time when Loyola and appellant actually parted
ways, are not mere trivial details which could be forgotten by witnesses
because of the passage of time. To make matters worse, the appellant’s
testimony was, at times, contradicted by his own witnesses. Particularly
telling was the conflict between appellant’s statement that Totong had
already left his house on the night of 24 March 1997 and Totong and
Catalina’s own averments that Totong had stayed the night at appellant’s
house. These contradictory testimonies only made more incredulous
appellant’s tale.

We now review the penalty of death imposed upon appellant. In the case at
bar, the Information states that appellant, "by means of force and
intimidation…willfully, unlawfully and feloniously (had) carnal knowledge
with Remelyn Loyola, a minor, against her will to her damage and
prejudice."50 (emphasis ours) The Information did not allege that Remelyn was
below seven years old when she was violated. Appellant was therefore
charged with simple rape, under Section 335 of the Revised Penal Code, as
amended by Republic Act No. 7659 (the Death Penalty Law). Upon its passage,
R.A. No. 7659 introduced seven new attendant circumstances, which when
present, will transform the crime to qualified rape, punishable by death. We
again stress that these new attendant circumstances must be properly
pleaded in the information to justify the imposition of the death penalty. The
facts stated in the body of the information determine the crime for which the
accused stands charged and for which he must be tried.51 The main purpose of
requiring all the elements of a crime to be set out in the information is to
enable the accused to suitably prepare his defense. It would be a denial of the
right of the accused to be informed of the charges against him and,
consequently, a denial of due process, if he is charged with simple rape and be
convicted of its qualified form punishable with death, although the attendant
circumstance qualifying the offense and resulting in capital punishment was
not alleged in the indictment on which he was arraigned.52

We now review the damages awarded by the trial court. Time and again, we
have ruled that when there is a finding that rape had been committed, the
award of civil indemnity ex delicto is mandatory.53 If the death penalty has
been imposed, the indemnity should be ₱75,000.00; otherwise the victim is
entitled to ₱50,000.00 for each count of rape.54 Thus, the appellant is ordered
to pay the amount of ₱50,000.00 as civil indemnity to Remelyn Loyola.55

We affirm the award of moral damages. This is automatically awarded in rape

cases without need of further proof other than the commission of the crime,
as it is assumed that a rape victim has suffered moral injuries entitling her to
such an award.56

We also find the award of exemplary damages made by the lower court in
favor of complainant as proper because complainant has been correctly
granted moral damages and the offense against her was committed with the
aggravating circumstance57 of age. However, the amount awarded must be
reduced to ₱25,000.00 in line with prevailing jurisprudence.58

WHEREFORE, the judgment of conviction of the Regional Trial Court, Branch

19, of Digos, Davao del Sur in Criminal Case No. 213(97) is hereby MODIFIED.
Appellant is found guilty of the crime of simple rape, and is sentenced to
suffer the penalty of reclusion perpetua. He is ordered to pay to complainant
Remelyn Loyola the amounts of ₱50,000.00 as civil indemnity ex delicto,
₱50,000.00 as moral damages, and ₱25,000.00 as exemplary damages. Costs
against the appellant.

SO ORDERED.
G.R. No. 164481 September 20, 2005
CONRADO C. DOLDOL, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES and THE HONORABLE COURT OF
APPEALS, Respondent.
DECISION
CALLEJO, SR., J.:
Conformably to the Memorandum1 dated April 6, 1995 of the Provincial
Auditor, a team of State Auditors led by State Auditor Emilie S. Ritua, with
State Auditors Lydia Naoe and Beverly T. Cruz as members, conducted an
audit of the cash and cash account of Conrado C. Doldol, the Municipal
Treasurer of Urbiztondo, Pangasinan. The audit covered the General Fund,
Special Education Fund and Trust Fund in his custody for the period of
November 30, 1994 to June 8, 1995. Doldol and the Municipal
Accountant were present during the audit. The State Auditors discovered that
Doldol had a shortage of ₱801,933.26. They also noted that on June 5, 1995,
he made cash withdrawals from the municipality’s deposit account with the
Land Bank of the Philippines (LBP) amounting to ₱360,000.59. The
withdrawal, purportedly for salaries, wages, allowances and mid-year bonuses
of municipal officers and employees, had not been recorded in the General
Fund Cashbook as of June 8, 1995. The State Auditors also noted that Doldol
made adjustments in the said cashbook on June 8, 1995, increasing his
₱801,933.26 shortage to ₱1,134,421.54. In a Letter2 dated July 5, 1995, the
State Auditors demanded the immediate refund of the said amount, and for
Doldol to submit within 72 hours a written explanation on the said shortage.
Doldol failed to respond and was, thereafter, relieved of his duties. On July 20,
1995, he was directed to transfer the account to Assistant Municipal Treasurer
Loida Cancino.
The State Auditors then conducted another audit of the said account, this
time covering the period of June 8, 1995 to July 19, 1995. They discovered that
Doldol incurred an added cash shortage of ₱149,905.92. In a Letter to Doldol
dated July 27, 1995, the State Auditors demanded the immediate restitution
of the missing fund, and directed him to submit within 72 hours a written
explanation why he incurred such shortage. Again, Doldol failed to respond.
The State Auditors submitted their Report to the Provincial Auditor on their
examinations showing his shortages. On August 3, 1995, the State Auditors
submitted their Memorandum on the result of the audits to the Provincial
Auditor.
On the same day, Doldol wrote the Provincial Treasurer requesting that a re-
audit be conducted on his cash and cash account, taking exception to the
findings of the State Auditors.
Instead of pursuing his request for a re-audit, Doldol opted to refund the
missing funds. On September 15, 1995, he remitted ₱200,000.00 to the Acting
Municipal Treasurer for which he was issued Official Receipt No. 436756.
Doldol promised to pay the balance of his shortage, as follows: ₱200,000.00
on October 31, 1995, and ₱884,139.66 on or before November 30, 1995.
However, he reneged on his promise.
On February 6, 1996, the Provincial Auditor transmitted the Memorandum
and Consolidated Report of the State Auditors to the Ombudsman, and
requested that Doldol be charged for malversation of public funds. Despite
the extensions given to him, Doldol failed to file his counter-affidavit.
Two informations for malversation of public funds were then filed against
Doldol in the Regional Trial Court (RTC) of San Carlos City. The first
Information, docketed as Criminal Case No. SCC-2760, reads:
That on or about June 8, 1995, or sometime prior or subsequent thereto, in
Urbiztondo, Pangasinan, Philippines and within the jurisdiction of this
Honorable Court, CONRADO C. DOLDOL, a public officer, being then the
Municipal Treasurer, Municipality of Urbiztondo, Pangasinan, and as such
accountable for public funds received and/or entrusted to him by reason of
his office, acting in relation of his office and taking
advantage of the same, did then and there wilfully, unlawfully and
feloniously, use and benefit the amount of ONE MILLION ONE HUNDRED
THIRTY-FOUR THOUSAND FOUR HUNDRED TWENTY-ONE PESOS and 54/100
(₱1,134,421.54) from such public funds received by him by reason of his
office, to the damage of the government in the amount aforestated.
CONTRARY TO LAW.3
The second Information, docketed as Criminal Case No. SCC-2763, reads:
That sometime between June 8, 1995 and July 19, 1995 or sometime prior or
subsequent thereto, in Urbiztondo, Pangasinan, Philippines and within the
jurisdiction of this Honorable Court, CONRADO C. DOLDOL, a public officer,
being then the Municipal Treasurer, Municipality of Urbiztondo, Pangasinan,
and as such accountable for public funds received and/or entrusted to him by
reason of his office, acting in relation of his office and taking advantage of the
same, did then and there wilfully, unlawfully and feloniously, take,
misappropriate and convert to his personal use and benefit the amount of
ONE HUNDRED FORTY-NINE THOUSAND NINE HUNDRED FIVE PESOS and
92/100 (₱149,905.92) from such public funds received by him by reason of his
office, to the damage of the government in the amount aforestated.
CONTRARY TO LAW.4
Doldol testified that the funds which the State Auditors found missing were,
in fact, cash advances availed of by the municipal employees. He insisted that
not a single centavo was used for his personal benefit. He averred that the
charges lodged against him were premature because the same were based on
an incomplete audit.
In a Joint Decision, the trial court convicted the accused of the crimes charged.
The fallo of the decision reads:
WHEREFORE, premises considered, the accused Conrado Doldol is hereby
found guilty beyond reasonable doubt of the crime of Malversation of Public
Funds in Criminal Case No. SCC-2760 and in Criminal Case No. SCC-2763, as
defined and penalized by Art. 217 of the Revised Penal Code. In both cases,
the amount involved is more than ₱22,000.00, as such the penalty to be
imposed is reclusion temporal in its maximum period to reclusion perpetua.
Considering that the accused surrendered to the police in Urbiztondo,
Pangasinan (See Exh. 4) and being entitled to the provision of [the]
Indeterminate Sentence Law, he is hereby sentenced to suffer an
indeterminate penalty of 10 years, 1 day of prision mayor as minimum to 18
years, 8 months of reclusion temporal as maximum in each of the two cases.
Further, he is ordered to pay the amount of ₱1,134,421.54 in Criminal Case
No. SCC-2760 and another amount of ₱149,905.92 in Criminal Case No. SCC-
2763 minus, of course, his advance payment of ₱200,187.80. In addition, he
should be made to suffer the accessory penalties corresponding to the
principal penalty imposed upon him which includes perpetual absolute
disqualification (Art. 41, Rev. Penal Code) and to pay the costs.
SO ORDERED.5
On appeal to the Court of Appeals (CA), Doldol alleged:
1. That the trial court erred in rejecting the defenses put up by the accused as
follows:
a. The evidence shows that the audits were not yet completed when the
letters of demand were served upon him to produce the alleged missing
funds.
b. He was not given the chance to further verify the records despite his
request to that effect.
c. There is no evidence that he took the money from the vault or brought it
home.
d. The missing funds, if any, were cash advances of certain municipal
employees.
e. His having borrowed money from the bank negates the charge of
misappropriation of public funds.
2. That the trial court erred in convicting the accused based on the testimonies
of the auditors and the documentary evidence adduced by them.
3. That the trial court erred in sentencing the accused to suffer the penalties
imposed by the assailed joint decision.6
On February 11, 2001, the CA rendered judgment affirming the appealed
decision, and, likewise, denied Doldol’s motion for reconsideration thereof.
Doldol, now the petitioner, forthwith filed the present petition for review
on certiorari, faulting the CA as follows:
1. In affirming the joint decision of the Regional Trial Court, Branch 56, San
Carlos City, Pangasinan in Crim. Case Nos. SCC-2760 and SCC-2763;
2. In convicting the accused-petitioner on the basis of an erroneous and
incomplete audit;
3. In not dismissing the cases against the accused-petitioner.7
The petitioner reiterates his arguments that the audit of his accountabilities
had not been completed because the State Auditors had yet to conduct a
verification of their initial findings based on the cashbook and a reconciliation
of the bank deposits of the municipality. The petitioner insists that the State
Auditors did not submit any bank reconciliation statement. The petitioner
argues that he was never given a chance to explain and point out that he did
not incur any shortage of public funds, and that the charges against him
should be dismissed. To bolster his claim, he cites the ruling of this Court
in Dumagat v. Sandiganbayan8 and Section 560 of the Manual of Instructions
to Treasurers and Auditors and other Guidelines to bolster his claim.
The petitioner asserts that the prosecution failed to prove that the public
funds were for his personal use. In fact, the petitioner insists, the evidence
shows that the alleged missing funds were unliquidated cash advances of
employees. Hence, the petitioner concludes, the prima facie presumption
under the last paragraph of Article 217 of the Revised Penal Code does not
apply.
In its comment on the petition, the Office of the Solicitor General (OSG)
asserts that the issues raised by the petitioner are factual and, under Rule 45
of the Rules of Court, only questions of law may be raised. The OSG posits that
the findings of facts of the trial court, as affirmed by the CA, are conclusive on
this Court, absent a showing that the trial court ignored, misconstrued or
misunderstood cogent facts and circumstances which, if considered, would
change the outcome of the case. The OSG maintains that the prosecution
adduced proof beyond reasonable doubt that the petitioner malversed the
public funds subject of the two Informations. Moreover, the petitioner’s
contention that the charges against him were premature, because the audit of
his accountabilities had not yet been completed and he was not given a
chance to explain the whereabouts of the subject funds before the said
charges were filed, is belied by the fact that he even made a partial restitution
of the public funds. The OSG notes that as found by the trial court, the
petitioner even failed to specify the names of the employees who were
granted cash advances and the accounts of the said advances. It further avers
that the ruling of this Court in Dumagat v. Sandiganbayan9 does not apply
because:
In his vain attempt to exculpate himself from criminal liability, petitioner
invokes the doctrine established in Dumagat vs. Sandiganbayan, et al., [211
SCRA 171, 177 (1992)]], wherein this Honorable Court acquitted the accused
of the crime of malversation of public funds, holding that "[s]ince the audit
examination left much to be desired in terms of thoroughness and
completeness as there were accounts which were not considered, the same
cannot be made the basis for holding petitioner liable for malversation."
It is submitted that the ruling in Dumagat vs. Sandiganbayan (supra) is not
applicable to the instant case as the two cases are based on different factual
circumstances.
In the first place, in Dumagat vs. Sandiganbayan (supra, at p. 178), there was
a finding that the "haphazard examination of the cash accountability of
petitioner" was made by the auditor "in violation of the Manual of
Instructions to Treasurers and Auditors" and that "the ‘missing’ funds would
have been ‘discovered’ if only the auditor took into consideration the
contents of the two vaults in Sindangan and Tampisilan and the fact that her
collection in Dipolog City were deposited with the NFA cashier." In the instant
case, there was sufficient compliance with the Manual of Instructions to
Treasurers and Auditors as the two (2) auditing teams had completed their
examination and, thereafter, required herein petitioner to produce or explain
the shortages of funds in his custody. Notwithstanding the demand for him to
explain the shortages, petitioner totally disregarded the same and further
failed to produce upon demand the missing funds amounting to
₱1,134,421.54 and ₱149,905.92. There was, thus, nothing left for the team of
auditors to do in the instant case. If at all, State Auditor Ritua requested for
the return of petitioner’s cashbook and passbooks merely to reconcile and
confirm the correctness of their findings.10
The petition has no merit.
The evidence on record shows that the team of State Auditors conducted its
first audit of cash and cash accounts of the General Fund, Special Education
Fund and Trust Fund in the custody of the petitioner, and discovered that he
had a shortage of ₱1,134,421.54.11
In a Letter12 dated July 5, 1995, the State Auditors demanded that the
petitioner immediately produce the missing funds. He was also required to
submit within 72 hours a written explanation why the shortage occurred. In
the meantime, the State Auditors conducted another audit of the cash and
cash accounts of the petitioner during the period of June 8, 1995 to July 19,
1995, and he was found to have a shortage of ₱149,905.92. The petitioner was
informed of the results of the audit in a Letter dated July 27, 1995, where he
was directed to refund his shortage of ₱149,905.92 and to submit a written
explanation thereon within 72 hours.13 However, the petitioner failed to
respond to such demand, and failed to object to the findings and conclusions
of the State Auditors. It bears stressing that the petitioner was present during
the said audit.
While it is true that the petitioner requested for a re-audit on August 3, 1995
and objected to some of the findings of the audit team, he addressed the
letter-request to the Provincial Treasurer, and not to the Provincial Auditor of
Pangasinan. We note that while the Provincial Auditor had already signed the
Transmittal Letter dated August 3, 1995 on the State Auditor’s Report and
request for the petitioner’s prosecution for malversation of public funds, it
was filed only on February 6, 1996. In the meantime, the Provincial Auditor
never received any letter from the petitioner requesting for a re-audit of his
account.
Admittedly, State Auditor Ritua conducted an audit of the General Fund, the
Special Education Fund and Trust Fund Passbook, and the LBP and DBP
Passbooks on July 11, 1995 for verification and reconciliation purposes.
However, the petitioner was not barred from examining and receiving the
same, preparatory to the submission of his explanation to the State Auditors’
demand-letters. Indeed, the petitioner was even able to write the Provincial
Treasurer on August 3, 1995, and requested his objection to such findings. The
following findings and ratiocination of the CA, as supported by the evidence
on record, negate the submission of the petitioner:
… [T]he records at the depository banks confirmed the correctness of the
COA’s findings that there were, indeed, shortages in the funds under
appellant’s control, thus, rendering appellant’s request for a re-audit as a
mere superfluous and redundant procedure (TSN, Amando T. Sison; Emelie
Ritua, supra).
Appellant’s contention that he was not given the chance to verify the records
under audit despite a request to that effect deserves scant consideration. The
records show that appellant was twice afforded ample opportunity to
replenish the funds or explain the reason for its disappearance. Verily, this
could have been the perfect opportunity for the appellant to verify the
records and provide an acceptable reason behind the shortages in the
municipal funds under his custody. Appellant, however, on both instances
failed to reply to the demands given by the COA. For having refused "to face
the music," so to speak, and disregarded the demands sent by the COA,
appellant has only himself to blame if he has lost any opportunity to further
verify the financial records of the municipality.14
The record of the Ombudsman shows that the petitioner was required to
submit his counter-affidavit, but requested for time to do so, on his
representation that his request to the Commission on Audit for a re-audit was
still pending. It turned out that the petitioner made no such request.
Moreover, the petitioner failed to submit his counter-affidavit to the
Ombudsman. Thus, the petitioner’s submission that the audit of his account
had not been completed before the report of the State Auditors was referred
to the Ombudsman is not correct.
Except for his bare testimony, the petitioner offered no competent and
credible evidence to prove that the missing funds were actually cash advances
of employees in the municipality. The petitioner could have offered in
evidence the documents evidencing the names of the recipients and amounts
of the cash advances, but failed to do so. Moreover, the petitioner wrote the
Provincial Auditor and offered to refund the missing funds as follows:
₱200,000.00 on September 15, 1995, ₱200,000.00 on or before October 31,
1995, and ₱884,139.66 on November 30, 1995. He was able to pay only
₱200,000.00 on September 15, 1995, and failed to remit the balance of his
shortage. Such partial restitution of the petitioners of the cash shortage is an
implied admission of misappropriation of the missing funds. The ruling of the
CA on this matter is correct:
As We have already stated hereinabove, on September 15, 1995, not too long
after the shortages in the municipal funds were discovered, appellant made a
partial payment/settlement in the amount of 200,187.80 pesos as evidenced
by Official Receipt No. 436756 (Exhibit "8," Record, Volume III, p. 6). With
respect to the balance of the missing funds, appellant promised to pay the
same in installment basis. Appellant, though, failed to comply with his
undertaking (Record, Volume I, p. 457; TSN, Amando T. Sison, July 27, 1998,
pp. 32-33). Said payment is of no moment and could not have legally brought
acquittal for the appellant. On the contrary, as guided by Section 27, Rule 130
of the Rules on Evidence, We hold that said payment, particularly when taken
in conjunction with appellant’s commitment to gradually pay the remainder of
the missing funds, is a clear offer of compromise which must be treated as an
implied admission of appellant’s guilt that he embezzled or converted the
missing funds to his personal use.15
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. The
Decision of the Court of Appeals in CA-G.R. CR No. 25845 is AFFIRMED. Costs
against the petitioner.
SO ORDERED.
[G.R. No. 144293. December 4, 2002]
JOSUE R. LADIANA, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
DECISION
PANGANIBAN, J.:
The Constitution bars the admission in evidence of any statement
extracted by the police from the accused without the assistance of competent
and independent counsel during a custodial investigation. However, a
counter-affidavit voluntarily presented by the accused during
the preliminary investigation, even if made without the assistance of counsel,
may be used as evidence against the affiant.
The Case
Before us is a Petition for Review under Rule 45 of the Rules of Court,
assailing the April 10, 2000 Decision[1] and August 4, 2000 Resolution[2] of the
Sandiganbayan (First Division) in Criminal Case No. 16988. The dispositive
portion of the assailed Decision reads as follows:
WHEREFORE, judgment is hereby rendered finding accused JOSUE R.
LADIANA GUILTY beyond reasonable doubt of the crime of homicide and, in
the absence of any modifying circumstance, sentencing the said accused to:
(a) suffer an indeterminate sentence of imprisonment of ten (10) years
of prision mayor, as minimum, to seventeen (17) years and four (4) months
of reclusion temporal, as maximum[;] (b) suffer all the appropriate accessory
penalties consequent thereto; (c) indemnify the heirs of the victim, Francisco
San Juan, in the total amount of Fifty Six Thousand Five Hundred Pesos
(P56,500.00); and (d) pay the costs.[3]
The assailed Resolution denied petitioners Motion for Reconsideration.
Petitioner was originally charged with murder before the
Sandiganbayan in an Information[4] dated August 5, 1991. However, the anti-
graft court issued an Order[5] dated October 14, 1991, noting that besides the
allegation that the crime was allegedly committed by the accused while he
was taking advantage of his official position, nothing else is in the Information
to indicate this fact so that, as the Information stands, nothing except a
conclusion of fact exists to vest jurisdiction [in] this Court over the accused
and over the crime for which he is charged.
Further, the Order gave the government sufficient time to amend the
Information to show adequate facts to vest the Sandiganbayan with
jurisdiction over the case. Subsequently, an Amended Information,[6] still
charging petitioner with murder, was filed on April 1, 1992. The accusatory
portion reads as follows:
That on or about the 29th day of December 1989, in the Municipality of
Lumban, Laguna, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, a public officer, being then a member of the
Integrated National Police (INP now PNP) assigned at the Lumban Police
Station, Lumban, Laguna, acting in relation to his duty which is primarily to
enforce peace and order within his jurisdiction, taking advantage of his official
position confronted Francisco San Juan why the latter was removing the steel
pipes which were previously placed to serve as barricade to prevent the entry
of vehicles along P. Jacinto Street, Barangay Salac, Lumban, Laguna, purposely
to insure the safety of persons passing along the said street and when
Francisco San Juan told the accused that the latter has no business in stopping
him, said accused who was armed with a firearm, with intent to kill and with
treachery, did then and there willfully, unlawfully and feloniously attack and
sho[o]t Francisco San Juan with the firearm hitting Francisco San Juan at his
head and neck inflicting upon him fatal wounds thereby causing the death of
Francisco San Juan.[7]
During his arraignment on May 8, 1992, petitioner, assisted by his
counsel de parte,[8] pled not guilty.[9] After due trial, the Sandiganbayan found
him guilty of homicide, not murder.
The Facts
In their Memoranda, both the prosecution and the defense
substantially relied upon the Sandiganbayans narration of the facts as follows:
The prosecution presented five (5) witnesses, namely: Caridad M. San Juan,
PO2 Leopoldo Cacalda, Dr. Rogelio M. Javan, SPO2 Percival A. Gabinete, and
Maria T. Cortez. Their respective testimonies, in essence are as follows, to wit:
1. CARIDAD MARGALLO SAN JUAN (hereinafter, Caridad) declared that she is
the wife of Francisco San Juan (hereinafter Francisco), the victim in the case at
bar. Caridad testified that Francisco was the Barangay Captain of Barangay
Salac, Lumban, Laguna, until he was shot and killed by accused Ladiana, who
happens to be also a distant relative of the decedent.
Caridad recounted that, on December 29, 1989, she was in her house when an
unidentified woman came and told her that her husband was killed by
accused Ladiana. She immediately called up her sister-in-law before rushing to
Jacinto Street where the gruesome incident allegedly transpired. Thereat,
many people were milling around, and Caridad saw the lifeless body of
Francisco lying in the middle of the road and being examined by [SPO2]
Percival A. Gabinete.
Caridad recalled that it was around 11:00 oclock a.m. when she reached the
place of the subject incident. At that point in time, she was not even allowed
by the police to touch, much less get near to, the cadaver of
Francisco. Caridad, expectedly, was crying and one of her aunts advised her to
go home.
Caridad maintained that she was aware that her husband was killed by
accused Ladiana because this was what the woman actually told
her. Moreover, accused Ladiana had given himself up to the police authorities.
Caridad went on to narrate that, on December 30, 1989, she was at the police
station, where she gave her written statement before police investigator PFC
Virgilio Halili (hereinafter, Halili).
Additionally, Caridad presented the Death Certificate of her husband and
testified that he was eventually buried at the Lumban Cemetery. She declared
that she had incurred about Twenty Thousand Pesos (P20,000.00) for the
funeral, burial and other incidental expenses by reason of the death of
Francisco.
On cross-examination, Caridad testified that, on December 29, 1989, she was
in her house and that she did not hear any gunshot between 10:30 and 11:00
oclock a.m. Caridad also admitted she did not witness the killing of her
husband.
On questions propounded by the Court, Caridad narrated that her husband
suffered two gunshot wounds - one on the upper right temple and the other
on the left cheek. However, Caridad stated that she was told that the wounds
were the entry and the exit points. She also told the Court that her husband
was wearing short pants at the time of his death and that she found some
bruises on his knees.
Finally, Caridad recalled that, on the date of the incident, her husband was
with his close friend, a certain Rodolfo Cabrera, and some other persons, and
that they went to Jacinto Street to repair the steel humps which were used to
block the street during school days for the protection and safety of the school
children.
2. PO2 LEOPOLDO DE RAMOS CACALDA, JR. (hereinafter, CACALDA) declared
that he is a policeman assigned at the Lumban Police Station in Lumban,
Laguna. He has been designated as the radio operator of the station since
1989.
Cacalda recounted that, on December 29, 1989, at around 11:00 oclock a.m.,
somebody, whose name he could no longer recall, reported to him about an
existing trouble along Jacinto Street in Barangay Salac Cacalda responded by
going to the scene, where he was accompanied by Alberto Mercado, a
member of the CAGFIL. Thereat, Cacalda saw the lifeless body of Francisco
lying face up on the road. Cacalda did not examine the body of Francisco. He
left the place of the incident when [SPO2] Percival A. Gabinete and other
policemen subsequently arrived.
Cacalda had gathered from the people milling around the body of Francisco
that it was accused Ladiana who shot and killed Francisco. Cacalda
immediately left to look for accused Ladiana. However, he eventually saw
accused Ladiana already inside the jail of the police station and thereafter
learned that said accused had surrendered to the police authority.
Cacalda recalled that he was later on investigated by Halili because he was the
responding policeman who went to the scene of the incident. Consequently,
Cacalda executed a written statement in relation to the subject incident.
On cross-examination, Cacalda testified that he was a radio operator and not
an investigator of the police station. He also testified that he did not witness
the incident subject matter of the case at bar.
Cacalda went on to testify that the people milling around the place of the
incident told him that accused Ladiana had already left. Because of this
development, Cacalda proceeded to accused Ladianaa house but was told that
he had already gone to the police station. Cacalda accordingly went to the
police station where he saw accused Ladiana already locked inside the jail. He
also saw a stab wound on accused Ladianas right bicep but he did not
anymore ask him how he sustained the said injury.
3. DR. ROGELIO JAVAN y MAGRACIA (hereinafter, Javan) declared that he is a
physician and the Municipal Health Officer of Lumban, Laguna.
Javan recounted that he was the one who performed the necropsy on the
cadaver of Francisco and that he had prepared the corresponding reports
and/or documents relating thereto. Javan made a sketch representing the
anterior and posterior views of the body of Francisco, and labeled and placed
red markings on the gunshot wounds found on the said cadaver. The marking
Gunshot wound A is the point of entry, which is one (1) centimeter in
diameter and situated two (2) inches behind the left ear. The marking
Gunshot wound B is the point of exit of Gunshot wound A, which is two (2)
centimeters in diameter and found above the right cheekbone and one (1)
inch below the right eye. Javan also testified that there is another gunshot
wound and the point of entry and exit are labeled as Gunshot wound C and
Gunshot wound D, respectively. Gunshot wound D is one and one-half (1-1/2)
centimeters in diameter and located at the left cheek, three and one-half (3-
1/2) centimeters below the left eye, while Gunshot wound C is one (1)
centimeter in diameter and found at the right lateral aspect of the neck, at the
level of the adams apple.
According to Javan, the assailant must be behind the victim when he inflicted
Gunshot wound A. As regards Gunshot wound C, the assailant likewise must
be behind the victim, at a distance of more than twenty-four (24) inches away.
Lastly, Javan testified that he was not able to retrieve any bullet during the
examination. However, judging from the size of the wound and the point of
entry, Javan opined that the firearm used was probably a caliber 38.
On questions propounded by the Court, Javan testified that Gunshot wound A
could have been fired first because the trajectory is on the same level so much
so that the assailant and the victim could have been both standing. Javan
inferred that Gunshot wound C could have been inflicted while the victim was
already falling down. Javan then stressed that both wounds are fatal in
nature.
4. SPO2 PERCIVAL AMBROSIO GABINETE (hereinafter, Gabinete) declared that
he is a police officer and a resident of No. 4055 Villa Josefina Subdivision, Sta.
Cruz, Laguna.
The testimony of Gabinete was subsequently dispensed with, upon the
admission of the defense that he was part of the group of policemen who
proceeded to the place of the subject incident and that he found the body of
Francisco lying along the road. Additionally, the defense admitted the
existence of the receipt issued by Funeraria de Mesa dated January 3, 1990 in
the sum of Six Thousand Five Hundred Pesos (P6,500.00).
5. MARIO TALAVERA CORTEZ (hereinafter, Cortez) declared that he is a retired
Assistant Prosecutor of Laguna.
Prior to the conduct of the examination-in-chief on Cortez, the defense
counsel made an admission as to the authorship, authenticity, and
voluntariness of the execution of the counter-affidavit of accused Ladiana,
which was subscribed and sworn to before Cortez. In said counter-affidavit,
accused Ladiana allegedly admitted to making the fatal shots on
Francisco. However, accused Ladiana allegedly did so in self-defense as
Francisco was then purportedly attacking accused Ladiana and had, in fact,
already inflicted a stab wound on the arm of accused Ladiana.
However, Cortez emphasized that he was not the one who conducted the
preliminary investigation of the complaint which led to the filing of the
subject case. Additionally, Cortez testified that he would not be able to
anymore recognize the face of the affiant in the said counter-affidavit, but
maintained that there was a person who appeared and identified himself as
Josue Ladiana before he affixed his signature on the counter-affidavit.
After the presentation of Cortez, the prosecution filed its formal offer of
evidence and rested its case.
On May 31, 1995, this Court issued a resolution admitting all the documentary
evidence submitted by the prosecution.
On August 20, 1996, accused Ladiana filed a Motion for Leave of Court to File
Demurrer to Evidence dated August 16, 1995, claiming that: (i) a review of the
documentary and testimonial evidence adduced by the prosecution allegedly
failed to show that the accused is guilty of the offense charged; (ii) at best, the
evidence submitted by the prosecution are allegedly hearsay in character,
considering that the supposed eyewitness in the person of Rodolfo Cabrera
was never presented in court; and (iii) the prosecution was allegedly merely
able to prove the fact of death of the victim, but not the identity of the person
who caused said death.
On August 23, 1996, this Court issued an Order of even date holding that the
filing of a demurrer to evidence is no longer appropriate considering that
accused Ladiana received a copy of this Courts resolution dated May 31, 1995
on the admission of the prosecutions documentary exhibits as early as May
25, 1995.
On September 2, 1996, in view of his perception that the evidence submitted
by the prosecution is allegedly inadequate to sustain a conviction, accused
Ladiana, through counsel, waived his right to present controverting
evidence. Instead, he asked for time to file a written memorandum. Thus,
both parties were given time within which to do so, after which the case shall
be deemed submitted for resolution.
Thereafter, this Court received on October 25, 1996 by mail the Memorandum
for the defense. As for the prosecution, it opted not to file any.[10] (Citations
omitted)
Ruling of the Sandiganbayan
The Sandiganbayan ruled that the prosecution had been able to
establish the guilt of petitioner beyond reasonable doubt. The court a
quo held that his Counter-Affidavit,[11] in which he had admitted to having
fired the fatal shots that caused the victims death,[12] may be used as evidence
against him. It underscored the admission made by the defense as to the
authorship, the authenticity and the voluntariness of the execution of the
Counter-Affidavit.[13] In short, it ruled that the document had sufficiently
established his responsibility for the death of the victim.However, it found no
evidence of treachery; thus, it convicted him of homicide only.[14]
Hence, this Petition.[15]
Issues
In his Memorandum, petitioner raises the following issues for this
Courts consideration:
I. Whether or not the Sandiganbayan may convict the accused-petitioner
beyond reasonable doubt of the crime of homicide even in the absence of any
eyewitness who personally saw the sho[o]ting of the victim by the accused,
basing it only on the testimony of the prosecutor who had administered the
oath on the Counter-affidavit filed by petitioner-accused.
II. Whether or not the prosecution has presented proof beyond reasonable
doubt to overcome the constitutional presumption of innocence of the
accused and his right against self-incrimination on the basis of the Counter-
affidavit whose execution was admitted by the counsel of the petitioner, but
not by the accused personally.
III. Whether or not the Counter-affidavit of the accused-petitioner which was
considered by the Sandiganbayan in its decision as similar to an extrajudicial
confession may [be] admitted against him as evidenc[e] of guilt beyond
reasonable doubt even if he was not assi[s]ted then by counsel and while he
was under custodial investigation.
IV. Whether or not the Sandiganbayan is constitutionally and legally correct in
issuing the Order of August 23, 1996 denying the Motion for Leave of Court to
File Demurrer to Evidence dated August 16, 1995 filed by the accused in
accordance with Sec. 15 of Rule 120 of the 1985 Rules on Criminal Procedure
in relation to Rule XXI of the Revised Rules of Sandiganbayan.
V. Whether or not accused is entitled to the mitigating circumstance of
voluntary surrender which fact was admitted by the prosecution as it even
used the same as proof of the guilt of the accused.[16]
In short, petitioner raises the following questions in this appeal: (1)
whether the Counter-Affidavit he executed during the preliminary
investigation of this case is admissible proof showing his complicity in the
crime, (2) whether the Sandiganbayan erred in denying his Motion for Leave
to File a Demurrer to Evidence, and (3) whether he is entitled to the mitigating
circumstance of voluntary surrender.
This Courts Ruling
The Petition is not meritorious.
First Issue: Admissibility of Counter-Affidavit
Undeniably, the resolution of this case hinges mainly on the
admissibility of the Counter-Affidavit[17] submitted by petitioner during the
preliminary investigation. He argues that no counsel was present when the
Affidavit was executed. In support of his argument, he cites the Constitution
thus:
SEC. 12. (1) Any person under investigation for the commission of an offense
shall have the right to be informed of his right to remain silent and to have
competent and independent counsel preferably of his own choice. If the
person cannot afford the services of counsel, he must be provided with
one. These rights cannot be waived except in writing and in the presence of
counsel.
xxxxxxxxx
(3) Any confession or admission obtained in violation of this or Section 17
hereof shall be inadmissible in evidence against him.[18]
It is well-settled that the foregoing legal formalities required by the
fundamental law of the land apply only to extra-judicial confessions or
admissions obtained during custodialinvestigations.[19] Indeed, the rights
enumerated in the constitutional provision exist only in custodial
interrogations, or in-custody interrogation of accused persons.[20]
Custodial interrogation is the questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise deprived of
his freedom of action in any significant way.[21]
In the present case, petitioner admits that the questioned statements
were made during the preliminary investigation, not during the custodial
investigation. However, he argues that the right to competent and
independent counsel also applies during preliminary investigations.
We disagree. A preliminary investigation is an inquiry or a proceeding
to determine whether there is sufficient ground to engender a well-founded
belief that a crime has been committed, and that the respondent is probably
guilty thereof and should be held for trial.[22]
Evidently, a person undergoing preliminary investigation before the
public prosecutor cannot be considered as being under custodial
investigation. In fact, this Court has unequivocally declared that a defendant
on trial or under preliminary investigation is not under custodial
interrogation.[23] It explained as follows:
His [accused] interrogation by the police, if any there had been would already
have been ended at the time of the filing of the criminal case in court (or the
public prosecutors office). Hence, with respect to a defendant in a criminal
case already pending in court (or the public prosecutors office), there is no
occasion to speak of his right while under custodial interrogation laid down by
the second and subsequent sentences of Section 20, Article IV of the 1973
Constitution [now Section 12, Article III of the 1987 Constitution], for the
obvious reason that he is no longer under custodial interrogation.[24]
There is no question that even in the absence of counsel, the
admissions made by petitioner in his Counter-Affidavit are not violative of his
constitutional rights. It is clear from the undisputed facts that it was not
exacted by the police while he was under custody or interrogation. Hence, the
constitutional rights of a person under custodial investigation as embodied in
Article III, Section 12 of the 1987 Constitution, are not at issue in this case.
However, the accused -- whether in court or undergoing preliminary
investigation before the public prosecutor -- unquestionably possess rights
that must be safeguarded. These include: 1) the right to refuse to be made
witnesses; 2) the right not to have any prejudice whatsoever imputed to them
by such refusal; 3) the right to testify on their own behalf, subject to cross-
examination by the prosecution; and 4) while testifying, the right to refuse to
answer a specific question that tends to incriminate them for some crime
other than that for which they are being prosecuted.[25]
We do not, however, agree with the Sandiganbayans characterization
of petitioners Counter-Affidavit as an extrajudicial confession. It is only an
admission. Sections 26 and 33 of Rule 130 of the Revised Rules on Evidence
distinguish one from the other as follows:
SEC. 26. Admissions of a party. The act, declaration or omission of a party as
to a relevant fact may be given in evidence against him.
SEC. 33. Confession. The declaration of an accused acknowledging his guilt of
the offense charged, or of any offense necessarily included therein, may be
given in evidence against him.
In a confession, there is an acknowledgment of guilt; in an admission,
there is merely a statement of fact not directly involving an acknowledgment
of guilt or of the criminal intent to commit the offense with which one is
charged.[26] Thus, in the case at bar, a statement by the accused admitting the
commission of the act charged against him but denying that it was done with
criminal intent is an admission, not a confession.[27]
The Counter-Affidavit in question contains an admission that petitioner
actually shot the victim when the latter was attacking him. We quote the
pertinent portion:
[K]aya itong si Kapitan San Juan ay sumugod at hinawakan ako sa may leeg ng
aking suot na T-shirt upang ako ay muling saksakin; sa dahilang hindi ako
makatakbo o makaiwas sa kabila ng aking pananalag hanggang magpaputok
ako ng pasumala sa kanya; sa bilis ng pangyayari ay hindi ko alam na siya ay
tinamaan;[28]
Through the above statement, petitioner admits shooting the victim --
which eventually led to the latters death -- but denies having done it with any
criminal intent. In fact, he claims he did it in self-defense. Nevertheless,
whether categorized as a confession or as an admission, it is admissible in
evidence against him.
Further, we do not doubt the voluntariness of the Counter-
Affidavit. Petitioner himself submitted it to the public prosecutor to justify his
actions in relation to the charges hurled against him.It escapes this Court how
he can cavalierly deny a document that he has voluntarily submitted and
originally relied upon in his defense.
In general, admissions may be rebutted by confessing their untruth or
by showing they were made by mistake. The party may also establish that the
response that formed the admission was made in a jocular, not a serious,
manner; or that the admission was made in ignorance of the true state of
facts.[29] Yet, petitioner never offered any rationalization why such admissions
had been made, thus, leaving them unrebutted. In addition, admissions made
under oath, as in the case at bar, are evidence of great weight against the
declarant. They throw on him the burden of showing a mistake.[30]
Petitioner contends that nowhere in the transcripts of this case can it
be found that he has admitted to the authorship, the authenticity or the
voluntariness of the Counter-Affidavit. We quote verbatim the proceedings in
the Sandiganbayan:
PJ GARCHITORENA
Well, he will identify the person who took the oath before
him. Will you deny that it was your client who took the
oath before the Fiscal at the preliminary investigation?
ATTY. ILAGAN
We will admit that, your Honor.
PJ GARCHITORENA
So in that case we will have no question about the
authorship, authenticity and the voluntariness of the
execution of the counter-affidavit dated July 31, 1990?
Companiero?
ATTY ILAGAN
Admitted, your Honor.[31]
The admissions of petitioner made through his counsel cannot be any
clearer. To be sure, the unbroken stream of judicial dicta is that, in the
conduct of their case, clients are bound by the actions of their counsels, save
when the latters negligence is so gross, reckless and inexcusable that the
former are deprived of their day in court.[32] Also, clients, being bound by the
actions of their counsels, cannot complain that the result of the litigation
might have been different had their lawyers proceeded differently.[33] A
counsel may err as to the competency of witnesses, the sufficiency and the
relevance of evidence, the proper defense, the burden of proof, the
introduction or the withholding of witnesses or pieces of evidence, or the
manner of arguing the case. This Court, however, has ruled several times that
those are not even proper grounds for a new trial, unless the counsels
incompetence is so gross that the clients are prevented from fairly presenting
their case.[34]
Having admitted that he had fatally shot the victim, petitioner had the
duty of showing that the killing was justified, and that the latter incurred no
criminal liability therefor.[35] Petitioner should have relied on the strength of
his own evidence and not on the weakness of that for the prosecution. Even if
his evidence be weak, it cannot be disbelieved after the accused has admitted
the killing.[36]
Petitioner argues that it was the prosecution that indirectly raised the
issue of self-defense. Hence, he could not be bound by it. This argument
deserves scant consideration. As discussed earlier, the declarations contained
in his Counter-Affidavit are admissions that may be used as evidence against
him.[37] The Sandiganbayan did not unfairly presume that he had indeed raised
the theory of self-defense, because this argument had already been laid out in
his Counter-Affidavit. No presumption was necessary, because the admission
was clear and unequivocal.
Neither do we believe petitioners claim that the anti-graft court
miserably failed to give equal effect or treatment to all the allegations found
therein (Counter-Affidavit) choosing deliberately and without reasonable
basis the parts which are incriminating in character, and ignoring without
sufficient legal basis the exculpatory assertions of the accused.[38]
The unsubstantiated and uncorroborated statements of petitioner in
his Counter-Affidavit are utterly insufficient to discharge his burden of proving
that the act of killing was justified. It is hornbook doctrine that self-defense
must be proved with certainty by sufficient, satisfactory and convincing
evidence that excludes any vestige of criminal aggression on the part of the
person invoking it.[39] It cannot be entertained if it is uncorroborated by any
separate and competent evidence, and it is also doubtful.[40] The question
whether the accused acted in self-defense is essentially a question of fact
properly evaluated by the lower court; in this case, the Sandiganbayan.[41]
to a person in authority. Neither is there any finding that he has evinced a
desire to own to any complicity in the killing.
We have ruled in the past that the accused who had gone to the police
headquarters merely to report the shooting incident did not evince any desire
to admit responsibility for the killing.Thus, he could not be deemed to have
voluntarily surrendered.[57] In the absence of sufficient and convincing proof
showing the existence of indispensable circumstances, we cannot appreciate
voluntary surrender to mitigate petitioners penalty.
WHEREFORE, the Petition is DENIED and the assailed Decision and
Resolution AFFIRMED. Costs against petitioner.
SO ORDERED.

By itself, the Counter-Affidavit miserably fails to establish the requisites

of self-defense enumerated in the law.[42] Had petitioner been more vigilant in
protecting his rights, he could have presented clear and cogent evidence to
prove those elements. But, as found by the court a quo, he not only failed to
discharge the burden of proving the existence of the justifying circumstance of
self-defense; he did not even bother to present any evidence at all. [43] So, we
do not see how the Sandiganbayan could have been selective in its treatment
of his Counter-Affidavit.

Verily, if the accused fails to discharge the burden of proving the

existence of self-defense or of any other circumstance that eliminates criminal
liability, his conviction shall of necessity follow, on the basis of his admission
of the killing.[44] Upholding this principle does not in any way violate his right
to be presumed innocent until proven guilty. When he admitted to having
killed the victim, the burden of proving his innocence fell on him. It became
his duty to establish by clear and convincing evidence the lawful justification
for the killing.

Therefore, petitioner can no longer invoke his constitutional right to be

presumed innocent of the crime charged.[45] As far as he is concerned,
homicide has already been established. The fact of death and its cause were
established by his admissions coupled with the other prosecution evidence
including the Certificate of Death,[46] the Certificate of Post-Mortem
Examination[47]and the Medico-Legal Findings.[48] The intent to kill is likewise
presumed from the fact of death.[49]

Second Issue:

Denial of Motion for Leave to File Demurrer

Petitioner then argues that the Sandiganbayan erred in not giving due
course to his Motion for Leave to File Demurrer to Evidence. He brands this
denial as legally and constitutionally wrong.[50]

We disagree. Prior leave to file a demurrer to evidence is discretionary

upon the trial court.[51] And, unless there is grave abuse amounting to lack or
excess of jurisdiction in its denial, the trial courts resolution may not be
disturbed.[52]

Final Issue:

Voluntary Surrender

After vigorously arguing against his own Counter-Affidavit, petitioner,

in a surprising change of tenor, implores this Court to consider his voluntary
surrender to the police authorities as a mitigating circumstance. He argues
that two of the prosecution witnesses testified that he had surrendered to the
police authorities after the shooting incident.[53] To buttress his argument, he
contends that the main reason for his voluntary surrender is that he sincerely
believe[d] that he was legally justified in defending himself as a policeman
when he fought the victim after he was attacked by the latter.[54] It goes
without saying that this statement only reaffirms the admissions contained in
his Counter-Affidavit, which he so vehemently tried to discredit.

For voluntary surrender to mitigate criminal liability, the following

elements must concur: 1) the offender has not been actually arrested, 2) the
offender surrenders himself to a person in authority or to the latters agent,
and 3) the surrender is voluntary.[55] To be sufficient, the surrender must be
spontaneous and made in a manner clearly indicating the intent of the
accused to surrender unconditionally, either because they acknowledge their
guilt or wish to save the authorities the trouble and the expense that will
necessarily be incurred in searching for and capturing them.[56]

The only pieces of evidence in support of the plea of voluntary

surrender made by petitioner are statements made by two (2) prosecution
witnesses that they were allegedly told by other people that he had already
gone to the police station. There is no showing that he was not actually
arrested; or that when he went to the police station, he surrendered himself
G.R. Nos. 131799-801 February 23, 2004
THE PEOPLE OF THE PHILIPPINES, appellee
vs.
FELICIANO ULIT y TAMPOY, appellant.
DECISION
CALLEJO, SR., J.:
Before the Court on automatic review is the Decision1 dated December 17,
1997 of the Regional Trial Court of Makati City, Branch 62, in Criminal Cases
Nos. 97-385 to 97-388 finding appellant Feliciano Ulit y Tampoy guilty beyond
reasonable doubt of two counts of qualified rape.2 In the same decision, the
appellant was convicted of two counts of acts of lasciviousness. For each
count of rape, the trial court sentenced him to suffer the supreme penalty of
death, while for each count of acts of lasciviousness, the appellant was
sentenced to suffer imprisonment "from eight (8) years, eight (8) months and
one (1) day of prision mayor in its medium period, as minimum, to fifteen (15)
years, six (6) months and twenty (20) days of reclusion temporal in its medium
period, as maximum." The appellant was, likewise, ordered to indemnify the
victim Lucelle Serrano, the amount of ₱50,000 for each count of rape and
₱20,000 for each count of acts of lasciviousness.
The Indictments
Upon the sworn complaint of the victim Lucelle Serrano, four Informations
were filed against her uncle, the appellant. The docket number and the
accusatory portion of each Information reads:
Criminal Case No. 97-385
That sometime in the month of November 1996, in the City of Makati, Metro
Manila, Philippines, a place within the jurisdiction of this Honorable Court, the
above-named accused, who is the uncle of the complainant LUCELLE SERRANO
y ULIT, hence, her relative by consanguinity within the third civil degree, while
armed with a knife, by means of force, violence and intimidation, did then and
there willfully, unlawfully and feloniously have carnal knowledge of the
complainant LUCELLE SERRANO y ULIT, an eleven (11) year old girl, without
her consent and against her will, to her damage and prejudice.
CONTRARY TO LAW.3
Criminal Case No. 97-386
That sometime in the month of February 1997, in the City of Makati, Metro
Manila, Philippines, a place within the jurisdiction of this Honorable Court, the
above-named accused, who is the uncle of complainant LUCELLE SERRANO y
ULIT, hence her relative by consanguinity within the third civil degree, while
armed with a knife, by means of force, violence and intimidation, did then and
there willfully, unlawfully and feloniously have carnal knowledge of the
complainant LUCELLE SERRANO y ULIT, an eleven (11) year old girl, without
her consent and against her will, to her damage and prejudice.
CONTRARY TO LAW.4
Criminal Case No. 97-387
That sometime in the month of December 1996, in the City of Makati, Metro
Manila, Philippines, a place within the jurisdiction of this Honorable Court, the
above-named accused, with lewd design by means of force, violence and
intimidation, did then and there willfully, unlawfully and feloniously commit
acts of lasciviousness upon complainant LUCELLE SERRANO y ULIT, an eleven
(11) year old girl, by then and there kissing her and touching her sexual organ,
without her consent and against her will, to her damage and prejudice.
CONTRARY TO LAW.5
Criminal Case No. 97-388
That on or about the 2nd day of March 1997, in the City of Makati, Metro
Manila, Philippines, a place within the jurisdiction of this Honorable Court, the
above-named accused, with lewd design by means of force, violence and
intimidation, did then and there willfully, unlawfully and feloniously commit
acts of lasciviousness upon complainant LUCELLE SERRANO y ULIT, an eleven
(11) year old girl, by then and there dragging her inside a bathroom and
repeatedly kissing her on her checks [sic], without her consent and against her
will, to her damage and prejudice.
CONTRARY TO LAW.6
The appellant, assisted by counsel, pleaded not guilty during the arraignment.
Joint trial of all the cases ensued.
In the meantime, Lucelle was undergoing psychiatric treatment at the
Philippine General Hospital. On May 5, 1997, the prosecution presented her as
its first witness.
On direct examination, Lucelle testified that she was born on February 19,
1986.7 In November 1996, her uncle, the appellant, did something to her.
When the prosecution asked her what happened, Lucelle did not answer.
When asked if she wanted to continue with her testimony, again, she did not
respond. The trial was reset to June 2 and 9, 1997. When trial resumed on
June 9, 1997, Lucelle was questioned by the prosecution on direct
examination, but still, she gave no answer. She cried profusely in open court.
When asked by the court if she wanted to proceed with the trial, she
remained silent. The trial was reset anew to July 9 and 14, 1997.
In the meantime, the trial court ordered that Lucelle be subjected to physical
and psychological examinations at the National Center for Mental Health
(NCMH). Dr. Rochelflume Samson examined Lucelle and submitted her Report
dated August 29, 1997 with the following remarks and recommendation:
Based on clinical history, mental status examination and psychological
evaluation, this patient is suffering from Post-Traumatic Stress Disorder. This
illness is characterized by intense fear and feeling of helplessness whenever
she recalls her traumatic experience of being raped. It causes her intense
psychological distress whenever asked to talk about the rape scene or
incident. Thus, she avoids recollections of the trauma.
At present, she is still manifesting symptoms described above. She would be
having difficulties testifying in court because of this. She requires psychiatric
treatment at the Out-Patient Section.8
During the trial on July 14, 1997, Lucelle refused to take the witness stand.
The trial was reset to July 21, 1997.
During the hearing on October 20, 1997, the prosecution presented Lucelle
anew to continue with her testimony on direct examination. She declared that
the appellant raped her in November 1996 and many other times thereafter in
her residence at No. 7104 San Maximo Street, Makati City. Instead of asking
questions to elicit the facts and circumstances before and during the
commission of the crimes, the prosecutor asked Lucelle to identify her
signature in her sworn statement9 and to affirm the truth of its contents. She
did so. The public prosecutor then marked the sworn statement in evidence as
Exhibit "H," and then manifested to the court that he had no more questions
for the witness on direct examination.
On clarificatory questions by the court, Lucelle testified that she was born on
February 19, 1986. The appellant mounted her, removed her pants, poked a
knife at her and threatened her.10
On cross-examination, Lucelle testified that the appellant was her mother’s
older brother. In November 1996, she was not enrolled in any school. Her
father was working at a construction firm, the appellant was employed at the
Department of Environment and Sanitation in Makati City, while her
grandmother, who lived with her, worked as a maid in Bel Air Subdivison. Her
mother worked for one of her father’s cousins. On re-direct examination, the
prosecution elicited from Lucelle that the appellant raped her in November
1996 at 11:00 p.m. inside the room of her aunt Marina in her grandmother’s
house at No. 7104 San Maximo Street, Olympia, Makati City, and that her
aunt, Marina, and her Ate Sharon were inside the room. When asked where
her aunt and Ate Sharon were when she was being raped in her aunt’s room,
Lucelle did not respond. When asked why she did not respond to the
questions propounded to her during the previous hearings and why she had
been crying in open court, Lucelle replied that she was afraid of her uncle, the
appellant.
In her sworn statement,11 Lucelle alleged that sometime in November 1996,
she was sleeping in a room in the house. It was about 6 o’clock in the evening.
She was awakened when she felt someone kissing her on the cheek. When
she opened her eyes, she saw her uncle, the appellant, armed with a bladed
weapon (balisong). He poked the weapon on the left side of her neck. He
warned her that if she told her parents, he would kill her. He removed her
panties, undressed himself and mounted her. He then inserted his penis into
her vagina. She felt pain in her private part and cried. The appellant,
thereafter, left the room. Also during the month of November 1996, the
appellant continued kissing her whenever her parents were out of the house.
In December 1996, Lucelle was in the room when the appellant entered and
kissed her and mashed her private parts. Sometime in February 1997, the
appellant again abused her (sinalbahe) while she was in the same room. It
was about 11 o’clock in the evening. He again warned her not to divulge to
her parents what he did to her. At 9:00 p.m. on March 2, 1997, Lucelle
urinated in the bathroom and when she was about to go out, the appellant
entered, pushed her inside and kissed her on her cheeks several times.
Celso Serrano, Lucelle’s father, testified that sometime in November 1996, at
dawn, he was in bed and noticed that the appellant was in the bedroom of his
cousin-in-law. Sometime later, he went to the bathroom. He then heard his
wife ask the appellant where he had come from and the latter replied that he
just came from the roof of the house. On another occasion, one early Sunday
morning, he noticed blood stains on Lucelle’s short pants. When she declared
that she had her monthly period, he gave her ₱5.00 with which to buy
sanitary napkins. Lucelle refused to accept the money. He suggested that she
wash herself but she just nodded her head. When he asked her why she
refused to accept the money, Lucelle replied that she was afraid to tell him
because she might be killed.
Lourdes Serrano testified that she was Lucelle’s mother. Lucelle was born on
February 19, 1986.12 She and her husband Celso Serrano and their daughter
Lucelle resided with her mother, Guadalupe Ulit, at No. 7104 San Maximo
Street, Olympia, Makati City. Her sister Marina and the appellant, her brother,
also resided in the same house. The family slept together in the evenings in
the sala of the house while Marina slept in her bedroom. At times, Marina
allowed her niece Lucelle to sleep in her bedroom. At 11:00 p.m. on February
19, 1997, Lourdes noticed that Lucelle was not at her side. The appellant, who
usually also slept in the sala, was not there either. Lourdes went to Marina’s
bedroom and saw Lucelle in bed (papag), covered with a blanket. Beside her
was the appellant who was wearing a pair of short pants and undershirt.
When the appellant saw Lourdes, he slid down from the bed, went under the
papag, and furtively left the room. When Lourdes removed the blanket, she
saw Lucelle lying sideways with her knees up to her chin (nakabaluktot).
Lucelle was trembling with fear. When Lourdes asked Lucelle what happened,
she did not respond. Lourdes left the room and went back to the sala. She
wanted to talk to the appellant but decided against it when she saw him
seated in the sala, playing with his balisong.
Lourdes further testified that at 9:00 p.m. on March 2, 1997, she and her
husband were having dinner when she noticed that Lucelle was nowhere to
be found. She looked for her daughter in the house, but failed to find her. She
then asked her cousin Nita if she had seen Lucelle. Nita replied in the
negative. When Lourdes asked Nita if Lucelle was inside the bathroom, Nita
responded that the appellant was using it. Momentarily, Lourdes saw the
appellant emerge from the bathroom. He was in his short pants and his shirt
was on his shoulder. He was perspiring profusely. Lourdes was flabbergasted
when she saw Lucelle come out of the bathroom after the appellant. Lucelle
was crying and looked pale. When Lourdes asked Lucelle why she was crying,
she told her mother that she had just urinated. The appellant later told her
sister Lourdes that he did not do anything to Lucelle.
Believing that the appellant had been abusing their daughter, Celso and
Lourdes brought Lucelle on March 5, 1997, to Barangay Chairman Romeo
Medina. On their way, Lucelle adamantly refused to tell her parents what the
appellant did to her. However, when they reached the barangay
headquarters, Lucelle told the barangay chairman that the appellant sexually
abused her. Thereafter, Lourdes filed a complaint with the barangay chairman
against the appellant for sexually molesting Lucelle.
Barangay Tanod Fernando David testified that on March 6, 1997, the barangay
chairman ordered him and Barangay Tanod Antonio Echavez to invite and
bring the appellant to the barangay hall. The barangay chairman asked the
appellant if he raped Lucelle and the latter replied that he did. A Sinumpaang
Salaysay was prepared in the Office of the Barangay Chairman in which the
appellant admitted that he raped Lucelle in February 1997, and on March 2,
1997, despite her resistance, and that he threatened to kill her and her family
if she divulged the incidents to her parents.13 The appellant signed his
statement in the presence of the barangay chairman and the barangay tanods.
From the barangay headquarters, the appellant was brought to the Makati
City Police Headquarters where Celso, Lourdes and Lucelle filed a complaint
against him for rape and acts of laciviousness. SPO4 Lilia Hogar of the
Women’s Desk Unit took the sworn statements of Lourdes and Lucelle.14 She
conducted a custodial investigation of the appellant who was without counsel
during which the latter admitted having raped the victim. SPO4 Hogar also
prepared a report on her investigation of the victim’s complaint.15
On July 28, 1997, Dr. Armie M. Soreta-Umil, NBI Medico-Legal Officer, testified
that on March 12, 1997, she conducted genital and vaginal examinations on
Lucelle and submitted Living Case Report No. MG-97-355 which contained the
following findings:
GENERAL PHYSICAL EXAMINATION:
Height: 141 cm. Weight: 78 lbs.
Normally developed, fairly nourished, conscious, coherent, cooperative,
ambulatory subject.
Breasts, developing, conical, firm. Areolae, light-brown, 2.6 cms. in diameter.
Nipples, light-brown, protruding, 0.8 cm. in diameter.
No extragenital physical injuries noted.
GENERAL EXAMINATION:
Pubic hair, fully grown, moderate. Labia majora, gaping. Labia minora,
coaptated. Fourchette, lax. Vestibular mucosa, pinkish. Hymen, tall, thick,
intact, distensible. Hymenal orifice, admits a tube 2.5 cms. in diameter.
Vaginal walls, lax. Rugosities, shallow.
CONCLUSIONS
1.) No evident sign of extragenital physical injuries noted on the
body of the subject at the time of examination.
2.) Hymen, intact but distensible, and its orifice wide (2.5 cms. in
diameter) as to allow complete penetration by an average-sized
adult Filipino male organ in full erection without producing any
genital injury.16
When the prosecution offered in evidence the appellant’s Sinumpaang
Salaysay before the barangay chairman17as part of the testimony of Barangay
Tanod Fernando David, the appellant objected to its admission on the ground
that the appellant was not assisted by counsel and that, he was forced and
coerced into signing the same. Nevertheless, the trial court admitted the
statement as part of David’s testimony. The appellant’s counsel, likewise,
objected to the admissibility of Lucelle’s sworn statement on the ground that
she was incompetent to give the same because of her mental illness. The trial
court admitted the sworn statement of Lucelle in evidence as part of her
testimony.
After the prosecution had rested its case, the trial court reset the hearing to
November 5, 1997 for the appellant to adduce his evidence. When the case
was called for trial on that date, his counsel manifested to the court that the
appellant was changing his plea in Criminal Cases Nos. 97-385 and 97-387
from "not guilty" to "guilty." He also manifested that he would no longer
adduce any evidence in his defense in Criminal Cases Nos. 97-386 and 97-388
because the prosecution failed to prove his guilt beyond reasonable doubt for
the crimes charged therein. The trial court suspended the proceedings and
gave the appellant forty-five minutes to confer with his counsel. When trial
resumed, the appellant reiterated his earlier manifestation. When told by the
court that he could be sentenced to death for the rape charges, the appellant
stood pat on his decision to plead guilty in Criminal Cases Nos. 97-385 and 97-
387, and to no longer present any evidence in his defense in the other two
cases. The appellant was re-arraigned in Criminal Cases Nos. 97-385 and 97-
387 with the assistance of the same counsel and entered his plea of guilty to
the charges.
On December 15, 1997, the trial court rendered judgment convicting the
appellant of all the crimes charged. The decretal portion of the decision reads:
WHEREFORE, premises considered, judgment is hereby rendered as follows:
1. In Criminal Case Nos. 97-385 and 97-386, for rape, the
prosecution has proven beyond reasonable doubt the guilt of the
accused, FELICIANO ULIT Y TAMPOY, as principal in the two counts
of statutory rape defined and penalized under Article 335 of the
Revised Penal Code, as amended. He is hereby declare[d]
CONVICTED in each of the cases. Accordingly he is sentenced to
suffer the supreme penalty [of] DEATH in each of the two cases;
and indemnify the victim LUCELLE SERRANO, in the amount of
P50,000 as moral damages for each of the cases;
2. In Criminal Case Nos. 97-387 and 97-388, for acts of
lasciviousness, the prosecution has proven beyond reasonable
doubt the guilt of the accused, FELICIANO ULIT Y TAMPOY, as
principal in two counts of acts of lasciviousness defined under
Article 336 of the Revised Penal Code and penalized under Section
5(b) of R.A. 7610. He is hereby declared CONVICTED in each of the
two cases; and, accordingly, he is sentenced to suffer in each of the
cases an indeterminate prison term from eight (8) years, eight (8)
months and one (1) day of prision mayor in its medium period, as
minimum, to fifteen (15) years, six (6) months and twenty (20) days
of reclusion temporal in its medium period, as maximum; and,
indemnify the victim, LUCELLE SERRANO, in the amount of P20,000
as moral damages for each of the cases.
SO ORDERED.18
The trial court declared that even prescinding from the appellant’s plea of
guilty, the prosecutor adduced proof beyond reasonable doubt of the guilt of
the appellant for qualified rape in Criminal Cases Nos. 97-385 and 97-386. The
trial court ruled that although Lucelle did not testify on the contents of her
sworn statement19 the same were admissible in evidence as part of the res
gestae.
The appellant did not appeal from the decision in Criminal Cases Nos. 97-387
and 97-388. In view of the trial court’s imposition of the death penalty on the
appellant in Criminal Cases Nos. 97-385 and 97-386, the said cases were
brought to this Court on automatic appeal.
The appellant assails the decision of the trial court with the lone assignment
of error, to wit:
THE TRIAL COURT ERRED IN SENTENCING THE ACCUSED FELICIANO ULIT WITH
A DEATH PENALTY DESPITE HIS ADMISSION OF GUILT.20
The appellant does not contest his conviction for rape in Criminal Cases Nos.
97-385 and 97-386, and the validity of the proceedings in the said cases in the
trial court. He pleads, however, that he be spared the death penalty. He
asserts that he was so remorseful for the crimes he committed and that he
pleaded guilty in Criminal Cases Nos. 97-385 and 97-387; he no longer
presented any evidence in Criminal Case No. 97-388 so that the proceedings
before the court would be shortened and simplified. Nevertheless, the appeal
in a criminal case is a review de novo and the court is not limited to the
assigned errors.21 An appeal thus opens the whole case for review, and the
appellate tribunal may consider and correct errors though unassigned and
even reverse the decision of the trial court on the grounds other than those
the parties raised as errors.22
Appellant’s Plea of Guilty in Criminal Case No. 97-385 was Imprudently Made.
In Criminal Case No. 97-385, the appellant was charged with qualified rape,
i.e., the rape of his niece, who was a minor, punishable by death under Article
335 of the Revised Penal Code, as amended by Republic Act No. 7659.
Undoubtedly, the appellant was charged with a capital offense. When the
appellant informed the trial court of his decision to change his plea of "not
guilty" to "guilty," it behooved the trial court to conduct a searching inquiry
into the voluntariness and full comprehension of the consequences of his plea
as mandated by Section 6, Rule 116 of the Revised Rules of Criminal
Procedure. In People vs. Camay,23 this Court enumerated the following duties
of the trial court under the rule:
1. The court must conduct a searching inquiry into the
voluntariness and full comprehension [by the accused] of the
consequences of his plea;
2. The court must require the prosecution to present evidence to
prove the guilt of the accused and precise degree of his culpability;
and
3. The court must require the prosecution to present evidence in
his behalf and allow him to do so if he desires.24
The raison d’etre for the rule is that the courts must proceed with extreme
care where the imposable penalty is death, considering that the execution of
such sentence is irrevocable. Experience has shown that even innocent
persons have at times pleaded guilty. Improvident pleas of guilty to a capital
offense on the part of the accused must be averted since by admitting his guilt
before the trial court, the accused would forfeit his life and liberty without
having fully understood the meaning, significance and the dire consequences
of his plea.25
There is no hard and fast rule as to how the trial judge may conduct a
searching inquiry. It has been held, however, that the focus of the inquiry
must be on the voluntariness of the plea and the full or complete
comprehension by the accused of his plea of guilty so that it can truly be said
that it is based on a free and informed judgment. In People vs. Aranzado,26 we
formulated the following guidelines as to how the trial court may conduct its
searching inquiry:
(1) Ascertain from the accused himself (a) how he was brought into
the custody of the law; (b) whether he had the assistance of a
competent counsel during the custodial and preliminary
investigations; and (c) under what conditions he was detained and
interrogated during the investigations. These the court shall do in
order to rule out the possibility that the accused has been coerced
or placed under a state of duress either by actual threats of
physical harm coming from malevolent or avenging quarters.
(2) Ask the defense counsel a series of questions as to whether he
had conferred with, and completely explained to, the accused the
meaning and consequences of a plea of guilty.
(3) Elicit information about the personality profile of the accused,
such as his age, socio-economic status, and educational
background, which may serve as a trustworthy index of his capacity
to give a free and informed plea of guilty.
(4) Inform the accused the exact length of imprisonment or nature
of the penalty under the law and the certainty that he will serve
such sentence. Not infrequently indeed an accused pleads guilty in
the hope of a lenient treatment or upon bad advice or because of
promises of the authorities or parties of a lighter penalty should he
admit guilt or express remorse. It is the duty of the judge to see to
it that the accused does not labor under these mistaken
impressions.
(5) Require the accused to fully narrate the incident that spawned
the charges against him or make him reenact the manner in which
he perpetrated the crime, or cause him to supply missing details or
significance.27
In People vs. Ostia,28 we held that the trial court is also required to probe
thoroughly into the reasons or motivations, as well as the facts and
circumstances for a change of plea of the accused and his comprehension of
his plea; explain to him the elements of the crime for which he is charged as
well as the nature and effect of any modifying circumstances attendant to the
commission of the offense, inclusive of mitigating and aggravating
circumstances, as well as the qualifying and special qualifying circumstances,
and inform him of the imposable penalty and his civil liabilities for the crime
for which he would plead guilty to.29
In this case, the trial court failed to make a searching inquiry into the
appellant’s voluntariness and full comprehension of his plea of guilty. This is
evident by the transcript of stenographic notes taken on November 5, 1998:
ATTY. MANALO
Your Honor, at today’s reception of defense’ evidence, accused informed this
representation that he will no longer present evidence and instead willing to
change his plea from not guilty to that of guilty. This accused’s representation
is therefore praying that he be allowed to change his plea from that of not
guilty to guilty.
COURT
You better confer with your client and explain to him the consequences of his
intended change of plea from not guilty to that of guilty.
ATTY. MANALO
Yes, Your Honor.
COURT (to the accused)
Is your counsel’s manifestation true, that you would like to change your plea
from not guilty to that of guilty and that you are no longer presenting
evidence in Criminal Cases Nos. 97-386 and 97-388?
ACCUSED
Yes, Your Honor.
COURT
(to the accused)
You talk with your lawyer and think twice before asking the court to change
your plea of not guilty to that of guilty. The Court will call your case again.
…
COURT
(to the accused)
Mr. Ulit, earlier your counsel informed the court that you would like to change
your plea from not guilty to that of guilty, in Criminal Case No. 97-385, for
rape and Criminal Case No. 97-387, for Acts of Lasciviousness, do you affirm
the manifestation of your counsel?
ACCUSED
Yes, Your Honor.
COURT
(to accused)
Do you know that you are accused here for the crime of rape, a capital offense
which carries with it a capital punishment?
ACCUSED
Yes, Your Honor.
COURT
(to accused)
Despite your knowledge that you are charged with a capital offense which
carries with it a capital penalty you still insists that you are pleading guilty?
ACCUSED
Yes, Your Honor.
COURT (to accused)
Was there anyone who forced you to change your plea of not guilty to that of
guilty?
ACCUSED
None, Your Honor.
COURT
(to accused)
Do you know that by pleading guilty you will be sentenced in accordance with
[what] the law provides?
ACCUSED
Yes, Your Honor.
COURT
(to accused)
Do you know that the penalty provided for by law is death penalty because
the Information states that the victim is eleven years old and your niece and
that you used a deadly weapon in the commission of the rape?
ACCUSED
Yes, Your Honor. I am willing to plead guilty.
COURT
Alright, arraign the accused.30
First. The trial court did not ask the appellant his reasons for changing his
plea, from not guilty to that of guilty, and the cogent circumstances that led
him to decide to do so.
Second. It appears in the Informations filed by the Public Prosecutor that the
appellant opted not to avail himself of his right to a regular preliminary
investigation and refused to execute a waiver under Article 125 of the Revised
Penal Code. The records also show that the appellant executed a Sinumpaang
Salaysay while detained at the barangay hall where he confessed to having
raped the victim in February 1997 and March 2, 1997. However, the trial court
did not ask the appellant whether he was assisted by counsel when he was
brought to the Office of the Public Prosecutor for inquest investigation.
Neither did the court a quo inquire about the circumstances and the
appellant’s reasons for refusing to execute the said waiver.
The records show that when the prosecution offered the appellant’s
Sinumpaang Salaysay in evidence to prove that he confessed to having raped
the victim in February 1997 and March 2, 1997, the appellant objected thereto
on the ground that he was not assisted by counsel and that he was coerced
into signing the same.
Third. The trial court also failed to ascertain from the appellant whether he
was assisted by counsel when he executed his Sinumpaang Salaysay while
detained at the barangay hall; and, if he was not so assisted by counsel,
whether he had waived his right thereto, before and when he signed his
Sinumpaang Salaysay.
Fourth. The trial court failed to ask the appellant why he was pleading guilty
to a rape committed in November 1996, when in his Sinumpaang
Salaysay,31 he confessed to having raped the victim only in February 1997 and
March 2, 1997. The appellant did not admit having raped her in November
1996 as alleged in the Information in Criminal Case No. 97-385. The trial court
did not even inquire from the appellant who prepared and typed his
Sinumpaang Salaysay and if the contents of his statement were explained to
him before he signed the same.
Fifth. The trial court did not explain the following to the appellant, in plain
and simple terms so as to be understood by him: (a) the elements of the crime
of qualified rape; (b) the circumstances of relationship and the minority of the
victim; and (c) that his plea of guilty to qualified rape would not mitigate the
penalty for the crime in light of Article 63 of the Revised Penal Code.
Sixth. It was not explained to the appellant that if convicted of qualified rape,
he would be civilly liable to the victim in the amount of ₱50,000 as moral
damages and ₱75,000 as civil indemnity ex delicto.
Seventh. Neither did the trial court inquire from the appellant’s counsel
whether the meaning and the consequences of a guilty plea were explained to
the appellant in a language or dialect known to and understood by him.
Eight. The trial court failed to delve into and ascertain from the appellant his
age, educational attainment and socio-economic status.
Ninth. The trial court failed to ask the appellant to narrate the facts and
circumstances surrounding the incident of qualified rape as charged in
Criminal Case No. 97-385.
Tenth. The appellant was not asked if he desired to adduce evidence in
Criminal Case No. 97-385 in spite of his plea of guilty.
As a rule, this Court has set aside convictions based on pleas of guilty in
capital offenses because of the improvidence thereof, and when such plea is
the sole basis of the condemnatory judgment.32 However, where the trial
court receives, independently of his plea of guilty, evidence to determine
whether the accused committed the crimes charged and the precise degree of
his criminal culpability therefor, he may still be convicted if there is ample
proof on record, not contingent on the plea of guilty, on which to predicate
conviction.33
In this case, the prosecution had already rested its case when the appellant
decided to change his plea. In fact, the trial court granted the prosecution’s
motion that the evidence it had presented be considered proof of the degree
of culpability of the appellant. It is, thus, incumbent upon this Court to
determine whether the evidence adduced by the prosecution in Criminal Case
No. 97-385 is sufficient to establish beyond reasonable doubt the appellant’s
guilt for qualified rape.
In determining the guilt of the accused in rape cases, the Court is guided by
the following considerations: (a) that an accusation of rape can be made with
facility; it is difficult to prove, but more difficult for the person accused,
though innocent, to disprove; (b) that in view of the intrinsic nature of the
crime which usually involves two persons, the testimony of the complainant
must be scrutinized with extreme caution; and (c) that the evidence for the
prosecution must stand or fall on its own merits and cannot be allowed to
draw strength from the weakness of the evidence of the defense. 34 It,
likewise, bears stressing that in all criminal prosecutions, without regard to
the nature of the defense which the accused may raise, the burden of proof
remains at all times upon the prosecution to establish his guilt beyond
reasonable doubt.35
The Prosecution Adduced Proof of the Appellant’s Guilt Beyond Reasonable
Doubt of the Crime of Rape in Criminal Case No. 97-385
We have reviewed the evidence on record and we are convinced that the
prosecution adduced proof beyond reasonable doubt that the appellant raped
the victim in November 1996. The victim declared in her sworn statement, on
direct examination and her testimony on clarificatory questions made by the
trial court, that indeed, the appellant raped her in November 1996. Quoted
hereunder is the testimony of Lucelle on direct and on re-direct examination:
Fiscal
Q So, matapos mong ituro ang tiyuhin mo, ano ang ginawa niya sa
iyo?
A Ginahasa niya ako.
Q Ilang ulit kang ginahasa?
A Marami po.
Q Kailan ka ginahasa ng tiyuhin mo?
A November po.
Q 19?
A 1996, po.
Q Saan ka ginahasa?
A 7104 San Maximo St., Makati City, po.36
…
Fiscal
Q Humigit-kumulang, anong oras ng gabi nang gahasain ka ng
Tito Ely mo noong Nobyembre 1996?
A Alas onse po ng gabi.
Q Samakatuwid, hindi na siya nagtratrabaho, wala na siya
sa trabaho?
A Wala na po.
Q Saang lugar ka ginahasa?
A Sa 7104 San Maximo St.
Q Sa loob ba ng bahay?
 A Opo.
Q Saang parte ng bahay ka ginahasa ng Tito mo?
A Sa kuwarto po.37
...
COURT
Q Noong Nobyembre 1996, ayon sa iyo ay ginahasa ka ng iyong
Tito. Saan ka ginahasa ng Tito mo?
A Sa 7104 San Maximo St., po.
Q Doon din sa bahay na iyong tinitirhan?
A Opo.38
In her Sworn Statement,39 Lucelle narrated in detail how the appellant
ravished her:
06. T: Kailan ka unang senalbahe ng iyong TITO ELY?
S: Noon pong Nobyembre 1996 hindi ko na po matandaan ang petsa, mga
bandang 6:00 ng gabi po nang ako ay natutulog sa loob po ng kuwarto ay
nagising na lang po ako nang maramdaman ko na may humahalik sa aking
pisngi, at nang ako po ay magising ay nakita ko po si TITO ELY na may hawak
na balisong na humigit kumulang po sa 10 pulgada ang haba na nakatutok sa
aking kaliwang leeg habang humahalik po sa aking pisngi at ang sabi ay kung
ako daw po ay magsusumbong sa aking magulang ay papatayin po niya (TITO
ELY) ako. Pagkatapos po ay hinubaran po ako ng panty at naghubad na rin po
si TITO ELY ng kanyang short pants at pumatong na po sa akin. Ipinasok po ni
TITO ELY and kanyang (TITO ELY) ari sa aking "PEPE" at ako po ay nasaktan at
umiyak na lang po ako at nang makaraos po si TITO ELY ay umalis na lang .…40
We do not agree with the ruling of the trial court that the contents of the
sworn statement of Lucelle are hearsay, simply because she did not testify
thereon and merely identified her signatures therein. By hearsay evidence is
meant that kind of evidence which does not derive its value solely from the
credence to be attributed to the witness herself but rests solely in part on the
veracity and competence of some persons from whom the witness has
received the information.41 It signifies all evidence which is not founded upon
the personal knowledge of the witness from whom it is elicited, and which,
consequently, is not subject to cross-examination.42 The basis for the
exclusion appears to lie in the fact that such testimony is not subject to the
test which can ordinarily be applied for the ascertainment of truth of
testimony, since the declarant is not present and available for cross-
examination. In criminal cases, the admission of hearsay evidence would be a
violation of the constitutional provision while the accused shall enjoy the right
to confront and cross-examine the witness testifying against him.43 Generally,
the affidavits of persons who are not presented to testify on the truth of the
contents thereof are hearsay evidence.44 Such affidavit must be formally
offered in evidence and accepted by the court; otherwise, it shall not be
considered by the court for the simple reason that the court shall consider
such evidence formally offered and accepted.45
In this case, Lucelle testified on and affirmed the truth of the contents of her
sworn statement which she herself had given. As gleaned from the said
statement, she narrated how and when the appellant raped and subjected her
to lascivious acts. She was cross-examined by the appellant’s counsel and
answered the trial court’s clarificatory questions. The prosecution offered her
sworn statement as part of her testimony and the court admitted the same
for the said purpose without objection on the part of the appellant.
The Prosecution Proved Beyond
Reasonable Doubt that the Appellant
Raped the Victim in February 1997
The trial court convicted the appellant of rape in Criminal Case No. 97-386 on
the basis of Lucelle’s sworn statement,46 the testimony of her mother, Lourdes
Serrano, the appellant’s statement47 executed in the Barangay Chairman’s
Office, and the testimony of Dr. Armie Soreta-Umil. We agree with the trial
court’s findings and conclusion.
First. In Lucelle’s sworn statement,48 she declared that the
appellant subjected her to sexual abuse.
Second. Lourdes saw Lucelle in bed (papag) in Marina’s room,
covered with a blanket beside the appellant who was wearing a
pair of short pants and undershirt. He slid down from the papag,
went under the bed and slipped outside. When Lourdes removed
the blanket, she saw Lucelle trembling with fear, lying sidewise, her
knees near her chin (nakabaluktot).
Third. The appellant admitted to the barangay chairman on March
5, 1997, that he raped Lucelle in February 1997:
Na, noong isang araw ng PEBRERO 1997, sa loob ng kuwarto ng aking kapatid
na babae, pumasok ako na nadatnang nakahiga si LUCILLE ULIT sa isang papag
na anyong natutulog. Lumapit ako sa kanya at pinaghihipuan sa maseselang
parte ng kanyang katawan at nang siya’y magising tinakot ko siyang huwag
sisigaw, habang siya ay aking hinuhubaran ng "Short" na kasama pati ang
kanyang "panty." Nagpupumiglas siya habang ako ay nakadagan sa kanya na
noon din ay hinuhubad ko ang aking "brief." Pinaghahalikan ko po siya habang
siya ay nagpupumiglas at umiiyak at noon din ay aking pinasok ang aking ari
sa kanyang ari. Umiiyak siya habang ang aking ari ay labas masok sa kanyang
ari. Nang ako ay makaraos ay tinakot ko siyang huwag magsusumbog sa
kanyang mga magulang.49
Although the appellant was not assisted by counsel at the time he gave his
statement to the barangay chairman and when he signed the same, it is still
admissible in evidence against him because he was not under arrest nor under
custodial investigation when he gave his statement.50
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. 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."51 The barangay
chairman52 is not deemed a law enforcement officer for purposes of applying
Section 12(1) and (3) of Article III of the Constitution. Under these
circumstances, it cannot be successfully claimed that the appellant’s
statement before the barangay chairman is inadmissible.
The Sufficiency of Evidence on Lucelle’s Relationship with the Appellant, her
Minority, and the Propriety of the Imposition of the Death Penalty
The appellant’s conviction for two counts of rape having been duly
established by the prosecution, we now come to the question of the penalty
to be meted upon him.
Article 335 of the Revised Penal Code, as amended by Section 11 of Republic
Act No. 7659, which was the law in effect at the time of the commission of the
subject rapes, provides in part:
ART. 335. When and how rape is committed. - Rape is committed by having
carnal knowledge of a woman under any of the following circumstances.
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise
unconscious; and
3. When the woman is under twelve years of age or is demented.
The crime of rape shall be punished by reclusion perpetua.
Whenever the crime of rape is committed with the use of a deadly weapon or
by two or more persons, the penalty shall be reclusion perpetua to death.
...
The death penalty shall also be imposed if the crime of rape is committed with
any of the following attendant circumstances:
1. When the victim is under eighteen (18) years of age and the offender is a
parent, ascendant, step-parent, guardian, relative by consanguinity or affinity
within the third civil degree, or the common-law spouse of the parent of the
victim.
...
The qualifying circumstances of minority and relationship must concur. More
importantly, they must be both alleged and proved, in order to qualify the
crime of rape and warrant the imposition of the death penalty.53 In addition to
the requirement that the qualifying and aggravating circumstance must be
specifically alleged in the information, it must be established with certainty
that the victim was below eighteen (18) years of age or that she was a minor
at the time of the commission of the crime. It must be stressed that the
severity of the death penalty, especially its irreversible and final nature once
carried out, makes the decision-making process in capital offenses aptly
subject to the most exacting rules of procedure and evidence.54
The relationship between the appellant and the victim has been adequately
established. The allegations in both Informations that the appellant is the
victim’s "uncle," "a relative by consanguinity within the third civil degree" is
specific enough to satisfy the special qualifying circumstance of relationship.
In People v. Ferolino,55 we said –
In this case the allegation that FERLYN is ANTONIO's niece is not specific
enough to satisfy the special qualifying circumstances of relationship. If the
offender is merely a relation - not a parent, ascendant, step-parent, or
guardian or common law spouse of the mother of the victim - it must be
alleged in the information that he is "a relative by consanguinity or affinity [as
the case may be] within the third civil degree." That relationship by
consanguinity or affinity was not alleged in the informations in these cases.
Even if it was, it was still necessary to further allege that such relationship was
within the third civil degree.56
The prosecution’s evidence has also shown that the appellant is the victim’s
uncle, being the older brother of the victim’s mother, a fact that the appellant
himself admitted.
The same cannot, however, be said with respect to the age of the victim. In
People v. Pruna,57 the Court, after noting the divergent rulings on proof of age
of the victim in rape cases, set out certain guidelines in appreciating age,
either as an element of the crime or as qualifying circumstance:
1. The best evidence to prove the age of the offended party is an
original or certified true copy of the certificate of live birth of such
party.
2. In the absence of a certificate of live birth, similar authentic
documents such as baptismal certificate and school records which
show the date of birth of the victim would suffice to prove age.
3. If the certificate of live birth or authentic document is shown to
have been lost or destroyed or otherwise unavailable, the
testimony, if clear and credible, of the victim's mother or a member
of the family either by affinity or consanguinity who is qualified to
testify on matters respecting pedigree such as the exact age or date
of birth of the offended party pursuant to Section 40, Rule 130 of
the Rules on Evidence shall be sufficient under the following
circumstances:
a. If the victim is alleged to be below 3 years of age and
what is sought to be proved is that she is less than 7
years old;
b. If the victim is alleged to be below 7 years of age and
what is sought to be proved is that she is less than 12
years old;
c. If the victim is alleged to be below 12 years of age and
what is sought to be proved is that she is less than 18
years old.
4. In the absence of a certificate of live birth, authentic document,
or the testimony of the victim's mother or relatives concerning the
victim's age, the complainant's testimony will suffice provided that
it is expressly and clearly admitted by the accused.
alternative circumstance of relationship under Article 15 of the Revised Penal
Code cannot be appreciated as an aggravating circumstance against the
appellant. While it is true that the alternative circumstance of relationship is
always aggravating in crimes against chastity, regardless of whether the
offender is a relative of a higher or lower degree of the offended party, it is
only taken into consideration under Article 15 of the Revised Penal Code
"when the offended party is the spouse, ascendant, descendant, legitimate,
natural or adopted brother or sister, or relative by affinity in the same degree
of the offender." The relationship of uncle and niece is not covered by any of
the relationships mentioned.59
Hence, for the prosecution’s failure to prove the age of the victim by any
means set forth in Pruna, and considering that the relationship of uncle and
niece is not covered by any of the relationships mentioned in Article 15 of the
Revised Penal Code, as amended, the appellant can only be convicted of rape
in its aggravated form, the imposable penalty for which is reclusion perpetua
to death.
There being no modifying circumstances attendant to the commission of the
crimes, the appellant should be sentenced to suffer reclusion perpetua for
each count of rape, conformably to Article 69 of the Revised Penal Code.
The victim is entitled to moral damages without need of proof other than the
fact of the rape itself because it is assumed that the victim has suffered moral
injuries entitling her to such an award.60 We find the trial court’s award of
₱50,000 as moral damages to the victim in each rape to be in order.
However, the trial court erred in not awarding civil indemnity to the victim in
each case, the same being mandatory upon the finding of the fact of
rape.61 Thus, this Court awards the victim the sum of ₱50,000 as civil
indemnity for each count of rape.
In addition to this, appellant is ordered to pay the victim P25,000 as
exemplary damages, the qualifying aggravating circumstance of use of a
deadly weapon having attended the commission of the crime.62
WHEREFORE, the Decision of the Regional Trial Court of Makati City, Branch
62, in Criminal Cases Nos. 97-385 to 97-388 is AFFIRMED with MODIFICATION.
The appellant Feliciano Ulit y Tampoy is found GUILTY beyond reasonable
doubt of two counts of rape in Criminal Cases Nos. 97-385 and 97-386, and in
each case, is hereby sentenced to suffer the penalty of reclusion perpetua and
ordered to pay the victim, Lucelle Serrano, ₱50,000 as moral damages;
₱50,000 as civil indemnity; and ₱25,000 as exemplary damages. Costs de
oficio.
SO ORDERED.

5. It is the prosecution that has the burden of proving the age of

the offended party. The failure of the accused to object to the
testimonial evidence regarding age shall not be taken against him.

6. The trial court should always make a categorical finding as to the

age of the victim.58

In the present case, no birth certificate or any similar authentic document was
presented and offered in evidence to prove Lucelle’s age. While the victim
testified that she was born on February 19, 1986, therefore 11 years old when
the appellant twice raped her, the same will not suffice as the appellant did
not expressly and clearly admit the same as required by Pruna. The
corroboration of Lucelle’s mother as to her age is not sufficient either, as
there is no evidence that the said certificate of birth was lost or destroyed or
was unavailable without the fault of the prosecution. The fact that there was
no objection from the defense regarding the victim’s age cannot be taken
against the appellant since it is the prosecution that has the burden of proving
the same. Moreover, the trial court did not make a categorical finding of the
victim’s minority, another requirement mandated by Pruna.

Another issue that needs to be settled is the third paragraph of Article 335 of
the Revised Penal Code, as amended, which provides that, "[w]henever rape
is committed with the use of a deadly weapon or by two or more persons, the
imposable penalty shall be reclusion perpetua to death."

The evidence on record shows that the appellant raped Lucelle with the use of
a deadly weapon in both rape incidents as alleged in both informations, and
under Article 335 of the Revised Penal Code, as amended by Republic Act No.
7659, the imposable penalty for the crime is reclusion perpetua to death.

In the determination of whether the death penalty should be imposed on the

appellant, the presence of an aggravating circumstance in the commission of
the crime is crucial. In the cases at bar, although the relationship of uncle and
niece between the appellant and the victim has been duly proven, the
G.R. No. 147201 January 15, 2004
PEOPLE OF THE PHILIPPINES, appellee,
vs.
BENJAMIN SAYABOC y SEGUBA, PATRICIO ESCORPISO y VALDEZ, MARLON
BUENVIAJE y PINEDA, and MIGUEL BUENVIAJE y FLORES, appellants.
DECISION
DAVIDE, JR., C.J.:
Before us is the decision of 9 November 2000 of the Regional Trial Court of
Bayombong, Nueva Vizcaya, Branch 27, in Criminal Case No. 2912 finding
appellant Benjamin Sayaboc guilty beyond reasonable doubt of the crime of
murder and sentencing him to suffer the penalty of death; and (2) finding
appellant Marlon Buenviaje guilty as principal and appellants Miguel
Buenviaje and Patricio Escorpiso guilty as accomplices in the crime of
homicide.
On 17 April 1995, an information was filed charging Benjamin Sayaboc,
Patricio Escorpiso, Marlon Buenviaje, and Miguel Buenviaje with murder, the
accusatory portion of which reads as follows:
That on or about December 2, 1994, in the Municipality of Solano,
Province of Nueva Vizcaya, Philippines and within the jurisdiction
of this Honorable Court, the above-named accused, conspiring,
confederating together and mutually helping each other, and who
were then armed with a firearm, did then and there willfully,
unlawfully and feloniously with evident premeditation, by means
of treachery and with intent to kill, attack, assault and use personal
violence upon the person of Joseph Galam y Antonio, by then and
there suddenly firing at the said Joseph Galam y Antonio who has
not given any provocation, thereby inflicting upon him mortal
wounds which were the direct and immediate cause of his death
thereafter, to the damage and prejudice of his heirs.1
At their arraignment, appellants Benjamin Sayaboc, Patricio Escorpiso, and
Miguel Buenviaje pleaded not guilty to the charge of murder. Marlon
Buenviaje, who was arrested only on 10 July 1997, also pleaded not guilty
upon his arraignment.
The evidence for the prosecution discloses as follows:
At about 9:00 a.m. of 13 August 1994, while prosecution witness
Abel Ramos was at a vulcanizing shop in Barangay Quezon, Solano,
Nueva Vizcaya, he heard one Tessie Pawid screaming from across
the road: "Enough, enough, enough!" In front of her were Marlon
Buenviaje and Joseph Galam, who were engaged in a fisticuff. By
the time Pawid was able to subdue the two men by standing
between them and embracing Galam, Buenviaje’s face was already
bloodied and Galam’s shirt collar torn. As Buenviaje was leaving, he
turned to face Galam and, with his right index finger making a
slicing motion across his throat, shouted: "Putang-ina mo Joseph,
may araw ka rin, papatayin kita." Galam retorted, "Gago, traydor,
gold digger, halika." Buenviaje did not respond anymore and left
on a tricycle.2
More than three months thereafter, or on 2 December 1994, Galam was shot
to death at the Rooftop Disco and Lodging House (Rooftop, for short) owned
by him, which was located at Barangay Quezon, Solano, Nueva Vizcaya.
According to a waitress of the Rooftop Diana Grace Sanchez Jaramillo, earlier
or at 3:00 p.m. of that fateful day, a man whom she later identified as
Benjamin Sayaboc rang the doorbell of the Rooftop and asked whether a
woman wearing a green t-shirt had checked in. She answered in the negative.
As she was about to leave, Sayaboc asked another question, "What time does
your bosing arrive?" She replied that she did not know. She then went to the
second floor of the establishment.3
Tessie Pilar, the caretaker of the lodging house, narrated that between 5:30
and 5:45 p.m. Sayaboc, who was still seated in the swing beside the
information counter with his hands tucked in the pocket of his jacket, ordered
a bottle of beer. She then went up to the kitchen, but was delayed in
delivering the beer because she gave some instructions to the dishwasher.
When she gave the beer to Benjamin, the latter was angry and asked why it
took her so long to bring the beer. Thereafter, she went upstairs and chatted
with Jaramillo and some other waitresses. Then the vehicle of Joseph Galam
arrived.4
Shortly thereafter, they heard four gunbursts emanating from the ground
floor of the building. When Jaramillo looked down, she saw Sayaboc shooting
Galam, causing the latter to fall to the ground face up, with blood spurting out
of his chest. Sayaboc forthwith ran out and disappeared into the darkness.5
Meanwhile, at about 5:30 p.m. of that fateful day, as Joselito Parungao,
Chief Barangay Tanod of BarangayQuezon, Solano, Nueva Vizcaya, was on his
way to the Kowloon Restaurant located along the national road, he saw
Marlon Buenviaje with his father Miguel Buenviaje and Patricio Escorpiso. The
three were aboard a tricycle parked in a vacant lot between the Rooftop and
Diego Theater. The younger Buenviaje was on the driver’s seat, while the
older Buenviaje and Escorpiso were inside the sidecar. Parungao
ordered pancit bihon. While he was waiting outside of the restaurant, he
noticed that the tricycle was still parked in the vacant lot, and the three
occupants thereof were talking with each other. After getting his order and
while he was getting out of the restaurant, Parungao heard four gunshots
coming from behind the Rooftop building. He thereafter saw a person, whom
he later came to know as Benjamin Sayaboc, walking briskly toward the
tricycle and then rode behind Marlon Buenviaje. Afterwards, the tricycle sped
off towards the center of the town.6
The employees of the Rooftop lost no time in bringing Galam to a hospital,
where he was declared dead on arrival.7 Dr. Antonio R. Labasan, who
conducted an autopsy on his cadaver, found four gunshot wounds and opined
that the first two of which were inflicted from behind and the last two were
frontal.8
That evening, SPO4 Roberto Cagungao, Chief Investigator of the Solano Police
Station, assigned some investigators to go to the scene of the crime to gather
evidence. At about 10:00 to 11:00 p.m., he and Lt. Alejandro Parungao
brought Pilar and Jaramillo to the Philippine National Police (PNP) Crime
Laboratory in Camp Crame, Quezon City. Pilar and Jaramillo were interviewed
by the cartographic artist, who thereafter drew a cartographic sketch showing
the face of the assailant.9
On 8 March 1995, Pilar and Jaramillo identified Benjamin Sayaboc at the PNP
Provincial Headquarters in Bayombong as the gunman who shot Joseph Galam
to death.10
On the afternoon of that day, SPO4 Cagungao was called to the Provincial
Command Headquarters in Bayombong, Nueva Vizcaya, to take the statement
of Sayaboc. When he arrived at the headquarters he saw Sayaboc being
interviewed by reporters inside the investigation room. He then brought
Sayaboc to the inner part of the room. Before taking the statement of
Sayaboc, he advised the latter of his constitutional rights. Then Sayaboc told
him that he wanted to have a counsel of his own choice. But since Sayaboc
could not name one, Cagungao asked the police officers to get a lawyer. Half
an hour later, the police officers brought Atty. Rodolfo Cornejo of the PAO,
who then conferred with Sayaboc for a while. After Cagungao heard Sayaboc
say, "okay," he continued the investigation, during which Atty. Cornejo
remained silent the entire time. However, Cagungao would stop questioning
Sayaboc whenever Atty. Cornejo would leave to go to the comfort
room.11 That night Sayaboc executed an extrajudicial confession12 in Ilocano
dialect. He therein confessed to killing Joseph Galam at the behest of Marlon
Buenviaje for the sum of P100,000. He likewise implicated Miguel Buenviaje
and Patricio Escorpiso. The confession was also signed by Atty. Cornejo and
attested to by one Fiscal Melvin Tiongson.
At the hearing on 22 June 1999, after the prosecution rested its case, 1counsel
for accused Mike Buenviaje, Marlon Buenviaje and Patricio Escorpiso
manifested that he be given fifteen days to file a motion for leave to admit
demurrer to the evidence.13 The trial court acceded. But instead of filing such
motion first, he filed a Demurrer to Evidence on 12 July 1999. 14 The motion for
leave to file the pleading was filed the next day only.15
The trial court denied the demurrer to evidence in an order 16 issued on 16
August 1999. Further, it ruled that because of they did not seek nor were
granted express leave of court prior to their filing of the demurrer to
evidence, the Buenviajes and Escorpiso were deemed to have submitted their
case for judgment in accordance with Section 15, Rule 119 of the Rules of
Court. Thus, only Sayaboc was allowed to proceed with the presentation of his
defense.
Sayaboc denied having committed the crime and proffered the defense of
alibi. He also flatly denied having met Atty. Cornejo or having been informed
of his rights. He testified to having been beaten by six or seven police officers
in the investigating room, who then coerced him to confess to having killed
Galam.17 Apart from his testimony, he submitted a handwritten statement
dated 20 March 199518 and an affidavit dated 10 April 199519to support his
claim of police brutality and retraction of his confession.
In its decision dated 9 November 2000,20 the trial court found Benjamin
Sayaboc guilty of the crime of murder, with treachery as the qualifying
circumstance and craft and price or reward as aggravating circumstances. It
then sentenced him to the maximum penalty of death. As for Marlon
Buenviaje, Miguel Buenviaje, and Patricio Escorpiso, the court held that the
treachery employed by Sayaboc could not be taken against them and,
therefore, declared them guilty of the crime of homicide only, with the first as
principal and the two others as accomplices. Each was sentenced to suffer an
indeterminate penalty and to pay solidarily with Sayaboc the amounts of
P115,000 as actual damages; P25,000 as moral damages; and the costs of the
suit in favor of the heirs of Joseph Galam.
From this decision, the appellants raise the following errors:
I The trial court gravely erred in finding appellant sayaboc guilty beyond
reasonable doubt of the crime of murder and sentencing him to death.
II Assuming arguendo that accused sayaboc is guilty, he is guilty only of the
crime of homicide.
III The trial court erred in admitting in evidence the extrajudicial confession of
accused sayaboc when it was taken without the assistance of a competent
and independent counsel nor by an effective and vigilant counsel.
IV The trial court erred in finding father and son buenviaje and accused
escorpiso likewise guilty when it denied them their constitutional right to be
heard by themselves and counsel after they filed their demurrer to evidence
allegedly without first seeking express leave of court.
In the first and second assigned errors, the appellants contend that the crime
committed by Sayaboc was homicide only, there being no proof of treachery
because the two eyewitnesses did not see the commencement of the
shooting. Besides, treachery, as well as evident premeditation, was not
specifically designated as a qualifying circumstance in the information.
Neither can the aggravating circumstances of craft and price or reward be
appreciated because they were not alleged in the information, albeit proved
during trial. Sections 8 and 9 of Rule 110 of the 2000 Rules of Criminal
Procedure, which require aggravating and qualifying circumstances to be
alleged in the information, are beneficial to the accused and should,
therefore, be applied retroactively.
As to the third assigned error, the appellants argue that the extrajudicial
confession of Sayaboc may not be admitted in evidence against him because
Atty. Cornejo, the PAO lawyer who was his counsel during the custodial
investigation, was not a competent, independent, vigilant, and effective
counsel. He was ineffective because he remained silent during the entire
proceedings. He was not independent, as he was formerly a judge in the
National Police Commission, which was holding court inside the PNP
Command of Bayombong, Nueva Vizcaya.
Finally, appellants Marlon Buenviaje, Miguel Buenviaje, and Patricio Escorpiso
claim that they were denied due process because they were not able to
present evidence in their defense. They ask this Court to relax the rule of
criminal procedure in favor of enforcing their constitutional right to be heard
by themselves and counsel.
On the other hand, the Office of the Solicitor General (OSG) maintains that
Sayaboc’s extrajudicial confession that he shot the victim in the back is
adequate proof of treachery. Invoking People v. Aquino,21 the OSG contends
that for treachery to be considered as a qualifying circumstance, it needs only
to be specifically alleged in the information and does not have to be preceded
by the words qualifying or qualified by. As to the proven circumstances of
craft and price or reward, the same cannot be appreciated because they were
not specifically alleged in the information, as required by the 2000 Rules of
Criminal Procedure, which are applicable to actions that are pending and
undetermined at the time of their passage.
The OSG further asserts that Sayaboc’s extrajudicial confession is admissible
in evidence against him, since it was made after he was informed of, and
accorded, his constitutional rights, particularly the right to an independent
counsel of his own choice. No evidence was adduced during the trial to
substantiate the claim that Atty. Cornejo used to be connected with the
NAPOLCOM. Moreover, this claim was made for the first time in this appeal,
and was based merely on an information furnished by defense counsel Atty.
Virgil Castro (now deceased) to Sayaboc’s counsel in this appeal, which makes
the said information hearsay twice removed.
As to the fourth assigned error, the OSG counters that no exceptional
circumstance exists in this case that may warrant the relaxation of the rule
that the denial of a unilateral demurrer to evidence carries with it a waiver of
the accused’s right to present evidence.
Beginning with the admissibility of Sayaboc’s extrajudicial confession, we hold
that such cannot be used in evidence in this case.
Section 12 of Article III of the 1987 Constitution provides:
Sec. 12. (1) Any person under investigation for the commission of
an offense shall have the right to be informed of his right to remain
silent and to have competent and independent counsel preferably
of his own choice. If the person cannot afford the services of
counsel, he must be provided with one. These rights cannot be
waived except in writing and in the presence of counsel.
…
(3) Any confession or admission obtained in violation of this or the
preceding section shall be inadmissible in evidence against him.
Jurisprudence provides that extrajudicial confessions are presumed
to be voluntary.22 The condition for this presumption, however, is
that the prosecution is able to show that the constitutional
requirements safeguarding an accused’s rights during custodial
investigation have been strictly complied with, especially when the
extrajudicial confession has been denounced. The rationale for this
requirement is to allay any fear that the person being investigated
would succumb to coercion while in the unfamiliar or intimidating
environment that is inherent in custodial investigations. Therefore,
even if the confession may appear to have been given voluntarily
since the confessant did not file charges against his alleged
intimidators for maltreatment,23 the failure to properly inform a
suspect of his rights during a custodial investigation renders the
confession valueless and inadmissible.24
In this case, contrary to SPO4 Cagungao’s claim that he conferred with
Sayaboc for half an hour informing him about his constitutional rights, the
extrajudicial confession provides only the following:
PRELIMINARY: I would like to inform you Mr. Sayaboc that
questions will be asked to you regarding an incident last December
2, 1994 at the Rooftop, Brgy. Quezon, Solano, Nueva Vizcaya, in
connection with the shooting of Joseph Galam, owner of the said
Disco House as a result of his death. Before questions will be asked
[of] you I would like to inform you about your ri[g]hts under the
new Constitution of the Philippines, as follows: That you have the
right to remain silent or refuse to answer the questions which you
think will incriminate you; That you have the right to seek the
services of a counsel of your own choice or if not, this office will
provide you a lawyer if you wish.
QUESTIONS: After informing you all your constitutional
rights, are you willing to give your true statement
regarding the death of Joseph Galam?
ANSWER: Yes, sir.
QUESTIONS: Do you want to get a lawyer to assist in this
investigation?
ANSWER: Yes, sir. I want to seek the assistance of Atty.
Rodolfo Cornejo.
QUESTIONS: Atty. Rodolfo Cornejo is here now, do you
want him to assist you in this investigation?
ANSWER: Yes, sir. 25
Apart from the absence of an express waiver of his rights, the confession
contains the passing of information of the kind held to be in violation of the
right to be informed under Section 12, Article III of the Constitution. In People
v. Jara,26 the Court explained:
The stereotyped "advice" appearing in practically all extrajudicial confessions
which are later repudiated has assumed the nature of a "legal form" or model.
Police investigators either automatically type it together with the curt "Opo"
as the answer or ask the accused to sign it or even copy it in their handwriting.
Its tired, punctilious, fixed, and artificially stately style does not create an
impression of voluntariness or even understanding on the part of the accused.
The showing of a spontaneous, free, and unconstrained giving up of a right is
missing.
The right to be informed requires "the transmission of meaningful information
rather than just the ceremonial and perfunctory recitation of an abstract
constitutional principle."27 It should allow the suspect to consider the effects
and consequences of any waiver he might make of these rights. More so when
the suspect is one like Sayaboc, who has an educational attainment of Grade
IV, was a stranger in Nueva Vizcaya, and had already been under the control
of the police officers for two days previous to the investigation, albeit for
another offense.
We likewise rule that Sayaboc was not afforded his constitutional right to a
competent counsel. While we are unable to rule on the unsubstantiated claim
that Atty. Cornejo was partial to the police, still, the facts show through the
testimonies of Sayaboc and prosecution witness SPO4 Cagungao that Atty.
Cornejo remained silent throughout the duration of the custodial
investigation. The trial court attributed the silence of Atty. Cornejo to the
garrulous nature and intelligence of Sayaboc, thus:
As already stated, Sayaboc was a garrulous man and intelligent. It
was in his character for him to want to be a central figure in a
drama, albeit tragic – for others. He would do what he wanted to
do regardless of the advice of others. Hence, Atty. Cornejo could
only advise him of his constitutional rights, which was apparently
done. The said counsel could not stop him from making his
confession even if he did try.28
We find this explanation unacceptable. That Sayaboc was a "garrulous" man
who would "do what he wanted to do regardless of the advice of others" is
immaterial. The waiver of a right is within the rights of a suspect. What is
lacking is a showing, to the satisfaction of this Court, of a faithful attempt at
each stage of the investigation to make Sayaboc aware of the consequences of
his actions. If anything, it appears that Sayaboc’s counsel was ineffectual for
having been cowed by his client’s enthusiasm to speak, or, worse, was
indifferent to it.
The right to a competent and independent counsel means that the counsel
should satisfy himself, during the conduct of the investigation, that the
suspect understands the import and consequences of answering the questions
propounded. In People v. Deniega,29 we said:
The desired role of counsel in the process of custodial investigation
is rendered meaningless if the lawyer merely gives perfunctory
advice as opposed to a meaningful advocacy of the rights of the
person undergoing questioning. If the advice given is so cursory as
to be useless, voluntariness is impaired.
This is not to say that a counsel should try to prevent an accused from making
a confession. Indeed, as an officer of the court, it is an attorney’s duty to, first
and foremost, seek the truth. However, counsel should be able, throughout
the investigation, to explain the nature of the questions by conferring with his
client and halting the investigation should the need arise. The duty of a lawyer
includes ensuring that the suspect under custodial investigation is aware that
the right of an accused to remain silent may be invoked at any time.
We understand the difficulty and frustration of police investigators in
obtaining evidence to bring criminals to justice. But even the hardest of
criminals have rights that cannot be interfered with. Those tasked with the
enforcement of the law and who accuse those who violate it carry the burden
of ensuring that all evidence obtained by them in the course of the
performance of their duties are untainted with constitutional infirmity. The
purpose of the stringent requirements of the law is to protect all persons,
especially the innocent and the weak, against possible indiscriminate use of
the powers of the government. Any deviation cannot be tolerated, and any
fruit of such deviation shall be excluded from evidence.
For these reasons, the extrajudicial confession of Sayaboc cannot be used in
evidence against him. We hold, however, that the prosecution has discharged
its burden of proving his guilt for the crime of homicide.
From the records of the case, there can be no doubt that Sayaboc shot and
killed Galam in the early evening of 2 December 1994. He was seen waiting at
the Rooftop from 3:00 to 6:00 p.m. of that day, shooting Galam shortly after
the latter’s arrival, and fleeing from the scene of the crime to a waiting
tricycle. Credible witnesses described Sayaboc’s appearance to the police soon
after the shooting incident and prepared affidavits about the incident. They
identified Sayaboc at the police station while he was in custody, during the
preliminary investigation, and, again, in open court. Such positive
identification constitutes more than sufficient direct evidence to uphold the
finding that Sayaboc was Galam’s killer. It cannot just be rebutted by
Sayaboc’s bare denial and weak alibi.
Appellants’ claim that the information against them is insufficient for failure
to specifically state that treachery and evident premeditation were qualifying
circumstances holds no water. In People v. Aquino,30 we held that even after
the recent amendments to the Rules of Criminal Procedure, qualifying
circumstances need not be preceded by descriptive words such as qualifying
or qualified by to properly qualify an offense. Nevertheless, from our review
of the case, we find that neither evident premeditation nor treachery has
been sufficiently proved to qualify the crime to murder.
There is treachery when the offender commits any of the crimes against
persons, employing means, methods or forms in the execution thereof which
tend directly and specially to insure its execution, without risk to himself
arising from the defense which the offended party might make. Thus, two
conditions must be present: (1) at the time of the attack, the victim was not in
a position to defend himself; and (2) the offender consciously adopted the
particular means, method or form of attack employed by him. For treachery to
be appreciated, it must be present and seen by the witness right at the
inception of the attack. Where no particulars are known as to how the killing
began, its perpetration with treachery cannot merely be supposed. 31
In this case, the trial court concluded that the fact that the witnesses did not
hear any shout or conversation between the assailant and the victim
immediately before the attack could only mean that Sayaboc had approached
his victim through stealth.32 While not improbable, that conclusion is merely
an inference. The fact remains that none of the witnesses testified as to how
the aggression began. The witnesses testified having heard four shots, the last
two of which were seen as having been fired while Sayaboc was facing Galam.
The autopsy conducted by Dr. Labasan reveals two frontal wounds at the
thigh and the shoulder, and two wounds on the right side of Galam’s back.
Although it is plausible that the initial shots were fired from behind, such
inference is insufficient to establish treachery.33
Neither can we appreciate evident premeditation as a qualifying
circumstance. Evident premeditation exists when it is shown that the
execution of a criminal act is preceded by cool thought and reflection upon
the resolution to carry out the criminal intent. The requisites of evident
premeditation are (1) the time when the accused determined to commit the
crime; (2) an act manifestly indicating that the accused clung to his
determination; and (3) sufficient lapse of time between such determination
and execution to allow him to reflect upon the circumstances of his act.34
Without the extrajudicial confession narrating when Sayaboc was hired to kill
Galam, the testimony that the former inquired about the latter while waiting
in the Rooftop from 3:00 p.m. to 6:00 p.m. of that fateful day does not prove
the time when Sayaboc decided to kill Galam. Settled is the rule that when it
is not shown how and when the plan to kill was hatched or what time had
elapsed before that plan was carried out, evident premeditation cannot be
considered.35
The aggravating circumstances of craft and price or reward, even if proved,
can neither be considered because they were not specifically alleged in the
information. Section 8, Rule 110 of the 2000 Revised Rules of Criminal
Procedure requires that the information specify the aggravating circumstances
attending the commission of the crime for it to be considered in the
imposition of penalty. This requirement is beneficial to an accused and may,
therefore, be given retroactive effect.36
Thus, appellant Benjamin Sayaboc can be found guilty of the crime of
homicide only, which is punishable by reclusion temporal. There being no
mitigating or aggravating circumstances appreciated for or against him, the
penalty to be imposed upon him should be in the medium period. Applying
the Indeterminate Sentence Law, he should be meted a penalty whose
minimum is within the range of prision mayor and whose maximum is within
the range of reclusion temporal in its medium period.
We cannot subscribe to the contention of appellants Marlon Buenviaje,
Miguel Buenviaje, and Patricio Escorpiso that the case should be remanded to
the trial court because they were denied the right to be heard by the trial
court. It must be remembered that their demurrer to evidence filed on 12 July
1999 was without prior leave of court. The motion for leave to file the said
pleading was filed only the next day. The filing of the demurrer was clearly
without leave of court. The trial court, therefore, correctly applied the rule on
demurrer to evidence found in Section 15, Rule 119 of the 1985 Rules of
Criminal Procedure when it disallowed the abovementioned appellants to
present evidence on their behalf.
The filing of a demurrer to evidence without leave of court is an unqualified
waiver of the right to present evidence for the accused.37 The rationale for this
rule is that when the accused moves for dismissal on the ground of
insufficiency of evidence of the prosecution evidence, he does so in the belief
that said evidence is insufficient to convict and, therefore, any need for him to
present any evidence is negated. An accused cannot be allowed to wager on
the outcome of judicial proceedings by espousing inconsistent viewpoints
whenever dictated by convenience. The purpose behind the rule is also to
avoid the dilatory practice of filing motions for dismissal as a demurrer to the
evidence and, after denial thereof, the defense would then claim the right to
present its evidence.38
The trial court, therefore, correctly applied Section 15, Rule 119 of the 1985
Rules of Criminal Procedure on demurrer to evidence when it disallowed the
abovementioned appellants to present evidence on their behalf. They cannot
now claim that they were denied their right to be heard by themselves and
counsel.

On the basis of the evidence for the prosecution, we find the existence of
conspiracy between Marlon Buenviaje and Sayaboc.

It has been held that price or reward is evidence of conspiracy. 39 But the same
was not established by competent proof in this case. The extrajudicial
confession40 and the newspaper reports41 adduced by the prosecution, which
both contained Sayaboc’s statement pointing to Marlon Buenviaje as the one
who paid him P100,000 to kill Galam, are inadmissible in evidence. The first,
as earlier stated, was executed in violation of Sayaboc’s constitutional rights.
The second are hearsay, since the authors of such reports were not presented
as witnesses to affirm the veracity thereof.42

Conspiracy need not, however, be established by direct proof; it may be

shown by circumstantial evidence.43 As correctly found by the trial court and
concurred with by the OSG, the concatenation of circumstantial evidence
shows that Marlon Buenviaje conspired with Sayaboc, thus:

1. On 13 August 1994, Marlon Buenviaje had a fistfight with Joseph

Galam, causing him injuries on his face and prompting him to make
a threat to kill the latter;44

2. More than three months later, Galam was killed by Sayaboc,

who had no discernible motive to do so;45

3. Shortly after shooting Galam, Sayaboc joined Marlon Buenviaje

and the other appellants in the tricycle, which was waiting in a
vacant lot near the crime scene;46

4. The tricycle driven by Marlon Buenviaje sped away and

disappeared;47

5. Marlon Buenviaje became a fugitive from justice for a long time,

or until 10 July 1997; and

6. During the pendency of the case, the relatives of Marlon

Buenviaje offered prosecution eyewitness Diana Grace Jaramillo a
job abroad, allowances, and two motorcycles in consideration of
her retraction of her testimony against Sayaboc.48

Circumstantial evidence is sufficient for conviction when (1) there is more

than one circumstances established; (2) the facts from which the inferences
are derived have been proved; and (3) the combination of all the
circumstances is such as to produce a conviction beyond reasonable doubt. All
these requisites are present in the case at bar. Being a conspirator equally
guilty as Sayaboc, Marlon Buenviaje must be meted the same penalty as that
of Sayaboc.

However, as to Miguel Buenviaje and Patricio Escorpiso, there is paucity of

evidence linking them to the killing. They might have been with Marlon
Buenviaje in that tricycle, but there is nothing to show that they knew of the
conspiracy to kill Galam. Absent any active participation in furtherance of the
common design or purpose to kill Galam, their mere presence near the crime
scene or in the tricycle driven by Marlon Buenviaje does not necessarily make
them conspirators. Even knowledge, acquiescence or approval of the act –
without the cooperation and the agreement to cooperate – is not enough to
establish conspiracy.49

Now on the civil liability of Sayaboc and Marlon Buenviaje. The trial court’s
award of actual damages, representing the wake and burial expenses, is
reduced to P106,436, this being the amount supported by receipts. The award
of moral damages is, however, increased to P50,000 conformably with current
jurisprudence.50 In addition, the heirs of the victim are entitled to P50,000 as
civil indemnity ex delicto.

WHEREFORE, the decision of the Regional Trial Court of Bayombong, Nueva

Ecija, Branch 27, in Criminal Case No. 2912 is MODIFIED. Appellants Benjamin
Sayaboc and Marlon Buenviaje are found guilty beyond reasonable doubt of
the crime of homicide and are each sentenced to suffer an indeterminate
penalty of ten (10) years of prision mayor as minimum to seventeen (17) years
and four (4) months of reclusion temporal as maximum and to pay jointly and
severally the heirs of Joseph Galam the amounts of P106,436 as actual
damages; P50,000 as civil indemnity; P50,000 as moral damages; and the cost
of the suit. Appellants Miguel Buenviaje and Patricio Escorpiso are hereby
ACQUITTED on the ground of reasonable doubt.

Costs de oficio.

SO ORDERED.
G.R. No. 179448 June 26, 2013
CARLOS L. TANENGGEE, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
DEL CASTILLO, J.:
Assailed in this Petition for Review on Certiorari1 under Rule 45 of the Rules of
Court is the December 12, 2006 Decision2 of the Court of Appeals (CA) in CA-
G.R. CR No. 23653 affirming with modification the June 25, 1999 Decision3 of
the Regional Trial Court (RTC) of Manila, Branch 30, in Criminal Case Nos. 98-
163806-10 finding Carlos L." Tanenggee (petitioner) guilty beyond reasonable
doubt of five counts of estafa through falsification of commercial documents.
Likewise questioned is the CA's September 6, 2007 Resolution 4denying
petitioner's Motion for Reconsideration5 and Supplemental Motion for
Reconsideration.6
Factual Antecedents
On March 27, 1998, five separate Informations7 for estafa through falsification
of commercial documents were filed against petitioner. The said Informations
portray the same mode of commission of the crime as in Criminal Case No. 98-
163806 but differ with respect to the numbers of the checks and promissory
notes involved and the dates and amounts thereof, viz:
That on or about July 24, 1997, in the City of Manila, Philippines, the said
accused, being then a private individual, did then and there willfully,
unlawfully and feloniously defraud, thru falsification of commercial
document, the METROPOLITAN BANK & TRUST CO. (METROBANK),
represented by its Legal officer, Atty. Ferdinand R. Aguirre, in the following
manner: herein accused, being then the Manager of the COMMERCIO BRANCH
OF METROBANK located at the New Divisoria Market Bldg., Divisoria, Manila,
and taking advantage of his position as such, prepared and filled up or caused
to be prepared and filled up METROBANK Promissory Note Form No. 366857
with letters and figures reading "BD#083/97" after the letters reading "PN",
with figures reading "07.24.97" after the word "DATE", with the amount of
₱16,000,000.00 in words and in figures, and with other words and figures now
appearing thereon, typing or causing to be typed at the right bottom thereof
the name reading "ROMEO TAN", feigning and forging or causing to be
feigned and forged on top of said name the signature of Romeo Tan, affixing
his own signature at the left bottom thereof purportedly to show that he
witnessed the alleged signing of the said note by Romeo Tan, thereafter
preparing and filling up or causing to be prepared and filled up METROBANK
CASHIER’S CHECK NO. CC 0000001531, a commercial document, with date
reading "July 24, 1997", with the name reading "Romeo Tan" as payee, and
with the sum of ₱15,362,666.67 in words and in figures, which purports to be
the proceeds of the loan being obtained, thereafter affixing his own signature
thereon, and directing the unsuspecting bank cashier to also affix his signature
on the said check, as authorized signatories, and finally affixing, feigning and
forging or causing to be affixed, feigned and forged four (4) times at the back
thereof the signature of said Romeo Tan, thereby making it appear, as it did
appear that Romeo Tan had participated in the preparation, execution and
signing of the said Promissory Note and the signing and endorsement of the
said METROBANK CASHIER’S CHECK and that he obtained a loan of
₱16,000,000.00 from METROBANK, when in truth and in fact, as the said
accused well knew, such was not the case in that said Romeo Tan did not
obtain such loan from METROBANK, neither did he participate in the
preparation, execution and signing of the said promissory note and signing
and endorsement of said METROBANK CASHIER’S CHECK, much less authorize
herein accused to prepare, execute and affix his signature in the said
documents; that once the said documents were forged and falsified in the
manner above set forth, the said accused released, obtained and received
from the METROBANK the sum of ₱15,363,666.67 purportedly representing
the proceeds of the said loan, which amount, once in his possession, with
intent to defraud, he misappropriated, misapplied and converted to his own
personal use and benefit, to the damage and prejudice of the said
METROBANK in the same sum of ₱15,363,666.67, Philippine currency.
CONTRARY TO LAW.8
On May 27, 1998, the RTC entered a plea of not guilty for the petitioner after
he refused to enter a plea.9 The cases were then consolidated and jointly
tried.
The proceedings before the RTC as aptly summarized by the CA are as follows:
During the pre-trial, except for the identity of the accused, the jurisdiction of
the court, and that accused was the branch manager of Metrobank
Commercio Branch from July 1997 to December 1997, no other stipulations
were entered into. Prosecution marked its exhibits "A" to "L" and sub-
markings.
xxxx
The prosecution alleged that on different occasions, appellant caused to be
prepared promissory notes and cashier’s checks in the name of Romeo Tan, a
valued client of the bank since he has substantial deposits in his account, in
connection with the purported loans obtained by the latter from the bank.
Appellant approved and signed the cashier’s check as branch manager of
Metrobank Commercio Branch. Appellant affixed, forged or caused to be
signed the signature of Tan as endorser and payee of the proceeds of the
checks at the back of the same to show that the latter had indeed endorsed
the same for payment. He handed the checks to the Loans clerk, Maria
Dolores Miranda, for encashment. Once said documents were forged and
falsified, appellant released and obtained from Metrobank the proceeds of
the alleged loan and misappropriated the same to his use and benefit. After
the discovery of the irregular loans, an internal audit was conducted and an
administrative investigation was held in the Head Office of Metrobank, during
which appellant signed a written statement (marked as Exhibit "N") in the
form of questions and answers.
The prosecution presented the following witnesses:
Valentino Elevado, a member of the Internal Affairs Department of
Metrobank, testified that he conducted and interviewed the appellant in
January 1998; that in said interview, appellant admitted having committed
the allegations in the Informations, specifically forging the promissory notes;
that the proceeds of the loan were secured or personally received by the
appellant although it should be the client of the bank who should receive the
same; and that all the answers of the appellant were contained in a
typewritten document voluntarily executed, thumbmarked, and signed by him
(Exhibit "N").
Rosemarie Tan Apostol, assistant branch manager, testified that the
signatures appearing on the promissory notes were not the signatures of
Romeo Tan; that the promissory notes did not bear her signature although it
is required, due to the fact that Romeo Tan is a valued client and her manager
accommodated valued clients; that she signed the corresponding checks upon
instruction of appellant; and that after signing the checks, appellant took the
same which remained in his custody.
Eliodoro M. Constantino, NBI Supervisor and a handwriting expert, testified
that the signatures appearing on the promissory notes and specimen
signatures on the signature card of Romeo Tan were not written by one and
the same person.
Maria Dolores Miranda, a Loans Clerk at Metrobank Commercio Branch,
testified that several cashier’s checks were issued in favor of Romeo Tan; that
appellant instructed her to encash the same; and that it was appellant who
received the proceeds of the loan.
For his defense, appellant Carlos Lo Tanenggee testified that he is a holder of
a Masters degree from the Asian Institute of Management, and was the
Branch Manager of Metrobank Commercio Branch from 1994 until he was
charged in 1998 [with] the above-named offense. He was with Metrobank for
nine (9) years starting as assistant manager of Metrobank Dasmariñas Branch,
Binondo, Manila. As manager, he oversaw the day to day operations of the
branch, solicited accounts and processed loans, among others.
Appellant claimed that he was able to solicit Romeo Tan as a client-depositor
when he was the branch manager of Metrobank Commercio. As a valued
client, Romeo Tan was granted a credit line for forty million pesos
(₱40,000,000.00) by Metrobank. Tan was also allowed to open a fictitious
account for his personal use and was assisted personally by appellant in his
dealings with the bank. In the middle of 1997, Tan allegedly opened a
fictitious account and used the name Jose Tan. Such practice for valued clients
was allowed by and known to the bank to hide their finances due to
rampantkidnappings or from the Bureau of Internal Revenue (BIR) or from
their spouses.
According to appellant, Tan availed of his standing credit line (through
promissory notes) for five (5) times on the following dates: 1) 24 July 1997 for
sixteen million pesos (₱16,000,000.00), 2) 27 October 1997 for six million
pesos (₱6,000,000.00), 3) 12 November 1997 for three million pesos
(₱3,000,000.00), 4) 21 November 1997 for sixteen million pesos
(₱16,000,000,00), 5) 22 December 1997 for two million pesos (₱2,000,000.00).
On all these occasions except the loan on 24 July 1997 when Tan personally
went to the bank, Tan allegedly gave his instructions regarding the loan
through the telephone. Upon receiving the instructions, appellant would
order the Loans clerk to prepare the promissory note and send the same
through the bank’s messenger to Tan’s office, which was located across the
street. The latter would then return to the bank, through his own messenger,
the promissory notes already signed by him. Upon receipt of the promissory
note, appellant would order the preparation of the corresponding cashier’s
check representing the proceeds of the particular loan, send the same through
the bank’s messenger to the office of Tan, and the latter would return the
same through his own messenger already endorsed together with a deposit
slip under Current Account No. 258-250133-7 of Jose Tan. Only Cashier’s
Check dated 21 November 1997 for sixteen million pesos (₱16,000,000.00)
was not endorsed and deposited for, allegedly, it was used to pay the loan
obtained on 24 July 1997. Appellant claimed that all the signatures of Tan
appearing on the promissory notes and the cashier’s checks were the genuine
signatures of Tan although he never saw the latter affix them thereon.
In the middle of January 1998, two (2) Metrobank auditors conducted an audit
of the Commercio Branch for more than a week. Thereafter or on 26 January
1998, appellant was asked by Elvira Ong-Chan, senior vice president of
Metrobank, to report to the Head Office on the following day. When appellant
arrived at the said office, he was surprised that there were seven (7) other
people present: two (2) senior branch officers, two (2) bank lawyers, two (2)
policemen (one in uniform and the other in plain clothes), and a
representative of the Internal Affairs unit of the bank, Valentino Elevado.
Appellant claimed that Elevado asked him to sign a paper (Exhibit "N") in
connection with the audit investigation; that he inquired what he was made
to sign but was not offered any explanation; that he was intimidated to sign
and was threatened by the police that he will be brought to the precinct if he
will not sign; that he was not able to consult a lawyer since he was not
apprised of the purpose of the meeting; and that "just to get it over with" he
signed the paper which turned out to be a confession. After the said meeting,
appellant went to see Tan at his office but was unable to find the latter. He
also tried to phone him but to no avail.10
Ruling of the Regional Trial Court
After the joint trial, the RTC rendered a consolidated Decision11 dated June 25,
1999 finding petitioner guilty of the crimes charged, the decretal portion of
which states:
WHEREFORE, the Court finds the accused, Carlos Lo Tanenggee, guilty beyond
reasonable doubt of the offense of estafa thru falsification of commercial
documents charged in each of the five (5) Informations filed and hereby
sentences him to suffer the following penalties:
1. In Criminal Case No. 98-163806, to suffer the indeterminate
penalty of imprisonment from eight (8) years of prision mayor as
minimum to twenty (20) years of reclusion temporal as maximum
including the accessory penalties provided by law.
2. In Criminal Case No. 98-163807, to suffer the indeterminate
penalty of imprisonment from eight (8) years of prision mayor as
minimum to twenty (20) years of reclusion temporal as maximum
including the accessory penalties provided by law, and to
indemnify Metrobank the sum of ₱16 Million with interest at 18%
per annum counted from 27 November 1997 until fully paid.
3. In Criminal Case No. 98-163808, to suffer the indeterminate
penalty of imprisonment from eight (8) years of prision mayor as
minimum to twenty (20) years of reclusion temporal as maximum
including the accessory penalties provided by law, and to
indemnify Metrobank the sum of ₱6 Million with interest at 18%
per annum counted from 27 October 1997 until fully paid.
4. In Criminal Case No. 98-163809, to suffer the indeterminate
penalty of imprisonment from eight (8) years of prision mayor as
minimum to twenty (20) years of reclusion temporal as maximum
including the accessory penalties provided by law, and to
indemnify Metrobank the sum of ₱2 Million with interest at 18%
per annum counted from 22 December 1997 until fully paid.
5. In Criminal Case No. 98-163810, to suffer the indeterminate
penalty of imprisonment from eight (8) years of prision mayor as
minimum to twenty (20) years of reclusion temporal as maximum
including the accessory penalties provided by law, and to
indemnify Metrobank the sum of ₱3 Million with interest at 18%
per annum counted from 12 November 1997 until fully paid.
Accused shall serve the said penalties imposed successively.
As mandated in Article 70 of the Revised Penal Code, the maximum duration
of the sentence imposed shall not be more than threefold the length of time
corresponding to the most severe of the penalties imposed upon him and such
maximum period shall in no case exceed forty (40) years.
SO ORDERED.12
Ruling of the Court of Appeals
Petitioner appealed the judgment of conviction to the CA where the case was
docketed as CA-G.R. CR No. 23653. On December 12, 2006, the CA
promulgated its Decision13 affirming with modification the RTC Decision and
disposing of the appeal as follows:
WHEREFORE, the appeal is DENIED for lack of merit and the Decision dated 25
June 1999 of the Regional Trial Court (RTC) of Manila, Branch 30 convicting the
accused-appellant Carlos Lo Tanenggee on five counts of estafa through
falsification of commercial documents is hereby AFFIRMED with
MODIFICATION that in Criminal Case No. 98-163806, he is further ordered to
indemnify Metrobank the sum of ₱16 Million with interest at 18% per annum
counted from 24 July 1997 until fully paid.
SO ORDERED.14
On December 29, 2006,15 petitioner moved for reconsideration, which the CA
denied per its September 6, 2007 Resolution.16
Hence, the present Petition for Review on Certiorari under Rule 45 of the
Rules of Court raising the basic issues of: (1) whether the CA erred in affirming
the RTC’s admission in evidence of the petitioner’s written statement based
on its finding that he was not in police custody or under custodial
interrogation when the same was taken; and, (2) whether the essential
elements of estafa through falsification of commercial documents were
established by the prosecution.17
The Parties’ Arguments
While he admits signing a written statement,18 petitioner refutes the truth of
the contents thereof and alleges that he was only forced to sign the same
without reading its contents. He asserts that said written statement was taken
in violation of his rights under Section 12, Article III of the Constitution,
particularly of his right to remain silent, right to counsel, and right to be
informed of the first two rights. Hence, the same should not have been
admitted in evidence against him.
On the other hand, respondent People of the Philippines, through the Office
of the Solicitor General (OSG), maintains that petitioner’s written statement is
admissible in evidence since the constitutional proscription invoked by
petitioner does not apply to inquiries made in the context of private
employment but is applicable only in cases of custodial interrogation. The OSG
thus prays for the affirmance of the appealed CA Decision.
Our Ruling
We find the Petition wanting in merit.
Petitioner’s written statement is admissible in evidence.
The constitutional proscription against the admissibility of admission or
confession of guilt obtained in violation of Section 12, Article III of the
Constitution, as correctly observed by the CA and the OSG, is applicable only
in custodial interrogation.
Custodial interrogation means any questioning initiated by law enforcement
authorities after a person is taken into custody or otherwise deprived of his
freedom of action in any significant manner. Indeed, a person under custodial
investigation is guaranteed certain rights which attach upon the
commencement thereof, viz: (1) to remain silent, (2) to have competent and
independent counsel preferably of his own choice, and (3) to be informed of
the two other rights above.19 In the present case, while it is undisputed that
petitioner gave an uncounselled written statement regarding an anomaly
discovered in the branch he managed, the following are clear: (1) the
questioning was not initiated by a law enforcement authority but merely by
an internal affairs manager of the bank; and, (2) petitioner was neither
arrested nor restrained of his liberty in any significant manner during the
questioning. Clearly, petitioner cannot be said to be under custodial
investigation and to have been deprived of the constitutional prerogative
during the taking of his written statement.
Moreover, in Remolona v. Civil Service Commission,20 we declared that the
right to counsel "applies only to admissions made in a criminal investigation
but not to those made in an administrative investigation." Amplifying further
on the matter, the Court made clear in the recent case of Carbonel v. Civil
Service Commission:21
However, it must be remembered that the right to counsel under Section 12
of the Bill of Rights is meant to protect a suspect during custodial
investigation. Thus, the exclusionary rule under paragraph (2), Section 12 of
the Bill of Rights applies only to admissions made in a criminal investigation
but not to those made in an administrative investigation.22
Here, petitioner’s written statement was given during an administrative
inquiry conducted by his employer in connection with an anomaly/irregularity
he allegedly committed in the course of his employment. No error can
therefore be attributed to the courts below in admitting in evidence and in
giving due consideration to petitioner’s written statement as there is no
constitutional impediment to its admissibility.
Petitioner’s written statement was given voluntarily, knowingly and
intelligently.
Petitioner attempts to convince us that he signed, under duress and
intimidation, an already prepared typewritten statement. However, his claim
lacks sustainable basis and his supposition is just an afterthought for there is
nothing in the records that would support his claim of duress and
intimidation.
Moreover, "it is settled that a confession or admission is presumed voluntary
until the contrary is proved and the confessant bears the burden of proving
the contrary."23 Petitioner failed to overcome this presumption. On the
contrary, his written statement was found to have been executed freely and
consciously. The pertinent details he narrated in his statement were of such
nature and quality that only a perpetrator of the crime could furnish. The
details contained therein attest to its voluntariness. As correctly pointed out
by the CA:
As the trial court noted, the written statement (Exhibit N) of appellant is
replete with details which could only be supplied by appellant. The statement
reflects spontaneity and coherence which cannot be associated with a mind to
which intimidation has been applied. Appellant’s answers to questions 14 and
24 were even initialed by him to indicate his conformity to the corrections
made therein. The response to every question was fully informative, even
beyond the required answers, which only indicates the mind to be free from
extraneous restraints.24
In People v. Muit,25 it was held that "one of the indicia of voluntariness in the
execution of petitioner’s extrajudicial statement is that it contains many
details and facts which the investigating officers could not have known and
could not have supplied without the knowledge and information given by
him."
Also, the fact that petitioner did not raise a whimper of protest and file any
charges, criminal or administrative, against the investigator and the two
policemen present who allegedly intimidated him and forced him to sign
negate his bare assertions of compulsion and intimidation. It is a settled rule
that where the defendant did not present evidence of compulsion, where he
did not institute any criminal or administrative action against his supposed
intimidators, where no physical evidence of violence was presented, his
extrajudicial statement shall be considered as having been voluntarily
executed.26
Neither will petitioner’s assertion that he did not read the contents of his
statement before affixing his signature thereon "just to get it over with" prop
up the instant Petition. To recall, petitioner has a masteral degree from a
reputable educational institution and had been a bank manager for quite a
number of years. He is thus expected to fully understand and comprehend the
significance of signing an instrument. It is just unfortunate that he did not
exercise due diligence in the conduct of his own affairs. He can therefore
expect no consideration for it.
Forgery duly established.
"Forgery is present when any writing is counterfeited by the signing of
another’s name with intent to defraud."27 It can be established by comparing
the alleged false signature with the authentic or genuine one. A finding of
forgery does not depend entirely on the testimonies of government
handwriting experts whose opinions do not mandatorily bind the courts. A
trial judge is not precluded but is even authorized by law28 to conduct an
independent examination of the questioned signature in order to arrive at a
reasonable conclusion as to its authenticity.
In this case, the finding of forgery on the signature of Romeo Tan (Tan)
appearing in the promissory notes and cashier’s checks was not anchored
solely on the result of the examination conducted by the National Bureau of
Investigation (NBI) Document Examiner. The trial court also made an
independent examination of the questioned signatures and after analyzing
the same, reached the conclusion that the signatures of Tan appearing in the
promissory notes are different from his genuine signatures appearing in his
Deposit Account Information and Specimen Signature Cards on file with the
bank. Thus, we find no reason to disturb the above findings of the RTC which
was affirmed by the CA. A rule of long standing in this jurisdiction is that
findings of a trial court, when affirmed by the CA, are accorded great weight
and respect. Absent any reason to deviate from the said findings, as in this
case, the same should be deemed conclusive and binding to this Court.
No suppression of evidence on the part of the prosecution.
Petitioner claims that the prosecution should have presented Tan in court to
shed light on the matter. His non-presentation created the presumption that
his testimony if given would be adverse to the case of the prosecution.
Petitioner thus contends that the prosecution suppressed its own evidence.
Such contention is likewise untenable. The prosecution has the prerogative to
choose the evidence or the witnesses it wishes to present. It has the
discretion as to how it should present its case.29 Moreover, the presumption
that suppressed evidence is unfavorable does not apply where the evidence
was at the disposal of both the defense and the prosecution.30 In the present
case, if petitioner believes that Tan is the principal witness who could
exculpate him from liability by establishing that it was Tan and not him who
signed the subject documents, the most prudent thing to do is to utilize him as
his witness. Anyway, petitioner has the right to have compulsory process to
secure Tan’s attendance during the trial pursuant to Article III, Section
14(2)31 of the Constitution. The records show, however, that petitioner did not
invoke such right. In view of these, no suppression of evidence can be
attributed to the prosecution.
Petitioner’s denial is unavailing.
The Court is also not persuaded by the bare and uncorroborated allegation of
petitioner that the loans covered by the promissory notes and the cashier’s
checks were personally transacted by Tan against his approved letter of credit,
although he admittedly never saw Tan affix his signature thereto. Again, this
allegation, as the RTC aptly observed, is not supported by established
evidence. "It is settled that denials which are unsubstantiated by clear and
convincing evidence are negative and self-serving evidence. They merit no
weight in law and cannot be given greater evidentiary value over the
testimony of credible witnesses who testified on affirmative matters."32 The
chain of events in this case, from the preparation of the promissory notes to
the encashment of the cashier’s checks, as narrated by the prosecution
witnesses and based on petitioner’s own admission, established beyond
reasonable doubt that he committed the unlawful acts alleged in the
Informations.
Elements of falsification of commercial documents established.
Falsification of documents under paragraph 1, Article 172 in relation to Article
171 of the Revised Penal Code (RPC) refers to falsification by a private
individual or a public officer or employee, who did not take advantage of his
official position, of public, private or commercial document. The elements of
falsification of documents under paragraph 1, Article 172 of the RPC are: (1)
that the offender is a private individual or a public officer or employee who
did not take advantage of his official position; (2) that he committed any of
the acts of falsification enumerated in Article 171 of the RPC;33 and, (3) that
the falsification was committed in a public, official or commercial document.
All the above-mentioned elements were established in this case. First,
petitioner is a private individual. Second, the acts of falsification consisted in
petitioner’s (1) counterfeiting or imitating the handwriting or signature of Tan
and causing it to appear that the same is true and genuine in all respects; and
(2) causing it to appear that Tan has participated in an act or proceeding when
he did not in fact so participate. Third, the falsification was committed in
promissory notes and checks which are commercial documents. Commercial
documents are, in general, documents or instruments which are "used by
merchants or businessmen to promote or facilitate trade or credit
transactions."34 Promissory notes facilitate credit transactions while a check is
a means of payment used in business in lieu of money for convenience in
business transactions. A cashier’s check necessarily facilitates bank
transactions for it allows the person whose name and signature appear
thereon to encash the check and withdraw the amount indicated therein.35
Falsification as a necessary means to commit estafa.
When the offender commits on a public, official or commercial document any
of the acts of falsification enumerated in Article 171 as a necessary means to
commit another crime like estafa, theft or malversation, the two crimes form
a complex crime. Under Article 48 of the RPC, there are two classes of a
complex crime. A complex crime may refer to a single act which constitutes
two or more grave or less grave felonies or to an offense as a necessary means for the estafa charge against petitioner is prision correccional maximum to
for committing another. prision mayor minimum, the penalty next lower would then be prision
correccional in its minimum and medium periods which has a duration of six
In Domingo v. People,36 we held:
(6) months and one (1) day to four (4) years and two (2) months. Thus, the
The falsification of a public, official, or commercial document may be a means Court sets the minimum term of the indeterminate penalty at four (4) years
of committing estafa, because before the falsified document is actually and two (2) months of prision correccional. Petitioner is therefore sentenced
utilized to defraud another, the crime of falsification has already been in each case to suffer the indeterminate penalty of four (4) years and two (2)
consummated, damage or intent to cause damage not being an element of the months of prision correccional as minimum to twenty (20) years of reclusion
crime of falsification of public, official or commercial document. In other temporal as maximum.
words, the crime of falsification has already existed. Actually utilizing that
WHEREFORE, the Petition is DENIED. The Decision and Resolution of the Court
falsified public, official or commercial document to defraud another is estafa.
of Appeals in CA-G.R. CR No. 23653 dated December 12, 2006 and September
But the damage is caused by the commission of estafa, not by the falsification
6, 2007, respectively, are hereby AFFIRMED with the MODIFICATION that the
of the document. Therefore, the falsification of the public, official or
minimum term of the indeterminate sentence to be imposed upon the
commercial document is only a necessary means to commit estafa.
petitioner should be four (4) years and two (2) months of prision correccional.
"Estafa is generally committed when (a) the accused defrauded another by
SO ORDERED.
abuse of confidence, or by means of deceit, and (b) the offended party or a
third party suffered damage or prejudice capable of pecuniary
estimation."37 Deceit is the false representation of a matter of fact, whether
by words or conduct, by false or misleading allegations, or by concealment of
that which should have been disclosed which deceives or is intended to
deceive another so that he shall act upon it to his legal injury."38

The elements of estafa obtain in this case. By falsely representing that Tan
requested him to process purported loans on the latter’s behalf, petitioner
counterfeited or imitated the signature of Tan in the cashier’s
checks.1âwphi1 Through these, petitioner succeeded in withdrawing money
from the bank. Once in possession of the amount, petitioner thereafter
invested the same in Eurocan Future Commodities. Clearly, petitioner
employed deceit in order to take hold of the money, misappropriated and
converted it to his own personal use and benefit, and these resulted to the
damage and prejudice of the bank in the amount of about ₱43 million.

Taken in its entirety, the proven facts show that petitioner could not have
withdrawn the money without falsifying the questioned documents. The
falsification was, therefore, a necessary means to commit estafa, and
falsification was already consummated even before the falsified documents
were used to defraud the bank. The conviction of petitioner for the complex
crime of Estafa through Falsification of Commercial Document by the lower
courts was thus proper.

The Proper Imposable Penalty

The penalty for falsification of a commercial document under Article 172 of

the RPC is prision correccional in its medium and maximum periods and a fine
of not more than ₱5,000.00.

The penalty in estafa cases, on the other hand, as provided under paragraph
1, Article 315 of the RPC is prision correccional in its maximum period to
prision mayor in its minimum period39 if the amount defrauded is over
₱12,000.00 but does not exceed ₱22,000.00. If the amount involved exceeds
the latter sum, the same paragraph provides the imposition of the penalty in
its maximum period with an incremental penalty of one year imprisonment
for every ₱10,000.00 but in no case shall the total penalty exceed 20 years of
imprisonment.

Petitioner in this case is found liable for the commission of the complex crime
of estafa through falsification of commercial document. The crime of
falsification was established to be a necessary means to commit estafa.
Pursuant to Article 48 of the Code, the penalty to be imposed in such case
should be that corresponding to the most serious crime, the same to be
applied in its maximum period. The applicable penalty therefore is for the
crime of estafa, being the more serious offense than falsification.

The amounts involved in this case range from ₱2 million to ₱16 million. Said
amounts being in excess of ₱22,000.00, the penalty imposable should be
within the maximum term of six (6) years, eight (8) months and twenty-one
(21) days to eight (8) years of prision mayor, adding one (1) year for each
additional ₱10,000.00. Considering the amounts involved, the additional
penalty of one (1) year for each additional ₱10,000.00 would surely exceed
the maximum limitation provided under Article 315, which is twenty (20)
years. Thus, the RTC correctly imposed the maximum term of twenty (20)
years of reclusion temporal.

There is need, however, to modify the penalties imposed by the trial court as
affirmed by the CA in each case respecting the minimum term of
imprisonment. The trial court imposed the indeterminate penalty of
imprisonment from eight (8) years of prision mayor as minimum which is
beyond the lawful range. Under the Indeterminate Sentence Law, the
minimum term of the penalty should be within the range of the penalty next
lower to that prescribed by law for the offense. Since the penalty prescribed
G.R. Nos. 100225-26 May 11, 1993
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RAUL SANTOS Y NARCISO, MARIO MORALES Y BACANI, PETER DOE and
RICHARD DOE, Accused, RAUL SANTOS y NARCISO, accused-appellant.
FELICIANO, J.:
Raul N. Santos appeals from a judgment of the trial court convicting him of
murder and frustrated murder.
On 26 October 1989, appellant Santos was charged with the crimes of murder
with the use of unlicensed firearms and frustrated murder, under the
following informations:
In Crim. Case No. 8517-MN: 1
That on or about the 26th day of May, 1989 in Navotas, Metro Manila
and within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating together and mutually helping with
one another, without any justifiable cause, with deliberate intent to kill,
treachery and evident premediation, did then and there willfully,
unlawfully and feloniously shoot GLICERIO CUPCUPIN y REYES with the
use of unlicensed firearms of unknown caliber, thereby inflicting upon
the latter serious physical injuries which caused his death at the Tondo
Medical Center, Manila.
Contrary to Law.
In Crim. Case No. 8518-MN: 2
That on or about the 26th of May, 1989 in Navotas, Metro Manila and
within the jurisdiction of this Honorable Court, the above-named
accused, conspiring together and mutually helping with one another,
witout any justifiable cause, with deliberate intent to kill, treachery and
evident premeditation did, then and there, willfully, unlawfully and
feloniously shoot ALBERTO BAUTISTA Y CAYETANO, with the use use of
firearms of unknown caliber, thereby inflicting upon the latter serious
physical injuries, thus performing all the acts of execution which would
have produced the crime of MURDER as a consequence but which
nevertheless did not produce it by reason of causes independent of the
will of the herein accused, that is due to the timely, able and efficient
medical attendance rendered to the victim at the Tondo Medical Center,
Manila.
Contrary to Law.
Three (3) other persons were charged in the same informations. Upon request
of the City Prosecutor who had conducted a re-investigation of the cases, the
trial court ordered the amendment of the information on 4 April 1990 so as to
insert the name of one Mario Morales, in lieu of John Doe, as a co-accused.
Morales for whom a warrant of arrest was issued, is, however, still at large,
The identities of the two (2) other accused remain unknown.
At arraignment, Raul Santos entered a plea of not guilty. A joint trial of the
two 92) criminal cases ensued, culminating in a judagment of conviction. The
dispositive portion of this judgment reads as follows:
WHEREFORE, premises considerd, judgment is hereby rendered finding
accused Raul Santos guilty beyond reasonable doubt of the offenses
charged against him in these cases. He is accordingly sentenced to two (2)
prision terms as follows:
1) In Crim. Case No. 8517-MN for Murder, to life imprisonment, the death
penalty which should have been imposed in this case having been
abolished under the present Constitution;
2) In Crim. Case No. 8518-MN for Frustrated Murder, to a prison term
ranging from SIX (6) YEARS OF prision correccional, as minimum to
TWELVE (12) YEARS of prision mayor as maximum.
Accused Santos is also odered to proportionately pay the heirs of Glicerio
Cupcupin the sum of P30,000.00 for the loss of the latter's life and to pay
said heirs, proportionately aldo, P100,000.00 by way of indemnification
for the expenses incurred in connection with Cupcupin's death.
Costs against accused in both cases.
SO ORDERED. 3
The relevant facts as found by the trial court are the following:
Glicierio Cupcupin and Alberto Bautista were riding on a jeep driven by
the former on May 26, 1989. At around 11:45 o'clock in the morning of
said date, the jeep was at a stop at the corner of Estrella and Yangco
Streets in navotas, Metro Manila and was about to make a right turn
when two (2) persons armed with short guns approached the jeep and
fired at Cupcupin and Bautista. Cupcupin was hit several itmes in
different parts of his body and he died as a result of the multiple gunshot
wounds he sustained (Exh. V). Bautista sustained gunshot wounds, one
at the left thigh, one in theloer abdomen, one at the back of the right
foot and another at the back of the body. Bautista was able to run away
even as he was bieng fired upon. He took cover in a store. The one firing
the gun at thim was a man he later identified to be accused Raul Santos.
The other one which he saw similary firing his gun was aiming at
Cupcupin. He identified the man to be one Mario Morales. He added
that he saw Cupcupin hit by gunshots at the left side of the body near
the waist which made Cupcupin fall-off the steering wheel. After running
away, Bautista could not remember anymore what else happened. He
could not rmember anymore what else happened. He at thim and
Cupcupin. After hearing a shout that the ambushers were no longer
around, he learned that a woman bystander was hit and was boarded on
a jeep to be brought to the hospital. He was boarded on said jeep too
but later transferred to was brought to the Martinez General Hospital
and to the Mary Jonston hospital where he was treated. Bautista was
oeporated on (Exhs. B, B-1, C, D and E). Upon the apprehensionof
accused where he picked out from a line-up accused Raul Santos. In
another line-up, he also picked out accused Morales. Bautista also gave a
sworn statement narrating the shooting incident (Exh. F).
Police Aide Victorino Bohol was on duty and directing traffic at the
corner of Plaza Rizal and Estrella Streets when he heard gunshots. When
he looked around the saw two 92) persons who were holding Cal. 45
pistols firing at persons on board a stainless steel owner jeep. Bohol was
not able to approach the men firing their guns because he was not
provided with a gun. What he did was to run to headquarters to call for
policemen and when he returned to the scene of the shooting he learned
that one of hte passengers of the jeep was killed. He learned also that
the slain man was killed. He learned also that the slain man was Glicerio
Cupcupin and that his companion was Alberto Bautista alias "Tiwa".
Bohol also added that tere were two (2) other persons who were also
firing at the passengers of the jeep although he did not recognize these
two (2) other persons. After the arrest of accused Santos, Bohol was
called to the police station and through a one-way mirror he was able to
identify accused Santos as one of the persons who shot Cupcupin and
Bautista. Bohol also gave a sworn statement to the police (Exh. A).
On cross-examination, Bohol admitted that at the time of the shooting
he was at the Jim Bread Store talking to someone. When he heard
gunshots thier guns at the same time at the jeep. He added that the
accused was arrested some months later in connectiion with another
shooting incident wherein Santos was suspected of involvement. He
confirmed that Bautista was bieng shot at while running away from the
place.
Cpl. Sabino Patood of the Navotas Police delcared that he was
investigating a shooting incident which resulted in the death of one
Abudl Rosas wherein the suspect was accused Santos when he was
tipped by police intelligence operatives that Santos was involved in the
ambush of Cupcupin. This made him conduct further investigation by
calling for Bautista and Bohol. Patood also interviewed Santos who
admitted his participation inthe ambush to him. He did not take any
written statement from accused Santos because there was nocounsel
available at that time and because Santos was not willing to give any
written statement.
Dr. Maximo Reyes of the NBI Medico Legal Division performed an
autorpsy onthecadaver of victim Cupcupin and found out that the latter
sustained nineteen (19) gunshot wounds in different parts of his body.
The cause of death gunshot wounds. Dr. Reyes added that the assailants
were probably at the left side of the victim as they were shooting at the
latter with the victim possibly seated at the time he was shot and hit.
The victim's wife Lucia Cupcupin declared that P100,000.00 was spent in
connection with the death of her husband who was earning P5,000.00 a
month as a businessman dealing in junk materials and
marbale. 4
The trial court found that the accused Raul Santos had been identified
positively by the surviving vicitm of the shooting incident — Alberto Bautista,
and by teh Traffic Aide who had witnessed the execution of the crime —
Victorino Bohol. The defensse of alibi offered by the accused and supported
by the testimonies of a friend and a sister, was rejected as weak and
unavailing. As noted, a judgment of conviction followed.
Inhis appeal, Raul Santos assings the following as errors committed by the
trial court:
i the lower court erred in holding that accused's
identification by proscution's witnesses was "positive"
and, and, therefore it erred when it rejected accused's
defense of alib.
ii the lower court erred in considering one of the two
cases (not the instant ones) filed against the accused in
holding also for his guilt.
iii the lower court erred in convicting the accused.5
In respect of the first assigned error, appellant Santos contendes that the
testimonies of the principal prosecution witnesses do not coform with the
"knowledge and common experience of mankind." Appellant argues that the
two (2) prosecution witnesses, the victim Bautista and Police Aide Bohol,
testified that they saw the accused for the first time in their lives when the
crime was committed and yet identified him as one of the gunmen five (5)
months later in the Police headquarters in Navotas. The ambuscade and the
slaying of Glicierio Cupcupin happened on 26 May 1989; appellant Santos was
identified at the police station on 25 October 1989. Appellant argues that this
lapse of time was unreasonable, which, when coupled with the brief, limited
and obstructed view which the prosecution witnesses had of the gunmen at
the time of the shooting, casts serious doubt on the accuracy and reliabitlity
of the identification by the witnesses.
Appellant's argument does not persuade.
Police Aide Bohol was only abot twelve (12) armlengths away from teh
ambush vehicle. The ambush slaying occurred under conditions of high
visibility: the victim Cupcupin was shot to death at 11:45 o'clock in the
morning, in good weahter, when the sun was almost at its zenith. On cross-
examination, Bohol stated that there were no passing vehicles that blocked
his view of the slaying of the victim as the vehicles stopped some distance
away from the jeep when the shooting began. In addition, Bohol testified that
he saw one of teh gunmen take a wrist watch and a gun form Cupcupin's
lifeless body. Clearly, Bohol had the opportunity to observe the extraordinary
and startling events which unfolded on the corner of two (2) busy streets
almost at high noon, events which may be expected to leave a strong
impression upon the minds of an eye-witnesses who, like Police Aide Bohol,
had a duty to maintain law and order. Alberto Bautista who had been riding
on a jeep and hwo escped death (but not gunshot wounds) by reason of his
quick reflexes, had every reason to remember the faces of those whom he
saw firing at the jeep and at himself. This has been recognized a number of
times in ouir case law. In People v. Jacolo, et al., 6 the Couirt said:
[W]hile evidence as to the identity of the accused as the
person who committed the crime should be carefully
analyzed, . . . "were the conditions of visibility are
favorable and the witness does not appear to be biased
agains teh man on the dock, his or her assertions as to
the identity of the malefactore should normally be
accpeted. And this is more so where the witness is the
victim or his near-relative, as in this case, because these
(people) usually strive to remember the faces of the
assailants." (Emphasis supplied.) 7
Appellant Santos also contended that Police Aide Bohol could not have had a
clear view of the ambuscade and the shooting of Cupcupin since he (Bohol)
was situated on the left side of the gunmen. As observed by teh Solicitor
General, however, the trial court had pointed out that "if he [Bohol] was to
the front right of the jeep" then he must [have been] a little by the left side of
the persons firing at the jeep . . ." 8 "Bohol's view, therefore," the Solicitor
General continued, "was not limited to the left side of the assilants, especially
since he was able to see them [the gunmen] move around the site of the
ambush after the [had] stopped firing, specifically when one of them stripped
victim Cupcupin of his gun and jewelry and they all walked away from the
place."9 The trial court obviously concluded that Bohol had ample
opportunity actually to observe tha events on which he testified, and we find
no basis for overtunring this conclusion of the trial court.
In respect of the identification by Bautista, accused also suggests that Bautista
had no real opoortunityto see and impress upon his memory the faces of the
assailants. In his testimony, Bautista stated that two (2) men armed with
handguns suddenly apporoached the jeep in which he and Cupcupin were
riding. He agreed that his attention had been "focused" (defense counsel's
own language) on vehicles passing along Estrella Street as Cupcupin
maneuvered the jeep to turn right at the corner and to head towards Navotas.
When the assailants started shooting, Bautista jumped from the jeep, was hit
on the left thigh and other parts of the body, but managed to run for cover
from repeated shots or bursts of gunfire. Bautista testified further that he was
shot by appellant Raul Santos while Morales pumped bullets into Cupcupin;
that the gunmen fired at Cupcupin and Bautista from close range, Morales
being a mere half an arm-length to the left of Cupcupin while appellant Santos
was about two (2) arm-lengths away from the ambushed jeep; and that
Bautista saw his compaion, Cupcupin, slump on the steering wheel as the
bullets crashed into him. Once more, the trial court was led by the above
circumstances to conclude that Bautista had adequate oportunity to see
appellant Santos and to retain his face in his memory. We find no basis for
rejecting this factual conclusion of the trial court.
Appellant Santos makes two (2) additional arguments. Firstly, he complains
that he was not afforded his right to counsel int he course of the police line-
up, at the police station where he was identified by the prosecution
witnesses. This argument, of course, assumes that during the police line-up,
accused was under custodial investigation, a stage which, per the appellant,
began the instant the police suspected Santos then had no lawyer present nor
was one provided, his counsel argues, Santos's identification was "tainted"
and inadmissible. The argument is creative, but has no legal bais. In Gamboa
v. Cruz, 10 the Court said that there is "no real need to afford a suspect the
serivce of counsel at police line-up," 11 a declaration reiterated in People v.
Loveria. 12 The customary practice is, of course, that it is the witness who is
investigaged or interrogated in the course of a police line-up and who gives a
statement to the police, rather than the accused who is not questioned at all
at that stage. The Court is aware of the caveat in Gamboa. 13 But there is
nothing in the record of this case which shows that in the course of the line-
up, the police investigators sought to extract any admission or confession
from appellant Santos. The investigators did not in fact interrogate appellant
Santos during the line-up and he remained silent after he had bee identified
by Bautista and Bohol.
Appellant Santos's secon dcontention is that there had bee "improper
suggestiveness" in the course of the police line-up amounting to an
uncounselled confession. In effect, defense counsel claims that Bautista and
Bohol were induced by the plice investigators to point to appellant Santos as
one of the gunmen. The record does not show that the police investigators
had coached Bautista. Appellant Santos's counsel directed the attention of
this Court to a portion of Bohol's testimony during cross-examination, to wit:
Atty. Valmonte:
Alright, that somebody who told you to go to the office
of Capt. Puzon you were informed that on the other side
of the office of Capt. Puzon there was already the
person whom they would like to identfy?
Victorino Bohol:
Yes, sir.
Atty. Valmonte:
And was there somebody who
asked you who among those in the
investigation room the person
whom you saw?
Victorino Bohol:
No, sir. Somebody approached me
and said, iyan po. But before
answering, I made a very careful
look at the person.14
We are not convinced, however, that the phrase "iyan po" constituted an
"improper suggestion," certainly not in the context of a situation where, as
here, appellant Santos was identified successively by Bautista and Bohol from
a group of person. We consider that the phrase "iyan po" is too cryptic. What
that Court warned against in People v. Acosta, 15 i.e., against an identification
process that was "pointedly suggestive, or generated confidence when there
was noen, activated visual imagination, and all told, subverted [a person's]
reliablity as [an] eye-witness [..]," has not been successfully shown in the case
at bar.
Appellant Santos next seeks to assail the credibility of Bautista and Bohol by
citing supposed inconsistencies between statements made in their affidavits
before trial and their testimony given in the course of the trial. Appellant's
counsel complains 16 that while witness Bohol could recall the gunmen's
general apperance, he could not remember the kind of shoes that appellant
Santos was wearing nor the color of their guns; that he had stated in his swon
statement that he had picked out appellant Santos from a line-up consisting of
seven (7) persons, while he testified in open court that he had identified Finally, we come to the defense of alibi which appellant Santos raised before
appellant when the later was together with only one (1) detainee in the the trial court and which was recounted by the trial court in the following
investigation froom of the police station; that Bohol had intiallystated that manner:
Bautista was driving the jeep but on direct examination, he stated that it was
Accused Raul Santos, after denying the accusations
Cupcupin instead who had been driving the jeep; that in his sworn statement,
against him, insisted that he was on the date and time
Bohol had claimed that he was directing traffic when he first heard gunshots,
that Cupcupin and Bautista were ambushed somwhere
but on cross-examination, stated that at the point he was engaged in taking
in Ibaan, Batangas to which place he went on May 20,
his merienda.
1989, because his sister Teresita received a subpoena in
Close examination of the record will, however, show that the supposed a case involving one Apolonio Nuguera and which
inconsistenceise adduced by appellant Santos are either non-existent or subpoena was given to him by another sister named
clearly minor and inconsequential in character. The fact that witness Bohol Isabel. Accused Santos claimed that he was surprised
might not have remembered the kind of shoes appellant Santos was wearing and confused by said subpoena (Exh. 2) and had to got
onthat violent occassion nor the color of the gunmen's weapons, is clearly to Batangas while his sisters are verifying the complaint
inconsequential. Close scrutiny of the sworn statement of Bohol (Exhibit "A") against him. Accused Santos also maintained that from
does not reveal any statement that he (Bohol) had picked out appellant the time he left the place on June 12, 1989, he remained
Santos from a seven (7) - person line-up nor does the transcript show that continuously in said place.
witness Bohol had identified appellant Santos when appellant was alone with
xxx xxx xxx
only one detainee in the investigation room at the police
station. 17 Appellant's counsel did not document his averments. Moreover, as The testimony of accused Santos regarding his stay in
pointed out by the Solicitor General, 18 whether a police line-up considted of Batangas was corroborated by Melinda David in show
two (2) or seven (7) persons is actually immaterial since a police line-up is not house he stayed and by this sister Isabel Santos. 23
essential to a proper and positive identification. 19 Whether it was Bautista or
In respect of the weight properly given to a defense of a alibi, the Court has,
Cupcupin who had been driving the jeep and whether Bohol was direcitng
times beyond numbering, ruled that such defense is weak most especially
traffic or enjoying his merienda when the first gun shots rang out, cannot be
when established exclusively or mainly by the accused himself and his
regarded as critical in nature; such questions do not detract from the basic
relatives and nto by independent and credible persons, 24 and that such a
facts that Bohol was in a position and Bautista and saw both assailants and
defense will not prevail over the positive idenfication made by credible
the victims. The netrenched principle is that minro inconsistencies in the
witnesses, 25 especially where the witness is the victim-complainant himself.
testimony of a witness tend to strengthen rather than to weaken the
credibility of the witness as they erase any suspicion of rehearsed WHEREFORE, for all the foregoing, we hold that the judgment of conviction
testimony. 20 rendered by the trial court must be, and it is hereby, AFFIRMED with the
following modifications: the civil indemnity payable to the heirs of Glicerio
In his second assignment of error, appellant Santos in effect questions the trial
Cupcupin shall be INCREASED to P50,000.00; the penalty of life imprisonment
court for admitting a sworn statement by one Ronaldo Guerrero (Exhibit
in Criminal Case No. 8517-MN shall be CHANGED to reclusion perpetua, which
"EE"), a witnesses in another criminal case (Criminal Case No. 8117) where
is the proper imposable penalty under the Revised Penal Code. Costs against
appellant Santos was also charged with the murder of one Daniel Nuguera
apellant.
which had taken place in the very same site where Bautista and Cupcupin
were ambushed, i.e., at the corner of Yangco Street and Estrella Street, SO ORDERED.
Malabon, Metro Manila. When the prosecution first presented the sworn
statement of Guerrero in order to show criminal propensity on the part of
appellant Santos, the defesne objected to admission of such sworn statment;
the trial court sustained the objection and rejected the evidence for the
purpose it was initially offered. However, the trial court admitted the same as
falling within one or more of the exceptions set out in Section 34, Rule 130 of
the Rules of Court, which reads:

Sec. 34. Similar Acts as Evifence. — Evidence that one

did or didnot do a certain thing at one time is not
admissible to prove that he did or did not do the same
or a similar thing at another time; but it may be received
to prove a specific intent or knowledge, identity, plan,
system, shceme, habit, custom or usage and the like.
(Empahsis supplied).

Appellant Santos now complains that the affidavit of Ronaldo Guerrero was
hearsay evidence, considering that the prosecution did not present Ronaldo
Guerrero as a witness during the trial. We consider that the trial court did not
commit reversible error in admitting the Guerrero affidavit for the limited
purpose for provign knowledge or plan or shceme, and more specifically, that
appellant knew that the particular corner of two (2) particular streets in
Manila was a good place to ambus a vehicle and its passenters. Appellant also
had waived the hearsay character of this evidence by failure seasonably to
ojbect to the admission of the affidavit; it is too late in that day to raise the
hearsay rule in the appellant's memorandum after prosecution and defense
had presented their respective cases and had made their repsective offers of
evidence. 21 Finally, and in any cae, as pointed out by the Solicitor General,
the exclusion of the Guerrero affidavit would not result in any change in the
result reache by the trial court. For that result is esentially and adequately
based upon the positive identification of appellant Santos as one of the
gunmen by Baustisa and Bohol.

That it took the police authorities five (5) months to locate and apprehend
appellant Santos who, it turned out, resided close by the very locale of the
ambush-slaying, did not in any way weaken the evidence of the prosecution of
detract from the conclusions reached by the trial court. The length of that
period of time shows only that police procedures are not always as efficient as
they could be and that witnesses are frequently reluctant to voluntee
information to the police authorities in criminal cases, a point noted so
frequently as to have become a matter of judicial notice. 22